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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ___________
Commission File No. 1-13264
TRIGEN ENERGY CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 13-3378939
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
One Water Street
White Plains, New York 10601
(Address of principal executive offices) (Zip Code)
(914) 286-6600
(Registrant's telephone number, including area code)
________________________
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
There were 12,020,427 shares of the Registrant's Common Stock outstanding
as of August 8, 1997.
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TRIGEN ENERGY CORPORATION AND SUBSIDIARIES
INDEX TO FORM 10-Q
Quarter Ended June 30, 1997
Part I - Financial Information: Page
Item 1. Financial Statements
Consolidated Statements of Operations for the Three
and Six Months Ended June 30, 1997 and 1996 (Unaudited) 2
Consolidated Balance Sheets as of June 30, 1997
(Unaudited) and December 31, 1996 3
Consolidated Statements of Cash Flows for the Six
Months Ended June 30, 1997 and 1996 (Unaudited) 4
Notes to Consolidated Financial Statements (Unaudited) 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 6
Part II - Other Information 9
Signature 10
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Part I -Financial Information
Item 1. Financial Statements
TRIGEN ENERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three and Six Months Ended June 30, 1997 and 1996
Unaudited
(In thousands, except per share data)
Three Months Six Months
1997 1996 1997 1996
<S> <C> <C> <C> <C>
Revenues
Thermal energy... $34,129 $37,051 $100,453 $106,656
Electric energy. 11,474 9,623 25,562 22,377
Fees earned and other 2,504 2,011 5,613 5,871
------ ------ ------- -------
Total revenues.. 48,107 48,685 131,628 134,904
------ ------ ------- -------
Operating expenses
Fuel and consumables 19,974 20,412 66,477 68,220
Production and 10,891 8,715 25,073 21,876
operating costs
Depreciation 3,526 3,157 8,290 7,350
General and administrative 7,542 7,079 17,037 15,993
------ ------ ------- -------
Total operating expenses 41,933 39,363 116,877 113,439
------ ------ ------- -------
Operating income 6,174 9,322 14,751 21,465
Interest expense, net 4,205 4,380 8,261 8,630
------ ----- ------ ------
Income before minority
interests and income taxes. 1,969 4,942 6,490 12,835
Minority interests in earnings
of subsidiaries 795 700 1,529 1,501
------ ------ ------ ------
Income before income taxes 1,174 4,242 4,961 11,334
Income taxes 481 1,744 2,034 4,655
------ ------ ------ ------
Net income $ 693 $ 2,498 $ 2,927 $ 6,679
------- ------- -------- -------
Net income per share $ .06 $ .22 $ .24 $ .58
------- ------- -------- -------
Average shares outstanding 12,119 11,507 12,108 11,488
------- ------- -------- -------
Dividends per share $ .035 $ .035 $ .07 $ .07
------- ------- -------- -------
See accompanying notes to consolidated financial statements
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<TABLE>
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TRIGEN ENERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
June 30, December 31,
1997 1996
(Unaudited)
<S> <C> <C>
Assets
Current assets
Cash and cash equivalents $14,053 $14,598
Accounts receivable
Trade (less allowance for doubtful
accounts of $1,215 in 1997 and
$1,128 in 1996) 20,596 35,436
Other 6,071 3,479
------- ------
Total accounts receivable 26,667 38,915
Inventories 6,535 6,900
Other current assets 8,684 7,346
------- -------
Total current assets 55,939 67,759
Non-current cash and cash equivalents 8,832 10,678
Property, plant and equipment, net 379,980 374,549
Investment in non-consolidated partnerships 9,290 8,781
Intangible assets 14,059 14,390
Other assets 18,538 18,279
------- -------
Total assets $486,638 $494,436
-------- --------
Liabilities and Stockholders' Equity
Current liabilities
Short-term debt $ -- $18,500
Current portion of long-term debt 14,187 13,499
Accounts payable 2,282 7,800
Accrued fuel 10,703 14,394
Accrued expenses and other current
liabilities 25,989 19,102
-------- --------
Total current liabilities 53,161 73,295
Long-term debt 234,858 226,487
Other liabilities 7,280 7,755
Deferred income taxes 30,030 29,597
-------- --------
Total liabilities 325,329 337,134
Minority interests in subsidiaries 17,397 16,768
Stockholders' equity
Preferred stock-$.01 par value, authorized
and unissued 15,000,000 shares -- --
Common stock-$.01 par value, authorized
60,000,000 shares, issued 12,053,672
shares in 1997 and 12,010,597 shares
in 1996 121 120
Additional paid-in capital 113,892 112,836
Retained earnings 30,624 28,538
Treasury stock, at cost 34,831 shares
in 1997 and 46,140 shares in 1996 (725) ( 960)
-------- --------
Total stockholders' equity 143,912 140,534
Total liabilities and stockholders' -------- --------
equity $486,638 $494,436
-------- --------
See accompanying notes to consolidated financial statements.
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TRIGEN ENERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Six Months Ended June 30, 1997 and 1996
Unaudited
(In thousands)
<S> <C> <C>
1997 1996
Cash flows from operating activities
Net income $ 2,927 $ 6,679
Reconciliation of net income to
cash provided by operating activities
Depreciation and amortization 10,038 8,587
Deferred income taxes 433 2,892
Provision for doubtful accounts 317 206
Minority interests in subsidiaries 1,529 1,501
Changes in assets and liabilities
Accounts receivable 11,931 12,944
Inventories and other current assets (973) (806)
Accounts payable and other (2,322) (5,341)
current liabilities
Noncurrent assets and liabilities (1,334) (751)
--------- -------
Net cash provided by operating activities 22,546 25,911
--------- -------
Cash flows from investing activities
Capital expenditures (13,947) (12,073)
Investment in non-consolidated partnerships (1,100) (2,075)
-------- --------
Net cash used in investing activities (15,047) (14,148)
-------- --------
Cash flows from financing activities
Decrease in short-term debt (18,500) (14,165)
Proceeds of long-term debt 43,978 8,000
Payments of long-term debt (34,919) (7,401)
Dividends paid (841) (808)
Issuance of common stock, net 1,292 415
Proceeds from sale of interest rate caps -- 1,003
Distribution to minority interests (900) (1,534)
------- -------
Net cash used in financing activities (9,890) (14,490)
------- -------
Cash and cash equivalents
Decrease (2,391) (2,727)
At beginning of period 25,276 20,175
------- -------
At end of period $22,885 $17,448
------- -------
Current $14,053 $ 6,635
Non-current 8,832 10,813
------- -------
At end of period $22,885 $17,448
------- -------
Supplemental disclosure of cash flow information
Cash paid during the period for
Interest $ 8,320 $ 9,577
------- --------
Income taxes 2,264 1,472
------- --------
Non-cash investing activity
Acquisition of subsidiary -- 1,037
------- -------
Non-cash financing activity
Issuance of common stock for
acquisition of subsidiary -- 1,037
------- -------
See accompanying notes to consolidated financial statements.
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[CAPTION]
TRIGEN ENERGY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
Trigen Energy Corporation (the "Company"), develops, owns and operates
commercial district energy cogeneration systems. Trigen uses its expertise in
thermal engineering and proprietary cogeneration processes to convert fuel to
various forms of thermal energy and electricity at more efficient conversion
rates than conventional processes. Trigen combines heat and power generation,
producing electricity as a by-product, for use in its facilities and for sale to
customers. The Company serves more than 1,500 customers with energy produced at
24 plants in 14 locations, including industrial plants, electric utilities,
commercial and office buildings, government buildings, colleges and
universities, hospitals, residential complexes and hotels.
The consolidated financial statements of Trigen Energy Corporation and its
subsidiaries presented herein are unaudited. However, such information reflects
all adjustments, consisting of normal recurring adjustments, which are, in the
opinion of management, necessary to present fairly the financial position as of
June 30, 1997, and the results of operations for the three and six months ended
June 30, 1997 and 1996 and the cash flows for the six months ended June 30, 1997
and 1996. The results of operations for the three and six month periods ended
June 30, 1997 and 1996 and cash flows for the six month period ended June 30,
1997 are not indicative of those to be expected for the year ending December 31,
1997. These financial statements should be read in conjunction with the audited
consolidated financial statements and notes thereto for the year ended December
31, 1996 included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996. Certain reclassifications have been made to the 1996
financial statements to conform to the 1997 presentation.
2. Use of Estimates
The preparation of financial statements in accordance with generally
accepted accounting principles requires management to make estimates and
assumptions. Revenues and operating income are subject to seasonal fluctuation
due to peak heating demand in the winter and peak cooling demand in the summer.
Due to the seasonality of the Company's business, cost of energy sold for
interim periods within a calendar year is based on average costs to produce and
deliver energy. Effective January 1, 1997, the Company changed its estimate of
the average costs to produce and deliver energy. Although, the impact of this
change on second quarter net income was not significant, the change increased
net income for the six months ended June 30, 1997 by $.6 million or $.05 per
share. The Company expects the change to negatively impact the third quarter
operating results and to positively impact the fourth quarter results.
3. Subsequent Event
On May 2, 1997, following a jury trial in a suit by Kinetic Energy
Development Corporation against the Company in the Circuit Court of Jackson
County, Missouri, in connection with the Company's acquisition of the Kansas
City steam system, a judgment was entered against the Company in the amount of
$4,271,000. On August 6, 1997, the Court set aside the jury verdict and granted
judgment for the Company. In the event this new judgment in favor of the
Company is vacated or reversed on appeal, a new trial is ordered. The Company
believes that this judgment in its favor should be sustained upon any appeal.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
Three Months ended June 30, 1997 compared with Three Months ended June 30, 1996
Overview
For the quarter ended June 30, 1997, the Company reported net income of $.7
million, or $.06 per common share. Second quarter earnings in 1996 were $2.5
million, equal to $.22 per common share. Revenues were $48.1 million in the
second quarter compared with $48.7 million last year. Operating income for the
second quarter was $6.2 million compared with $9.3 million a year ago. The mild
spring weather compared to last year and non-operational cost factors
contributed to the earnings shortfall. Non-operating cost factors reduced
second quarter earnings by $.08 per common share. The Company's revenues and
profits are subject to seasonal fluctuation due to peak heating demand in the
winter and peak cooling demand in the summer.
Effective January 1, 1997, the Company changed its estimate of the average
cost to produce and deliver energy. See Note 2 of the Notes to Consolidated
Financial Statements.
Revenues
Revenues of $48.1 million were down $.6 million as a result of the mild
spring weather. Thermal energy sales declined $2.9 million, or 8%, to $34.1
million, while electric energy sales of $11.5 million were higher by $1.9
million or 19%. Units of energy sold were down approximately 11% in the second
quarter. Energy systems in Baltimore and Philadelphia were particularly
affected by the mild weather. Offsetting the revenue decline in part were
higher fuel prices, which are largely passed through to customers. Fees earned
and other revenue increased 25% in the second quarter reflecting the expansion
of the Ewing Power Systems operation, which was acquired in the first quarter of
1996. Offsetting in part this increase were costs incurred for establishing and
marketing new joint ventures.
Operating Expenses
Fuel and consumables' costs were $20.0 million in the second quarter
compared with $20.4 million in the like quarter last year. This decrease
reflected the lower level of revenues, offset in part by higher fuel costs. As
a percent of revenues, fuel and consumables' costs were 41.5% in the second
quarter compared with 41.9% last year.
Production and operating costs increased 25% to $10.9 million in the second
quarter from $8.7 million last year; and as a percent of revenues increased to
22.6% from 17.9% in 1996. This increase was due to expansion of Ewing Power
Systems and a pipeline rupture in St. Louis. In addition, production and
operating costs for 1996 included an arbitration award of $1.0 million, net of
expenses.
Depreciation expense was $3.5 million compared with $3.2 million last year.
The increase reflects the high level of capital expenditures in the second half
of 1996.
General and administrative expenses increased 7% in the second quarter to
$7.5 million due mainly to higher legal fees. As a percent of revenues, general
and administrative expenses increased to 15.7% from 14.5% last year.
Interest Expense, Net
Net interest expense declined 4% to $4.2 million due primarily to repayment
of high interest rate debt.
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Income Taxes
The Company's effective tax rate is determined primarily by the federal
statutory rate of 35%, and state and local income taxes. The effective income
tax rate was 41.0% in the second quarter of 1997 and 41.1% in the second quarter
of 1996.
Six Months ended June 30,1997 compared with Six Months ended June 30, 1996
Overview
For the six months ended June 30,1997, the company reported net income of
$2.9 million, or $.24 per common share. This compared to net income of $6.7
million and $.58 per common share last year. Operating income was $14.8 million
on revenues of $131.6 million in the first six months of 1997 compared with
operating income of $21.5 million on revenues of $134.9 million in 1996.
Revenues
Revenues of $131.6 million were down $3.3 million, or 2%, due to the mild
weather this year. Thermal energy sales were down $6.2 million to $100.5
million, while electric energy sales increased $3.2 million to $25.6 million.
Units of energy sold were down approximately 10% in the first six months of
1997. Energy systems in Baltimore, Boston and Philadelphia were particularly
affected by the milder weather. Offsetting the revenue decline in part were
higher fuel prices, which are largely passed through to customers. The decline
in fees earned and other revenue was due to costs incurred for establishing and
marketing new joint ventures and to the inclusion last year of income resulting
from completion of financing for the Grays Ferry Cogeneration Project. This
decline was partially offset by expansion of Ewing Power systems.
Operating Expenses
Fuel and consumables' costs were $66.5 million in 1997 compared with $68.2
million last year. This decrease reflected the lower level of revenues, offset
in part by higher fuel costs. As a percent of revenues, fuel and consumables'
costs were 50.5% in 1997 and 50.6% in 1996.
Production and operating costs increased 15% to $25.1 million compared with
$21.9 million last year; and as a percent of revenues increased to 19.1% from
16.2% in 1996. The higher costs resulted from expansion of Ewing Power Systems
and a pipeline rupture in St. Louis. In addition, production and operating
costs for 1996 included an arbitration award of $1.0 million, net of expenses.
Depreciation expense was $8.3 million compared with $7.4 million last year.
The increase reflects the high level of capital expenditures in the second half
of 1996.
General and administrative expenses increased $1.0 million, or 7%, to $17.0
million due mainly to higher legal fees. As a percent of revenues, general and
administrative expenses were 12.9% in 1997 and 11.9% in 1996.
Interest Expense, Net
Net interest expense declined 4% to $8.3 million due primarily to repayment
of high interest rate debt.
Income Taxes
The Company's effective tax rate was 41.0% for the first six months of 1997
compared with 41.1% last year.
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Liquidity and Financial Position
Cash and cash equivalents were $22.9 million at June 30, 1997, a decrease
of $2.4 million. Working capital was $2.8 million compared with a negative $5.5
million at December 31, 1996. At June 30, 1997, receivables were down 31% to
$26.7 million and inventories decreased 5% to $6.5 million from the balances at
the end of 1996. Accounts payable of $2.3 million and accrued fuel of $10.7
million were down 71% and 26%, respectively. The lower levels of receivables,
inventories and payables at June 30, 1997 reflect the seasonality of the
Company's business. Working capital requirements vary in line with the peak
heating demand in the winter and peak cooling demand in the summer.
The Company's primary source of funds for its business activities and
repaying its debt has been from operations. Cash generated from operating
activities was $22.5 million for the first six months of 1997 compared with
$25.9 million last year. The lower cash from operations in 1997 was due
primarily to the earnings decline. The $22.5 million of cash generated during
the first six months of 1997 along with available cash at the beginning of the
year were used to invest $13.9 million in capital expenditures and $1.1 million
in a partnership investment, repay $9.4 million of debt, and pay $.8 million in
dividends to shareholders and $.9 million to minority interests.
At June 30, 1997, total debt was $249.0 million compared with $258.5
million at year end 1996. On April 4, 1997, the Company entered into a $160
million revolving credit agreement with several banks. This facility is for an
initial period of three years and may be extended by a total of two one-year
periods. Borrowings under the facility bear interest, at the Company's option,
at an annual rate equal to the base rate or the Eurodollar rate plus 3/4%. The
base rate is the higher of the prime lending rate or the Federal Reserve
reported Federal funds rate plus 1/2%. As of June 10, 1997, the Company amended
the $160 million revolving credit agreement by reducing the facility to $125
million and entering into a $35 million revolving credit facility with the same
group of banks. The new facility is for an initial 364-day period and may be
extended by another 364-day period. The terms and conditions of both facilities
are the same.
During the first six months of 1997, stockholders' equity increased $3.4
million to $143.9 million at June 30, 1997. This increase reflects $2.9 million
of net income, $1.1 million from the issuance of common stock and $.2 million of
proceeds from the exercise of stock options; offset by $.8 million dividend
payment to shareholders.
The Company's planned capital expenditures for upgrades, expansions,
environmental matters and other improvements are material. The Company believes
that cash provided by operations, cash on hand and available credit facilities
will be sufficient to finance its capital program and several new development
projects.
On May 2, 1997, following a jury trial in a suit by Kinetic Energy
Development Corporation against the Company in the Circuit Court of Jackson
County, Missouri, in connection with the Company's acquisition of the Kansas
City steam system, a judgment was entered against the Company in the amount of
$4,271,000. On August 6, 1997, the Court set aside the jury verdict and granted
judgment for the Company. In the event this new judgment in favor of the
Company is vacated or reversed on appeal, a new trial is ordered. The Company
believes that this judgment in its favor should be sustained upon any appeal.
Impact of New Accounting Standard
Statement of Financial Accounting Standard No. 128, "Earnings per Share"
(SFAS No. 128), will require presentation of "basic" and "diluted" earnings per
share for periods ending after December 15, 1997. Based on preliminary
analysis, the Company does not expect the adoption of SFAS No. 128 to
significantly impact earnings per share for periods previously presented.
<PAGE>
Part II - Other Information
Item 1. Legal Proceedings
On May 2, 1997, following a jury trial in a suit by Kinetic Energy
Development Corporation against the Company in the Circuit Court of Jackson
County, Missouri, in connection with the Company's acquisition of the
Kansas City steam system, a judgment was entered against the Company in the
amount of $4,271,000. On August 6, 1997, the Court set aside the jury
verdict and granted judgment for the Company. In the event this new
judgment in favor of the Company is vacated or reversed on appeal, a new
trial is ordered. The Company believes that this judgment in its favor
should be sustained upon any appeal.
Item 4. Submission of Matters to a Vote of Security Holders
The annual meeting of security holders was held in Cincinnati, Ohio on
May 14, 1997. The security holders voted, as recommended by management for
the election to the Board of Directors of Messrs. Charles E. Bayless
(10,960,491 votes for and 24,491 votes against), Michel Cassou (10,960,527
votes for and 24,455 votes against), Michel Bleitrach (10,960,527 votes for
and 24,455 votes against) and Dominique Mangin d`Ouince (10,960,527 votes
for and 24,455 votes against), for ratification of the selection of KPMG
Peat Marwick LLP as the Company's independent certified public accountants
(10,983,768 votes for , 513 votes against and 701 abstained) and for
amendment of the Company's 1994 Stock Incentive Plan to increase the number
of shares of common stock available for award thereunder from 1,050,000 to
2,000,000 (9,157,423 votes for, 1,129,845 votes against and 31,430
abstained).
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are filed as part of this report:
4.5 Revolving Credit Facility, Dated as of April 4, 1997 between
the Company, Banks Listed on the Signature Page and
Societe General as Issuing Bank and Agent.
4.51 Amendment No.1, Dated as of June 10, 1997, to the Revolving
Credit Facility Dated as of April 4, 1997.
4.52 Revolving Credit Facility, Dated as of June 10, 1997
between the Company, Banks Listed on the Signature Page and
Societe Generle as Issuing Bank and Agent.
27 Financial Data Schedule.
(b)No reports on Form 8-K were filed for the three months ended June 30,
1997.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRIGEN ENERGY CORPORATION
/s/ David H. Kelly
David H. Kelly
Vice President, Finance and
Chief Financial Officer
/s/ Daniel J. Samela
Daniel J. Samela
Controller
Date: August 13, 1997
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REVOLVING CREDIT FACILITY
Dated as of April 4, 1997
TRIGEN ENERGY CORPORATION, a Delaware corporation, the BANKS listed on the
signature pages hereof, and SOCIETE GENERALE, as Issuing Bank and as Agent,
agree as follows (with certain terms used herein being defined in Article 10):
ARTICLE 1.
CREDIT FACILITY
Section 1.01. Credit Extension. The revolving credit facility available
to the Borrower on the Agreement Date pursuant to this Agreement is One Hundred
Sixty Million Dollars ($160,000,000).
(a) Commitment to Lend. Upon the terms and subject to the conditions of
this Agreement, each Bank agrees to make, from time to time during the Facility
Period, one or more Loans to the Borrower in an aggregate unpaid principal
amount not exceeding at any time such Bank's Commitment at such time minus the
aggregate of such Bank's Letter of Credit Amounts and such Bank's Percentage
Interest of Unreimbursed Letter of Credit Obligations at such time. Subject to
Section 1.06 and the other terms and conditions of this Agreement, the Loans
may, at the option of the Borrower, be made as, and from time to time continued
as or converted into, Base Rate or Eurodollar Rate Loans of any permitted Type,
or any combination thereof.
(b) Commitments to Issue Letters of Credit. (i) Amounts of Letters of
Credit. Upon the terms and subject to the conditions of this Agreement, the
Issuing Bank shall issue, from time to time during the Facility Period, one or
more Letters of Credit for the account of the Borrower, provided that (A) the
aggregate of all Letter of Credit Amounts, Unreimbursed Letter of Credit
Obligations and the aggregate unpaid principal amount of all Loans at any time
shall not exceed the maximum amount of the Facility at such time and (B) in the
case of a Bank, the aggregate of such Bank's Letter of Credit Amounts, and such
Bank's Percentage Interest in the Unreimbursed Letter of Credit Obligations and
the Loans shall not exceed such Bank?s Commitment at such time.
(ii) Terms of Letters of Credit. Each Letter of Credit:
(A) May be a standby Letter of Credit in support of Liabilities of the
Borrower or one or more of the Borrower's Subsidiaries, in each case, that
arise in the ordinary course of business and are in respect of general
corporate purposes of the Borrower or such Subsidiaries, as the case may be;
(B) Shall be (1) denominated only in Dollars and shall be issued on terms
and conditions satisfactory to the Issuing Bank, and (2) in a stated amount
of not less than One Hundred Thousand Dollars ($100,000);
(C) Shall have an expiration date occurring not later than the earlier of
(1) one year (or, if agreed by the Issuing Bank in its sole discretion,
fifteen months) from the date of issuance and (2) the Termination Date;
(D) May, if requested by the Borrower, contain a provision that the
expiration date will be automatically renewed for one year from the existing
expiration date unless the Issuing Bank shall have provided notice to the
beneficiary in accordance with the renewal and notice terms contained in the
Letter of Credit that the Letter of Credit is not to be renewed;
(E) Shall be subject to the Uniform Customs; and
(F) Shall contain such other terms and conditions as may be approved by
the Issuing Bank and the Agent.
In the event that a Letter of Credit contains the provisions specified in clause
(D) above, the Issuing Bank may give a notice of non-renewal in accordance with
the renewal terms and notice provisions of the Letter of Credit if (i) as of the
date that is the earlier of (x) thirty-five days prior to the stated expiration
date or (y) ten days prior to the date for the issuing of a non-renewal notice
under the terms of the Letter of Credit, the Borrower shall not have satisfied
each of the conditions to Credit Extension specified in Section 2.02(b) through
(e), or (ii) the Termination Date is not at least one year after the current
stated expiration date. The Issuing Bank shall give a notice of non-renewal if
in accordance with the terms and notice provisions of the Letter of Credit the
Borrower has delivered a notice to the Issuing Bank referring to the Letter of
Credit by date and number and requesting that a notice of non-renewal be
delivered.
(c) Extension of Facility Period. The initial Facility Period shall be
three years, but may be extended by a total of two one-year extensions with the
prior written consent of the Banks, the Agent and the Issuing Bank. Seventeen
months before the end of a Facility Period, the Borrower may request that the
Banks extend the Facility Period by one year. Such a request shall be in
writing (and shall be irrevocable) and shall be delivered to Agent with such
other documentation as the Agent may request. Each Bank, the Agent and the
Issuing Bank each in its sole discretion may, but shall not be required to,
grant such a one-year extension to the Facility Period. The Agent will notify
the Borrower in writing fifteen months before the end of the Facility Period as
to whether the one-year extension will be granted and to advise the Borrower of
the new Termination Date and any other conditions to such extension, provided
that in the absence of such a notice by the Agent, the extension request will be
deemed denied.
Section 1.02. Disbursement of Loans and Issuance of Letters of Credit.
(a) Manner of Borrowing. (i) The Borrower shall give the Agent notice (which
shall be irrevocable) no later than 10:00 a.m. (New York time) on, in the case
of Base Rate Loans, the Business Day for the making of such Loans, and, in the
case of Eurodollar Rate Loans, the third Eurodollar Business Day before the
requested date for the making of such Loans. Each such notice shall be in the
form of Schedule 1.02(a) and shall specify (A) the requested date for the making
of the requested Loans, which shall be, in the case of Base Rate Loans, a
Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar Business
Day, (B) the Type or Types of Loans requested and (C) the amount of each such
Type of Loan, the aggregate of which amounts for all Types of Loans requested to
be made on the requested date shall be at least Two Million Dollars ($2,000,000)
or such greater amount in increments of One Hundred Thousand Dollars ($100,000),
and shall not exceed the maximum amount that can then be borrowed hereunder.
Upon receipt of any such notice, the Agent shall promptly notify each Bank of
the contents thereof and of the amount and Type of each Loan to be made by such
Bank on the requested date specified therein.
(ii) Not later than 1:00 p.m. (New York time) on each requested date for
the making of Loans, each Bank shall make available to the Agent, in Dollars in
funds immediately available to the Agent at the Agent's Office, the Loans to be
made by such Bank on such date. Any Bank's failure to make any Loan to be made
by it on the requested date therefor shall not relieve any other Bank of its
obligation to make any Loan to be made by such other Bank on such date, but such
other Bank shall not be liable for such failure.
(iii) Unless the Agent shall have received notice from a Bank prior to
12:00 noon (New York time) on the requested date for the making of any Loans
that such Bank will not make available to the Agent the Loans requested to be
made by such Bank on such date, the Agent may assume that such Bank has made
such Loans available to the Agent on such date in accordance with Section
1.02(a)(ii) and the Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount
on behalf of such Bank. If and to the extent such Bank shall not have so made
available to the Agent, the Loans requested to be made by such Bank on such date
and the Agent shall have so made available to such Borrower a corresponding
amount on behalf of such Bank, such Bank shall, on demand, pay to the Agent such
corresponding amount together with interest thereon, for each day from the date
such amount shall have been so made available by the Agent to such Borrower
until the date such amount shall have been repaid to the Agent, at the Federal
Funds Rate until (and including) the third Business Day after demand is made and
thereafter at the Base Rate. If such Bank does not pay such corresponding
amount promptly upon the Agent's demand therefor, the Agent shall promptly
notify the Borrower and the Borrower shall immediately repay such corresponding
amount to the Agent together with accrued interest thereon at the applicable
rate or rates provided in Section 1.03(a).
(iv) All Loans made available to the Agent in accordance with Section
1.02(a)(ii) shall be disbursed by the Agent not later than 1:00 p.m. (New York
time) on the requested date therefor in Dollars in funds immediately available
to the Borrower by credit to an account of such Borrower at the Agent's Office
or in such other manner as may have been specified in the applicable notice and
as shall be acceptable to the Agent.
(b) (i) Manner of Issuance and Amendment of Letters of Credit. (A) The
Borrower shall request the issuance or amendment or renewal of a Letter of
Credit by delivering to the Issuing Bank, at least 30 Business Days before the
amendment or notice date for non-renewal under the terms of the Letter of
Credit, (1) in the case of any such issuance or amendment, a duly completed and
executed request for the issuance or amendment of such Letter of Credit
substantially in the form of Schedule 1.02(b) (to which request shall be
attached, the duly executed form attached as Exhibit A to Schedule 1.02(b), with
a notation on such form indicating that such letter of credit is a Letter of
Credit issued pursuant to and in accordance with the terms of the Credit
Facility), provided that if such request is transmitted to the Issuing Bank by
facsimile, the original of such request shall be provided to the Issuing Bank as
soon as practicable thereafter, and (2) in the case of any such issuance, if the
desired form of Letter of Credit is different from the Issuing Bank's standard
form, (x) such request shall be accompanied by a copy of such desired form of
Letter of Credit and (y) the Issuing Bank may, but shall not be required to,
issue the Letter of Credit in the requested non-standard form and may, in any
case, require more than three Business Days after receipt of such a request to
issue a non-standard form of Letter of Credit.
(B) The Issuing Bank shall, on the date of each issuance or amendment of
a Letter of Credit, give the Agent, each other Bank and the Borrower notice of
such issuance or amendment, accompanied by a copy to the Agent of such Letter of
Credit or amendment.
(ii) Acquisition of Participations upon Issuance. Upon the date of
issuance of a Letter of Credit, the Issuing Bank shall be deemed to have granted
to each Bank (other than the Issuing Bank), and each Bank (other than the
Issuing Bank) shall be deemed to have acquired from the Issuing Bank, without
further action by any party hereto, a participation in such Letter of Credit,
Unreimbursed Letter of Credit Obligations, and any Drawings that may at any time
be made thereunder, to the extent of such Bank's Percentage Interest.
(iii) Certain Responsibilities in Respect of Letters of Credit. Neither
the Issuing Bank nor any Bank shall be responsible for:
(A) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for or issuance of a Letter of Credit;
(B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof in whole or in part;
(C) the failure of any request for a Drawing under a Letter of Credit to
strictly comply with conditions required in order to draw on such Letter of
Credit, except, in the case only of the Issuing Bank, under the circumstances
specified in the last sentence of Section 1.04(b)(iv);
(D) except to the extent caused by the gross negligence or willful
misconduct of the Agent or the Issuing Bank, errors, omissions, interruptions
or delays in transmissions or delivery of any messages, by mail, cable, telex
or otherwise, whether or not in cipher;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission of any document required in
order to make a drawing under any Letter of Credit or of the proceeds
thereof;
(G) the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any Drawing under such Letter of Credit; and
(H) any consequence arising from causes beyond the control of the Issuing
Bank, including, without limitation, any change in Applicable Law.
Section 1.03. Interest. (a) Rates. (i) Each Loan shall bear interest
on the outstanding principal amount thereof at a rate per annum equal to (A) so
long as it is a Base Rate Loan, the Base Rate as in effect from time to time and
(B) so long as it is a Eurodollar Rate Loan, the applicable Eurodollar Rate plus
the applicable Eurodollar Rate Margin, and (ii) each other amount outstanding
under the Loan Documents shall bear interest at a rate per annum equal to the
Base Rate as in effect from time to time. Any overdue principal of or interest
on any Loan or Drawing and, to the maximum extent permitted by Applicable Law,
each other amount due and payable under the Loan Documents shall bear interest
at a rate per annum equal to the applicable Post-Default Rate.
(b) Payment. Interest shall be payable, (i) on each Interest Payment
Date, (ii) in the case of any Loan when such Loan shall be due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) or, in
the case of Loans, converted, but only to the extent then accrued on the amount
then so due or converted, and (iii) in the case of all other amounts due and
payable under the Loan Documents, on demand. Interest at the Post-Default Rate
shall be payable on demand.
(c) Conversion and Continuation. (i) Subject to clauses (ii), (iii) and
(iv) below, all or any part of the principal amount of Loans of any Type may, on
any Business Day, be converted into any other Type or Types of Loans.
(ii) Base Rate Loans shall continue as Base Rate Loans unless and until
such Loans are converted into Loans of another Type. Eurodollar Rate Loans of
any Type shall continue as Loans of such Type until the end of the then current
Interest Period therefor, at which time they shall be automatically converted
into Base Rate Loans unless the Borrower shall have given the Agent notice in
accordance with Section 1.03(c)(iv) requesting either that such Loans continue
as Loans of such Type for another Interest Period or that such Loans be
converted into Loans of another Type at the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained in Section
1.03(c)(i) or (ii), during a Default, at the request of the Required Banks, the
Agent may notify the Borrower that Loans may only be converted into or continued
as Loans of certain specified Types and, thereafter, until no Default shall
continue to exist, Loans may not be converted into or continued as Loans of any
Type other than one or more of such specified Types.
(iv) The Borrower shall give the Agent notice (which shall be
irrevocable) of each conversion of Loans or continuation of Eurodollar Rate
Loans no later than 10:00 a.m. (New York time), in the case of a conversion into
Base Rate Loans, on the Business Day, and, in the case of a conversion into or
continuation of Eurodollar Rate Loans, on the third Eurodollar Business Day
before the requested date of such conversion or continuation. Each notice of
conversion or continuation shall be in the form of Schedule 1.03(c) and shall
specify (A) the requested date of such conversion or continuation, (B) the
amount and Type and, in the case of Eurodollar Rate Loans, the last day of the
applicable Interest Period of the Loans to be converted or continued and (C) the
amount and Type or Types of Loans into which such Loans are to be converted or
as which such Loans are to be continued. Upon receipt of any such notice, the
Agent shall promptly notify each Bank of (x) the contents thereof, (y) the
amount and Type and, in the case of Eurodollar Rate Loans, the last day of the
applicable Interest Period of each Loan to be converted or continued by such
Bank and (z) the amount and Type or Types of Loans into which such Loans are to
be converted or as which such Loans are to be continued.
(d) Maximum Interest Rate. Nothing contained in the Loan Documents shall
require the Borrower at any time to pay interest at a rate exceeding the Maximum
Permissible Rate. If interest payable by the Borrower on any date would exceed
the maximum amount permitted by the Maximum Permissible Rate, such interest
payment shall automatically be reduced to such maximum permitted amount, and
interest for any subsequent period, to the extent less than the maximum amount
permitted for such period by the Maximum Permissible Rate, shall be increased by
the unpaid amount of such reduction. Any interest actually received for any
period in excess of such maximum amount permitted for such period shall be
deemed to have been applied as a prepayment of the Loans or the Drawings, as the
case may be.
(e) Additional Interest on Eurodollar Rate Loans. The Borrower shall pay
to the Agent for the account of each Bank any costs actually incurred by such
Bank with respect to Eurodollar Rate Loans which are attributable to such Bank's
compliance with regulations of the Board of Governors of the Federal Reserve
System requiring the maintenance of reserves with respect to liabilities or
assets consisting of or including Eurocurrency liabilities (as defined in
Regulation D). Such costs shall be paid to the Agent for the account of such
Bank in the form of additional interest on the unpaid principal amount of each
Eurodollar Rate Loan of such Bank, from the date of such Loan until such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period for such Loan from (ii) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Reserve
Percentage of such Loan for such Interest Period, payable on each date on which
interest is payable on such Loan. A Bank that maintains actual reserves
pursuant to Regulation D with respect to liabilities or assets consisting of or
including Eurocurrency liabilities shall be entitled to the foregoing additional
interest with respect to Eurodollar Rate Loans without regard to whether such
Bank actually funded such Eurodollar Rate Loans through Eurocurrency
liabilities. Such additional interest shall be determined by such Bank and
notified to the Borrower through the Agent. A certificate as to the amount of
such additional interest, submitted to the Borrower and the Agent by such Bank,
shall be conclusive and binding for all purposes, absent manifest error,
provided that the determination thereof shall have been made by such Bank in
good faith.
Section 1.04. Repayment. (a) Loans. The Loans shall mature and become
due and payable, and shall be repaid by the Borrower, in full on the Maturity
Date.
(b) Letters of Credit. (i) Drawings shall mature and become due and
payable, and shall be repaid by the Borrower in full on the date such Drawing is
disbursed. The Borrower agrees to reimburse the Issuing Bank on each such date
for all amounts paid by the Issuing Bank for (x) all Drawings disbursed; and (y)
any Taxes, charges or other costs or expenses incurred by the Issuing Bank in
connection with such payment.
(ii) The Issuing Bank shall promptly notify (A) the Borrower, the Agent
and each Bank of its receipt of a Drawing request with respect to such Letter of
Credit, stating the date and amount of the Drawing requested and (B) the
Borrower of the date and amount of each Drawing made pursuant to such request.
The Issuing Bank's failure to give, or delay in giving, any such notice shall
not release or diminish the obligations hereunder of the Borrower and each Bank
in respect of such Drawing.
(iii) If the Borrower fails to pay to the Issuing Bank in full the
principal amount of, together with interest accrued on, a Drawing in accordance
with Section 1.04(b)(ii), each other Bank shall pay to the Issuing Bank, upon
demand, its Percentage Interest of such unpaid amount, in Dollars in funds
immediately available to the Issuing Bank at the Issuing Bank's Office on, if
such demand is made not later than 1:00 p.m. on such Business Day, and, if not,
the next Business Day, together with interest on such amount from the date of
such Drawing until such amount is paid in full at, for the first three days, the
Federal Funds Rate and, thereafter, the Base Rate. Upon, but only upon, making
such required payment to the Issuing Bank, a Bank shall be entitled to receive
its Percentage Interest of the Unreimbursed Letter of Credit Obligations
together with interest accrued thereon, and, until such payment in full by such
Bank, the Issuing Bank shall hold such Bank's Percentage Interest as collateral
for such payment.
(iv) The obligation of the Borrower and each Bank under this Section
1.04, in the case of the Borrower, to reimburse the Issuing Bank for, and in the
case of such Bank, to fund its Percentage Interest in the Unreimbursed Letter of
Credit Obligations together with interest thereon shall be absolute and
unconditional under any and all circumstances and irrespective of:
(A) any setoff, counterclaim or defense to payments which the Borrower or
such Bank may at any time have against the Issuing Bank based on (1) any lack
of validity or enforceability of this Agreement or any of the other Loan
Documents; (2) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (3) the surrender or impairment of any security
for the performance or observance of any of the terms of any of the Loan
Documents; or (4) the occurrence of any Default; and
(B) the existence of any claim, setoff, other defense or other right
which the Borrower or such Bank may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Agent, the Issuing
Bank, any other Bank or any other Person, whether in connection with any
Letter of Credit, any Loan Document, or the transactions contemplated
therein, or any unrelated transactions (including any underlying transaction
between the Borrower and the beneficiary named in any such Letter of Credit).
In furtherance and not in limitation of the foregoing, the Issuing Bank may
accept documents that appear on their face to be in order without responsibility
for further investigation, regardless of any notice or information to the
contrary and not thereby constituting gross negligence, willful misconduct or a
knowing violation of Applicable Law.
Section 1.05. Prepayments. The Borrower may, at any time and from time
to time, prepay the Loans in whole or in part, without premium or penalty (but
subject to Section 7.04), except that any partial prepayment shall be in an
aggregate principal amount of at least Two Million Dollars ($2,000,000) and
larger integral multiples of One Hundred Thousand Dollars ($100,000). The
Borrower shall give the Agent notice of each prepayment no later than
10:00 a.m., on the Business Day in the case of a prepayment of Base Rate Loans,
and, in the case of a prepayment of Eurodollar Rate Loans, on the third
Eurodollar Business Day before, the date of such prepayment. Each such notice
of prepayment shall be in the form of Schedule 1.05 and shall specify (i) the
date such prepayment is to be made and (ii) the amount and Type and, in the case
of Eurodollar Rate Loans, the last day of the applicable Interest Period of the
Loans to be prepaid. Upon receipt of any such notice, the Agent shall promptly
notify each Bank of the contents thereof and the amount and Type and, in the
case of Eurodollar Rate Loans, the last day of the applicable Interest Period of
each Loan of such Bank to be prepaid. Amounts to be prepaid together with
interest thereon as provided in Section 1.03(b) shall irrevocably be due and
payable on the date specified in the applicable notice of prepayment.
Section 1.06. Limitation on Types of Loans. Notwithstanding anything to
the contrary contained in this Agreement, the Borrower shall borrow, prepay,
convert and continue Loans in a manner such that (a) the aggregate principal
amount of Eurodollar Rate Loans of the same Type and having the same Interest
Period shall at all times be not less than Two Million Dollars ($2,000,000), and
(b) there shall not be, at any one time, more than six Interest Periods in
effect with respect to Eurodollar Rate Loans of all Types.
Section 1.07. Reduction of Commitments (a) Voluntary Reduction of
Commitments. The Borrower may reduce the Commitments by giving the Agent notice
(which shall be irrevocable) thereof no later than 10:00 a.m. (New York time) on
the seventh Business Day before the requested date of such reduction, except
that no partial reduction of the Commitments shall be in an aggregate amount
less than Two Million Five Hundred Thousand Dollars ($2,500,000) or any integral
multiples of One Million Dollars ($1,000,000) in excess thereof, and no
reduction may reduce the Commitments to an amount less than the aggregate amount
of the Loans, the Unreimbursed Letter of Credit Obligations and undrawn Letters
of Credit outstanding on such date (after giving effect to any repayment or
prepayment of Loans and any reimbursement of the Unreimbursed Letter of Credit
Obligations to be made on such date). Upon receipt of any such notice, the
Agent shall promptly notify each Bank of the contents thereof and the amount to
which such Bank's Commitment is to be reduced.
(b) No Reinstatement of Commitments. The Borrower shall not have the
right to reinstate reductions in Commitments.
Section 1.08. Fees. (a) Commitment Fees. The Borrower shall pay to the
Agent for the account of each Bank a commitment fee on the daily unused amount
of such Bank's Commitment under the Facility for each day of the Facility Period
at a rate per annum of .25%, payable quarterly in arrears on the last day of
each calendar quarter, on the Maturity Date and on the date of any reduction of
such Commitment (to the extent accrued and unpaid on the amount of the
reduction).
(b) Participation Fee. The Borrower shall, on the Agreement Date, pay to
the Agent for the account of each Bank a participation fee equal to .10% of such
Bank's Commitment.
(c) Arrangement and Agency Fees. The Borrower shall pay to the Agent,
for its own account, an arrangement fee and an annual agency fee in amounts and
at the times agreed by the Agent and the Borrower in a separate letter
agreement.
(d) Letter of Credit Fees. (i) The Borrower shall pay to the Issuing
Bank, for its own account, (A) the Letter of Credit Fronting Fee of .10% per
annum, which shall be payable quarterly in arrears on the last day of each
calendar quarter and on the Repayment Date and (B) the standard processing fees
of the Issuing Bank for the issuance, reconfirmation, reissuance, amendment and
renewal of each Letter of Credit with respect thereto, as such processing fees
are in effect from time to time.
(ii) The Borrower shall pay to the Agent, for the account of each Bank,
with respect to each undrawn Letter of Credit, a Letter of Credit Commission on
the daily Letter of Credit Amount of each such Bank at a rate equal to the
Applicable LC Fee Rate. Such fee shall be payable quarterly in arrears on the
last day of each calendar quarter and on the Repayment Date.
(e) Utilization Fee. If on any day the sum of the outstanding aggregate
principal amount of the Loans, Unreimbursed Letters of Credit Obligations and
the aggregate of all Letter of Credit Amounts exceeds fifty percent of the
Commitments, the Borrower shall pay to the Agent for the account of each Bank, a
Utilization Fee, provided that no Utilization Fee shall be payable with respect
to any day unless the Eurodollar Rate Margin is equal to or less than .45% on
such day. The Utilization Fee shall be paid quarterly in arrears on the last
day of each calendar quarter and on the Repayment Date.
(f) Fees Non-Refundable. None of the fees payable under this Section
1.08 shall be refundable in whole or in part.
Section 1.9. Computation of Interest and Fees. Interest calculated on
the basis of the Eurodollar Rate or the Federal Funds Rate, and the Letter of
Credit Fronting Fee and the Letter of Credit Commission shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed.
Interest calculated on the basis of the Prime Rate and the commitment fees shall
be computed on the basis of a year of 365 or 366 days, as applicable, and paid
for the actual number of days elapsed. Interest for any period shall be
calculated from and including the first day thereof to but excluding the last
day thereof.
Section 1.10. Evidence of Indebtedness. Each Bank's Loans and the
Borrower's obligation to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of
such Bank and a single Note payable to the order of such Bank which, subject to
Section 9.20, may be a Registered Note. The records of each Bank shall be prima
facie evidence of such Bank's Loans and accrued interest thereon and of all
payments made in respect thereof. Drawings, participations and the Borrower's
obligations to repay Drawings with interest in accordance with the terms of this
Agreement shall be evidenced by this Agreement and the records of the Issuing
Bank. The records of the Issuing Bank, shall, absent manifest error, be prima
facie evidence of, with respect to each Letter of Credit, the amount of
Unreimbursed Letter of Credit Obligations and each Bank's Percentage Interest
therein.
Section 1.11. Payments by the Borrower. (a) Time, Place and Manner.
All payments due to the Agent under the Loan Documents shall be made to the
Agent at the Agent's Office or at such other address as the Agent may designate
by notice to the Borrower. All payments due to any Bank under the Loan
Documents shall, in the case of payments on account of principal of or interest
on the Loans or fees, be made to the Agent at the Agent's Office and, in the
case of all other payments, be made directly to such Bank at its Domestic
Lending Office or at such other address as such Bank may designate by notice to
the Borrower. A payment shall not be deemed to have been made on any day unless
such payment has been received by the required Person, at the required place of
payment, in Dollars in funds immediately available to such Person at such place,
no later than 12:00 noon on such day.
(b) No Reductions. All payments due to the Agent, the Issuing Bank, or
any Bank under the Loan Documents, and all other terms, conditions, covenants
and agreements to be observed and performed by the Borrower thereunder, shall be
made, observed or performed by the Borrower without any reduction or deduction
whatsoever, including any reduction or deduction for any set-off, recoupment,
counterclaim (whether sounding in tort, contract or otherwise) or Tax, except,
subject to Section 1.13, for any withholding or deduction for Taxes required to
be withheld or deducted under Applicable Law.
(c) Authorization to Charge Accounts. The Borrower hereby authorizes the
Agent, the Issuing Bank and each Bank, if and to the extent any amount payable
by the Borrower under the Loan Documents (whether payable to such Person or to
any other Person that is the Agent, the Issuing Bank or a Bank) is not otherwise
paid when due, to charge such amount against any or all of the accounts of the
Borrower with such Person or any of its Affiliates (whether maintained at a
branch or office located within or without the United States), with the Borrower
remaining liable for any deficiency.
(d) Extension of Payment Dates. Whenever any payment to the Agent, the
Issuing Bank or any Bank under the Loan Documents would otherwise be due (except
by reason of acceleration) on a day that is not a Business Day, or, in the case
of payments of the principal of Eurodollar Rate Loans, a Eurodollar Business
Day, such payment shall instead be due on the next succeeding Business or
Eurodollar Business Day, as the case may be, unless, in the case of a payment of
the principal of Eurodollar Rate Loans, such extension would cause payment to be
due in the next succeeding calendar month, in which case such due date shall be
advanced to the next preceding Eurodollar Business Day. If the date any payment
under the Loan Documents is due is extended (whether by operation of any Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
Section 1.12. Distribution of Payments by the Agent. (a) Distribution
to Banks. The Agent shall promptly distribute to each Bank its Percentage
Interest of each payment received by the Agent under the Loan Documents for the
account of the Banks by credit to an account of such Bank at the Agent's Office
or by wire transfer to an account of such Bank at an office of any other
commercial bank located in the United States.
(b) Agent Reliance. Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks under the
Loan Documents that the Borrower will not make such payment in full, the Agent
may assume that the Borrower has made such payment in full to the Agent on such
date and the Agent in its sole discretion may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date a corresponding amount
with respect to the amount then due such Bank. If and to the extent the
Borrower shall not have so made such payment in full to the Agent and the Agent
shall have so distributed to any Bank a corresponding amount, such Bank shall,
on demand, repay to the Agent the amount so distributed together with interest
thereon, for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Agent, at the Federal Funds
Rate until (and including) the third Business Day after demand is made and
thereafter at the Base Rate.
Section 1.13. Taxes. (a) Taxes Payable by the Borrower. If under
Applicable Law, any Tax is required to be withheld or deducted by the Borrower
from, or is otherwise payable by the Borrower in connection with, any payment to
the Agent, the Issuing Bank or any Bank under the Loan Documents, the Borrower
(A) shall (1), if so required, withhold or deduct the amount of such Tax from
such payment and, in any case, pay such Tax to the appropriate taxing authority
in accordance with Applicable Law and (2) indemnify the Agent, the Issuing Bank
and such Bank in accordance with the provisions of Section 9.02(d) against its
failure so to do and (B) shall pay to the Agent, the Issuing Bank or such Bank,
as applicable, such additional amounts as may be necessary so that the net
amount received by the Agent, the Issuing Bank or such Bank with respect to such
payment, after withholding or deducting all Taxes required to be withheld or
deducted by the Borrower, is equal to the full amount payable under the Loan
Documents. If any Tax is withheld or deducted by the Borrower from, or is
otherwise payable by the Borrower in connection with, any payment payable to the
Agent, the Issuing Bank or any Bank under the Loan Documents, the Borrower
shall, as soon as possible after the date of such payment, furnish to the Agent,
the Issuing Bank or such Bank, as applicable, the original or a certified copy
of a receipt for such Tax from the applicable taxing authority. If any payment
due to the Agent, the Issuing Bank or any Bank under the Loan Documents is or is
expected to be made without withholding or deducting therefrom, or otherwise
paying in connection therewith, any Tax payable by the Borrower to any taxing
authority, the Borrower shall, within 30 days after any request from the Agent,
the Issuing Bank or such Bank, as applicable, furnish to the Agent, the Issuing
Bank or such Bank a certificate from such taxing authority, or an opinion of
counsel acceptable to the Agent, the Issuing Bank or such Bank, in either case
stating that no Tax payable to such taxing authority was or is, as the case may
be, required to be withheld or deducted from, or otherwise paid by the Borrower
in connection with, such payment.
(b) Taxes Payable by the Agent, the Issuing Bank or any Bank. The
Borrower shall, promptly upon request by the Agent, the Issuing Bank or any Bank
for the payment thereof, pay to the Agent, the Issuing Bank or such Bank, as the
case may be, (A) all Taxes (other than Bank Taxes), payable by the Agent, the
Issuing Bank or such Bank, as the case may be, with respect to any payment due
to the Agent, the Issuing Bank or such Bank under the Loan Documents and (B) all
Taxes payable by the Agent, the Issuing Bank or such Bank as a result of
payments made by the Borrower (whether made to a taxing authority or to the
Agent, the Issuing Bank or such Bank) pursuant to this Section 1.13.
(c) Exemption From U.S. Withholding Taxes. There shall be submitted to
the Borrower and the Agent, (A) on or before the first date that interest or
fees are payable to such Bank under the Loan Documents, (1) if at the time the
same are applicable, (aa) by each Bank that is not a United States Person, two
duly completed and signed copies of Internal Revenue Service Form 1001 or 4224,
in either case entitling such Bank to a complete exemption from withholding of
any United States federal income taxes on all amounts to be received by such
Bank under the Loan Documents, or (bb) by each Bank that is a Non-US Bank, (x) a
duly completed Internal Revenue Service Form W-8 and (y) a certification in the
form of Schedule 1.13(c) that such Bank is a Non-US Bank or (2) if at the time
any of the foregoing are inapplicable, duly completed and signed copies of such
form, if any, as entitles such Bank to exemption from withholding of United
States federal income taxes to the maximum extent to which such Bank is then
entitled under Applicable Law, and (B) from time to time thereafter, prior to
the expiration or obsolescence of any previously delivered form or upon any
previously delivered form becoming inaccurate or inapplicable, such further duly
completed and signed copies of such form, if any, as entitles such Bank to
exemption from withholding of United States federal income taxes to the maximum
extent to which such Bank is then entitled under Applicable Law. Each Bank
shall promptly notify the Borrower and the Agent if (A) it is required to
withdraw or cancel any form or certificate previously submitted by it or any
such form or certificate has otherwise become ineffective or inaccurate or
(B) payments to it are or will be subject to withholding of United States
federal income taxes to a greater extent than the extent to which payments to it
were previously subject. Upon the request of the Borrower or the Agent, each
Bank that is a United States Person shall from time to time submit to the
Borrower and the Agent a certificate to the effect that it is such a United
States Person and a duly completed Internal Revenue Service Form W-9.
Section 1.14. Pro Rata Treatment. Except to the extent otherwise
provided herein, (a) Loans of each Type to be made on any day shall be made by
the Banks pro rata in accordance with their respective Commitments, (b) Loans of
the Banks shall be converted and continued pro rata in accordance with their
respective amounts of Loans of the Type and, in the case of Eurodollar Rate
Loans, having the Interest Period being so converted or continued, (c) each
reduction in the Commitments shall be made pro rata in accordance with the
respective amounts thereof, (d) each payment of the principal of or interest on
the Loans, reimbursement of Drawings or payment of fees (other than the Agency
Fee and Arrangement Fee payable pursuant to Section 1.08) shall be made for the
account of the Banks pro rata in accordance with their respective Percentage
Interests.
ARTICLE 2.
CONDITIONS TO CREDIT EXTENSIONS
Section 2.01. Conditions to Initial Credit Extensions. The obligation of
each Bank to make its initial Loan (or, if no Loans have been made at such time,
the obligation of the Issuing Bank to issue the initial Letter of Credit) is
subject to the fulfillment of each of the following conditions:
(a) the Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) a certificate of the Secretary or an Assistant Secretary of the
Borrower, dated the requested date for the making of such Credit Extension,
substantially in the form of Schedule 2.01(a)(i), to which shall be attached
copies of the resolutions and by-laws referred to in such certificate;
(ii) a copy of the certificate of incorporation of the Borrower,
certified, as of a recent date, by the Secretary of State or other
appropriate official of the Borrower's jurisdiction of incorporation;
(iii) a good standing certificate with respect to the Borrower and
each Material Subsidiary, issued as of a recent date by the Secretary of
State or other appropriate official of such Person's jurisdiction of
incorporation, together with a confirmation from such Secretary of State or
other official, updating the information in such certificate;
(iv) an opinion of counsel for the Borrower, dated the requested date
for the making of such Credit Extension, substantially in the form of
Schedule 2.01(a)(iv);
(v) an opinion of counsel for the Agent, dated the requested date for
the making of such Credit Extension;
(vi) [Reserved];
(vii) a certificate of the president, chief financial officer or
treasurer of the Borrower, dated the requested date for the making of such
Credit Extension, setting forth in the form of a sample calculation the
manner and degree of detail in which the Borrower will make the calculations
required by Section 5.01(c);
(viii) a duly executed Note for each Bank;
(ix) such instruments and other documents as the Agent may request,
the possession of which is necessary or appropriate in the Agent's
determination to give effect to this Agreement under Applicable Law; and
(x) an officer's certificate or other evidence confirming that LdE
Controls the Borrower;
(xi) a copy of the UTC Environmental Report; and
(xii) evidence that the Borrower has prepaid or, contemporaneously
with the initial Credit Extension hereunder, is prepaying in full the
principal amount and all accrued interest and fees with respect to the
Existing Credit Agreement, and has terminated all commitments thereunder.
(b) all fees payable on or prior to the requested date of such Credit
Extension pursuant to Section 1.08, and all amounts payable pursuant to Section
9.02 for which invoices have been delivered to the Borrower on or prior to such
date, shall have been paid in full or arrangements satisfactory to the Agent
shall have been made to cause them to be paid in full concurrently with such
Credit Extension.
Section 2.02. Conditions to Each Credit Extension. The obligation of
each Bank to make each Loan requested to be made by it, including its initial
Loan, and the obligation of the Issuing Bank to issue each Letter of Credit
requested to be issued by it (including, if no Loans have been made at such
time, the initial Letter of Credit) is subject to the fulfillment of each of the
following conditions:
(a) the Agent and, in the case of a request for the issuance of a Letter
of Credit, the Issuing Bank, shall have received, in the case of a Loan, a
notice of borrowing with respect to such Loan complying with the requirements of
Section 1.02(a) and, in the case of a Letter of Credit, a request for the
issuance of such Letter of Credit complying with the requirements of Section
1.02(b);
(b) each Loan Document Representation and Warranty shall be true and
correct at and as of the time of such Credit Extension (except to the extent
such representations and warranties expressly relate to an earlier date), both
with and without giving effect to such Credit Extension and all other Credit
Extensions and to the application of the proceeds thereof;
(c) no Default shall have occurred and be continuing at the time of such
Credit Extension or would result from the making of such Credit Extension and
all other Credit Extensions or from the application of the proceeds thereof;
(d) such Bank shall have received such material Information as it may
have requested pursuant to Section 5.01(f); and
(e) such Credit Extension will not contravene any Applicable Law
applicable to such Bank.
Except to the extent that the Borrower shall have disclosed in the notice
of borrowing or in the request for the issuance of a Letter of Credit, as
applicable, or in a subsequent notice given to, in the case of Loans, the Banks
or, in the case of Letters of Credit, the Issuing Bank, prior to 10:00 a.m. (New
York time) on the requested date of a Credit Extension, that a condition
specified in clause (b) or (c) above will not be fulfilled as of the requested
time of such Credit Extension, the Borrower shall be deemed to have made a
Representation and Warranty as of the time of such Credit Extension that the
conditions specified in such clauses have been fulfilled as of such time. No
such disclosure by the Borrower that a condition specified in clause (b) or (c)
above will not be fulfilled as of the requested time of a requested Credit
Extension shall affect the right of each Bank or the Issuing Bank, as the case
may be, not to make the Credit Extension requested to be made by it if, in such
Person's determination, such condition has not been fulfilled at such time.
ARTICLE 3.
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, each Bank, and the Issuing Bank to enter
into this Agreement and to make each Credit Extension requested to of it, the
Borrower represents and warrants as follows:
Section 3.01. Organization; Power; Qualification. The Borrower, and each
Material Subsidiary are corporations duly organized, validly existing and in
good standing under the laws of their respective jurisdictions of incorporation,
have the corporate power and authority to own their respective properties and to
carry on their respective businesses as now being and hereafter proposed to be
conducted and are duly qualified and in good standing as foreign corporations,
and are authorized to do business, in all jurisdictions in which the character
of their respective properties or the nature of their respective businesses
requires such qualification or authorization, except for qualifications and
authorizations the lack of which, singly or in the aggregate, has not had and
will not have a Materially Adverse Effect on the Borrower and its Consolidated
Subsidiaries taken as a whole. Each of the Borrower and its Material
Subsidiaries are in compliance in all material respects with all Applicable Law.
Section 3.02. Subsidiaries. Schedule 3.02 sets forth, as of the
Agreement Date, all of the Subsidiaries, their jurisdictions of incorporation
and the percentages of the various classes of their Capital Securities owned by
the Borrower or another Subsidiary and indicates which Subsidiaries are
Consolidated Subsidiaries, which Subsidiaries are Material Subsidiaries, and
which Subsidiaries are Recourse Subsidiaries. The Borrower or another
Subsidiary, as the case may be, has the unrestricted right to vote, and (subject
to limitations imposed by Applicable Law and as set forth in Schedule 3.06(A))
to receive dividends and distributions on, all Capital Securities indicated on
Schedule 3.02 as owned by the Borrower or such Subsidiary. All such Capital
Securities have been duly authorized and issued and are fully paid and
nonassessable.
Section 3.03. Authorization; Enforceability; Required Consents; Absence
of Conflicts. The Borrower has the power, and has taken all necessary action
(including any necessary stockholder action) to authorize it, to execute,
deliver and perform in accordance with their respective terms the Loan Documents
and to borrow hereunder in the unused amount of the Commitments. This Agreement
has been, and each of the other Loan Documents when delivered to the Agent will
have been, duly executed and delivered by the Borrower and is, or when so
delivered will be, a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally. The execution, delivery and performance in
accordance with their respective terms by the Borrower of the Loan Documents,
and each Credit Extension hereunder, whether or not in the amount of the unused
Commitments, do not and (absent any change in any Applicable Law or applicable
Contract) will not (a) require any Governmental Approval or any other consent or
approval, including any consent or approval of the stockholders of the Borrower,
other than Governmental Approvals and other consents and approvals that have
been obtained, are final and not subject to review on appeal or to collateral
attack, are in full force and effect and copies of which (certified in a manner
satisfactory to the Agent) have been delivered to each Bank, or (b) violate,
conflict with, result in a breach of, constitute a default under, or result in
or require the creation of any Lien upon any assets of the Borrower or any
Subsidiary under, (i) any Contract to which the Borrower or any Subsidiary is a
party or by which the Borrower or any Subsidiary or any of their respective
properties may be bound or (ii) any Applicable Law.
Section 3.04. Taxes. The Borrower and each Consolidated Subsidiary have
(a) filed all Tax returns required to have been filed by it under Applicable
Law, (b) paid all Taxes that are due and payable by it or have been assessed
against it except for Taxes the failure to have paid which does not contravene
Section 3.04 and (c) to the extent required by GAAP, reserved against all Taxes
that are payable by it but are not yet due or that are due and payable by it or
have been assessed against it but have not yet been paid.
Section 3.05. Litigation. Except as set forth in Schedule 3.05, there
are not, in any court or before any arbitrator of any kind or before or by any
governmental or non-governmental body, any actions, suits or proceedings pending
or threatened (nor, to the knowledge of the Borrower and its Subsidiaries, is
there any basis therefor) against or in any other way relating to or affecting
(a) the Borrower or any Subsidiary or any of their respective businesses or
properties or (b) any Loan Document, except actions, suits or proceedings that,
if adversely determined, would not, singly or in the aggregate, have a
Materially Adverse Effect on (x) the Borrower and the Consolidated Subsidiaries
taken as a whole or (y) any Loan Document.
Section 3.06. Credit Agreements. Schedule 3.06(A) hereto, as updated
from time to time, completely and correctly discloses each agreement or
instrument in respect of Indebtedness or a contractual commitment for
Indebtedness, of the Borrower or any of its Subsidiaries, the aggregate
principal or face amount of which equals or exceeds (or may equal or exceed)
$1,000,000, and accurately describes the aggregate principal or face amount
outstanding and which may become outstanding under each thereof. The Borrower
has delivered to the Banks true, correct and complete copies of all provisions
of the foregoing agreements providing for the subordination or other limitations
on the ability of any Subsidiary of the Borrower to make Upstream Payments.
Schedule 3.06(B), as updated from time to time, completely and correctly
discloses each Guaranty issued by the Borrower or by a Subsidiary.
Section 3.07. No Adverse Change or Event. Since December 31, 1996, no
change in the business, assets, Liabilities, financial condition, results of
operations or business prospects of the Borrower or any Subsidiary has occurred,
and no event has occurred or failed to occur, that has had or could reasonably
be expected to have, either alone or in conjunction with all other such changes,
events and failures, a Materially Adverse Effect on (a) the Borrower and the
Consolidated Subsidiaries taken as a whole or (b) Material Subsidiaries or (c)
any Loan Document.
Section 3.08. Additional Adverse Facts. Except for facts and
circumstances disclosed on Schedule 3.05 or Schedule 3.08, or in the notes to
the financial statements referred to in Section 5.02(a) or in any filing made
with the SEC, no fact or circumstance is known to the Borrower, as of the
Agreement Date, that, either alone or in conjunction with all other such facts
and circumstances, has had or could reasonably be expected to have a Materially
Adverse Effect on (a) the Borrower and the Consolidated Subsidiaries taken as a
whole or (b) Material Subsidiaries or (c) any Loan Document.
Section 3.09. Investment Company Act; Public Utility Holding Company.
(a) Neither the Borrower nor any Subsidiary is an "investment company" or a
Person "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940.
(b) The Borrower is not a "holding company" or a "subsidiary of a holding
company" as defined by the Public Utilities Holding Company Act of 1935.
Section 3.10. Environmental Laws. (a) Except as set forth on Schedule
3.10, the Borrower and its Subsidiaries have obtained all governmental
approvals, permits, licenses and other authorizations which are required with
respect to the construction and/or operation of their respective businesses,
facilities or properties (whether owned or leased) under any applicable
Environmental Laws, except any permits, licenses and other authorizations the
absence of which could not, individually or in the aggregate, reasonably be
expected to have a Materially Adverse Effect on the Borrower and its
Consolidated Subsidiaries taken as a whole.
(b) Except as set forth on Schedule 3.10, the Borrower and its
Subsidiaries are in full compliance with all terms and conditions of the
required governmental approvals, permits, licenses and authorizations under, and
are in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in, any applicable Environmental Laws or contained in any code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except where such non-compliance could not
reasonably be expected to have a Materially Adverse Effect on the Borrower and
its Consolidated Subsidiaries taken as a whole.
(c) Except as set forth on Schedule 3.10, there is no Environmental Claim
pending or, to the best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries, which, in any one case or in the aggregate
of all such Environmental Claims, could reasonably be expected to have a
Materially Adverse Effect on (i) the Borrower and its Consolidated Subsidiaries
taken as a whole or (ii) the Loan Documents.
(d) To the Borrower's best knowledge, no events, conditions, activities,
practices, incidents, actions or plans of or taken by the Borrower or its
Subsidiaries are reasonably likely to: (i) interfere with or prevent compliance
or continued compliance with any Environmental Laws or with any code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, in any manner which could reasonably be
expected to have a Materially Adverse Effect on the Borrower and its
Consolidated Subsidiaries taken as a whole; (ii) give rise to any common law or
legal liability, including without limitation liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, or similar state
or local laws, which could reasonably be expected to have a Materially Adverse
Effect on the Borrower and its Consolidated Subsidiaries taken as a whole; or
(iii) form the basis of any Environmental Claim, which could reasonably be
expected to have a Materially Adverse Effect on (x) the Borrower and its
Consolidated Subsidiaries taken as a whole or (y) the Loan Documents.
(e) Except as disclosed in Schedule 3.10 hereto, Hazardous Materials are
not being, and have not at any time been, generated, used, treated, recycled,
stored on or transported to or from, or released, deposited or disposed of by
the Borrower or any of its Subsidiaries or by any of their respective agents and
subcontractors on all or a portion of any of the facilities or properties of the
Borrower or any of its Subsidiaries (whether owned or leased) other than in
compliance with all applicable Environmental Laws except for such non-
compliances, if any, as would not have a Materially Adverse Effect on (x) the
Borrower and its Consolidated Subsidiaries taken as a whole or (y) the Loan
Documents.
Section 3.11. Pari Passu Status. The Loans, Drawings, Unreimbursed
Letter of Credit Obligations and other obligations of the Borrower to the Banks
and the Issuing Bank under the Loan Documents will at all times rank at least
pari passu in priority of payment with all of the Borrower's other unsecured
Indebtedness.
Section 3.12. ERISA. All Benefit Plans are in substantial compliance
with ERISA and none is insolvent or in reorganization or has an accumulated or
waived funding deficiency within the meaning of Section 412 of the Code.
Neither the Borrower nor any of its Subsidiaries has incurred any material
liability (including any material contingent liability) to or on account of any
Benefit Plan pursuant to Sections 4062, 4063, 4064, 4201 or 4204 of ERISA. No
Prohibited Transaction or Reportable Event has occurred with respect to any
Benefit Plan for which the Borrower or any of its Subsidiaries has or is
reasonably likely to incur any material liability, each Benefit Plan meets the
minimum funding requirements of Section 412 of the Code, no waiver from such
minimum funding requirements has been applied for or approved pursuant to
Section 412(d) of the Code and no condition exists which presents a material
risk to the Borrower or any of its Subsidiaries of incurring a material
liability to or on account of any Benefit Plan pursuant to any of the foregoing
Sections of the Code. Except as otherwise disclosed on Schedule 3.12, neither
the Borrower nor any of its Subsidiaries or ERISA Affiliates contributes to or
maintains a Multiemployer Benefit Plan.
Section 3.13. Financial Information. The consolidated annual audited
balance sheet of the Borrower as of December 31, 1996 and the related statements
of operations and cash flow of the Borrower for the fiscal year then ended,
copies of which have been provided to the Agent, fairly present the financial
condition of the Borrower and its Consolidated Subsidiaries for the period ended
on such date, all in accordance with GAAP, consistently applied.
Section 3.14. Immunities. Neither the Borrower nor any of its
Subsidiaries, or the property of any of them, has immunity from jurisdiction of
any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) under Applicable Law.
Section 3.15. No Filing. To ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement and the other Loan
Documents in each of the Incorporation Jurisdictions and any other jurisdiction
in which the Borrower or its Consolidated Subsidiaries conduct business, it is
not necessary that any Loan Document, or any other document related to any
thereof be filed or recorded with any court or other authority in such
jurisdiction, or that any stamp or similar tax be paid on or with respect to
this Agreement or any of the other Loan Documents.
Section 3.16. No Defaults. There does not exist (i) any default or event
of default, or any event that with notice or lapse of time or both would
constitute an event of default, under any agreement to which the Borrower or any
of its Subsidiaries is a party or by which any of them may be bound, or to which
any of their properties or assets may be subject which default would have a
Material Adverse Effect on the Borrower and its Consolidated Subsidiaries taken
as a whole, or would materially adversely affect the Borrower's ability to
perform its obligations under the Loan Documents to which it is or may be a
party, or (ii) any event which is a Default.
Section 3.17. Margin Regulations. No part of the proceeds of the Loan
will be used for any purpose that violates the provisions of any of Regulations
G, T, U or X of the Board of Governors of the Federal Reserve System of the
United States or any other regulation of such Board of Governors. Neither the
Borrower nor any of its Consolidated Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, within
the meaning of Regulations G, T, U and X issued by the Board of Governors of the
Federal Reserve System of the United States.
Section 3.18. Disclosure. No representation, warranty or statements made
or document or financial statement provided by the Borrower or any Affiliate or
Subsidiary thereof, in or pursuant to this Agreement, any other Loan Document,
or in any other document furnished in connection with this Agreement, any other
Loan Document, is untrue or incomplete in any material respect or contains any
misrepresentation of a material fact or omits to state any material fact
necessary to make any such statement herein or therein not misleading.
Section 3.19. Good Title The Borrower has good title to its properties
and assets, except for (i) as created hereby and permitted hereunder, existing
or future Liens, security interests, mortgages, conditional sales arrangements
and other encumbrances either securing Indebtedness or other liabilities of the
Borrower or any of its Subsidiaries; and (ii) minor irregularities therein which
do not materially adversely affect their value or utility.
Section 3.20. Qualifying Facility Status. The power generation
facilities owned by each QF Subsidiary is a "qualifying facility" under PURPA.
Section 3.21. LdE Control of Borrower. LdE Controls the Borrower.
Section 3.22. Completion of Environmental Projects. All Environmental
Projects have been completed in the manner and to the extent described in
Schedule 3.22.
ARTICLE 4.
CERTAIN COVENANTS
Section 4.01. Affirmative Covenants. From the Agreement Date and until
the Repayment Date:
(a) Preservation of Existence and Properties, Scope of Business,
Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability. The Borrower shall, and shall cause each Material Subsidiary
to: (i) Preserve and maintain its corporate or partnership existence, as the
case may be, and all of its other franchises, licenses, rights and privileges,
(ii) preserve, protect and obtain all Intellectual Property, and preserve and
maintain in good repair, working order and condition all other properties,
required for the conduct of its business, (iii) engage only in businesses in
substantially the same fields as the businesses conducted on the Agreement Date
and other businesses reasonably related thereto or developed therefrom, (iv)
comply with Applicable Law, (v) pay or discharge when due all Taxes and all
Liabilities that might become a Lien on any of its properties unless being
contested in good faith and with adequate reserves therefor and (vi) take all
action and obtain all consents and Governmental Approvals required so that its
obligations under the Loan Documents will at all times be legal, valid and
binding and enforceable in accordance with their respective terms, except that
this Section 4.01 (other than clauses (i), in so far as it requires the Borrower
to preserve its corporate existence, (iii) and (vi)) shall not apply in any
circumstance where noncompliance, together with all other noncompliances with
this Section 4.01, could not reasonably be expected to have a Materially Adverse
Effect on (x) the Borrower and its Consolidated Subsidiaries taken as a whole or
(y) the Loan Documents.
(b) Insurance. The Borrower shall, and shall cause each Material
Subsidiary to, maintain insurance with responsible insurance companies against
at least such risks and in at least such amounts as is customarily maintained by
prudent managers engaged in similar businesses, or as may be required by
Applicable Law.
(c) Use of Proceeds. The Borrower shall use the proceeds of the Loans
and Drawings only for general corporate purposes and for acquisitions. None of
the proceeds of any of the Loans shall be used to purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulations U and X of the Board of
Governors of the Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying any margin stock. None of the proceeds shall
be contributed to or on behalf of any Non-Recourse Subsidiary.
(d) Maintain Qualifying Facility Status. The Borrower shall cause each
QF Subsidiary to maintain the status of its power generation facilities as a
"qualifying facility" under PURPA.
(e) Environmental Compliance. The Borrower shall, and shall cause each
of its Subsidiaries to:
(i) comply in all material respects, and take all reasonable actions
to cause all other Persons constructing, occupying or conducting operations
on or about the Projects and the other facilities and properties of the
Borrower and its Subsidiaries, to comply in all material respects with all
Environmental Laws;
(ii) obtain, at or prior to the time required by applicable
Environmental Laws, all material governmental authorizations, licenses,
permits, franchises and approvals required pursuant to applicable
Environmental Laws for the Borrower's operations, and the construction,
operations and maintenance of the Projects and such other facilities and
properties, and maintain such authorizations, licenses, permits, franchises
and approvals in full force and effect; and
(iii) undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials released at, on, in,
under, adjoining or emanating from the Projects or any other facilities or
other properties (whether owned or leased) of the Borrower or any of its
Subsidiaries, in accordance with all applicable Environmental Laws, to the
extent that such release or any failure to undertake such action could
reasonably be expected to have a Material Adverse Effect.
(f) Support for Obligations. In the event that (i) any Subsidiary or any
other Affiliate of the Borrower shall issue any guarantee, shall create any Lien
(except Permitted Liens) on any of its assets, revenues or other properties,
shall cause a letter of credit to be issued, or otherwise shall become
obligated, whether directly, contingently or otherwise, for any Indebtedness or
other obligations of the Borrower to any creditor (collectively, "Credit
Support" for such Indebtedness or other obligations), or (ii) any Affiliate of
the Borrower (other than a Subsidiary or LdE) shall give Credit Support for the
Indebtedness or other obligations of any Subsidiary of the Borrower, the
Borrower shall immediately cause such Credit Support to be extended to
guarantee, secure or otherwise support the obligations of the Borrower under
this Agreement equally and ratably, on written terms and conditions, and in the
percentage of obligations covered, which the Required Banks determine to be
substantially the same as the terms, conditions and percentage afforded to such
other creditor.
Section 4.02. Negative Covenants. From the Agreement Date to the
Repayment Date:
(a) Liens. The Borrower shall not, and shall not permit any Material
Subsidiary to, directly or indirectly, permit to exist, at any time, any Lien
upon any of its properties or assets of any character, whether now owned or
hereafter acquired, or upon any income or profits therefrom, except that this
Section 4.02(a) shall not apply to Permitted Liens, provided, however, that if,
notwithstanding this Section 4.02(a), any Lien to which this Section is
applicable shall be created or arise, the Liabilities of the Borrower under the
Loan Documents shall automatically be secured by such Lien equally and ratably
with the other Liabilities secured thereby, and the holder of such other
Liabilities, by accepting such Lien, shall be deemed to have agreed thereto and
to share with the Banks, on that basis, the proceeds of such Lien, whether or
not the Banks' security interest shall be perfected, provided further, however,
that notwithstanding such equal and ratable securing and sharing, the existence
of such Lien shall constitute a Default by the Borrower in the performance or
observance of this Section 4.02(a).
(b) Restricted Payments. The Borrower shall not make or declare or
otherwise become obligated to make any Restricted Payment, if any Event of
Default has occurred and is continuing or would result from the making of such
Restricted Payment.
(c) Subsidiary Contractual Terms. The Borrower shall not permit any
Existing Subsidiary to enter into any Contract or renegotiate any existing
Contract which has the effect of imposing any Restrictive Covenants that are
more onerous or restrictive than any Existing Restrictive Covenants or has the
effect of extending the application of an Existing Restrictive Covenant.
Without limiting the generality of the foregoing, the Borrower will not, and
will not permit any of its Existing Subsidiaries to:
(i) enter into any agreement or instrument in relation to Indebtedness
existing on the Agreement Date (or in respect of any Indebtedness that
refinances or replaces any such existing Indebtedness) in such a manner as to
limit the amounts of Upstream Payments that may be made, or the timing or
circumstances in which Upstream Payments may be made, directly or indirectly,
to the Borrower or any of its Subsidiaries; or
(ii) amend, modify or supplement any of the subordination or other
provisions applicable to Upstream Payments in any agreement or instrument to
which the Borrower or any of its Subsidiaries is a party on the Agreement
Date (or in any agreement or instrument entered into hereafter that replaces
such existing agreement or instrument) in such a manner as to further limit
the amounts of Upstream Payments may be made, or the time or circumstances in
which Upstream Payments may be made, directly or indirectly, to the Borrower
or any of its Subsidiaries; or
(iii) create, incur or suffer to exist any Lien, or sell, assign,
transfer, sublet or otherwise dispose of, on any Upstream Payments or on any
of the capital stock, Indebtedness, promissory notes and other securities and
obligations evidencing or otherwise giving rise to Upstream Payments, or any
interest in any of the foregoing, other than Permitted Liens; or
(iv) be subject to any Restrictive Covenants other than an Existing
Restrictive Covenant or a Restrictive Covenant permitted by the first
sentence of this Section 4.02(c).
(d) Limitation on Restrictive Covenants. (i) The Borrower shall not
permit any Recourse Subsidiary to enter into any Contract containing Restrictive
Covenants other than Existing Restrictive Covenants.
(ii) The Borrower shall not permit any change in ownership of Capital
Securities of Subsidiaries which results in any Capital Securities of a Recourse
Subsidiary being owned, either directly or through one or more other
Subsidiaries, by a Subsidiary that is subject to a Restrictive Covenant.
(e) Merger or Consolidation. The Borrower shall not, and shall not
permit any Material Subsidiary to merge or consolidate with any Person, except
that, if after giving effect thereto no Default would exist, this Section
4.02(e) shall not apply to (i) any merger or consolidation of the Borrower with
any one or more Persons, provided that the Borrower shall be the continuing
Person, (ii) any merger or consolidation of any Subsidiary with any one or more
other Subsidiaries provided that the continuing Person shall, after giving
effect to such merger or consolidation, be an Indebtedness-Free Subsidiary,
(iii) any merger of any Recourse Subsidiary with any one or more Recourse
Subsidiaries and (iv) any merger of any Non-Recourse Subsidiary with any one or
more Non-Recourse Subsidiaries.
(f) Disposition of Assets. The Borrower shall not and shall not permit
its Material Subsidiaries to sell, lease, assign, transfer, sublet or otherwise
dispose of any of its business or assets or other properties, whether in a
single transaction or in a series of related transactions, except for:
(i) sales of electrical power, steam, hot or chilled water, and energy-
related services and products (but not of contracts or accounts receivable in
respect thereof except as provided in clause (iii) below) in the ordinary
course of business of the Borrower or such Subsidiary;
(ii) (A) dispositions of assets in arm's-length transactions by the
Borrower or such Subsidiary to the extent such assets either are no longer
used or useful to the Borrower or such Subsidiary or are promptly replaced by
other assets of at least equal usefulness; or
(B) sales of assets by the Borrower or any Subsidiary to another
Subsidiary provided that the fair market value of such assets is paid in
cash;
(iii) transfer of accounts receivable to a collection agent solely for
purposes of collection on behalf of the Borrower or any Subsidiary;
(iv) assets shown on Schedule 4.02(f); and
(v) other assets, provided that the aggregate fair market value of
such other assets disposed of in any twelve month period do not have a fair
market value in excess of $500,000;
provided, however, that the ability of the Borrower to, or to permit any
Subsidiary to, sell, assign, convey, lease, sublet, transfer or otherwise
dispose of any of its respective assets, business or other properties in a
transaction otherwise permitted under clause (i), (ii) or (iii) of this Section
4.02(f) shall be subject to compliance with the other requirements of Section
4.02.
(g) Recourse Subsidiaries Leverage Ratio. The Borrower shall not permit
the Leverage Ratio of the Recourse Subsidiaries in the aggregate at any time to
be greater than the aggregate Leverage Ratio of Recourse Subsidiaries as of the
Agreement Date.
(h) Taxes of Other Persons. (i) The Borrower shall not, and shall not
permit any Material Subsidiary to file a consolidated tax return with any other
Person other than, in the case of the Borrower, a Subsidiary and, in the case of
any such Subsidiary, the Borrower or a Subsidiary, or (ii) except as required by
Applicable Law, in the ordinary course of business for similarly situated
companies or as listed on Schedule 4.02(h), pay or enter into any Contract to
pay any Taxes owing by any Person other than the Borrower or a Subsidiary.
(i) Benefit Plans. The Borrower shall not, and shall not permit any
Material Subsidiary or any ERISA Affiliate of the Borrower or any Material
Subsidiary, to permit any Benefit Plan (other than a Multiemployer Benefit Plan)
to have a Funded Current Liability Percentage of less than 60% in respect of the
Borrower and its Consolidated Subsidiaries taken as a whole.
(j) Transactions With Affiliates. The Borrower shall not, and shall not
permit any Material Subsidiary to effect any transaction with any Affiliate that
is (i) outside the ordinary course of business or (ii) on a basis less favorable
than would at the time be obtainable for a comparable transaction in arms-length
dealing with an unrelated third party, other than (A) the payment of any amounts
to the Borrower in accordance with Section 4.02(c); or (B) the exchange,
transfer or provision of technical know-how or design or consulting services, or
operation and management services.
(k) Issuance or Disposition of Capital Securities. The Borrower shall
not, and shall not permit any Subsidiary to, issue any of its Capital Securities
or sell, transfer or otherwise dispose of any Capital Securities of any
Subsidiary, except that this subsection shall not apply to (a) any issuance by
the Borrower of any of its Capital Securities, (b) any issuance by a Subsidiary
of any of its Capital Securities to the Borrower or an Indebtedness-Free
Subsidiary, (c) any issuance by a Subsidiary of any of its Capital Securities to
the holders of the common stock of such Subsidiary made pro rata to the relative
amounts of such common stock held by such holders, (d) any issuance by a
Subsidiary of any directors' qualifying shares of its Capital Securities to
directors of such Subsidiary and (e) any disposition by the Borrower or any
Subsidiary of any Capital Securities of a Subsidiary to the Borrower or an
Indebtedness-Free Subsidiary.
(l) Substance Storage and Disposal. The Borrower shall not, and shall
not permit any Subsidiary to, permit any hazardous wastes, environmental
contaminants or other substances the improper release or disposal of which could
result in the incurrence by the Borrower or any of its Subsidiaries of remedial
obligations under Applicable Law or Environmental Law to be brought onto or
stored on the properties owned or leased by it except for (i) substances to be
used in connection with the business of the Borrower and its Subsidiaries,
pending and during such use, and (ii) substances that were generated or used in
connection with such business, pending their disposal.
(m) Investments. The Borrower shall not, and shall not permit any
Subsidiary to, make any Investments other than: (a)(i) direct obligations of
the United States of America or any state or agency thereof, or of the Dominion
of Canada or any Province thereof, with maturities of less than one year from
the date of acquisition, which obligations are rated "A-" or better by Standard
& Poor's Corporation or "A3" or better by Moody's Investor Services, Inc., (ii)
commercial paper and other obligations of U.S. or Canadian domestic issuers,
with remaining maturities of less than one year from the date of acquisition,
which obligations are rated "A-1" or better by Standard & Poor's Corporation or
"P-1" or better by Moody's Investor Services, Inc., (iii) certificates of
deposit with remaining maturities of less than one year from the date of
acquisition issued by any commercial bank operating within the United States of
America having combined capital and surplus in excess of $100,000,000, (iv)
certificates of deposits with remaining maturities of less than one year from
the Agreement Date, issued by any commercial bank operating within the United
States of America having a combined capital and surplus in excess of
$100,000,000, (v) liquid mutual funds which invest substantially all of their
funds in instruments meeting the requirements of subclauses (i), (ii), (iii) or
(iv) above, and (vi) other Investments not exceeding $1,000,000 in the aggregate
(valued based on cost in accordance with GAAP) for the Borrower and all
Subsidiaries; (b) Investments by the Borrower in its Subsidiaries for the
purpose of financing Projects or business activities consistent with Section
4.01(a)(iii); and (c) Investments that are loans or advances by a Subsidiary of
the Borrower to the Borrower, so long as the obligations of the Borrower with
respect thereto are subordinated entirely to all obligations to the Banks.
(n) Indebtedness. The Borrower shall not, and shall not permit any
Subsidiary to, incur any Indebtedness which in the aggregate exceeds Five
Million Dollars (US$5,000,000) unless the Borrower establishes to the
satisfaction of the Agent that the Debt Service Coverage Ratio required by
Section 4.03(b) is satisfied during the quarter in which the Indebtedness is
incurred and will be maintained for the immediately following three quarters.
(o) Support of Non-Recourse Subsidiaries. The Borrower shall not permit
any Non-Recourse Subsidiary that is subject to Restrictive Covenants to become a
Recourse Subsidiary unless at or prior to the same time such Subsidiary becomes
free of Restrictive Covenants.
Section 4.03. Financial Covenants. From the Agreement Date until the
Repayment Date the Borrower shall ensure that on a consolidated basis:
(a) Minimum Consolidated Net Worth. (i) For the period from December 31,
1996 until December 31, 1997, the Consolidated Net Worth shall be at least One
Hundred Thirty-Five Million Dollars ($135,000,000); (ii) beginning on January 1,
1998 and for each calendar year thereafter, the Consolidated Net Worth for such
year shall be at least equal to the sum of (A) half of the Consolidated Net
Income (if positive) for the immediately preceding calendar year and (B) the
Dollar amount of the Minimum Consolidated Net Worth for the immediately
preceding calendar year.
(b) Debt Service Coverage Ratio. The Debt Service Coverage Ratio for
each rolling twelve (12) month period ending on the last day of a calendar
quarter during the Facility Period shall not be less than the ratio shown below
for the respective period:
Minimum Debt Service
Period Coverage Ratio
Agreement Date to 12/30/98 1.35
12/31/98 and thereafter 1.50
(c) Leverage Ratio. The Leverage Ratio shall be no greater than the
ratios listed below for the respective periods:
Period Ratio
Agreement Date to 12/30/98 2.50
12/31/98 to 12/30/99 2.25
12/31/99 and thereafter 2.00
ARTICLE 5.
INFORMATION
Section 5.01. Information to be Furnished. From the Agreement Date and
until the Repayment Date, the Borrower shall furnish to each Bank:
(a) Quarterly Financial Statements. As soon as available and in any
event within 60 days after the close of each of the first three calendar
quarters in each fiscal year of the Borrower, commencing with the calendar
quarter ended March 31, 1997, consolidated and consolidating balance sheets of
the Borrower and the Consolidated Subsidiaries as at the end of such quarter,
the related consolidated statements of operations and cash flows and a
consolidating statement of operations of the Borrower and the Consolidated
Subsidiaries for such quarter and for the elapsed portion of the fiscal year
ended with the last day of such quarter, setting forth in each case in
comparative form the figures for the corresponding periods of the previous
fiscal year.
(b) Year-End Financial Statements; Accountants' Certificate. As soon as
available and in any event within 120 days after the end of each fiscal year of
the Borrower, commencing with the fiscal year ended December 31, 1996:
(i) consolidated and consolidating balance sheets of the Borrower and
the Consolidated Subsidiaries as at the end of such fiscal year, the related
consolidated statements of operations, stockholders' equity and cash flows
and a consolidating statement of operations of the Borrower and the
Consolidated Subsidiaries for such fiscal year, setting forth in comparative
form the figures as at the end of and for the previous fiscal year;
(ii) an audit report of KPMG Peat Marwick LLP, or other independent
certified public accountants of recognized standing satisfactory to the
Required Banks, on such of the financial statements referred to in clause (i)
as are consolidated financial statements, which report shall be in scope and
substance satisfactory to the Required Banks; and
(iii) a financial forecast of the Borrower and its Subsidiaries
commencing on the Agreement Date and ending one year after the Termination
Date updating the four-year financial forecast of the Borrower and its
Subsidiaries delivered to the Banks prior to the Agreement Date.
(c) Officer's Certificate as to Financial Statements and Defaults. At
the time that financial statements are furnished pursuant to Section 5.01(a) or
(b), a certificate of the president, chief financial officer or treasurer of the
Borrower (i) certifying as to the correctness of the representations and
warranties with respect to such financial statements set forth in Section
5.01(a) or (b), (ii) setting forth any changes in and departures from GAAP,
(iii) setting forth the calculations required to establish whether or not the
Borrower was in compliance with the financial covenants contained in Article 4
and (iv) certifying that no Default exists or, if a Default does exist, giving
the date the same occurred and the steps being taken by the Borrower or a
Subsidiary with respect thereto.
(d) Reports and Filings. As soon as practicable, copies of all such
financial statements and reports as the Borrower shall send to its stockholders
and of all registration statements and all regular or periodic reports that the
Borrower or any Subsidiary shall file, or may be required to file, with the SEC.
(e) Financial Statements of LdE. As soon as available to the Borrower,
commencing with the fiscal year ended December 31, 1996, the annual report of
LdE.
(f) Requested Information. From time to time and promptly upon request
of any Bank conveyed through the Agent, such Information regarding the Loan
Documents, the Loans or the business, assets, Liabilities, financial condition,
results of operations or business prospects of the Borrower and its Subsidiaries
as such Bank conveyed through the Agent may reasonably request, in each case in
form and substance satisfactory to the Agent.
(g) Notice of Defaults, Material Adverse Changes and Certain Other
Matters. Prompt notice of:
(i) any Default,
(ii) the acquisition or formation of a new Subsidiary and, in the case
of each such new Subsidiary, its name, jurisdiction of incorporation, the
percentages of the various classes of its Capital Securities owned by the
Borrower or another Subsidiary and whether or not such new Subsidiary is a
Consolidated Subsidiary, provided that the Borrower shall not be requested to
provide this information until such new Subsidiary undertakes business
activity or acquires assets or incurs liabilities of at least $50,000.
(iii) any change in the name of any Subsidiary, its jurisdiction of
incorporation, the percentages of the various classes of its Capital
Securities owned by the Borrower or another Subsidiary or its status as a
Consolidated or non-Consolidated Subsidiary,
(iv) the threatening or commencement of, or the occurrence or
nonoccurrence of any change or event relating to, any action, suit or
proceeding that would cause the Representation and Warranty contained in
Section 3.05 to be incorrect if made at such time,
(v) any change in the rating given by any nationally recognized rating
agency to any securities issued by the Borrower or any of its Subsidiaries,
(vi) any event or condition referred to in clauses (i) through (vii)
of Section 6.01(g), whether or not such event or condition shall constitute
an Event of Default, and
(vii) any amendment of the certificate of incorporation or by-laws of
the Borrower; and
(viii) (A) any fact, circumstance, condition, occurrence or release
at, on, in, under, adjoining or emanating from any of the Projects or any of
the other facilities or other properties (whether owned or leased) of the
Borrower or any of its Subsidiaries that results in material non-compliance
with any Environmental Law or that could reasonably be expected to have a
Material Adverse Effect, such notice to be given promptly after the condition
is discovered or such release or occurrence takes place, and (B) any material
pending or threatened Environmental Claim against the Borrower or any of its
Subsidiaries or any other Person occupying or conducting operations at the
Projects or any other facilities or other properties (whether owned or
leased) of the Borrower of any of its Subsidiaries, such notice to be given
promptly after the Borrower becomes aware that such Environmental Claim is
commenced or threatened. All such notices shall describe in reasonable
detail the nature of the claim, investigation, condition, incident, or
occurrence and the Borrower's response thereto.
Section 5.02. Accuracy of Financial Statements and Information.
(a) Historical Financial Statements. The Borrower hereby represents and
warrants that (i) Schedule 5.02(a) sets forth a complete and correct list of the
financial statements submitted by the Borrower to the Banks in order to induce
them to execute and deliver this Agreement, (ii) such financial statements
present fairly, in accordance with GAAP, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as at their respective dates and
the consolidated results of operations, consolidated stockholders' equity and
consolidated cash flows of the Borrower and such Subsidiaries for the respective
periods to which such statements relate, and (iii) except as disclosed or
reflected in such financial statements, as at December 31, 1996, neither the
Borrower nor any Subsidiary had any Liability, contingent or otherwise, or any
unrealized or anticipated loss, that, singly or in the aggregate, has had or
could reasonably be expected to have a Materially Adverse Effect on the Borrower
and the Consolidated Subsidiaries taken as a whole.
(b) Future Financial Statements. The financial statements delivered
pursuant to Section 5.01(a) or (b) shall present fairly, in accordance with GAAP
(except for changes therein or departures therefrom that are described in the
certificate or report accompanying such statements and that have been approved
in writing by the Borrower's then current independent certified public
accountants), the consolidated and consolidating financial position of the
Borrower and its Consolidated Subsidiaries as at their respective dates and the
consolidated and consolidating results of operations, consolidated stockholders'
equity and consolidated cash flows of the Borrower and such Subsidiaries for the
respective periods to which such statements relate.
(c) Historical Information. The Borrower hereby represents and warrants
that all Information furnished to the Agent or the Banks by or on behalf of the
Borrower prior to the Agreement Date in connection with or pursuant to the Loan
Documents and the relationships established thereunder, at the time the same was
so furnished, but in the case of Information dated as of a prior date, as of
such date, (i) did not contain any untrue statement of a material fact, and (ii)
did not omit to state a material fact necessary in order to make the statements
contained therein not misleading in the light of the circumstances under which
they were made.
(d) Future Information. All Information furnished to the Agent or the
Banks by or on behalf of the Borrower on or after the Agreement Date in
connection with or pursuant to the Loan Documents or in connection with or
pursuant to any amendment or modification of, or waiver of rights under, the
Loan Documents, shall, at the time the same is so furnished, but in the case of
Information dated as of a prior date, as of such date, (i) not contain any
untrue statement of a material fact, and (ii) not omit to state a material fact
necessary in order to make the statements contained therein not misleading in
the light of the circumstances under which they were made, and the furnishing of
the same to the Agent or any Bank shall constitute a representation and warranty
by the Borrower made on the date the same are so furnished to the effect
specified in clauses (i) and (ii).
Section 5.03. Additional Covenants Relating to Disclosure. From the
Agreement Date and until the Repayment Date, the Borrower shall and shall cause
each Subsidiary to:
(a) Accounting Methods and Financial Records. Maintain a system of
accounting, and keep such books, records and accounts, as may be required or
necessary to permit (i) the preparation of financial statements required to be
delivered pursuant to Section 5.01(a) and (b) and (ii) the determination of the
compliance of the Borrower with the terms of the Loan Documents.
(b) Fiscal Year. Maintain December 31 as the closing date for each
fiscal year.
(c) Visits, Inspections and Discussions. During normal business hours
and subject to compliance with reasonable security precautions, permit, or, in
the case of premises, property, books, records or Persons not within its
immediate control, promptly take such actions as are necessary or desirable in
order to permit, representatives (whether or not officers or employees) of any
Bank, from time to time, as often as may be reasonably requested, to (i) visit
any of its premises or property or any premises or property of others on which
any of its property or books and records (or books and records of others
relating to it) may be located, (ii) inspect, and verify the amount, character
and condition of, any of its property, (iii) review and make extracts from its
books and records and books and records of others relating to it, and (iv)
discuss with any Person (including its principal officers, independent certified
public accountants, suppliers, customers, debtors and other creditors) its
business, assets, Liabilities, financial condition, results of operation and
business prospects.
Section 5.04. Authorization of Third Parties to Deliver Information and
Discuss Affairs. The Borrower hereby authorizes and directs each Person whose
preparation or delivery to the Agent or the Banks of any opinion, report or
other Information is a condition or covenant under the Loan Documents (including
under Articles 3, 4 or this Article 5) to so prepare or deliver such Information
for the benefit of the Agent and the Banks.
ARTICLE 6.
DEFAULT
Section 6.01. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary, or within or without the control of the Borrower or
any Subsidiary, or be effected by operation of law or pursuant to any judgment
or order of any court or any order, rule or regulation of any governmental or
non-governmental body:
(a) Any payment of principal on any of the Loans, the Notes or the
Drawings or any prepayment shall not be made when and as due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) and in
accordance with the terms of this Agreement and the Notes; or any payment of
interest, fees or any other amount due under this Agreement shall not be made
within three Business Days of when due;
(b) Any Loan Document Representation and Warranty shall at any time prove
to have been incorrect or misleading in any material respect when made;
(c) The Borrower shall default in the performance or observance of:
(A) any term, covenant, condition or agreement contained in Section
3.21, Section 4.01(a)(i) (insofar as such Section requires the preservation
of the corporate existence of the Borrower), 4.01(a)(vi), 4.01(c), 4.02
(except 4.02(i)), 4.03, 5.01(g)(i) or 5.03(b); or
(B) any term, covenant, condition or agreement contained in this
Agreement (other than a term, covenant, condition or agreement a default in
the performance or observance of which is elsewhere in this Section
specifically dealt with) and, if capable of being remedied, such default
shall continue unremedied for a period of 30 days after notice thereof shall
have been given to the Borrower by the Agent; or
(d) The maturity of any Indebtedness of the Borrower or any Subsidiary in
excess of Two Hundred Fifty Thousand Dollars ($250,000) shall, in whole or in
part, have been accelerated, or any such Indebtedness shall, in whole or in
part, have been required to be prepaid or purchased by reason of a default prior
to the stated maturity thereof, in accordance with the provisions of any
Contract evidencing, providing for the creation of or concerning such
Indebtedness, or any event shall have occurred and be continuing that permits
(or, with the passage of time or the giving of notice or both, would permit) any
holder or holders of Indebtedness of the Borrower or any Subsidiary in excess of
Five Million Dollars ($5,000,000) in the aggregate, any trustee or agent acting
on behalf of such holder or holders or any other Person so to accelerate such
maturity or require any such a prepayment or purchase;
(e) (i) The Borrower or any Material Subsidiary shall (A) commence a
voluntary case under the Federal bankruptcy laws (as now or hereafter in
effect), (B) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, (C) consent to or fail to contest in a
timely and appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws, (D) apply for, or consent to, or
fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, liquidator or the like
of itself or of a substantial part of its assets, domestic or foreign, (E) admit
in writing its inability to pay, or generally not be paying, its debts (other
than those that are the subject of bona fide disputes) as they become due, (F)
make a general assignment for the benefit of creditors, or (G) take any
corporate action for the purpose of effecting any of the foregoing;
(ii) (A) A case or other proceeding shall be commenced against the
Borrower or any Material Subsidiary seeking (1) relief under the Federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, or (2) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Borrower or any Material
Subsidiary, or of all or any substantial part of the assets, domestic or
foreign, of the Borrower or any Material Subsidiary, and such case or proceeding
shall continue undismissed and unstayed for a period of 60 days, or (B) an order
granting the relief requested in such case or proceeding against the Borrower or
any Material Subsidiary (including an order for relief under such Federal
bankruptcy laws) shall be entered;
(f) A judgment or order shall be entered against the Borrower or any
Material Subsidiary by any court, and either (A) such judgment or order shall
continue undischarged and unstayed for a period of 10 days in which the
aggregate amount of all such judgments and orders exceeds $5,000,000 or (B)
enforcement proceedings shall have been commenced upon such judgment or order;
(g) (i) any Termination Event shall occur with respect to any Benefit
Plan of the Borrower, any Subsidiary or any of their respective ERISA
Affiliates, (ii) any Accumulated Funding Deficiency, whether or not waived,
shall exist with respect to any such Benefit Plan, (iii) any Person shall engage
in any Prohibited Transaction involving any such Benefit Plan, (iv) the
Borrower, any Subsidiary or any of their respective ERISA Affiliates shall be in
"default" (as defined in ERISA Section 4219(c)(5)) with respect to payments
owing to any such Benefit Plan that is a Multiemployer Benefit Plan as a result
of such Person's complete or partial withdrawal (as described in ERISA Section
4203 or 4205) therefrom, (v) the Borrower, any Subsidiary or any of their
respective ERISA Affiliates shall fail to pay when due an amount that is payable
by it to the PBGC or to any such Benefit Plan under Title IV of ERISA, or (vi) a
proceeding shall be instituted by a fiduciary of any such Benefit Plan against
the Borrower, any Subsidiary or any of their respective ERISA Affiliates to
enforce ERISA Section 515 and such proceeding shall not have been dismissed
within 30 days thereafter, except that no event or condition referred to in
clauses (i) through (vi) shall constitute an Event of Default if it, together
with all other such events or conditions at the time existing, has not
subjected, and in the reasonable determination of the Required Banks will not
subject, the Borrower or any Subsidiary to any Liability that, alone or in the
aggregate with all such Liabilities for all such Persons, exceeds $5,000,000;
(h) LdE shall not Control the Borrower; or
(i) Any power generation facilities owned by a QF Subsidiary shall cease
to constitute a "qualifying facility" under PURPA, unless (a) the reason for the
loss of "qualifying facility" status is a change in Applicable Law and (b) the
Borrower shall have demonstrated to the reasonable satisfaction of the Required
Banks that such event could not reasonably be expected to have a Materially
Adverse Effect on the Borrower and its Consolidated Subsidiaries taken as a
whole or the Loan Documents.
Section 6.02. Remedies Upon Event of Default. During the continuance of
any Event of Default (other than one specified in Section 6.01(e) with respect
to the Borrower) and in every such event, the Agent, upon notice to the
Borrower, may do any or all of the following: (a) declare, in whole or, from
time to time, in part, the principal of and interest on the Loans and the Notes
and all other amounts owing under the Loan Documents to be, and the Loans and
the Notes and all such other amounts shall thereupon and to that extent become,
due and payable, (b) terminate, in whole or, from time to time, in part, the
Commitments and (c) require the Borrower to deposit in the Cash Collateral
Account with the Issuing Bank, funds sufficient to reimburse or to enable the
Issuing Bank to fund the full amount that is available to be drawn under all
outstanding Letters of Credit. Upon the occurrence of an Event of Default
specified in Section 6.01(e) automatically and without any notice to the
Borrower, (a) the principal of and interest on the Loans and the Notes and all
other amounts owing under the Loan Documents shall be due and payable and (b)
the Commitments shall terminate. Presentment, demand, protest or notice of any
kind (other than the notice provided for in the first sentence of this Section
6.02) are hereby expressly waived.
Section 6.03. Cash Collateral Account. (a) Cash Collateral Account.
When required by the terms of this Agreement, the Borrower shall establish and
maintain a special account (the "Cash Collateral Account") at the offices of the
Agent and under the Agent's sole dominion and control.
(b) Setoff. The Agent on behalf of the Banks and the Issuing Bank shall
have rights of setoff and a security interest and charge in the Cash Collateral
Account. If any Default or Event of Default shall have occurred and be
continuing, all amounts then on deposit or anytime thereafter deposited in the
Cash Collateral Account in lieu of being released to the Borrower, shall in the
discretion of the Agent, be returned by the Agent and/or applied by the Agent
against any and all of the amounts due and payable hereunder, whether by
acceleration or otherwise.
(c) Release of Funds After Repayment Date. Any funds remaining in the
Cash Collateral Account after the Repayment Date shall be released to the
Borrower.
ARTICLE 7.
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar Rate
Loans. A Bank's obligations to make, continue or convert into Eurodollar Rate
Loans of any Type and, in the case of clause (c) below, the Issuing Bank's
obligation to issue Letters of Credit, shall be suspended, all such Bank's
outstanding Loans of that Type shall be converted on the last day of their
applicable Interest Periods (or, if earlier, in the case of clause (c) below, on
the last day such Bank may lawfully continue to maintain Loans of that Type or,
in the case of clause (d) below, on the day determined by such Bank to be the
last Business Day before the effective date of the applicable restriction) into,
and all pending requests for the making or continuation of or conversion into
Loans of such Type by such Bank shall be deemed requests for, Base Rate Loans,
if:
(a) on or prior to the determination of an interest rate for a Eurodollar
Rate Loan of that Type for any Interest Period, the Agent determines that for
any reason appropriate information is not available to it for purposes of
determining the Eurodollar Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for a Eurodollar
Rate Loan of that Type, such Bank determines that the Eurodollar Rate as
determined by the Agent for such Interest Period would not accurately reflect
the cost to such Bank of making, continuing or converting into a Eurodollar
Rate Loan of such Type for such Interest Period;
(c) at any time any Regulatory Change (i) in the determination of any
Bank, makes it unlawful or impracticable for such Bank or its applicable
Lending Office to make, continue or convert into any Eurodollar Rate Loan of
that Type, or to comply with its obligations hereunder in respect thereof or
(ii) in the determination of the Issuing Bank, makes it unlawful or
impracticable for the Issuing Bank to issue a Letter of Credit or to comply
with its obligations hereunder in respect thereof; or
(d) such Bank determines that, by reason of any Regulatory Change, such
Bank or its applicable Lending Office is restricted, directly or indirectly,
in the amount that it may hold of (i) a category of liabilities that includes
deposits by reference to which, or on the basis of which, the interest rate
applicable to Eurodollar Rate Loans of that Type is directly or indirectly
determined or (ii) the category of assets that includes Eurodollar Rate Loans
of that Type.
If, as a result of this Section 7.01, any Loan of any Bank that would otherwise
be made or maintained as or converted into a Eurodollar Rate Loan of any Type
for any Interest Period is instead made or maintained as or converted into a
Base Rate Loan, then, unless the corresponding Loan of each of the other Banks
is also to be made or maintained as or converted into a Base Rate Loan, such
Loan shall be treated as being a Eurodollar Rate Loan of such Type for such
Interest Period for all purposes of this Agreement (including the timing,
application and proration among the Banks of interest payments, conversions and
prepayments) except for the calculation of the interest rate borne by such Loan.
The Agent shall promptly notify the Borrower and each Bank of the existence or
occurrence of any condition or circumstance specified in clause (a) above, and
each Bank and the Issuing Bank shall promptly notify the Borrower and the Agent
of the existence or occurrence of any condition or circumstance specified, in
the case of such Bank, in clause (b), (c) or (d) above applicable to such Bank's
Loans or, in the case of the Issuing Bank, clause (c) above applicable to the
Issuing Bank's obligation to issue Letters of Credit, in each case describing in
reasonable detail the nature of such condition or circumstances but the failure
by the Agent or such Bank or the Issuing Bank, as the case may be, to give any
such notice shall not affect such Bank's or the Issuing Bank's rights hereunder.
Section 7.02. Regulatory Changes. If in the determination of any Bank
(a) any Regulatory Change shall directly or indirectly (i) reduce the amount of
any sum received or receivable by such Bank with respect to any Loan or the
return to be earned by such Bank on any Loan, (ii) impose a cost on such Bank or
any Affiliate of such Bank that is attributable to the making or maintaining of,
or such Bank's commitment to make, any Loan, (iii) require such Bank or any
Affiliate of such Bank to make any payment on or calculated by reference to the
gross amount of any amount received by such Bank under any Loan Document or (iv)
reduce, or have the effect of reducing, the rate of return on any capital of
such Bank or any Affiliate of such Bank that such Bank or such Affiliate is
required to maintain on account of any Loan or such Bank's commitment to make
any Loan and (b) such reduction, increased cost or payment shall not be fully
compensated for by an adjustment in the applicable rates of interest payable
under the Loan Documents, then the Borrower shall pay to such Bank such
additional amounts as such Bank determines will, together with any adjustment in
the applicable rates of interest payable hereunder, fully compensate for such
reduction, increased cost or payment. Such additional amounts shall be payable,
in the case of those applicable to prior periods, within 15 days after written
request by such Bank for such payment. Each Bank will promptly notify the
Borrower of any determination made by it referred to in clauses (a) and (b)
above, but the failure to give such notice shall not affect such Bank's right to
compensation.
Section 7.03. Capital Requirements. If after the Agreement Date, under
Applicable Law, interpretations, directives, requests and guidelines (whether or
not having the force of law), (a) in the determination of any Bank, such Bank or
any of its Affiliates is required to maintain capital on account of any Loan or
participation in a Letter of Credit or such Bank's commitment to make any Loan
or acquire any participation in a Letter of Credit, or (b) in the determination
of the Issuing Bank, the Issuing Bank or any of its Affiliates is required to
maintain capital on account of (i) any Letter of Credit or its commitment to
issue or participate in any Letter of Credit or (ii) any Drawing then, upon
request by such Bank or the Issuing Bank, as the case may be, the Borrower shall
from time to time thereafter pay to such Bank or the Issuing Bank, as the case
may be, such additional amounts as such Bank or the Issuing Bank, as the case
may be, determines will fully compensate for any reduction in the rate of return
on the additional capital that such Bank, or its Affiliate or the Issuing Bank,
or its Affiliate, as the case may be, is so required to maintain. Such
additional amounts shall be payable, in the case of those applicable to prior
periods, within 15 days after written request by such Bank or the Issuing Bank,
as the case may be, for such payment.
Section 7.04. Funding Losses. The Borrower shall pay to each Bank, upon
request, such amount or amounts as such Bank determines are necessary to
compensate it for any loss, cost or expense incurred by it as a result of (a)
any payment, prepayment or conversion of a Eurodollar Rate Loan on a date other
than the last day of an Interest Period for such Eurodollar Rate Loan or (b) a
Eurodollar Rate Loan for any reason not being made or converted, or any payment
of principal thereof or interest thereon not being made, on the date therefor
determined in accordance with the applicable provisions of this Agreement. At
the election of such Bank, and without limiting the generality of the foregoing,
but without duplication, such compensation on account of losses may include an
amount equal to the excess of (i) the interest that would have been received
from such Borrower under this Agreement on any amounts to be reemployed during
an Interest Period or its remaining portion (excluding any applicable margin)
over (ii) the interest component of the return that such Bank determines it
could have obtained had it placed such amount on deposit in the interbank Dollar
market selected by it for a period equal to such Interest Period or its
remaining portion.
Section 7.05. Certain Determinations. In making the determinations
contemplated by Sections 7.01, 7.02, 7.03 and 7.04, each Bank may make such
estimates, assumptions, allocations and the like that such Bank in good faith
determines to be appropriate, and such Bank's selection thereof in accordance
with this Section 7.05, and the determinations made by such Bank on the basis
thereof, shall be final, binding and conclusive upon the Borrower, except, in
the case of such determinations, for manifest errors. Each Bank shall furnish
to the Borrower a certificate outlining in reasonable detail the computation of
any amounts claimed by it under Sections 7.02, 7.03 and 7.04 and the assumptions
underlying such computations.
Section 7.06. Change of Lending Office. If an event occurs with respect
to a Lending Office of any Bank or the Issuing Bank that obligates the Borrower
to pay any amount under Section 1.13, makes operable the provisions of clause
(c) or (d) of Section 7.01 or entitles such Person to make a claim under Section
7.02 or 7.03, if requested by the Borrower, such Person shall use reasonable
efforts to designate another Lending Office or Offices, the designation of which
will reduce the amount the Borrower is so obligated to pay, eliminate such
operability or reduce the amount such Person is so entitled to claim, provided
that such designation would not, in the sole and absolute discretion of such
Person, be disadvantageous to such Person in any manner or contrary to such
Person's policies. Each Bank and the Issuing Bank may at any time and from time
to time change any Lending Office and shall give notice of any such change to
the Agent and the Borrower. Except in the case of a change in Lending Offices
made at the request of the Borrower, the designation of a new Lending Office by
any Bank or the Issuing Bank shall not obligate the Borrower to pay any amount
to such Person under Section 1.13, make operable the provisions of clause (c) or
(d) of Section 7.01 or entitle such Person to make a claim under Section 7.02 or
7.03 if such obligation, the operability of such clause or such claim results
solely from such designation and not from a subsequent Regulatory Change.
Section 7.07. Replacement of Certain Banks. If any Bank is owed
additional amounts under Section 7.01 or 7.02 or 7.03, or if any Bank declines
to agree to an extension of the Facility Period under Section 1.01(c), the
Borrower shall have the right, if no Default then exists, (a) to replace such
Bank with another commercial bank acceptable to the Agent or (b) subject to the
consent of such Banks in their sole discretion, increase the participation of
one or more of the remaining Banks; provided, that (i) the obligations of the
Borrower owing to the Bank being replaced shall be paid in full, (ii) the
replacement commercial bank shall execute a document satisfactory to the Agent
to which it becomes a party hereto with a Commitment equal to that of the Bank
being replaced and (iii) upon such execution, the replacement commercial bank
shall constitute a "Bank" hereunder; and provided, further, that if the Bank to
be replaced is Societe Generale, New York Branch, then a successor Issuing Bank
or Agent, as applicable, shall be appointed in compliance with the terms of this
Agreement.
ARTICLE 8.
THE AGENT
Section 8.01. Appointment and Powers. The Issuing Bank and each Bank
hereby irrevocably appoints and authorizes the Agent, individually and in its
capacity as Agent, to act as the agent for such Issuing Bank or Bank under the
Loan Documents, with such powers as are delegated to the Agent by the terms
thereof, together with such other powers as are reasonably incidental thereto.
The Agent's duties shall be purely ministerial and the Agent shall have no
duties or responsibilities except those expressly set forth in the Loan
Documents. The Agent shall not be required under any circumstances to take any
action that, in its judgment, (a) is contrary to any provision of the Loan
Documents or Applicable Law or (b) would expose the Agent to any Liability or
expense against which it has not been indemnified to its satisfaction. The
Agent shall not, by reason of its serving as the Agent, be a trustee or other
fiduciary for any Bank.
Section 8.02. Limitation on Liability of Agent. Neither the Agent nor
any of its respective directors, officers, employees or agents shall be liable
or responsible for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence, willful misconduct or knowing violations of law. The Agent shall
not be responsible to the Issuing Bank or any Bank for (a) any recitals,
statements, representations or warranties contained in the Loan Documents or in
any certificate or other document referred to or provided for in, or received by
the Issuing Bank or any of the Banks under, the Loan Documents, (b) the
validity, effectiveness or enforceability of the Loan Documents or any such
certificate or other document, or (c) any failure by the Borrower to perform any
of its obligations under the Loan Documents. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact so long as the Agent was not grossly
negligent in selecting or directing such agents or attorneys-in-fact. The Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, facsimile, telegram or cable)
believed by it to be genuine and correct and to have been signed or given by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the Agent.
As to any matters not expressly provided for by the Loan Documents, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under the Loan Documents in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
Section 8.03. Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default (other than the non-payment to it of fees or
Drawings or principal of or interest on Loans) unless the Agent has received
notice from a Bank or the Borrower specifying such Default and stating that such
notice is a "Notice of Default". In the event that the Agent has knowledge of
such a non-payment or receives such a notice of the occurrence of a Default, the
Agent shall give prompt notice thereof to the Banks. In the event of any
Default, the Agent shall (a) in the case of a Default that constitutes an Event
of Default, take any or all of the actions referred to in clauses (a) and (b) of
the first sentence of Section 6.02 if so directed by the Required Banks and (b)
in the case of any Default, take such other action with respect to such Default
as shall be reasonably directed by the Required Banks. Unless and until the
Agent shall have received such directions, in the event of any Default, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interests of the Banks.
Section 8.04. Rights as a Bank. Each Person acting as the Agent that is
also a Bank shall, in its capacity as a Bank, have the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not acting as the Agent, and the term "Bank" or "Banks" shall include
such Person in its individual capacity. Each Person acting as the Agent
(whether or not such Person is a Bank) and its Affiliates may (without having to
account therefor to the Issuing Bank or any Bank) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Borrower and its Affiliates as if it were not acting as an Agent, and
such Person and its Affiliates may accept fees and other consideration from the
Borrower and its Affiliates for services in connection with the Loan Documents
or otherwise without having to account for the same to the Issuing Bank or the
Banks.
Section 8.05. Indemnification. The Banks agree to indemnify the Agent
(to the extent not reimbursed by the Borrower under the Loan Documents), ratably
on the basis of their respective Percentage Interests, for any and all
Liabilities, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Agent (including the costs and expenses
that the Borrower is obligated to pay under the Loan Documents) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent (a) they are subject to the indemnity contemplated by the last sentence
of Section 9.10(b) or (b) they arise from gross negligence, willful misconduct
or knowing violations of law by the Agent.
Section 8.06. Non-Reliance on the Agent, the Issuing Bank and Other
Banks. Each Bank agrees that it has made and will continue to make,
independently and without reliance on the Agent or the Issuing Bank or any other
Bank, and based on such documents and information as it deems appropriate, its
own credit analysis of the Borrower, and its own decision to enter into the Loan
Documents and to take or refrain from taking any action in connection therewith.
The Agent shall not be required to keep itself informed as to the performance or
observance by the Borrower of the Loan Documents or any other document referred
to or provided for therein or to inspect the properties or books of the Borrower
or any Subsidiary thereof. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent under
the Loan Documents, the Agent shall not have any obligation to provide any Bank
with any information concerning the business, status or condition of the
Borrower or any Subsidiary thereof, the Loan Documents that may come into the
possession of the Agent or any of its Affiliates.
Section 8.07. Execution and Amendment of Loan Documents on Behalf of the
Banks. Each Bank hereby authorizes the Agent to execute and deliver, in the
name of and on behalf of such Bank, any other Loan Document requiring execution
by or on behalf of such Bank. The Agent shall consent to any amendment of any
term, covenant, agreement or condition of the Loan Documents, or to any waiver
of any right thereunder, if, but only if, the Agent is directed to do so in
writing by the Required Banks; provided, however, that (i) the Agent shall not
be required to consent to any such amendment or waiver that affects its rights
or duties and (ii) the Agent shall not, unless directed to do so in writing by
each Bank, consent to any assignment by the Borrower of any of its rights or
obligations under any such agreement in connection with the Loan Documents,
except as required or permitted by the Loan Documents.
Section 8.08. Resignation of the Agent. The Agent may at any time give
notice of its resignation to the Issuing Bank, the Banks and the Borrower. The
Agent shall resign if directed by the Required Banks. Upon receipt of any such
notice of resignation or removal, the Required Banks may, after consultation
with the Borrower, appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or
removal, then the retiring Agent may, on behalf of the Banks and after
consultation with the Borrower, appoint a successor Agent. Upon the acceptance
by any Person of its appointment as a successor Agent, (a) such Person shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations as Agent under the Loan Documents.
After any retiring Agent's resignation or removal as Agent, the provisions of
this Article 8 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
ARTICLE 9.
MISCELLANEOUS
Section 9.01. Notices and Deliveries. (a) Notices and Information.
Except as provided in Section 9.01(b):
(i) Manner of Delivery. All notices, communications and materials
(including all Information) to be given or delivered pursuant to the Loan
Documents shall, except in those cases where giving notice by telephone is
expressly permitted, be given or delivered in writing (which shall include telex
and facsimile transmissions). Notices under Sections 1.02(a), 1.02(b), 1.03(c),
1.04(b), 1.05, 1.07 and 6.02 may be by telephone, promptly, in the case of each
notice other than one under Section 6.02, confirmed in writing. In the event of
a discrepancy between any telephonic notice and any written confirmation
thereof, such written confirmation shall be deemed the effective notice except
to the extent that the any Person has acted in reliance on such telephonic
notice.
(ii) Addresses. All notices, communications and materials to be given or
delivered pursuant to the Loan Documents shall be given or delivered at the
following respective addresses and facsimile and telephone numbers and to the
attention of the following individuals or departments:
(A) if to the Borrower, to it at:
Trigen Energy Corporation
One Water Street
White Plains, New York 10601
Fax No.: (914) 286-6777
Telephone No.: (914) 286-6600
Attention: Treasurer
(B) if to any Bank, to it at the address or fax or telephone number
and to the attention of the individual or department, set forth below
such Bank's name under the heading "Notice Address" on Annex A or, in
the case of a Bank that becomes a Bank pursuant to an assignment, set
forth under the heading "Notice Address" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment;
(C) if to the Issuing Bank at an address or fax or telephone number
different from that determined in accordance with clause (B) above with
respect to the Bank that is the Issuing Bank, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7428
Telephone No.: (212) 278-6727
Attention: Specialized Letter of Credit Services
(D) if to the Agent at an address or fax or telephone number
different from that determined in accordance with clause (B) above with
respect to the Bank that is the Agent, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7463
Telephone No.: (212) 278-6926
Attention: Ms. Betty Burg
or at such other address or fax or telephone number or to the attention of such
other individual or department as the party to which such information pertains
may hereafter specify for the purpose in a notice specifically captioned "Notice
of Change of Address" given to (x) if the party to which such information
pertains is the Borrower, the Agent, the Issuing Bank and each Bank, (y) if the
party to which such information pertains is the Agent, the Borrower, the Issuing
Bank and each Bank and (z) if the party to which such information pertains is a
Bank or the Issuing Bank, the Borrower and the Agent.
(iii) Effectiveness. Each notice and communication and any material to
be given or delivered pursuant to the Loan Documents shall be deemed so given or
delivered (A) if sent by registered or certified mail, postage prepaid, return
receipt requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United States post
office and a receipt therefor is issued thereby, (B) if sent by any other means
of physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, (C) if sent by facsimile, when
such notice, communication or material is transmitted to the appropriate fax
number as above provided and is received at such number and (D) if given by
telephone, when communicated to the individual or any member of the department
specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered, or, in the case of
notice by the Agent to the Borrower under Section 6.02 given by telephone as
above provided, if any individual or any member of the department to whose
attention notices, communications and materials are to be given or delivered is
unavailable at the time, to any other officer or employee of the Borrower,
except that (1) notices of a change of address, fax or telephone number or
individual or department to whose attention notices, communications and
materials are to be given or delivered shall not be deemed given until received
and (2) notices, communications and materials to be given or delivered to the
(x) Agent or any Bank pursuant to Sections 1.02(a), 1.03(c), 1.04(b), 1.05, 1.07
and 1.12(b) and Article 5 shall not be deemed given or delivered until received
by the officer of the Agent or such Bank responsible, at the time, for the
administration of the Loan Documents and (y) the Issuing Bank pursuant to
Section 1.02(b) shall not be deemed given or delivered until received by the
officer of the Issuing Bank responsible, at the time, for the administration of
the Issuing Bank's commitment hereunder to issue Letters of Credit.
(iv) Reasonable Notice. Any requirement under Applicable Law of
reasonable notice by the Agent, the Issuing Bank or the Banks to the Borrower of
any event in connection with, or in any way related to, the Loan Documents or
the exercise by the Agent, the Issuing Bank or the Banks of any of their rights
thereunder shall, to the extent permitted by Applicable Law, be met if notice of
such event is given to the Borrower in the manner prescribed above at least 10
days before (A) the date of such event or (B) the date after which such event
will occur.
Section 9.02. Expenses; Indemnification. Whether or not any Credit
Extensions are made hereunder, the Borrower shall:
(a) pay or reimburse the Agent, the Issuing Bank and each Bank for all
transfer, documentary, stamp and similar taxes, and all recording and filing
fees and taxes, payable in connection with, arising out of, or in any way
related to, the execution, delivery and performance of the Loan Documents or
the making of the Loans or the Drawings or the issuance of the Letters of
Credit, if any;
(b) pay or reimburse the Agent for all reasonable costs and expenses
(including fees and disbursements of legal counsel, appraisers, accountants
and other experts employed or retained by the Agent) incurred by such Person
in connection with, arising out of, or in any way related to (i) the
negotiation, preparation, execution and delivery of (A) the Loan Documents
and (B) whether or not executed, any waiver, amendment or consent thereunder
or thereto, (ii) the administration of and any operations under the Loan
Documents, (iii) consulting with respect to any matter in any way arising out
of, related to, or connected with, the Loan Documents, including (A) the
protection, preservation, exercise or enforcement of any of the rights of
such Person or the Banks in, under or related to the Loan Documents or (B)
the performance of any of the obligations of such Person or the Banks under
or related to the Loan Documents, or (iv) protecting, preserving, exercising
or enforcing any of the rights of such Person or the Banks in, under or
related to the Loan Documents;
(c) pay or reimburse each Bank and the Issuing Bank for all reasonable
costs and expenses (including fees and disbursements of legal counsel and
other experts employed or retained by such Person) incurred by such Person in
connection with, arising out of, or in any way related to protecting,
preserving, exercising or enforcing any of its rights in, under or related to
the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from and against
all losses (including judgments, penalties and fines) suffered, and pay or
reimburse each Indemnified Person for all costs and expenses (including
reasonable fees and disbursements of legal counsel and other experts employed
or retained by such Indemnified Person) incurred, by such Indemnified Person
in connection with, arising out of, or in any way related to (i) any Loan
Document Related Claim (whether asserted by such Indemnified Person or the
Borrower or any other Person), including the prosecution or defense thereof
and any litigation or proceeding with respect thereto (whether or not, in the
case of any such litigation or proceeding, such Indemnified Person is a party
thereto), or (ii) any investigation, governmental or otherwise, arising out
of, related to, or in any way connected with, the Loan Documents or the
relationships established thereunder, except that the foregoing indemnity
shall not be applicable to any loss suffered by any Indemnified Person to the
extent such loss is the result of acts or omissions on the part of such
Indemnified Person constituting (w) gross negligence, (x) willful misconduct,
(y) knowing violations of law or (z) in the case of claims by the Borrower
against such Indemnified Person, such Indemnified Person's failure to observe
any other standard applicable to it under any of the other provisions of the
Loan Documents or, but only to the extent not waivable thereunder, Applicable
Law.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Indemnified Person in respect of which
indemnity may be sought from the Borrower, such Indemnified Person shall
promptly notify the Borrower in writing, and the Borrower shall assume the
defense thereof, including the employment of counsel satisfactory to such
Indemnified Person, and the payment of all expenses. Any Indemnified Person
seeking indemnification shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expense of such Indemnified Person unless (a) the
Borrower has agreed to pay such fees and expenses or (b) the Borrower shall have
failed to assume the defense of such action or proceeding or shall have failed
to employ counsel satisfactory to such Indemnified Person in any such action or
proceeding or (c) the named parties to any such action or proceeding (including
any impleaded parties) include such Indemnified Person, and such Indemnified
Person shall have been advised by counsel that there may be one or more legal
defenses available to such Indemnified Person that are different from or
additional to those available to the Borrower (in which case, if such
Indemnified Person notifies the Borrower in writing that it elects to employ
separate counsel at the expense of the Borrower, the Borrower shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Person; it being understood, however, that the Borrower shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all Indemnified Persons, which firm shall be designated in writing by
such Indemnified Persons). The Borrower shall not be liable for any settlement
of any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there is a final judgment for the
plaintiff in any such action or proceeding, the Borrower agrees to indemnify and
hold harmless any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment.
Section 9.03. Amounts Payable Due Upon Request for Payment. All amounts
payable by the Borrower under Section 9.02 and under the other provisions of the
Loan Documents shall, except as otherwise expressly provided, be immediately due
upon request for the payment thereof.
Section 9.04. Remedies of the Essence. The various rights and remedies
of the Agent, the Issuing Bank and the Banks under the Loan Documents are of the
essence of those agreements, and the Agent, the Issuing Bank and the Banks shall
be entitled, to the extent permitted by Applicable Law, to obtain a decree
requiring specific performance of each such right and remedy.
Section 9.05. Rights Cumulative. Each of the rights and remedies of the
Agent, the Issuing Bank and the Banks under the Loan Documents shall be in
addition to all of their other rights and remedies under the Loan Documents and
Applicable Law, and nothing in the Loan Documents shall be construed as limiting
any such rights or remedies.
Section 9.06. Disclosures. Each of the Agent, the Issuing Bank and the
Banks agrees to hold any information (which is not already public information)
which it may receive from the Borrower or any Subsidiary pursuant to any Loan
Document in confidence, except for disclosure (i) to other Banks, the Agent, or
the Issuing Bank, (ii) to legal counsel, accountants, and other professional
advisors to the Agent, the Issuing Bank or such Bank, as the case may be, (iii)
to regulatory officials, (iv) as requested pursuant to or as required by
Applicable Law, (v) in connection with any legal proceeding to which the Agent,
the Issuing Bank or such Bank, as the case may be, is a party, and (vi) to
potential assignees and participants of such Bank, provided, that such Bank
shall require any assignee or participant to be bound in like manner to this
Section 9.06.
Section 9.07. Amendments; Waivers. Any term, covenant, agreement or
condition of the Loan Documents may be amended, and any right under the Loan
Documents may be waived, if, but only if, such amendment or waiver is in writing
and is signed by the Required Banks and, if the rights and duties of the Agent
or the Issuing Bank are affected thereby, by the Agent or the Issuing Bank, as
the case may be, and in the case of an amendment with respect to any Loan
Document, by the Borrower; provided, however, that no amendment or waiver shall
be effective, unless in writing and signed by each Bank affected thereby, to the
extent it (i) changes the amount of such Bank's Commitment, except as permitted
by Section 7.07, (ii) reduces (A) the principal of or the rate of interest on
(1) such Bank's Loans or Notes or (2) any of the Drawings or (B) the fees
payable to such Bank hereunder, (iii) postpones any date fixed for (A) any
payment of (1) principal of or interest on (aa) such Bank's Loans or Notes or
(bb) any of the Drawings or (2) the fees payable to such Bank hereunder or (B)
the expiration of any Letter of Credit if such postponement would extend the
expiration of such Letter of Credit beyond the Termination Date, or (iv) amends
or waives the requirements of, or an Event of Default under, Section 1.14,
Section 3.21, Section 6.01(h), this Section 9.07 or any other provision of this
Agreement requiring the consent or other action of all of the Banks. Unless
otherwise specified in such waiver, a waiver of any right under the Loan
Documents shall be effective only in the specific instance and for the specific
purpose for which given. No election not to exercise, failure to exercise or
delay in exercising any right, nor any course of dealing or performance, shall
operate as a waiver of any right of the Agent, the Issuing Bank or any Bank
under the Loan Documents or Applicable Law, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right of the Agent, the Issuing Bank or any Bank under the
Loan Documents or Applicable Law.
Section 9.08. Set-Off; Suspension of Payment and Performance. The Agent,
the Issuing Bank and each Bank is hereby authorized by the Borrower, at any time
and from time to time, without notice, to the extent permitted by Applicable
Law, during any Event of Default, to set off against, and to appropriate and
apply to the payment of, the Liabilities of the Borrower under the Loan
Documents (whether owing to such Person or to any other Person that is the
Agent, the Issuing Bank or a Bank and whether matured or unmatured, fixed or
contingent or liquidated or unliquidated) any and all Liabilities owing by such
Person or any of its Affiliates to the Borrower (whether payable in Dollars or
any other currency, whether matured or unmatured and, in the case of Liabilities
that are deposits, whether general or special, time or demand and however
evidenced and whether maintained at a branch or office located within or without
the United States).
Section 9.09. Sharing of Recoveries. (a) Each Bank agrees that, if, for
any reason, including as a result of (i) the exercise of any right of
counterclaim, set-off, banker's lien or similar right, (ii) its claim in any
applicable bankruptcy, insolvency or other similar law being deemed secured by a
Debt owed by it to the Borrower, including a claim deemed secured under Section
506 of the Bankruptcy Code, or (iii) the allocation of payments by the Agent or
the Borrower in a manner contrary to the provisions of Section 1.14, such Bank
shall receive payment of a proportion of the aggregate amount due and payable to
it hereunder as principal of or interest on the Loans, Drawings or fees that is
greater than the proportion received by any other Bank in respect of the
aggregate of such amounts due and payable to such other Bank hereunder, then the
Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder so that all
such recoveries with respect to such amounts due and payable hereunder (net of
costs of collection) shall be pro rata; provided that if all or part of such
proportionately greater payment received by the purchasing Bank is thereafter
recovered by or on behalf of the Borrower from such Bank, such purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such Bank to the extent of such recovery, but without interest
(unless the purchasing Bank is required to pay interest on the amount recovered
to the Person recovering such amount, in which case the selling Bank shall be
required to pay interest at a like rate). The Borrower expressly consents to
the foregoing arrangements and agree that any holder of a participation in any
rights hereunder so purchased or acquired pursuant to this Section 9.09(a)
shall, with respect to such participation, be entitled, to the extent permitted
by Applicable Law, to all of the rights of a Bank under Sections 7.02, 9.02 and
9.08 (subject to any condition imposed on a Bank hereunder with respect thereto)
and may, to the extent permitted by Applicable Law, exercise any and all rights
of set-off with respect to such participation as fully as though the Borrower
was directly indebted to the holder of such participation for Loans to the
Borrower in the amount of such participation.
(b) Each Bank agrees to exercise any right of counterclaim, set-off,
banker's lien or similar right that it may have in respect of the Borrower in a
manner so as to apportion the amount subject to such exercise, on a pro rata
basis, between (i) obligations of such Borrower for amounts subject to the
sharing provisions of Section 9.09(a) and (ii) other Liabilities of such
Borrower.
Section 9.10. Assignments and Participations. (a) Assignments. (i) The
Borrower may not assign any of its rights or obligations under the Loan
Documents without the prior written consent of the Agent, the Issuing Bank and
each Bank, and no assignment of any such obligation shall release the Borrower
therefrom unless the Agent or the Issuing Bank and each Bank, as applicable,
shall have consented to such release in a writing specifically referring to the
obligation from which the Borrower is to be released.
(ii) Each Bank may from time to time assign any or all of its rights and
obligations under the Loan Documents to one or more Eligible Assignees; provided
that, except in the case of the grant of a security interest to a Federal
Reserve Bank (which may be made without condition or restriction), no such
assignment shall be effective unless (A) the assignment is consented to by the
Borrower (unless an Event of Default specified in Section 6.01(e) with respect
to the Borrower exists), which consent shall not be unreasonably withheld (it
being agreed that the failure of a proposed assignee to have a long term debt
rating of A- or higher is a valid reason for withholding consent), the Issuing
Bank and the Agent (which consents shall not be unreasonably withheld), (B) if
less than the full amount of the assignor Bank's Commitment, the assignment
shall involve the assignment of not less than $5,000,000 of the assignor Bank's
Commitment, (C) a Notice of Assignment with respect the assignment, duly
executed by the assignor and the assignee, shall have been given to the Borrower
and the Agent, (D) in the case of an assignment of a Registered Note, such
Registered Note shall have been surrendered for registration of assignment duly
endorsed by (or accompanied by a written instrument of assignment duly executed
by) the Registered Holder and such assignment shall have been recorded on the
Register and (E) except in the case of an assignment by the Bank that is the
Agent, the Agent shall have been paid an assignment fee of $2,500. Upon any
effective assignment, the assignor shall be released from the obligations so
assigned and, in the case of an assignment of all of its Loans and Commitment,
shall cease to be a Bank. In the event of any effective assignment by a Bank,
the Borrower shall, against receipt of the existing Note of the assignor Bank,
issue a new Note to the assignee Bank and, in the case of a partial assignment,
to the assignor Bank, appropriately reflecting such assignment.
(b) Participations. Each Bank may from time to time sell or otherwise
grant participations in any or all of its rights and obligations under the Loan
Documents without the consent of the Borrower, the Agent, the Issuing Bank or
any other Bank. In the event of any such grant by a Bank of a participation,
such Bank's obligations under the Loan Documents to the other parties thereto
shall remain unchanged, such Bank shall remain solely responsible for the
performance thereof, and the Borrower, the Agent and the other Banks may
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations thereunder. A Bank may not grant to any holder of
a participation the right to require such Bank to take or omit to take any
action under the Loan Documents, except that a Bank may grant to any such holder
the right to require such holder's consent to (i) reduce (A) the principal of or
the rate of interest on (1) such Bank's Loans or Notes or (2) any of the
Drawings or (B) the fees payable to such Bank hereunder, (ii) postpone any date
fixed for (A) any payment of (1) principal of or interest on (aa) such Bank's
Loans or Notes or (bb) any of the Drawings or (2) the fees payable to such Bank
hereunder or (B) the expiration of any Letter of Credit if such postponement
would extend the expiration date of such Letter of Credit beyond the Termination
Date or (iii) except in connection with a transaction that is permitted under
the Loan Documents, permit the Borrower to assign any of its obligations under
the Loan Documents to any other Person. Each holder of a participation in any
rights under the Loan Documents, if and to the extent the applicable
participation agreement so provides, shall, with respect to such participation,
be entitled to all of the rights of a Bank as fully as though it were a Bank
under Sections 1.13, 7.02, 7.03, 7.04 and 9.02(d) (subject to any conditions
imposed on a Bank hereunder with respect thereto, including delivery of the
forms and certificates required under Section 1.13(c)) and may, to the extent
permitted by Applicable Law, exercise any and all rights of set-off with respect
to such participation as fully as though the Borrower was directly indebted to
the holder of such participation for Loans made to the Borrower in the amount of
such participation; provided, however, that no holder of a participation shall
be entitled to any amounts that would otherwise be payable to it with respect to
its participation under Section 1.13 or 7.02 unless (x) such amounts are payable
in respect of Regulatory Changes that are enacted, adopted or issued after the
date the applicable participation agreement was executed or (y) such amounts
would have been payable to the Bank that granted such participation if such
participation had not been granted. Each Bank selling or granting a
participation shall indemnify the Borrower and the Agent for any Taxes and
Liabilities that then may sustain as a result of such Bank's failure to withhold
and pay any Taxes applicable to payments by such Bank to its participant in
respect of such participation.
Section 9.11. Governing Law. This Agreement and the Notes (including
matters relating to the Maximum Permissible Rate) shall be construed in
accordance with and governed by the law of the State of New York (without giving
effect to its choice of law principles other than Section 5-1401 of the New York
General Obligations Law).
Section 9.12. Judicial Proceedings; Waiver of Jury Trial. Any judicial
proceeding brought against the Borrower with respect to any Loan Document
Related Claim may be brought in any court of competent jurisdiction in The City
of New York, and, by execution and delivery of this Agreement, the Borrower (a)
accepts, generally and unconditionally, the nonexclusive jurisdiction of such
courts and any related appellate court and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with any Loan Document Related
Claim and (b) irrevocably waives, to the extent permitted by Applicable Law, any
objection it may now or hereafter have as to the venue of any such proceeding
brought in such a court or that such a court is an inconvenient forum. The
Borrower hereby waives personal service of process and consents that service of
process upon it may be made by certified or registered mail, return receipt
requested, at its address specified or determined in accordance with the
provisions of Section 9.01(a)(ii), and service so made shall be deemed completed
on the third Business Day after such service is deposited in the mail. Nothing
herein shall affect the right of any Agent, the Issuing Bank, any Bank or any
other Indemnified Person to serve process in any other manner permitted by law
or shall limit the right of any Agent, the Issuing Bank, any Bank or any other
Indemnified Person to bring proceedings against the Borrower in the courts of
any other jurisdiction. THE BORROWER, THE AGENT, THE ISSUING BANK AND EACH BANK
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY LOAN
DOCUMENT RELATED CLAIM.
Section 9.13. Judgment Currency. If in connection with determining the
amount of a judgment to be rendered in a currency other than Dollars (a "Foreign
Currency"), it is necessary to convert a sum payable by the Borrower to an
Indemnified Person under the Loan Documents in Dollars into such Foreign
Currency, then, unless another rate of exchange is required under Applicable
Law, the rate of exchange used shall be the Agent's Spot Rate on the Business
Day preceding the day on which final judgment is to be rendered. The
obligations of the Borrower in respect of any such sum payable by it to such
Indemnified Person under the Loan Documents in Dollars shall, notwithstanding
any such judgment in such Foreign Currency, be discharged only to the extent
that on the Business Day following actual receipt by such Indemnified Person of
the amount of the judgment in such Foreign Currency, such Indemnified Person is
able to purchase Dollars in New York with such sum of Foreign Currency, whether
or not at the Agent's spot rate of exchange. As a separate obligation and
notwithstanding any such judgment, the Borrower shall pay such Indemnified
Person on demand in Dollars any difference between the amount originally payable
by the Borrower to such Indemnified Person in Dollars and the amount of Dollars
that may be so purchased. In the event that the amount that may be so purchased
exceeds the amount originally payable, such Indemnified Person shall promptly
remit such excess to the Borrower.
Section 9.14. LIMITATION OF LIABILITY. NEITHER THE AGENT, THE ISSUING
BANK, THE BANKS, ANY OTHER INDEMNIFIED PERSON NOR (EXCEPT AS OTHERWISE PROVIDED
HEREIN) THE BORROWER SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND EACH PARTY
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY SUCH PARTY IN CONNECTION WITH ANY LOAN
DOCUMENT RELATED CLAIM.
Section 9.15. Severability of Provisions. Any provision of the Loan
Documents that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Borrower hereby
waives any provision of Applicable Law that renders any provision of the Loan
Documents prohibited or unenforceable in any respect.
Section 9.16. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument.
Section 9.17. Survival of Obligations. Except as otherwise expressly
provided therein, the rights and obligations of the Borrower, the Agent, the
Issuing Bank, the Banks and the other Indemnified Persons under the Loan
Documents shall survive the Repayment Date.
Section 9.18. Entire Agreement. This Agreement and the Notes embody the
entire agreement among the Borrower, the Agent, the Issuing Bank and the Banks
relating to the subject matter hereof and supersede all prior agreements,
representations and understandings, if any, relating to the subject matter
hereof.
Section 9.19. Successors and Assigns. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 9.20. Registered Notes. A Bank that is a Non-US Bank that has
complied with Section 1.13(c)(A)(1)(bb) may have its Note issued as a Registered
Note, and for this purpose the Borrower shall cause to be maintained a Register.
Once issued, Registered Notes may not be exchanged for Notes that are not
Registered Notes, and of the Loans evidenced thereby, may be transferred only in
accordance with the provisions of Section 9.10(a)(ii)(D).
ARTICLE 10.
INTERPRETATION
Section 10.01. Defined Terms. For the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to that term in
Section 302 of ERISA.
"Adjusted EBITDA" means, for the twelve-month period ending on the date of
determination, and without duplication, for the Borrower and its Consolidated
Subsidiaries: (a) the sum of Operating Income, Other Income (Net), Depreciation
and Amortization minus (b) Mandatory Capital Expenditures. For purposes of the
foregoing: (i) "Operating Income", "Other Income (Net)" and "Depreciation" mean
the respective amounts that appear (or would appear) as such on a consolidated
statement of operations of the Borrower and its Consolidated Subsidiaries
prepared in accordance with Article 5 hereof, and (ii) "Amortization" means the
amount that appears (or would appear) as such on a consolidated statement of
cash flows of the Borrower and its Consolidated Subsidiaries prepared in
accordance with Article 5 hereof. For purposes of the foregoing "Mandatory
Capital Expenditures" means that portion of aggregate capital expenditures of
the Borrower and its Consolidated Subsidiaries for such specified period
consisting of non-discretionary environmental, health, maintenance, safety and
other regulatory costs essential to the continued operations of the Borrower and
its Consolidated Subsidiaries, whether or not such costs are expected to produce
future returns.
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower.
"Agency Fee" shall have the meaning set forth in Section 1.08(c).
"Agent" means Societe Generale, as agent for the Banks and the Issuing
Bank under the Loan Documents, and any successor Agent appointed pursuant to
Section 8.08.
"Agent's Office" means the address of the Agent specified in or determined
in accordance with the provisions of Section 9.01.
"Agreement" means this Revolving Credit Facility, including all schedules,
annexes and exhibits hereto, as the same may be amended, modified or
supplemented from time to time.
"Agreement Date" means the date set forth as such on the signature pages
hereof, which date is the date the executed copies of this Agreement were deemed
delivered by all parties hereto and, accordingly, this Agreement became
effective and the Banks first became committed to make the Loans and other
extensions of credit contemplated by this Agreement.
"Applicable Law" means, anything in Section 9.11 to the contrary
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and (iii) orders,
decisions, judgments and decrees.
"Applicable LC Fee Rate" means, for any day, a per annum rate equal to the
Eurodollar Rate Margin for such day.
"Arrangement Fee" shall have the meaning set forth in Section 1.08(c).
"Bank" means (a) any Person listed on the signature pages hereof following
the Agent and (b) any Person (other than the Borrower or any of it's Affiliates)
that has been assigned any or all of the rights or obligations of a Bank
pursuant to Section 9.10 or has replaced a Bank pursuant to Section 7.07.
"Bank Tax" means any net income or franchise tax imposed upon any Bank by
any jurisdiction (or political subdivision thereof) in which such Bank or any of
its Lending Offices is located.
"Base Financial Statements" means the most recent, audited, consolidated
balance sheet of the Borrower and the Consolidated Subsidiaries presented in the
Borrower's 1996 Form 10-K filing with the SEC and the related consolidated
statements of operations, stockholders' equity and cash flows for the fiscal
year ended December 31, 1996.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(a) the Prime Rate in effect on such day; or (b) the sum of the Federal Funds
Rate in effect on such day plus 1/2%.
"Base Rate Loan" means any Loan the interest on which is, or is to be, as
the context may require, computed on the basis of the Base Rate.
"Benefit Plan" of any Person, means, at any time, any employee benefit
plan (including a Multiemployer Benefit Plan), the funding requirements of which
(under Section 302(e) of ERISA or Section 412(m) of the Code) are, or at any
time within six years immediately preceding the time in question were, in whole
or in part, the responsibility of the Borrower or any Material Subsidiary, or
any ERISA Affiliate.
"Borrower" means Trigen Energy Corporation, a Delaware corporation.
"Business Day" means any day other than a Saturday, Sunday or other day on
which banks in New York City or London are authorized to close.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including that
portion of capital leases which is capitalized on the consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries) by the Borrower and its
Consolidated Subsidiaries during that period that, in conformity with GAAP, are
required to be included or reflected by the property, plant or equipment or
similar fixed asset accounts reflected in the consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries.
"Capital Security" means, with respect to any Person, (a) any share of
capital stock of such Person or (b) any security convertible into, or any
option, warrant or other right to acquire, any share of capital stock of such
Person.
"Code" means the Internal Revenue Code of 1986.
"Commitment" of any Bank means (a) the amount set forth opposite such
Bank's name under the heading "Commitment" on Annex A or, in the case of a Bank
that becomes a Bank pursuant to an assignment, the amount of the assignor's
Commitment assigned to such Bank, in either case, as the same may be reduced
from time to time pursuant to Section 1.07 or increased or reduced from time to
time pursuant to assignments in accordance with Section 9.10(a), or (b) as the
context may require, the obligation of such Bank to make Loans in an aggregate
unpaid principal amount not exceeding such amount.
"Commitment Fee" shall have the meaning set forth in Section 1.08(a).
"Consolidated Indebtedness" means, at any time, the consolidated
Indebtedness of the Borrower and the Consolidated Subsidiaries as of such time.
"Consolidated Net Income" means, for any period, for any Person the amount
of consolidated net income of such Person and its Consolidated Subsidiaries for
such period (taken as a cumulative whole) as described in the consolidated
financial statements for such Person provided that there shall be excluded any
net income (or net loss) of a Consolidated Subsidiary for any period during
which it was not a Consolidated Subsidiary.
"Consolidated Net Worth" means, at any time, for any Person the
consolidated stockholders' equity of such Person and its Consolidated
Subsidiaries less their consolidated Mandatorily Redeemable Stock (except to the
extent already deducted in determining such consolidated stockholders' equity),
as described in the consolidated financial statements for such Person in each
case, as of such time.
"Consolidated Subsidiary" means, with respect to any Person at any time,
any Subsidiary or other Person the accounts of which would be consolidated with
those of such first Person in its consolidated financial statements as of such
time; unless otherwise specified, "Consolidated Subsidiary" means a Consolidated
Subsidiary of the Borrower.
"Contract" means (a) any agreement (whether bilateral or unilateral or
executory or non-executory and whether a Person entitled to rights thereunder is
so entitled directly or as a third-party beneficiary), including an indenture,
lease or license, (b) any deed or other instrument of conveyance, (c) any
certificate of incorporation or charter and (d) any by-law.
"Control" by any Person (the "Controlling Party") of another Person (the
"Controlled Entity") means that the Controlling Party has the power and
authority, directly or indirectly through its Affiliates under its Control, to:
(a) vote at least 50% of the equity interest of the Controlled Entity plus one
additional vote; and (b) to elect a majority of the board of directors or other
comparable governing body of the Controlled Entity.
"Credit Extension" means (a) the making by any Bank of any Loan or (b) the
issuance or renewal by the Issuing Bank of any Letter of Credit.
"Debt" means any Liability that constitutes "debt" or "Debt" under section
101(11) of the Bankruptcy Code or under the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any analogous Applicable Law.
"Debt Service Coverage Ratio" means, for the Borrower and its Consolidated
Subsidiaries, with respect to any twelve-month period as measured on the last
day of any fiscal quarter of the Borrower, the ratio of (a) Adjusted EBITDA to
(b) the sum of Interest Expense, Rental Expense and all principal payments that
became due during such twelve-month period.
"Default" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Lending Office" of any Bank means, (a) as applied to any Bank,
(i) the branch or office of such Bank set forth below such Bank's name under the
heading "Domestic Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Domestic Lending Office" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment or (ii) such
other branch or office of such Bank designated by such Bank from time to time as
the branch or office at which its Base Rate Loans are to be made or maintained
and (b) as applied to the Issuing Bank, (I) the branch or office of the Issuing
Bank set forth below under the heading "Issuing Bank Domestic Lending Office" on
Annex A or (ii)such other branch or office of such Bank designated by the
Issuing Bank from time to time at which Drawings are to be made or maintained.
"Drawing" means any amount disbursed by the Issuing Bank under a Letter of
Credit.
"Eligible Assignee" means (a) any commercial bank, savings and loan
institution or savings bank organized under the laws of the United States, or
any State thereof, and having combined capital and surplus in excess of
$100,000,000, (b) any commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and having
combined capital and surplus (or the equivalent thereof under the accounting
principles applicable thereto) in excess of $100,000,000, provided that such
bank is acting through a branch, agency or Affiliate located in the country in
which it is organized or another country that is also a member of the OECD, (c)
the central bank of any country that is a member of the OECD or (d) any
insurance company, pension fund, mutual fund or other financial institution of
recognized standing.
"Environmental Claim" means any civil, criminal or administrative action,
suit, demand claim, hearing, notice of violation, investigation, proceeding
notice or demand, code, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved thereunder, including
without limitation, (a) any and all regulatory actions pursuant to any
applicable Environmental Law and (b) all claims by any third party with respect
to or because of its or their property relating to damage, responsibility,
contribution, cost recovery compensation, loss or injury resulting from any
Hazardous Materials.
"Environmental Law" means any applicable federal, state, local or foreign
law, ordinance or regulation relating to pollution or protection of the
environment, including laws relating to industrial hygiene, emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or toxic or hazardous substances or wastes (including, without
limitation, Hazardous Materials) into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes (including, without
limitation, Hazardous Materials).
"Environmental Liability" means any actual or alleged loss, cost, expense
or other liability, whether direct or contingent, in connection with Hazardous
Materials and/or compliance with Environmental Laws.
"Environmental Projects" means the remedial tasks that are specified in
Schedule 3.22.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means, with respect to any Person, any other Person,
including a Subsidiary or other Affiliate of such first Person, that is a member
of any group of organizations within the meaning of Code Sections 414(b), (c),
(m) or (o) of which such first Person is a member.
"Eurodollar Business Day" means any Business Day on which dealings in
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" of any Bank means (a) as applied to any Bank
(i) the branch or office of such Bank set forth below such Bank's name under the
heading "Eurodollar Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Eurodollar Lending Office" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment or (ii) such
other branch or office of such Bank designated by such Bank from time to time as
the branch or office at which its Eurodollar Rate Loans are to be made or
maintained and (b) as applied to the Issuing Bank, if such branch or office is
different from the Eurodollar Lending Office of the Bank that is the Issuing
Bank, (i) the branch or office of the Issuing Bank set forth below the name of
the Bank that is the Issuing Bank under the heading" Issuing Bank Eurodollar
Lending Office on Annex A or (ii)such other branch or office of such Bank
designated by the Issuing Bank from time to time as the branch or the office at
which Drawings are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the Rate that appears on
the Telerate Screen Page in the column headed "USD" for a period equal to such
Interest Period, at 11:00 a.m. (London time) two Eurodollar Business Days before
the first day of such Interest Period. If the Telerate Screen Page becomes
unavailable or if for any other reason determined by the Agent in good faith,
the Agent is unable to determine the appropriate Eurodollar Rate by reference to
the Telerate Screen Page, then "Eurodollar Rate" shall mean, for such Interest
Period, the rate per annum determined by the Agent to be the rate per annum
determined by the Reference Bank to be the rate at which the Reference Bank
offered or would have offered to place with first-class banks in the London
interbank market deposits in Dollars in amounts comparable to the Eurodollar
Rate Loan of the Reference Bank to which such Interest Period applies, for a
period equal to such Interest Period, at 11:00 a.m. (London time) on the second
Eurodollar Business Day before the first day of such Interest Period.
"Eurodollar Rate Loan" means any Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Eurodollar Rate.
"Eurodollar Rate Margin" means (a) .75% so long as the Borrower shall not
maintain an S & P Rating of at least BBB-; and (b) so long as the Borrower shall
receive and maintain an S & P Rating of at least BBB-, the Eurodollar Rate
Margin shall be determined in accordance with the following table:
S & P Rating Eurodollar Rate Margin
A- or higher .30%
BBB+ .35%
BBB .40%
BBB- .45%
The Eurodollar Rate Margin shall be increased or decreased in accordance with
this definition upon any change in the S & P Rating and such increased or
decreased Eurodollar Rate Margin shall be effective from the date of the
announcement of such new S & P Rating.
"Event of Default" means any of the events specified in Section 6.01.
"Existing Credit Agreement" means the Credit Agreement dated as of May 24,
1995 among the Borrower, Societe Generale, as Administrative Agent, and the
banks named therein.
"Existing Restrictive Covenant" means a Restrictive Covenant identified by
reference to relevant sections of the applicable Contract in Schedule 3.06(A).
"Existing Subsidiary" means each Subsidiary existing on the Agreement Date
and each Person into which any Existing Subsidiary is merged.
"Facility" means the revolving credit of up to One Hundred Sixty Million
Dollars ($160,000,000) granted to the Borrower subject and pursuant to the
Agreement, as the same may be reduced pursuant to Section 1.07.
"Facility Period" means the period commencing on the Agreement Date and
ending on the Termination Date.
"Federal Funds Rate" means, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any day that
is a Business Day, the average of quotations for such day on such transactions
received by Societe Generale from three Federal funds brokers of recognized
standing selected by such bank.
"Funded Current Liability Percentage" has the meaning ascribed to that
term in Code Section 401(a)(29).
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession for use in the United States; provided, however, that
if, as a result of any change in GAAP after the Agreement Date, such change in
the opinion of the Banks adversely affects the basis or efficacy of the
covenants used in this Agreement to ascertain the financial condition of the
Borrower, then the calculation of covenant compliance under this Agreement shall
be determined in accordance with GAAP, as applied as if such change had not
occurred.
"Governmental Approval" means any authorization, consent, approval,
license or exemption of, registration or filing with, or report or notice to,
any governmental unit.
"Guaranty" of any Person means any obligation, contingent or otherwise, of
such Person (a) to pay any Liability of any other Person or to otherwise
protect, or having the practical effect of protecting, the holder of any such
Liability against loss (whether such obligation arises by virtue of such Person
being a partner of a partnership or participant in a joint venture or by
agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of any Liability of any other Person
(whether such obligation arises by agreement to reimburse or indemnify such
third Person or otherwise). The word "Guarantee" when used as a verb has the
correlative meaning.
"Hazardous Materials" means any flammable explosives, radioactive
materials, hazardous wastes, toxic substances or related materials, including,
without limitation, any substances defined as or included in the definition of
" hazardous substances", "hazardous wastes", "hazardous materials" under any
applicable federal, state or foreign law or regulation.
"Indebtedness" of any Person means (in each case, whether such obligation
is with full or limited recourse) (a) any obligation of such Person for borrowed
money, (b) any obligation of such Person evidenced by a bond, debenture, note or
other similar instrument, (c) any obligation of such Person to pay the deferred
purchase price of property or services, except a trade account payable that
arises in the ordinary course of business but only if and so long as the same is
payable on customary trade terms, (d) any obligation of such Person as lessee
under a capital lease, (e) any Mandatorily Redeemable Stock of such Person owned
by any Person other than such Person or an Indebtedness-Free Subsidiary of such
Person (the amount of such Mandatorily Redeemable Stock to be determined for
this purpose as the higher of the liquidation preference of and the amount
payable upon redemption of such Mandatorily Redeemable Stock), (f) any
obligation of such Person to purchase securities or other property that arises
out of or in connection with the sale of the same or substantially similar
securities or property, (g) without duplication, the stated amount of all
letters of credit issued for the account of such Person which secure payment of
indebtedness for borrowed money or any other financial obligations and all
drafts drawn thereunder, and the aggregate face amount of all bankers'
acceptances as to which such person is obligated or any other non-contingent
obligation of such Person to reimburse any other Person in respect of amounts
paid under a letter of credit or other Guaranty issued by such other Person to
the extent that such reimbursement obligation remains outstanding after it
becomes non-contingent, (h) such Person's net marked to market liability in
respect of an interest rate or currency swap or similar obligation obligating
such Person to make payments, whether periodically or upon the happening of a
contingency, determined in accordance with GAAP for the most recent date for
which audited financial statements of the Borrower are available, or for such
more recent date as the Agent or the Required Banks may request, (i) any
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) a Lien on any
asset of such Person and (j) any Indebtedness of others Guaranteed by such
Person, provided that in the event that the amount of the Guaranty is limited,
the amount of Indebtedness imputed to the issuer of the Guaranty shall be
limited to the amount of the Guaranty.
"Indebtedness-Free Subsidiary" means a Subsidiary (a) all of the Capital
Securities, other ownership interests and rights to acquire ownership interests
of which are owned or controlled by the Borrower, by one or more other
Indebtedness-Free Subsidiaries or by the Borrower and one or more other
Indebtedness-Free Subsidiaries and (b) that has no Indebtedness other than the
Loans and Indebtedness owing to the Borrower or another Indebtedness-Free
Subsidiary.
"Indemnified Person" means any Person that is, or at any time was, the
Agent, the Issuing Bank, a Bank, an Affiliate of the Agent, the Issuing Bank or
a Bank or a director, officer, employee or agent of any such Person.
"Information" means data, certificates, reports, statements (including
financial statements), opinions of counsel, documents and other information.
"Intellectual Property" means (a) (i) patents and patent rights, (ii)
trademarks, trademark rights, trade names, trade name rights, corporate names,
business names, trade styles, service marks, logos and general intangibles of
like nature and (iii) copyrights, in each case whether registered, unregistered
or under pending registration and, in the case of any such that are registered
or under pending registration, whether registered or under pending registration
under the laws of the United States or any other country, (b) reissues,
continuations, continuations-in-part and extensions of any Intellectual Property
referred to in clause (a), and (c) rights relating to any Intellectual Property
referred to in clause (a) or (b), including rights under applications (whether
pending under the laws of the United States or any other country) or licenses
relating thereto.
"Interest Expense" means, for the Borrower and its Consolidated
Subsidiaries, with respect to any specified period as measured on the last day
of any fiscal quarter of the Borrower: (a) interest expense less (b)
amortization of deferred financing costs, in each case as determined in
accordance with GAAP for each fiscal quarter included in such specified period.
"Interest Payment Date" means (a) for any Base Rate Loan, (i) the last
Business Day of each month; and (ii) the day on which any principal amount of
such Base Rate Loan matures and becomes due and payable; and (b) for any
Eurodollar Loan, (i) the last day of each Interest Period for such Eurodollar
Loan; (ii) the last day of each three month portion of each Interest Period
which is longer than three months; and (iii) the day on which any principal
amount of such Eurodollar Loan matures and becomes due and payable.
"Interest Period" means a period commencing, in the case of the first
Interest Period applicable to a Eurodollar Rate Loan, on the date of the making
of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day in the first, second, third or sixth calendar month
thereafter, except that (a) any Interest Period that would otherwise end on a
day that is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day and (b) any Interest Period that begins on the
last Eurodollar Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month in which such Interest
Period ends) shall end on the last Eurodollar Business Day of a calendar month.
"Investment" of any Person means (a) any Capital Security, evidence of
Indebtedness or other security or instrument issued by any other Person, (b) any
loan, advance or extension of credit to (including Guaranties of Liabilities
of), or any contribution to the capital of, any other Person and (c) any other
investment in any other Person. An Investment shall be deemed to be
"outstanding", except to the extent that it has been paid or otherwise satisfied
in cash or the Person making such Investment has received cash in consideration
for the sale thereof, notwithstanding the fact that such Investment may
otherwise have been forgiven, released, canceled or otherwise nullified.
"Issuing Bank" means with respect to each Letter of Credit issued by
Societe Generale pursuant to Section 1.02(b), Societe Generale in its capacity
as the issuing bank of the Letter of Credit.
"Issuing Bank's Office" means the address of the Issuing Bank specified in
or determined in accordance with the provisions of Section 9.01.
"LdE" means Lyonnaise des Eaux, a corporation organized and existing under
the laws of France.
"Lending Office" of any Bank means the Domestic Lending Office or the
Eurodollar Lending Office of such Bank.
"Letter of Credit" means any standby letter of credit issued by the
Issuing Bank pursuant to Section 1.01(b).
"Letter of Credit Amount" means, at any time, an amount equal to the
product of: (a) the aggregate undrawn amount under such Letter of Credit at
such time; multiplied by (b) such Bank?s Percentage Interest.
"Letter of Credit Commission" means a commission equal to the Applicable
LC Fee Rate based on the aggregate Letter of Credit Amount.
"Letter of Credit Fees" shall mean the fees described in Section 1.08(d).
"Letter of Credit Fronting Fee" means a fee of .10% of the aggregate
undrawn amount of all Letters of Credit issued hereunder, which fee is to be
paid quarterly in arrears to the Issuing Bank.
"Leverage Ratio" means, at any time, the ratio of Consolidated
Indebtedness to Consolidated Net Worth.
"Liability" of any Person means (in each case, whether with full or
limited recourse) any indebtedness, liability, obligation, covenant or duty of
or binding upon, or any term or condition to be observed by or binding upon,
such Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law, or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
"Lien" means, with respect to any property or asset (or any income or
profits therefrom) of any Person (in each case whether the same is consensual or
nonconsensual or arises by Contract, operation of law, legal process or
otherwise) (a) any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof or (b) any other
arrangement, express or implied, under which the same is subordinated,
transferred, sequestered or otherwise identified so as to subject the same to,
or make the same available for, the payment or performance of any Liability in
priority to the payment of the ordinary, unsecured Liabilities of such Person.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset that it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means any amount advanced by a Bank pursuant to Section 1.01(a).
"Loan Document Related Claim" means any claim or dispute (whether arising
under Applicable Law, including any Environmental Law or similar law, under
Contract or otherwise and, in the case of any proceeding relating to any such
claim or dispute, whether civil, criminal, administrative or otherwise) in any
way arising out of, related to, or connected with, the Loan Documents, the
relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Agreement Date or before or after the Repayment Date.
"Loan Document Representation and Warranty" means any "Representation and
Warranty" as defined in any Loan Document and any other representation or
warranty made or deemed made under any Loan Document.
"Loan Documents" means (a) this Agreement, the Notes and the Letters of
Credit and (b) all other agreements, documents and instruments delivered
pursuant to any of the foregoing.
"Mandatorily Redeemable Stock" means, with respect to any Person, any
share of such Person's capital stock to the extent that it is (a) redeemable,
payable or required to be purchased or otherwise retired or extinguished, or
convertible into any Indebtedness or other Liability of such Person, (i) at a
fixed or determinable date, whether by operation of a sinking fund or otherwise,
(ii) at the option of any Person other than such Person or (iii) upon the
occurrence of a condition not solely within the control of such Person, such as
a redemption required to be made out of future earnings or (b) convertible into
Mandatorily Redeemable Stock.
"Material Subsidiary" means each of the present or future Subsidiaries of
the Borrower, other than those designated on Schedule 3.02(a) hereto as "Non-
Material Subsidiaries"; provided, that if any of the "Non-Material Subsidiaries"
listed in said Schedule shall, as at the end of any fiscal quarter, have a net
worth (disregarding any Liability to an Affiliate) as at the end of such fiscal
quarter and each of the three preceding fiscal quarters equal to 5% or more of
the Consolidated Net Worth of the Borrower and its Consolidated Subsidiaries in
each such fiscal quarter, or net income equal to 5% or more of the Consolidated
Net Income of the Borrower and its Consolidated Subsidiaries for each such
Fiscal Quarter, then such Subsidiary shall then and at all times thereafter be a
Material Subsidiary.
"Materially Adverse Effect" means, (a) with respect to any Person, any
materially adverse effect on such Person's business, assets, financial
condition, results of operations, (b) with respect to a group of Persons "taken
as a whole", any materially adverse effect on such Persons' business, assets,
financial conditions, results of operations or business prospects taken as a
whole on, where appropriate, a consolidated basis in accordance with GAAP and
(c) with respect to any Loan Document, any adverse effect, WHETHER OR NOT
MATERIAL, on the binding nature, validity or enforceability thereof as an
obligation of the Borrower.
"Maturity Date" means for any Loan, the earlier of: (a) the Termination
Date; and (b) the date on which the maturity of the Loan has been accelerated
pursuant to Section 6.02.
"Maximum Permissible Rate" means, with respect to interest payable on any
amount, the rate of interest on such amount that, if exceeded, could, under
Applicable Law, result in (a) civil or criminal penalties being imposed on the
payee or (b) the payee's being unable to enforce payment of (or, if collected,
to retain) all or any part of such amount or the interest payable thereon.
"Minimum Consolidated Net Worth" means, for any calendar year, the
Consolidated Net Worth required for such calendar year pursuant to Section
4.03(a).
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Non-Recourse Subsidiary" means all Subsidiaries other than Recourse
Subsidiaries.
"Non-US Bank" means a Person that is not a United States Person and that
is not described in Section 881(c)(3) of the Code.
"Note" means any Note in the form of Exhibit A and includes such a Note
that is a Registered Note.
"Notice of Assignment" means any notice to the Borrower and the Agent with
respect to an assignment and acceptance pursuant to Section 9.10 in the form of
Schedule 9.10.
"Participation Fee" means the fee paid pursuant to Section 1.08(b).
"Participating Bank Fees" shall have the meaning as set forth in Section
1.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Percentage Interest" means, as to a Bank, the percentage set forth
opposite such Bank's name on Annex A of this Agreement and any amendment or
assignment hereto, or if applicable, in the Register.
"Permitted Guaranty" means any guaranty that is an endorsement of a check
for collection in the ordinary course of business.
"Permitted Lien" means (a) any Lien securing a tax, assessment or other
governmental charge or levy or the claim of a materialman, mechanic, carrier,
warehouseman or landlord for labor, materials, supplies or rentals incurred in
the ordinary course of business, but only if payment thereof shall not at the
time be required to be made in accordance with Section 3.04 and foreclosure,
distraint, sale or other similar proceedings shall not have been commenced; (b)
any Lien on the properties and assets of a Subsidiary of the Borrower securing
an obligation owing to the Borrower; (c) any Lien consisting of a deposit or
pledge made in the ordinary course of business in connection with, or to secure
payment of, obligations under worker's compensation, unemployment insurance or
similar legislation; (d) any Lien arising pursuant to an order of attachment,
distraint or similar legal process arising in connection with legal proceedings,
but only if and so long as the execution or other enforcement thereof is not
unstayed for more than 20 days; (e) any Lien existing on (i) any property or
asset of any Person at the time such Person becomes a Subsidiary or (ii) any
property or asset at the time such property or asset is acquired by the Borrower
or a Subsidiary, but only, in the case of either (i) or (ii), if and so long as
(A) such Lien was not created in contemplation of such Person becoming a
Subsidiary or such property or asset being acquired, (B) such Lien is and will
remain confined to the property or asset subject to it at the time such Person
becomes a Subsidiary or such property or asset is acquired and to fixed
improvements thereafter erected on such property or asset, and (C) such Lien
secures only the obligation secured thereby at the time such Person becomes a
Subsidiary or such property or asset is acquired; (f) any Lien in existence on
the Agreement Date to the extent set forth on Schedule 4.02(a), but only, in the
case of each such Lien, to the extent it secures an obligation outstanding on
the Agreement Date to the extent set forth on such Schedule; (g) any Lien
securing Purchase Money Indebtedness but only if, in the case of each such Lien,
(x) such Lien shall at all times be confined solely to the property or asset the
purchase price of which was financed through the incurrence of the Purchase
Money Indebtedness secured by such Lien and to fixed improvements thereafter
erected on such property or asset and (y) such Lien attached to such property or
asset within 30 days of the incurrence of such Purchase Money Indebtedness
asset; (h) liens on stock or assets of Non-Recourse Subsidiaries or (ii) any
Lien constituting a renewal, extension or replacement of a Lien constituting a
Permitted Lien by virtue of clause (e), (f), (g) or (h) of this definition, but
only if (w) at the time such Lien is granted and immediately after giving effect
thereto, no Default would exist, (x) such Lien is limited to all or a part of
the property or asset that was subject to the Lien so renewed, extended or
replaced and to fixed improvements thereafter erected on such property or asset,
(y) the principal amount of the obligations secured by such Lien does not exceed
the principal amount of the obligations secured by the Lien so renewed, extended
or replaced and (z) the obligations secured by such Lien bear interest at a rate
per annum not exceeding the rate borne by the obligations secured by the Lien so
renewed, extended or replaced except for any increase that is commercially
reasonable at the time of such increase.
"Person" means any individual, sole proprietorship, corporation,
partnership, trust, unincorporated organization, mutual company, joint stock
company, estate, union, employee organization, government or any agency or
political subdivision thereof or, for the purpose of the definition of "ERISA
Affiliate", any trade or business.
"Post-Default Rate" means the rate otherwise applicable under Section
1.03(a) plus 2%.
"Prime Rate" means the rate of interest from time to time announced by
Societe Generale at its office in New York, New York as its prime commercial
lending rate for extensions of credit in Dollars, which rate is not necessarily
the lowest rate of interest charged or received by Societe Generale. Each
change in the Prime Rate resulting from a change in such prime commercial
lending rate shall take effect when such prime commercial lending rate changes.
"Prohibited Transaction" means any transaction that is prohibited under
Code Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or
ERISA Section 408.
"Project" means any project of the Borrower or any of its Subsidiaries for
(a) the development or construction of, or (b) the acquisition of or Investment
in, facilities for production, distribution or storage of electricity, steam,
hot or chilled water or other output, or any portion of such facility (and shall
include, without limitation, any expansion, renovation, upgrade or enhancement
of any such facility or portion thereof, and any Investment in any entity for
any of such purposes), in each case if such project is financed or is to be
financed, directly or indirectly, by Loans or Letters of Credit under this
Agreement, for the duration of the Facility Period.
"PUHCA" means the Public Utility Holding Company Act of 1935, as amended
from time to time.
"Purchase Money Indebtedness" means (a) Indebtedness of the Borrower that
is incurred to finance part or all of (but not more than) the purchase price of
a tangible asset, provided that (i) neither the Borrower nor any Subsidiary had
at any time prior to such purchase any interest in such asset other than a
security interest or an interest as lessee under an operating lease and (ii)
such Indebtedness is incurred within 30 days after such purchase or after the
repayment in full of any short-term (less than twelve months) bridge financing
obtained to effect such purchase, or (b) Indebtedness that (i) constitutes a
renewal, extension or refunding of, but not an increase in the principal amount
of, Purchase Money Indebtedness that is such by virtue of clause (a) or (b) and
(ii) bears interest at a rate per annum that is commercially reasonable at the
time such Indebtedness is incurred.
"PURPA" means the Public Utility Regulatory Policies Act of 1978, as
amended from time to time.
"QF Subsidiary" means The Subsidiaries designated as such on Schedule
3.02.
"Recourse Subsidiary" means any direct or indirect Subsidiary (i) for
which the Borrower or any Material Subsidiary has issued a Guaranty, or (ii) as
to which the Borrower or any other Material Subsidiary has made a commitment to
contribute (or has in fact contributed) equity, or (iii) for which the Borrower
or any Material Subsidiary has general partner liability or other derivative
liability by operation of law or Contract, but only if the sum of the
Liabilities (and payments in respect of Liabilities) referred to in clauses (i),
(ii) and (iii) above exceeds the product of (A) 30% times (B) the Borrower's
indirect ownership percentage of such Subsidiary times (C) the sum of the book
value of all assets of such Subsidiary and the projected capital cost of all
assets of such Subsidiary under construction. A Subsidiary shall constitute a
Recourse Subsidiary only during such periods for which the terms of the
foregoing description are satisfied.
"Reference Bank" means Societe Generale, New York.
"Register" means a register kept at the Agent's office by the Agent on
behalf of the Borrower, on which the Agent records the names of the Registered
holders of Registered Notes.
"Registered Holder" means the Person in whose name a Registered Note is
registered.
"Registered Note" means a Note the name of the holder of which has been
recorded on the Register. The registration of a Note shall constitute the
registration of the Loan evidenced thereby.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System.
"Regulatory Change" means any Applicable Law, interpretation, directive,
request or guideline (whether or not having the force of law), or any change
therein or in the administration or enforcement thereof, that was not enacted or
effective or required or expected to be complied with prior to the Agreement
Date, whether the same is the result of an enactment by a government or any
agency or political subdivision thereof, a determination of a court or
regulatory authority, or otherwise, including any such that imposes, increases
or modifies any Tax, reserve requirement, insurance charge, special deposit
requirement, assessment or capital adequacy requirement, but excluding any such
that imposes, increases or modifies any Bank Tax.
"Rental Expense" means, for the Borrower and its Consolidated
Subsidiaries, with respect to any specified period as measured on the last day
of any fiscal quarter of the Borrower, the aggregate amount of all payments made
by the Borrower and its Consolidated Subsidiaries during such specified period
under leases that are or should be recorded in accordance with GAAP as capital
leases (other than that portion, if any, of such payments as relates to
maintenance, insurance and similar costs and that portion, if any, included in
Interest Expense for such specified period).
"Repayment Date" means the later of (a) the termination of the Commitments
(whether as a result of the occurrence of the Termination Date, reduction to
zero pursuant to Section 1.07 or termination pursuant to Section 6.02) and (b)
the payment in full of the Loans, Drawings and all other amounts payable or
accrued hereunder.
"Reportable Event" means, with respect to any Benefit Plan of any Person,
(a) the occurrence of any of the events set forth in ERISA Sections 4043(c),
other than an event as to which the requirement of 30 days' notice, or the
penalty for failure to provide such notice, has been waived by the PBGC, (b) the
existence of conditions sufficient to require advance notice to the PBGC
pursuant to ERISA Section 4043(b), (c) the occurrence of any of the events set
forth in ERISA Sections 4062(e) or 4063(a) or the regulations thereunder, (d)
any event requiring such Person or any of its ERISA Affiliates to provide
security to such Benefit Plan under Code Section 401(a)(29) or (e) any failure
to make a payment required by Code Section 412(m) with respect to such Benefit
Plan.
"Representation and Warranty" means any representation or warranty made
pursuant to or under (a) Section 2.02, Article 3, Section 5.02 or any other
provision of this Agreement or (b) any amendment to, or waiver of rights under,
this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY
REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO
THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE SUBJECT
MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Banks" means, at any time, Banks having more than two thirds
(66-2/3%) of the Loans and Participations outstanding, or if there are no Loans
or Participations outstanding, more than two thirds (66-2/3%) of the aggregate
amount of the Commitment. Any determination of those Banks constituting Required
Banks shall be made by the Agent and shall be conclusive and binding on all
parties absent manifest error.
"Reserve Requirement" means, at any time, the then current maximum rate
for which reserves (including any marginal, supplemental or emergency reserve)
are required to be maintained under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars
against "Eurocurrency liabilities", as that term is used in Regulation D.
"Restricted Payment" means any payment with respect to or on account of
any of the Borrower's Capital Securities, including any dividend or other
distribution on, and any payment on account of any purchase, redemption,
retirement, exchange, defeasance or conversion (other than into other Capital
Securities that do not bear interest and do not require repayment of principal)
of, or on account of any claim relating to or arising out of the offer, sale or
purchase of, any such Capital Securities. For the purposes of this definition,
a "payment" shall include the transfer of any asset or the incurrence of any
Indebtedness or other Liability (the amount of any such payment to be the fair
market value of such asset or the amount of such obligation, respectively) but
shall not include the issuance of any capital stock of the Borrower other than
Mandatorily Redeemable Stock.
"Restrictive Covenant" means any consensual restriction restricting,
reducing, delaying or otherwise limiting a Subsidiary's ability (whether by
covenant, event of default, subordination or otherwise) to (i) pay dividends or
make any other distributions on shares of its Capital Securities held by the
Borrower or any other Subsidiary, (ii) pay any obligation (including management
fees) owed to the Borrower or any other Subsidiary, (iii) make any loans or
advances to or investments in the Borrower or in any other Subsidiary, (iv)
transfer any of its property or assets to the Borrower or any other Subsidiary
or (v) create a material Lien upon its property or assets whether now owned or
hereafter acquired or upon any income or profits therefrom.
"S & P Rating" means on any date of determination, the rating of the
Borrower's unsecured senior debt announced by Standard & Poor?s Ratings Group, a
division of McGraw-Hill Corporation or any successor thereto.
"SEC" means the Securities and Exchange Commission of the United States
and its successors.
"Subsidiary" means, with respect to any Person, any other Person (a)
securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions) or (b) other
ownership interests of which ordinarily constituting a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
Person, or by one or more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries; unless otherwise specified, "Subsidiary" means a
Subsidiary of the Borrower.
"Tax" means any Federal, State or foreign tax, assessment or other
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"Telerate Screen" means the display of interest settlement rates (commonly
known as LIBOR) for Dollar deposits in London designated as page 3750 on the Dow
Jones Telerate Service (or any other page that replaces page 3750 and displays
London interbank settlement rates for Dollar deposits).
"Termination Date" means: (a) the third anniversary of the Agreement
Date; or (b) if the Facility Period has been extended pursuant to Section
1.01(c), either the fourth or fifth anniversary of the Agreement Date, as
contained in a notice from the Agent to the Borrower.
"Termination Event" means, with respect to any Benefit Plan, (a) any
Reportable Event with respect to such Benefit Plan, (b) the termination of such
Benefit Plan, or the filing of a notice of intent to terminate such Benefit
Plan, or the treatment of any amendment to such Benefit Plan as a termination
under ERISA Section 4041(c), (c) the institution of proceedings to terminate
such Benefit Plan under ERISA Section 4042 or (d) the appointment of a trustee
to administer such Benefit Plan under ERISA Section 4042.
"Type" means, with respect to Loans, any of the following, each of which
shall be deemed to be a different "Type" of Loan: Base Rate Loans, Eurodollar
Rate Loans having a one-month Interest Period, Eurodollar Rate Loans having a
two-month Interest Period, Eurodollar Rate Loans having a three-month Interest
Period and Eurodollar Rate Loans having a six-month Interest Period. Any
Eurodollar Rate Loan having an Interest Period that differs from the duration
specified for a Type of Eurodollar Rate Loan listed above solely as a result of
the operation of clauses (a) and (b) of the definition of "Interest Period"
shall be deemed to be a Loan of such above-listed Type notwithstanding such
difference in duration of Interest Periods.
"Unfunded Benefit Liabilities" means, with respect to any Benefit Plan at
any time, the amount of unfunded benefit liabilities of such Benefit Plan at
such time as determined under ERISA Section 4001(a)(18).
"Uniform Customs" means Uniform Customs and Practice for Commercial
Documentary Credits of the International Chamber of Commerce, revision 500 of
1993 and as the same may be amended, modified or supplemented.
"United States Person" means a corporation, partnership or other entity
created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
"Unreimbursed Letter of Credit Obligations" means any amounts which the
Borrower is required to reimburse the Issuing Bank for Drawings.
"Upstream Payments" means, collectively, all payments by a Subsidiary of
the Borrower to the Borrower, whether made directly or indirectly through
another Subsidiary, and whether paid in cash or in other property or by
operation of setoff or recoupment or otherwise, in respect of shares of stock in
Subsidiaries, Indebtedness, promissory notes, and other securities and
obligations of Subsidiaries held by the Borrower, and all rights of the Borrower
and its Subsidiaries to receive management and other fees.
"UTC Environmental Report" means the report dated April 4, 1997 concerning
the Environmental Projects.
"Utilization Fee" means the fee of .05% per annum of the aggregate daily
amount of the Loans, Letters of Credit Amounts and Unreimbursed Letter of Credit
Obligations as described in Section 1.08(e).
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities and all other ownership
interests and rights to acquire ownership interests of which (except directors'
qualifying shares) are, directly or indirectly, owned or controlled by such
Person or one or more Wholly Owned Subsidiaries of such Person or by such Person
and one or more of such Subsidiaries; unless otherwise specified, "Wholly Owned
Subsidiary" means a Wholly Owned Subsidiary of the Borrower.
Section 10.02. Other Interpretive Provisions. (a) Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors and assigns, (ii) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or Contract
defined or referred to herein shall be deemed references to such Loan Document
or Contract (and, in the case of any Note or any other instrument, any
instrument issued in substitution therefor) as the terms thereof may have been
or may be amended, supplemented, waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word "including",
"include" or "includes" is set forth only for the purpose of indicating that,
regardless of whatever other items are in the category in which such item or
items are "included", such item or items are in such category, and shall not be
construed as indicating that the items in the category in which such item or
items are "included" are limited to such items or to items similar to such
items.
(e) Each authorization in favor of the Agent, the Issuing Bank, the Banks
or any other Person granted by or pursuant to this Agreement shall be deemed to
be irrevocable and coupled with an interest.
(f) except as otherwise specified herein, all references to the time of
day shall be deemed to be to New York City time as then in effect.
Section 10.03. Accounting Matters. Unless otherwise specified herein,
all accounting determinations hereunder and all computations utilized by the
Borrower in complying with the covenants contained herein shall be made, all
accounting terms used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP,
except, in the case of such financial statements, for departures from GAAP that
may from time to time be approved in writing by the independent certified public
accountants who are at the time, in accordance with Section 5.01(b), reporting
on the Borrower's financial statements.
Section 10.04. Representations and Warranties. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made, at and as of such time and (c) in the case of any particular
Representation and Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in connection
with which such Representation and Warranty is made or deemed made.
Section 10.05. Captions. Captions to Articles, Sections and subsections
of, and Annexes, Schedules and Exhibits to, this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 10.06. Interpretation of Related Documents. Except as otherwise
specified therein, terms that are defined herein that are used in Notes,
certificates, opinions and other documents delivered in connection herewith
shall have the meanings ascribed to them herein and such documents shall be
otherwise interpreted in accordance with the provisions of this Article 10.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
TRIGEN ENERGY CORPORATION
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
SOCIETE GENERALE,
as Agent, as Issuing Bank and as a Bank
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
CREDIT LOCAL DE FRANCE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
CREDIT COMMERCIAL DE FRANCE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
MELLON BANK, N.A.
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
THE DAI-ICHI KANGYO BANK, LTD.
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the Agreement Date.
UMB BANK, N.A.
By
Name:
Title:
Amendment No. 1 dated as of June 10, 1997 to the
Revolving Credit Facility dated as of April 4, 1997
Reference is made to that certain One Hundred and Sixty Million
Dollars ($160,000,000) Revolving Credit Facility, dated as of April 4, 1997 (the
"Revolving Credit Facility"), among Trigen Energy Corporation (the "Borrower"),
the Societe Generale (the "Issuing Bank and Agent") and the Banks listed on the
signature pages thereof. Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the Revolving Credit
Facility.
The undersigned agree as follows:
1. The first sentence of Article 1, Section 1.01 of the Revolving
Credit Facility is hereby amended to read as follows:
"The Revolving Credit Facility available to the
Borrower pursuant to this Agreement is One Hundred Twenty
Five Million Dollars ($125,000,000)."
2. Article 6, Section 6.01 is hereby amended to add a new subsection
(j), which reads as follows:
"Any event of default under Section 6.01(a) of the 364-
Day Revolving Credit Facility".
3. Article 10, Section 10.01 is hereby amended to add the following
definition:
"364-Day Revolving Credit Facility" means the Thirty-
Five Million Dollar ($35,000,000) 364-day Revolving Credit
Facility dated as of June 10, 1997, among the Borrower, the
Issuing Bank and Agent and the Banks listed on the signature
pages thereof, as the same may be amended, modified or
restated from time to time.
4. The definition of "Agreement Date" in Article 10, Section 10.1 is
restated in its entirety as follows:
"Agreement Date" means the date set forth on the first
page of the Agreement, which is the date the executed copies
of the Agreement were deemed delivered by all parties hereto
and, accordingly, this Agreement became effective and the
Banks first became committed to make the Loans and other
extensions of credit contemplated by this Agreement.
5. Annex A to the Revolving Credit Facility is hereby amended and is
restated in its entirety by Annex A hereto.
6. Whenever and wherever in the Revolving Credit Facility the amount
of the Facility is expressed to be One Hundred Sixty Million Dollars
($160,000,000), it shall henceforth be deemed to read as One Hundred Twenty
Five Million Dollars ($125,000,000).
7. On the date hereof, the Borrower is executing and delivering
Notes in favor of the Banks which express the principal amount of the
Facility as One Hundred Twenty Five Million Dollars ($125,000,000). In
exchange, the Issuing Bank and Agent shall cancel and return any Notes
which express the principal amount of the Facility as being One Hundred
Sixty Million Dollars ($160,000,000).
8. Except as expressly amended herein (which Amendment shall be
effective only in the specific instances and for the specific purposes
provided herein) whenever the term "Revolving Credit Facility" or the term
"Agreement" is used in the Agreement, and the other Loan Documents it shall
be deemed to refer and mean the Revolving Credit Facility, as amended by
this Amendment No. 1, and that the same may be subsequently amended or
modified from time to time.
9. This Amendment No. 1 may be executed in any number of
counterparts, each of which shall be deemed to be an original with the same
effect as if the signature thereto and hereto were upon the same
instrument.
10. This Amendment No. 1 and the rights and obligations of the
parties hereunder shall be construed in accordance in with and governed by
the laws of the State of New York (without giving effect to its choice of
law principles other than Section 5-1401 of the General Obligations Law).
11. This Amendment No. 1 shall be effective on the date first above
written.
IN WITNESS WHEREOF the undersigned have executed this
Amendment No. 1 this day of June, 1997.
TRIGEN ENERGY CORPORATION,
Company
By____________________________
Title:________________________
Name:_________________________
SOCIETE GENERALE, NEW YORK BRANCH,
Issuing Bank and Agent
By____________________________
Title:________________________
Name:_________________________
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
Bank
By____________________________
Title:________________________
Name:_________________________
UMB BANK, N.A.,
Bank
By____________________________
Title:________________________
Name:_________________________
CREDIT LOCAL DE FRANCE,
Bank
By____________________________
Title:________________________
Name:_________________________
MELLON BANK, N.A.,
Bank
By____________________________
Title:________________________
Name:_________________________
IN WITNESS WHEREOF the undersigned have executed this
Amendment No. 1 this day of June, 1997.
THE DAI-ICHI KANGYO BANK, LTD.,
Bank
By____________________________
Title:________________________
Name:_________________________
BANQUE FRANCAISE DU COMMERCE EXTERIEUR,
Bank
By____________________________
Title:________________________
Name:_________________________
CREDIT COMMERCIAL DE FRANCE,
Bank
By____________________________
Title:________________________
Name:_________________________
<PAGE>
364-DAY
REVOLVING CREDIT FACILITY
Dated as of June 10, 1997
TRIGEN ENERGY CORPORATION, a Delaware corporation, the BANKS listed on
the signature pages hereof, and SOCIETE GENERALE, as Issuing Bank and as Agent,
agree as follows (with certain terms used herein being defined in Article 10):
ARTICLE 1.
CREDIT FACILITY
Section 1.01. Credit Extension. In conjunction with and in addition to
the Other Credit Facility, this revolving credit facility available to the
Borrower on the Agreement Date pursuant to this Agreement is Thirty-Five Million
Dollars ($35,000,000).
(a) Commitment to Lend. Upon the terms and subject to the conditions of
this Agreement, each Bank agrees to make, from time to time during the Facility
Period, one or more Loans to the Borrower in an aggregate unpaid principal
amount not exceeding at any time such Bank's Commitment at such time minus the
aggregate of such Bank's Letter of Credit Amounts and such Bank's Percentage
Interest of Unreimbursed Letter of Credit Obligations at such time. Subject to
Section 1.06 and the other terms and conditions of this Agreement, the Loans
may, at the option of the Borrower, be made as, and from time to time continued
as or converted into, Base Rate or Eurodollar Rate Loans of any permitted Type,
or any combination thereof.
(b) Commitments to Issue Letters of Credit. (i) Amounts of Letters of
Credit. Upon the terms and subject to the conditions of this Agreement, the
Issuing Bank shall issue, from time to time during the Facility Period, one or
more Letters of Credit for the account of the Borrower, provided that (A) the
aggregate of all Letter of Credit Amounts, Unreimbursed Letter of Credit
Obligations and the aggregate unpaid principal amount of all Loans at any time
shall not exceed the maximum amount of the Facility at such time and (B) in the
case of a Bank, the aggregate of such Bank's Letter of Credit Amounts, and such
Bank's Percentage Interest in the Unreimbursed Letter of Credit Obligations and
the Loans shall not exceed such Bank's Commitment at such time.
(ii) Terms of Letters of Credit. Each Letter of Credit:
(A) May be a standby Letter of Credit in support of Liabilities of the
Borrower or one or more of the Borrower's Subsidiaries, in each case, that
arise in the ordinary course of business and are in respect of general
corporate purposes of the Borrower or such Subsidiaries, as the case may be;
(B) Shall be (1) denominated only in Dollars and shall be issued on
terms and conditions satisfactory to the Issuing Bank, and (2) in a stated
amount of not less than One Hundred Thousand Dollars ($100,000);
(C) Shall have an expiration date occurring not later than the
Termination Date;
(D) Shall be subject to the Uniform Customs; and
(E) Shall contain such other terms and conditions as may be approved by
the Issuing Bank and the Agent.
(c) Extension of Facility Period. The initial Facility Period shall be
three hundred sixty four (364) days. Seventy-Five days before the end of a
Facility Period, the Borrower may request that the Banks extend the Facility
Period by another 364-day period. Such a request shall be in writing (and shall
be irrevocable) and shall be delivered to Agent with such other documentation as
the Agent may request. Each Bank, the Agent and the Issuing Bank each in its
sole discretion may, but shall not be required to, grant such a 364-day
extension to the Facility Period and shall submit to the Agent and Issuing Bank
its written consent to such extension of the Facility Period. The Agent will
notify the Borrower in writing one month before the end of the Facility Period
as to whether the 364-day extension will be granted and to advise the Borrower
of the new Termination Date and any other conditions to such extension, provided
that in the absence of such a notice by the Agent, the extension request will be
deemed denied.
Section 1.02. Disbursement of Loans and Issuance of Letters of Credit.
(a) Manner of Borrowing. (i) The Borrower shall give the Agent notice (which
shall be irrevocable) no later than 10:00 a.m. (New York time) on, in the case
of Base Rate Loans, the Business Day for the making of such Loans, and, in the
case of Eurodollar Rate Loans, the third Eurodollar Business Day before the
requested date for the making of such Loans. Each such notice shall be in the
form of Schedule 1.02(a) and shall specify (A) the requested date for the making
of the requested Loans, which shall be, in the case of Base Rate Loans, a
Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar Business
Day, (B) the Type or Types of Loans requested and (C) the amount of each such
Type of Loan, the aggregate of which amounts for all Types of Loans requested to
be made on the requested date shall be at least Two Million Dollars ($2,000,000)
or such greater amount in increments of One Hundred Thousand Dollars ($100,000),
and shall not exceed the maximum amount that can then be borrowed hereunder.
Upon receipt of any such notice, the Agent shall promptly notify each Bank of
the contents thereof and of the amount and Type of each Loan to be made by such
Bank on the requested date specified therein.
(ii) Not later than 1:00 p.m. (New York time) on each requested date for
the making of Loans, each Bank shall make available to the Agent, in Dollars in
funds immediately available to the Agent at the Agent's Office, the Loans to be
made by such Bank on such date. Any Bank's failure to make any Loan to be made
by it on the requested date therefor shall not relieve any other Bank of its
obligation to make any Loan to be made by such other Bank on such date, but such
other Bank shall not be liable for such failure.
(iii) Unless the Agent shall have received notice from a Bank prior to
12:00 noon (New York time) on the requested date for the making of any Loans
that such Bank will not make available to the Agent the Loans requested to be
made by such Bank on such date, the Agent may assume that such Bank has made
such Loans available to the Agent on such date in accordance with Section
1.02(a)(ii) and the Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount
on behalf of such Bank. If and to the extent such Bank shall not have so made
available to the Agent, the Loans requested to be made by such Bank on such date
and the Agent shall have so made available to such Borrower a corresponding
amount on behalf of such Bank, such Bank shall, on demand, pay to the Agent such
corresponding amount together with interest thereon, for each day from the date
such amount shall have been so made available by the Agent to such Borrower
until the date such amount shall have been repaid to the Agent, at the Federal
Funds Rate until (and including) the third Business Day after demand is made and
thereafter at the Base Rate. If such Bank does not pay such corresponding
amount promptly upon the Agent's demand therefor, the Agent shall promptly
notify the Borrower and the Borrower shall immediately repay such corresponding
amount to the Agent together with accrued interest thereon at the applicable
rate or rates provided in Section 1.03(a).
(iv) All Loans made available to the Agent in accordance with Section
1.02(a)(ii) shall be disbursed by the Agent not later than 1:00 p.m. (New York
time) on the requested date therefor in Dollars in funds immediately available
to the Borrower by credit to an account of such Borrower at the Agent's Office
or in such other manner as may have been specified in the applicable notice and
as shall be acceptable to the Agent.
(b) (i) Manner of Issuance and Amendment of Letters of Credit. (A)
The Borrower shall request the issuance or amendment of a Letter of Credit by
delivering to the Issuing Bank, at least 30 Business Days before the amendment
under the terms of the Letter of Credit, (1) in the case of any such issuance or
amendment, a duly completed and executed request for the issuance or amendment
of such Letter of Credit substantially in the form of Schedule 1.02(b) (to which
request shall be attached, the duly executed form attached as Exhibit A to
Schedule 1.02(b), with a notation on such form indicating that such letter of
credit is a Letter of Credit issued pursuant to and in accordance with the terms
of the Facility), provided that if such request is transmitted to the Issuing
Bank by facsimile, the original of such request shall be provided to the Issuing
Bank as soon as practicable thereafter, and (2) in the case of any such
issuance, if the desired form of Letter of Credit is different from the Issuing
Bank's standard form, (x) such request shall be accompanied by a copy of such
desired form of Letter of Credit and (y) the Issuing Bank may, but shall not be
required to, issue the Letter of Credit in the requested non-standard form and
may, in any case, require more than three Business Days after receipt of such a
request to issue a non-standard form of Letter of Credit.
(B) The Issuing Bank shall, on the date of each issuance or amendment of
a Letter of Credit, give the Agent, each other Bank and the Borrower notice of
such issuance or amendment, accompanied by a copy to the Agent of such Letter of
Credit or amendment.
(ii) Acquisition of Participations Upon Issuance. Upon the date of
issuance of a Letter of Credit, the Issuing Bank shall be deemed to have granted
to each Bank (other than the Issuing Bank), and each Bank (other than the
Issuing Bank) shall be deemed to have acquired from the Issuing Bank, without
further action by any party hereto, a participation in such Letter of Credit,
Unreimbursed Letter of Credit Obligations, and any Drawings that may at any time
be made thereunder, to the extent of such Bank's Percentage Interest.
(iii) Certain Responsibilities in Respect of Letters of Credit. Neither
the Issuing Bank nor any Bank shall be responsible for:
(A) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for or issuance of a Letter of Credit;
(B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof in whole or in part;
(C) the failure of any request for a Drawing under a Letter of Credit to
strictly comply with conditions required in order to draw on such Letter of
Credit, except, in the case only of the Issuing Bank, under the circumstances
specified in the last sentence of Section 1.04(b)(iv);
(D) except to the extent caused by the gross negligence or willful
misconduct of the Agent or the Issuing Bank, errors, omissions, interruptions
or delays in transmissions or delivery of any messages, by mail, cable, telex
or otherwise, whether or not in cipher;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission of any document required in
order to make a drawing under any Letter of Credit or of the proceeds
thereof;
(G) the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any Drawing under such Letter of Credit; and
(H) any consequence arising from causes beyond the control of the
Issuing Bank, including, without limitation, any change in Applicable Law.
Section 1.03. Interest. (a) Rates. (i) Each Loan shall bear interest
on the outstanding principal amount thereof at a rate per annum equal to (A) so
long as it is a Base Rate Loan, the Base Rate as in effect from time to time and
(B) so long as it is a Eurodollar Rate Loan, the applicable Eurodollar Rate plus
the applicable Eurodollar Rate Margin, and (ii) each other amount outstanding
under the Loan Documents shall bear interest at a rate per annum equal to the
Base Rate as in effect from time to time. Any overdue principal of or interest
on any Loan or Drawing and, to the maximum extent permitted by Applicable Law,
each other amount due and payable under the Loan Documents shall bear interest
at a rate per annum equal to the applicable Post-Default Rate.
(b) Payment. Interest shall be payable, (i) on each Interest Payment
Date, (ii) in the case of any Loan when such Loan shall be due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) or, in
the case of Loans, converted, but only to the extent then accrued on the amount
then so due or converted, and (iii) in the case of all other amounts due and
payable under the Loan Documents, on demand. Interest at the Post-Default Rate
shall be payable on demand.
(c) Conversion; Maximum Interest Rate; Additional Interest on Eurodollar
Loans. The provisions of Article 1, Section 1.03(c), (d) and (e) of the Other
Credit Facility are incorporated in their entirety by reference in this
Agreement to the extent as if fully set forth herein.
Section 1.04. Repayment. (a) Loans. The Loans shall mature and become
due and payable, and shall be repaid by the Borrower, in full on the Maturity
Date.
(b) Letters of Credit. (i) Drawings shall mature and become due and
payable, and shall be repaid by the Borrower in full on the date such Drawing is
disbursed. The Borrower agrees to reimburse the Issuing Bank on each such date
for all amounts paid by the Issuing Bank for (x) all Drawings disbursed; and (y)
any Taxes, charges or other costs or expenses incurred by the Issuing Bank in
connection with such payment.
(ii) The Issuing Bank shall promptly notify (A) the Borrower, the Agent
and each Bank of its receipt of a Drawing request with respect to such Letter of
Credit, stating the date and amount of the Drawing requested and (B) the
Borrower of the date and amount of each Drawing made pursuant to such request.
The Issuing Bank's failure to give, or delay in giving, any such notice shall
not release or diminish the obligations hereunder of the Borrower and each Bank
in respect of such Drawing.
(iii) If the Borrower fails to pay to the Issuing Bank in full the
principal amount of, together with interest accrued on, a Drawing in accordance
with Section 1.04(b)(ii), each other Bank shall pay to the Issuing Bank, upon
demand, its Percentage Interest of such unpaid amount, in Dollars in funds
immediately available to the Issuing Bank at the Issuing Bank's Office on, if
such demand is made not later than 1:00 p.m. on such Business Day, and, if not,
the next Business Day, together with interest on such amount from the date of
such Drawing until such amount is paid in full at, for the first three days, the
Federal Funds Rate and, thereafter, the Base Rate. Upon, but only upon, making
such required payment to the Issuing Bank, a Bank shall be entitled to receive
its Percentage Interest of the Unreimbursed Letter of Credit Obligations
together with interest accrued thereon, and, until such payment in full by such
Bank, the Issuing Bank shall hold such Bank's Percentage Interest as collateral
for such payment.
(iv) The obligation of the Borrower and each Bank under this Section
1.04, in the case of the Borrower, to reimburse the Issuing Bank for, and in the
case of such Bank, to fund its Percentage Interest in the Unreimbursed Letter of
Credit Obligations together with interest thereon shall be absolute and
unconditional under any and all circumstances and irrespective of:
(A) any setoff, counterclaim or defense to payments which the Borrower
or such Bank may at any time have against the Issuing Bank based on (1) any
lack of validity or enforceability of this Agreement or any of the other Loan
Documents; (2) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (3) the surrender or impairment of any security
for the performance or observance of any of the terms of any of the Loan
Documents; or (4) the occurrence of any Default; and
(B) the existence of any claim, setoff, other defense or other right
which the Borrower or such Bank may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Agent, the Issuing
Bank, any other Bank or any other Person, whether in connection with any
Letter of Credit, any Loan Document, or the transactions contemplated
therein, or any unrelated transactions (including any underlying transaction
between the Borrower and the beneficiary named in any such Letter of Credit).
In furtherance and not in limitation of the foregoing, the Issuing Bank may
accept documents that appear on their face to be in order without responsibility
for further investigation, regardless of any notice or information to the
contrary and not thereby constituting gross negligence, willful misconduct or a
knowing violation of Applicable Law.
Section 1.05. Prepayments. The Borrower may, at any time and from time
to time, prepay the Loans in whole or in part, without premium or penalty (but
subject to Section 7.04), except that any partial prepayment shall be in an
aggregate principal amount of at least Two Million Dollars ($2,000,000) and
larger integral multiples of One Hundred Thousand Dollars ($100,000). The
Borrower shall give the Agent notice of each prepayment no later than
10:00 a.m., on the Business Day in the case of a prepayment of Base Rate Loans,
and, in the case of a prepayment of Eurodollar Rate Loans, on the third
Eurodollar Business Day before, the date of such prepayment. Each such notice
of prepayment shall be in the form of Schedule 1.05 and shall specify (i) the
date such prepayment is to be made and (ii) the amount and Type and, in the case
of Eurodollar Rate Loans, the last day of the applicable Interest Period of the
Loans to be prepaid. Upon receipt of any such notice, the Agent shall promptly
notify each Bank of the contents thereof and the amount and Type and, in the
case of Eurodollar Rate Loans, the last day of the applicable Interest Period of
each Loan of such Bank to be prepaid. Amounts to be prepaid together with
interest thereon as provided in Section 1.03(b) shall irrevocably be due and
payable on the date specified in the applicable notice of prepayment.
Section 1.06. Limitation on Types of Loans. Section 1.06 of the Other
Credit Facility is incorporated herein in its entirety by reference to the
extent as if fully set forth herein.
Section 1.07. Reduction of Commitments. Section 1.07 of the Other
Credit Facility is incorporated herein in its entirety by reference to the
extent as if fully set forth herein.
Section 1.08. Fees. (a) Commitment Fees. The Borrower shall pay to
the Agent for the account of each Bank a commitment fee on the daily unused
amount of such Bank's Commitment under the Facility for each day of the Facility
Period at a rate per annum of .15%, payable quarterly in arrears on the last day
of each calendar quarter (commencing on the quarter ending June 30, 1997, on the
Maturity Date and on the date of any reduction of such Commitment (to the extent
accrued and unpaid on the amount of the reduction).
(b) Letter of Credit Fees. (i) The Borrower shall pay to the Issuing
Bank, for its own account, (A) the Letter of Credit Fronting Fee of .10% per
annum, which shall be payable quarterly in arrears on the last day of each
calendar quarter and on the Repayment Date and (B) the standard processing fees
of the Issuing Bank for the issuance, reconfirmation, reissuance and amendment
of each Letter of Credit with respect thereto, as such processing fees are in
effect from time to time.
(ii) The Borrower shall pay to the Agent, for the account of each Bank,
with respect to each undrawn Letter of Credit, a Letter of Credit Commission on
the daily Letter of Credit Amount of each such Bank at a rate equal to the
Applicable LC Fee Rate. Such fee shall be payable quarterly in arrears on the
last day of each calendar quarter and on the Repayment Date.
(c) Utilization Fee. If on any day the sum of the outstanding aggregate
principal amount of the Loans, Unreimbursed Letters of Credit Obligations and
the aggregate of all Letter of Credit Amounts exceeds fifty percent of the
aggregate Commitments and the Other Credit Facility Commitments, the Borrower
shall pay to the Agent for the account of each Bank, a Utilization Fee, provided
that no Utilization Fee shall be payable with respect to any day unless the
Eurodollar Rate Margin is equal to or less than .45% on such day. The
Utilization Fee shall be paid quarterly in arrears on the last day of each
calendar quarter and on the Repayment Date.
(d) Fees Non-Refundable. None of the fees payable under this Section
1.08 shall be refundable in whole or in part.
Section 1.09. Computation of Interest and Fees. Interest calculated on
the basis of the Eurodollar Rate or the Federal Funds Rate, and the Letter of
Credit Fronting Fee and the Letter of Credit Commission shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed.
Interest calculated on the basis of the Prime Rate and the commitment fees shall
be computed on the basis of 365 days, as applicable, and paid for the actual
number of days elapsed. Interest for any period shall be calculated from and
including the first day thereof to but excluding the last day thereof.
Section 1.10. Evidence of Indebtedness. Each Bank's Loans and the
Borrower's obligation to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of
such Bank and a single Note payable to the order of such Bank which, subject to
Section 9.20, may be a Registered Note. The records of each Bank shall be prima
facie evidence of such Bank's Loans and accrued interest thereon and of all
payments made in respect thereof. Drawings, participations and the Borrower's
obligations to repay Drawings with interest in accordance with the terms of this
Agreement shall be evidenced by this Agreement and the records of the Issuing
Bank. The records of the Issuing Bank, shall, absent manifest error, be prima
facie evidence of, with respect to each Letter of Credit, the amount of
Unreimbursed Letter of Credit Obligations and each Bank's Percentage Interest
therein.
Section 1.11. Payments by the Borrower. (a) Time, Place and Manner.
All payments due to the Agent under the Loan Documents shall be made to the
Agent at the Agent's Office or at such other address as the Agent may designate
by notice to the Borrower. All payments due to any Bank under the Loan
Documents shall, in the case of payments on account of principal of or interest
on the Loans or fees, be made to the Agent at the Agent's Office and, in the
case of all other payments, be made directly to such Bank at its Domestic
Lending Office or at such other address as such Bank may designate by notice to
the Borrower. A payment shall not be deemed to have been made on any day unless
such payment has been received by the required Person, at the required place of
payment, in Dollars in funds immediately available to such Person at such place,
no later than 12:00 noon on such day.
(b) No Reductions. All payments due to the Agent, the Issuing Bank, or
any Bank under the Loan Documents, and all other terms, conditions, covenants
and agreements to be observed and performed by the Borrower thereunder, shall be
made, observed or
performed by the Borrower without any reduction or deduction whatsoever,
including any reduction or deduction for any set-off, recoupment, counterclaim
(whether sounding in tort, contract or otherwise) or Tax, except, subject to
Section 1.13, for any withholding or deduction for Taxes required to be withheld
or deducted under Applicable Law.
(c) Authorization to Charge Accounts. The Borrower hereby authorizes
the Agent, the Issuing Bank and each Bank, if and to the extent any amount
payable by the Borrower under the Loan Documents (whether payable to such Person
or to any other Person that is the Agent, the Issuing Bank or a Bank) is not
otherwise paid when due, to charge such amount against any or all of the
accounts of the Borrower with such Person or any of its Affiliates (whether
maintained at a branch or office located within or without the United States),
with the Borrower remaining liable for any deficiency.
(d) Extension of Payment Dates. Whenever any payment to the Agent, the
Issuing Bank or any Bank under the Loan Documents would otherwise be due (except
by reason of acceleration) on a day that is not a Business Day, or, in the case
of payments of the principal of Eurodollar Rate Loans, a Eurodollar Business
Day, such payment shall instead be due on the next succeeding Business or
Eurodollar Business Day, as the case may be, unless, in the case of a payment of
the principal of Eurodollar Rate Loans, such extension would cause payment to be
due in the next succeeding calendar month, in which case such due date shall be
advanced to the next preceding Eurodollar Business Day. If the date any payment
under the Loan Documents is due is extended (whether by operation of any Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
Section 1.12. Distribution of Payments by the Agent. (a) Distribution
to Banks. The Agent shall promptly distribute to each Bank its Percentage
Interest of each payment received by the Agent under the Loan Documents for the
account of the Banks by credit to an account of such Bank at the Agent's Office
or by wire transfer to an account of such Bank at an office of any other
commercial bank located in the United States.
(b) Agent Reliance. Unless the Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks under
the Loan Documents that the Borrower will not make such payment in full, the
Agent may assume that the Borrower has made such payment in full to the Agent on
such date and the Agent in its sole discretion may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date a
corresponding amount with respect to the amount then due such Bank. If and to
the extent the Borrower shall not have so made such payment in full to the Agent
and the Agent shall have so distributed to any Bank a corresponding amount, such
Bank shall, on demand, repay to the Agent the amount so distributed together
with interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Agent, at the
Federal Funds Rate until (and including) the third Business Day after demand is
made and thereafter at the Base Rate.
Section 1.13. Taxes. The provisions of Article 1, Section 1.13 of the
Other Credit Facility are incorporated in their entirety by reference in this
Agreement to the extent as if fully set forth herein.
Section 1.14. Pro Rata Treatment. Except to the extent otherwise
provided herein, (a) Loans of each Type to be made on any day shall be made by
the Banks pro rata in accordance with their respective Commitments, (b) Loans of
the Banks shall be converted and continued pro rata in accordance with their
respective amounts of Loans of the Type and, in the case of Eurodollar Rate
Loans, having the Interest Period being so converted or continued, (c) each
reduction in the Commitments shall be made pro rata in accordance with the
respective amounts thereof, (d) each payment of the principal of or interest on
the Loans, reimbursement of Drawings or payment of fees shall be made for the
account of the Banks pro rata in accordance with their respective Percentage
Interests.
Para Def Code here returns to original
ARTICLE 2.
CONDITIONS TO CREDIT EXTENSIONS
Section 2.01. Conditions to Initial Credit Extensions. The obligation
of each Bank to make its initial Loan (or, if no Loans have been made at such
time, the obligation of the Issuing Bank to issue the initial Letter of Credit)
is subject to the fulfillment of each of the following conditions:
(a) the Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) a certificate of the Secretary or an Assistant Secretary of the
Borrower, dated the requested date for the making of such Credit Extension,
substantially in the form of Schedule 2.01(a)(i), to which shall be attached
copies of the resolutions and by-laws referred to in such certificate;
(ii) a copy of the certificate of incorporation of the Borrower,
certified, as of a recent date, by the Secretary of State or other
appropriate official of the Borrower's jurisdiction of incorporation;
(iii) a good standing certificate with respect to the Borrower and each
Material Subsidiary, issued as of a recent date by the Secretary of State or
other appropriate official of such Person's jurisdiction of incorporation,
together with a confirmation from such Secretary of State or other official,
updating the information in such certificate;
(iv) an opinion of counsel for the Borrower, dated the requested date
for the making of such Credit Extension, substantially in the form of
Schedule 2.01(a)(iv);
(v) an opinion of counsel for the Agent, dated the requested date for
the making of such Credit Extension;
(vi) a certificate of the president, chief financial officer or
treasurer of the Borrower, dated the requested date for the making of such
Credit Extension, setting forth in the form of a sample calculation the
manner and degree of detail in which the Borrower will make the calculations
required by Section 5.01(c) of the Other Credit Facility;
(vii) a duly executed Note for each Bank;
(viii) such instruments and other documents as the Agent may request,
the possession of which is necessary or appropriate in the Agent's
determination to give effect to this Agreement under Applicable Law;
(ix) an officer's certificate or other evidence confirming that LdE
controls the Borrower;
(x) a copy of the UTC Environmental Report; and
(xi) evidence that prior to or contemporaneously with the initial Credit
Extension, the Other Credit Facility, has been amended to reflect the
execution and delivery of this Agreement; and
(b) all fees payable on or prior to the requested date of such Credit
Extension pursuant to Section 1.08 of the Other Credit Facility and this
Agreement, and all amounts payable pursuant to Section 9.02 of the Other Credit
Facility and this Agreement, for which invoices have been delivered to the
Borrower on or prior to such date, shall have been paid in full or arrangements
satisfactory to the Agent shall have been made to cause them to be paid in full
concurrently with such Credit Extension.
Section 2.02. Conditions to Each Credit Extension. The obligation of
each Bank to make each Loan requested to be made by it, including its initial
Loan, and the obligation of the Issuing Bank to issue each Letter of Credit
requested to be issued by it (including, if no Loans have been made at such
time, the initial Letter of Credit) is subject to the fulfillment of each of the
following conditions:
(a) the Agent and, in the case of a request for the issuance of a Letter
of Credit, the Issuing Bank, shall have received, in the case of a Loan, a
notice of borrowing with respect to such Loan complying with the requirements of
Section 1.02(a) and, in the case of a Letter of Credit, a request for the
issuance of such Letter of Credit complying with the requirements of Section
1.02(b);
(b) each Loan Document Representation and Warranty shall be true and
correct at and as of the time of such Credit Extension (except to the extent
such representations and warranties expressly relate to an earlier date), both
with and without giving effect to such Credit Extension and all other Credit
Extensions and to the application of the proceeds thereof;
(c) no Default shall have occurred and be continuing at the time of such
Credit Extension or would result from the making of such Credit Extension and
all other Credit Extensions or from the application of the proceeds thereof;
(d) such Bank shall have received such material Information as it may
have requested pursuant to Section 5.01(f) of the Other Credit Facility; and
(e) such Credit Extension will not contravene any Applicable Law
applicable to such Bank.
Except to the extent that the Borrower shall have disclosed in the notice
of borrowing or in the request for the issuance of a Letter of Credit, as
applicable, or in a
subsequent notice given to, in the case of Loans, the Banks or, in the case of
Letters of Credit, the Issuing Bank, prior to 10:00 a.m. (New York time) on the
requested date of a Credit Extension, that a condition specified in clause (b)
or (c) above will not be fulfilled as of the requested time of such Credit
Extension, the Borrower shall be deemed to have made a Representation and
Warranty as of the time of such Credit Extension that the conditions specified
in such clauses have been fulfilled as of such time. No such disclosure by the
Borrower that a condition specified in clause (b) or (c) above will not be
fulfilled as of the requested time of a requested Credit Extension shall affect
the right of each Bank or the Issuing Bank, as the case may be, not to make the
Credit Extension requested to be made by it if, in such Person's determination,
such condition has not been fulfilled at such time.
ARTICLE 3.
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties. In order to induce the
Agent, each Bank, and the Issuing Bank to enter into this Agreement and to make
each Credit Extension requested, all of the representations and warranties
contained in Article 3 of the Other Credit Facility are incorporated in their
entirety by reference in this Agreement to the same extent as fully set forth
herein.
ARTICLE 4.
CERTAIN COVENANTS
Section 4.01. Covenants. From the Agreement Date and until the
Repayment Date the Borrower shall comply with all of the Covenants contained in
Article 4 of the Other Credit Facility which is incorporated in its entirety by
reference in this Agreement to the extent as if fully set forth herein.
ARTICLE 5.
INFORMATION
Section 5.01. Information to be Furnished. From the Agreement Date and
until the Repayment Date, the Borrower shall furnish to each Bank all of the
Information in accordance with Article 5 of the Other Credit Facility which
Article 5 is incorporated in its entirety by reference in this Agreement to the
extent as if fully set forth herein. Notwithstanding the foregoing, if the
Borrower has already provided the Information required at the time requested in
accordance with Article 5 of the Other Credit Facility, the Borrower shall not
be required to comply hereunder if the information is the same as was supplied
under the Other Credit Facility.
ARTICLE 6.
DEFAULT
Section 6.01. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary, or within or without the control of the Borrower or
any Subsidiary, or be effected by operation of law or pursuant to any judgment
or order of any court or any order, rule or regulation of any governmental or
non-governmental body:
(a) Any payment of principal on any of the Loans, the Notes or the
Drawings under this Agreement or any prepayment shall not be made when and as
due (whether at maturity, by reason of notice of prepayment or acceleration or
otherwise) and in accordance with the terms of this Agreement and the Notes; or
any payment of interest, fees or any other amount due under this Agreement shall
not be made within three Business Days of when due; and
(b) Any Event of Default under Section 6.01 of the Other Credit
Facility.
Section 6.02. Remedies Upon Event of Default. During the continuance of
any Event of Default (other than one specified in Section 6.01(e) of the Other
Credit Facility with respect to the Borrower) and in every such event, the
Agent, upon notice to the Borrower, may do any or all of the following: (a)
declare, in whole or, from time to time, in part, the principal of and interest
on the Loans and the Notes and all other amounts owing under the Loan Documents
to be, and the Loans and the Notes and all such other amounts shall thereupon
and to that extent become, due and payable, (b) terminate, in whole or, from
time to time, in part, the Commitments and (c) require the Borrower to deposit
in the Cash Collateral Account with the Issuing Bank, funds sufficient to
reimburse or to enable the Issuing Bank to fund the full amount that is
available to be drawn under all outstanding Letters of Credit. Upon the
occurrence of an Event of Default specified in Section 6.01(e) of the Other
Credit Facility automatically and without any notice to the Borrower, (a) the
principal of and interest on the Loans and the Notes and all other amounts owing
under the Loan Documents shall be due and payable and (b) the Commitments shall
terminate. Presentment, demand, protest or notice of any kind (other than the
notice provided for in the first sentence of this Section 6.02) are hereby
expressly waived.
Section 6.03. Cash Collateral Account. (a) Cash Collateral Account.
When required by the terms of this Agreement, the Borrower shall establish and
maintain a special account (the "Cash Collateral Account") at the offices of the
Agent and under the Agent's sole dominion and control.
(b) Setoff. The Agent on behalf of the Banks and the Issuing Bank shall
have rights of setoff and a security interest and charge in the Cash Collateral
Account. If any Default or Event of Default shall have occurred and be
continuing, all amounts then on deposit or anytime thereafter deposited in the
Cash Collateral Account in lieu of being released to the Borrower, shall in the
discretion of the Agent, be returned by the Agent and/or applied by the Agent
against any and all of the amounts due and payable hereunder, whether by
acceleration or otherwise.
(c) Release of Funds After Repayment Date. Any funds remaining in the
Cash Collateral Account after the Repayment Date shall be released to the
Borrower.
ARTICLE 7.
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Additional Credit Facility Provisions. All of the
provisions of Article 7 of the Other Credit Facility are incorporated herein in
their entirety by reference to the same extent as if fully set forth in this
Agreement.
ARTICLE 8.
THE AGENT
Section 8.01. Appointment and Powers. The Issuing Bank and each Bank
hereby irrevocably appoints and authorizes the Agent, individually and in its
capacity as Agent, to act as the agent for such Issuing Bank or Bank under the
Loan Documents, with such powers as are delegated to the Agent by the terms
thereof, together with such other powers as are reasonably incidental thereto.
The Agent's duties shall be purely ministerial and the Agent shall have no
duties or responsibilities except those expressly set forth in the Loan
Documents. The Agent shall not be required under any circumstances to take any
action that, in its judgment, (a) is contrary to any provision of the Loan
Documents or Applicable Law or (b) would expose the Agent to any Liability or
expense against which it has not been indemnified to its satisfaction. The
Agent shall not, by reason of its serving as the Agent, be a trustee or other
fiduciary for any Bank.
Section 8.02. Limitation on Liability of Agent. Neither the Agent nor
any of its respective directors, officers, employees or agents shall be liable
or responsible for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence, willful misconduct or knowing violations of law. The Agent shall
not be responsible to the Issuing Bank or any Bank for (a) any recitals,
statements, representations or warranties contained in the Loan Documents or in
any certificate or other document referred to or provided for in, or received by
the Issuing Bank or any of the Banks under, the Loan Documents, (b) the
validity, effectiveness or enforceability of the Loan Documents or any such
certificate or other document, or (c) any failure by the Borrower to perform any
of its obligations under the Loan Documents. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact so long as the Agent was not grossly
negligent in selecting or directing such agents or attorneys-in-fact. The Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, facsimile, telegram or cable)
believed by it to be genuine and correct and to have been signed or given by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the Agent.
As to any matters not expressly provided for by the Loan Documents, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under the Loan Documents in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
Section 8.03. Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default (other than the non-payment to it of fees or
Drawings or principal of or interest on Loans) unless the Agent has received
notice from a Bank or the Borrower specifying such Default and stating that such
notice is a "Notice of Default". In the event that the Agent has knowledge of
such a non-payment or receives such a notice of the occurrence of a Default, the
Agent shall give prompt notice thereof to the Banks. In the event of any
Default, the Agent shall (a) in the case of a Default that constitutes an Event
of Default, take any or all of the actions referred to in clauses (a) and (b) of
the first sentence of Section 6.02 if so directed by the Required Banks and (b)
in the case of any Default, take such other action with respect to such Default
as shall be reasonably directed by the Required Banks. Unless and until the
Agent shall have received such directions, in the event of any Default, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interests of the Banks.
Section 8.04. Rights as a Bank. Each Person acting as the Agent that is
also a Bank shall, in its capacity as a Bank, have the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not acting as the Agent, and the term "Bank" or "Banks" shall include
such Person in its individual capacity. Each Person acting as the Agent
(whether or not such Person is a Bank) and its Affiliates may (without having to
account therefor to the Issuing Bank or any Bank) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Borrower and its Affiliates as if it were not acting as an Agent, and
such Person and its Affiliates may accept fees and other consideration from the
Borrower and its Affiliates for services in connection with the Loan Documents
or otherwise without having to account for the same to the Issuing Bank or the
Banks.
Section 8.05. Indemnification. The Banks agree to indemnify the Agent
(to the extent not reimbursed by the Borrower under the Loan Documents), ratably
on the basis of their respective Percentage Interests, for any and all
Liabilities, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Agent (including the costs and expenses
that the Borrower is obligated to pay under the Loan Documents) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent (a) they are subject to the indemnity contemplated by the last sentence
of Section 9.10(b) or (b) they arise from gross negligence, willful misconduct
or knowing violations of law by the Agent.
Section 8.06. Non-Reliance on the Agent, the Issuing Bank and Other
Banks. Each Bank agrees that it has made and will continue to make,
independently and without reliance on the Agent or the Issuing Bank or any other
Bank, and based on such documents and information as it deems appropriate, its
own credit analysis of the Borrower, and its own decision to enter into the Loan
Documents and to take or refrain from taking any action in connection therewith.
The Agent shall not be required to keep itself informed as to the performance or
observance by the Borrower of the Loan Documents or any other document referred
to or provided for therein or to inspect the properties or books of the Borrower
or any Subsidiary thereof. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent under
the Loan Documents, the Agent shall not have any obligation to provide any Bank
with any information concerning the business, status or condition of the
Borrower or any Subsidiary thereof, the Loan Documents that may come into the
possession of the Agent or any of its Affiliates.
Section 8.07. Execution and Amendment of Loan Documents on Behalf of the
Banks. Each Bank hereby authorizes the Agent to execute and deliver, in the
name of and on behalf of such Bank, any other Loan Document requiring execution
by or on behalf of such Bank. The Agent shall consent to any amendment of any
term, covenant, agreement or condition of the Loan Documents, or to any waiver
of any right thereunder, if, but only if, the Agent is directed to do so in
writing by the Required Banks; provided, however, that (i) the Agent shall not
be required to consent to any such amendment or waiver that affects its rights
or duties and (ii) the Agent shall not, unless directed to do so in writing by
each Bank, consent to any assignment by the Borrower of any of its rights or
obligations under any such agreement in connection with the Loan Documents,
except as required or permitted by the Loan Documents.
Section 8.08. Resignation of the Agent. The Agent may at any time give
notice of its resignation to the Issuing Bank, the Banks and the Borrower. The
Agent shall resign if directed by the Required Banks. Upon receipt of any such
notice of resignation or removal, the Required Banks may, after consultation
with the Borrower, appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or
removal, then the retiring Agent may, on behalf of the Banks and after
consultation with the Borrower, appoint a successor Agent. Upon the acceptance
by any Person of its appointment as a successor Agent, (a) such Person shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations as Agent under the Loan Documents.
After any retiring Agent's resignation or removal as Agent, the provisions of
this Article 8 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
ARTICLE 9.
MISCELLANEOUS
Section 9.01. Notices and Deliveries. (a) Notices and Information.
Except as provided in Section 9.01(b):
(i) Manner of Delivery. All notices, communications and materials
(including all Information) to be given or delivered pursuant to the Loan
Documents shall, except in those cases where giving notice by telephone is
expressly permitted, be given or delivered in writing (which shall include telex
and facsimile transmissions). Notices under Sections 1.02(a), 1.02(b), 1.03(c),
1.04(b), 1.05, 1.07 and 6.02 may be by telephone, promptly, in the case of each
notice other than one under Section 6.02, confirmed in writing. In the event of
a discrepancy between any telephonic notice and any written confirmation
thereof, such written confirmation shall be deemed the effective notice except
to the extent that the any Person has acted in reliance on such telephonic
notice.
(ii) Addresses. All notices, communications and materials to be given
or delivered pursuant to the Loan Documents shall be given or delivered at the
following respective addresses and facsimile and telephone numbers and to the
attention of the following individuals or departments:
(A) if to the Borrower, to it at:
Trigen Energy Corporation
One Water Street
White Plains, New York 10601
Fax No.: (914) 286-6777
Telephone No.: (914) 286-6600
Attention: Treasurer
(B) if to any Bank, to it at the address or fax or telephone
number and to the attention of the individual or department, set forth
below such Bank's name under the heading "Notice Address" on Annex A or,
in the case of a Bank that becomes a Bank pursuant to an assignment, set
forth under the heading "Notice Address" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment;
(C) if to the Issuing Bank at an address or fax or telephone number
different from that determined in accordance with clause (B) above with
respect to the Bank that is the Issuing Bank, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7428
Telephone No.: (212) 278-6727
Attention: Specialized Letter of Credit Services
(D) if to the Agent at an address or fax or telephone number
different from that determined in accordance with clause (B) above with
respect to the Bank that is the Agent, to it at:
1221 Avenue of the Americas
New York, New York 10020
Fax No.: (212) 278-7463
Telephone No.: (212) 278-6926
Attention: Ms. Betty Burg, French Corporate Group
or at such other address or fax or telephone number or to the attention of such
other individual or department as the party to which such information pertains
may hereafter specify for the purpose in a notice specifically captioned "Notice
of Change of Address" given to (x) if the party to which such information
pertains is the Borrower, the Agent, the Issuing Bank and each Bank, (y) if the
party to which such information pertains is the Agent, the Borrower, the Issuing
Bank and each Bank and (z) if the party to which such information pertains is a
Bank or the Issuing Bank, the Borrower and the Agent.
(iii) Effectiveness. Each notice and communication and any material to
be given or delivered pursuant to the Loan Documents shall be deemed so given or
delivered (A) if sent by registered or certified mail, postage prepaid, return
receipt requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United States post
office and a receipt therefor is issued thereby, (B) if sent by any other means
of physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, (C) if sent by facsimile, when
such notice, communication or material is transmitted to the appropriate fax
number as above provided and is received at such number and (D) if given by
telephone, when communicated to the individual or any member of the department
specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered, or, in the case of
notice by the Agent to the Borrower under Section 6.02 given by telephone as
above provided, if any individual or any member of the department to whose
attention notices, communications and materials are to be given or delivered is
unavailable at the time, to any other officer or employee of the Borrower,
except that (1) notices of a change of address, fax or telephone number or
individual or department to whose attention notices, communications and
materials are to be given or delivered shall not be deemed given until received
and (2) notices, communications and materials to be given or delivered to the
(x) Agent or any Bank pursuant to Sections 1.02(a), 1.03(c), 1.04(b), 1.05, 1.07
and 1.12(b) and Article 5 shall not be deemed given or delivered until received
by the officer of the Agent or such Bank responsible, at the time, for the
administration of the Loan Documents and (y) the Issuing Bank pursuant to
Section 1.02(b) shall not be deemed given or delivered until received by the
officer of the Issuing Bank responsible, at the time, for the administration of
the Issuing Bank's commitment hereunder to issue Letters of Credit.
(iv) Reasonable Notice. Any requirement under Applicable Law of
reasonable notice by the Agent, the Issuing Bank or the Banks to the Borrower of
any event in connection with, or in any way related to, the Loan Documents or
the exercise by the Agent, the Issuing Bank or the Banks of any of their rights
thereunder shall, to the extent permitted by Applicable Law, be met if notice of
such event is given to the Borrower in the manner prescribed above at least 10
days before (A) the date of such event or (B) the date after which such event
will occur.
Section 9.02. Expenses; Indemnification. Whether or not any Credit
Extensions are made hereunder, the Borrower shall:
(a) pay or reimburse the Agent, the Issuing Bank and each Bank for all
transfer, documentary, stamp and similar taxes, and all recording and filing
fees and taxes, payable in connection with, arising out of, or in any way
related to, the execution, delivery and performance of the Loan Documents or
the making of the Loans or the Drawings or the issuance of the Letters of
Credit, if any;
(b) pay or reimburse the Agent for all reasonable costs and expenses
(including fees and disbursements of legal counsel, appraisers, accountants
and other experts employed or retained by the Agent) incurred by such Person
in connection with, arising out of, or in any way related to (i) the
negotiation, preparation, execution and delivery of (A) the Loan Documents
and (B) whether or not executed, any waiver, amendment or consent thereunder
or thereto, (ii) the administration of and any operations under the Loan
Documents, (iii) consulting with respect to any matter in any way arising out
of, related to, or connected with, the Loan Documents, including (A) the
protection, preservation, exercise or enforcement of any of the rights of
such Person or the Banks in, under or related to the Loan Documents or (B)
the performance of any of the obligations of such Person or the Banks under
or related to the Loan Documents, or (iv) protecting, preserving, exercising
or enforcing any of the rights of such Person or the Banks in, under or
related to the Loan Documents;
(c) pay or reimburse each Bank and the Issuing Bank for all reasonable
costs and expenses (including fees and disbursements of legal counsel and
other experts employed or retained by such Person) incurred by such Person in
connection with, arising out of, or in any way related to protecting,
preserving, exercising or enforcing any of its rights in, under or related to
the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from and against
all losses (including judgments, penalties and fines) suffered, and pay or
reimburse each Indemnified Person for all costs and expenses (including
reasonable fees and disbursements of legal counsel and other experts employed
or retained by such Indemnified Person) incurred, by such Indemnified Person
in connection with, arising out of, or in any way related to (i) any Loan
Document Related Claim (whether asserted by such Indemnified Person or the
Borrower or any other Person), including the prosecution or defense thereof
and any litigation or proceeding with respect thereto (whether or not, in the
case of any such litigation or proceeding, such Indemnified Person is a party
thereto), or (ii) any investigation, governmental or otherwise, arising out
of, related to, or in any way connected with, the Loan Documents or the
relationships established thereunder, except that the foregoing indemnity
shall not be applicable to any loss suffered by any Indemnified Person to the
extent such loss is the result of acts or omissions on the part of such
Indemnified Person constituting (w) gross negligence, (x) willful misconduct,
(y) knowing violations of law or (z) in the case of claims by the Borrower
against such Indemnified Person, such Indemnified Person's failure to observe
any other standard applicable to it under any of the other provisions of the
Loan Documents or, but only to the extent not waivable thereunder, Applicable
Law.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Indemnified Person in respect of which
indemnity may be sought from the Borrower, such Indemnified Person shall
promptly notify the Borrower in writing, and the Borrower shall assume the
defense thereof, including the employment of counsel satisfactory to such
Indemnified Person, and the payment of all expenses. Any Indemnified Person
seeking indemnification shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expense of such Indemnified Person unless (a) the
Borrower has agreed to pay such fees and expenses or (b) the Borrower shall have
failed to assume the defense of such action or proceeding or shall have failed
to employ counsel satisfactory to such Indemnified Person in any such action or
proceeding or (c) the named parties to any such action or proceeding (including
any impleaded parties) include such Indemnified Person, and such Indemnified
Person shall have been advised by counsel that there may be one or more legal
defenses available to such Indemnified Person that are different from or
additional to those available to the Borrower (in which case, if such
Indemnified Person notifies the Borrower in writing that it elects to employ
separate counsel at the expense of the Borrower, the Borrower shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Person; it being understood, however, that the Borrower shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all Indemnified Persons, which firm shall be designated in writing by
such Indemnified Persons). The Borrower shall not be liable for any settlement
of any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there is a final judgment for the
plaintiff in any such action or proceeding, the Borrower agrees to indemnify and
hold harmless any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment.
Section 9.03. Amounts Payable Due Upon Request for Payment. All amounts
payable by the Borrower under Section 9.02 and under the other provisions of the
Loan Documents shall, except as otherwise expressly provided, be immediately due
upon request for the payment thereof.
Section 9.04. Remedies of the Essence. The various rights and remedies
of the Agent, the Issuing Bank and the Banks under the Loan Documents are of the
essence of those agreements, and the Agent, the Issuing Bank and the Banks shall
be entitled, to the extent permitted by Applicable Law, to obtain a decree
requiring specific performance of each such right and remedy.
Section 9.05. Rights Cumulative. Each of the rights and remedies of the
Agent, the Issuing Bank and the Banks under the Loan Documents shall be in
addition to all of their other rights and remedies under the Loan Documents and
Applicable Law, and nothing in the Loan Documents shall be construed as limiting
any such rights or remedies.
Section 9.06. Disclosures. Each of the Agent, the Issuing Bank and the
Banks agrees to hold any information (which is not already public information)
which it may receive from the Borrower or any Subsidiary pursuant to any Loan
Document in confidence, except for disclosure (i) to other Banks, the Agent, or
the Issuing Bank, (ii) to legal counsel, accountants, and other professional
advisors to the Agent, the Issuing Bank or such Bank, as the case may be, (iii)
to regulatory officials, (iv) as requested pursuant to or as required by
Applicable Law, (v) in connection with any legal proceeding to which the Agent,
the Issuing Bank or such Bank, as the case may be, is a party, and (vi) to
potential assignees and participants of such Bank, provided, that such Bank
shall require any assignee or participant to be bound in like manner to this
Section 9.06.
Section 9.07. Amendments; Waivers. Any term, covenant, agreement or
condition of the Loan Documents may be amended, and any right under the Loan
Documents may be waived, if, but only if, such amendment or waiver is in writing
and is signed by the Required Banks and, if the rights and duties of the Agent
or the Issuing Bank are affected thereby, by the Agent or the Issuing Bank, as
the case may be, and in the case of an amendment with respect to any Loan
Document, by the Borrower; provided, however, that no amendment or waiver shall
be effective, unless in writing and signed by each Bank affected thereby, to the
extent it (i) changes the amount of such Bank's Commitment, except as permitted
by Section 7.07, (ii) reduces (A) the principal of or the rate of interest on
(1) such Bank's Loans or Notes or (2) any of the Drawings or (B) the fees
payable to such Bank hereunder, (iii) postpones any date fixed for (A) any
payment of (1) principal of or interest on (aa) such Bank's Loans or Notes or
(bb) any of the Drawings or (2) the fees payable to such Bank hereunder or (B)
the expiration of any Letter of Credit if such postponement would extend the
expiration of such Letter of Credit beyond the Termination Date, or (iv) amends
or waives the requirements of, or an Event of Default under, Section 1.14,
Section 3.21, Section 6.01(h) of the Other Credit Facility, this Section 9.07 or
any other provision of this Agreement requiring the consent or other action of
all of the Banks. Unless otherwise specified in such waiver, a waiver of any
right under the Loan Documents shall be effective only in the specific instance
and for the specific purpose for which given. No election not to exercise,
failure to exercise or delay in exercising any right, nor any course of dealing
or performance, shall operate as a waiver of any right of the Agent, the Issuing
Bank or any Bank under the Loan Documents or Applicable Law, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right of the Agent, the Issuing
Bank or any Bank under the Loan Documents or Applicable Law.
Section 9.08. Set-Off; Suspension of Payment and Performance. The
Agent, the Issuing Bank and each Bank is hereby authorized by the Borrower, at
any time and from time to time, without notice, to the extent permitted by
Applicable Law, during any Event of Default, to set off against, and to
appropriate and apply to the payment of, the Liabilities of the Borrower under
the Loan Documents (whether owing to such Person or to any other Person that is
the Agent, the Issuing Bank or a Bank and whether matured or unmatured, fixed or
contingent or liquidated or unliquidated) any and all Liabilities owing by such
Person or any of its Affiliates to the Borrower (whether payable in Dollars or
any other currency, whether matured or unmatured and, in the case of Liabilities
that are deposits, whether general or special, time or demand and however
evidenced and whether maintained at a branch or office located within or without
the United States).
Section 9.09. Sharing of Recoveries. (a) Each Bank agrees that, if,
for any reason, including as a result of (i) the exercise of any right of
counterclaim, set-off, banker's lien or similar right, (ii) its claim in any
applicable bankruptcy, insolvency or other similar law being deemed secured by a
Debt owed by it to the Borrower, including a claim deemed secured under Section
506 of the Bankruptcy Code, or (iii) the allocation of payments by the Agent or
the Borrower in a manner contrary to the provisions of Section 1.14, such Bank
shall receive payment of a proportion of the aggregate amount due and payable to
it hereunder as principal of or interest on the Loans, Drawings or fees that is
greater than the proportion received by any other Bank in respect of the
aggregate of such amounts due and payable to such other Bank hereunder, then the
Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder so that all
such recoveries with respect to such amounts due and payable hereunder (net of
costs of collection) shall be pro rata; provided that if all or part of such
proportionately greater payment received by the purchasing Bank is thereafter
recovered by or on behalf of the Borrower from such Bank, such purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such Bank to the extent of such recovery, but without interest
(unless the purchasing Bank is required to pay interest on the amount recovered
to the Person recovering such amount, in which case the selling Bank shall be
required to pay interest at a like rate). The Borrower expressly consents to
the foregoing arrangements and agree that any holder of a participation in any
rights hereunder so purchased or acquired pursuant to this Section 9.09(a)
shall, with respect to such participation, be entitled, to the extent permitted
by Applicable Law, to all of the rights of a Bank under Sections 7.02 of the
Other Credit Facility, 9.02 and 9.08 (subject to any condition imposed on a Bank
hereunder with respect thereto) and may, to the extent permitted by Applicable
Law, exercise any and all rights of set-off with respect to such participation
as fully as though the Borrower was directly indebted to the holder of such
participation for Loans to the Borrower in the amount of such participation.
(b) Each Bank agrees to exercise any right of counterclaim, set-off,
banker's lien or similar right that it may have in respect of the Borrower in a
manner so as to apportion the amount subject to such exercise, on a pro rata
basis, between (i) obligations of such Borrower for amounts subject to the
sharing provisions of Section 9.09(a) and (ii) other Liabilities of such
Borrower.
Section 9.10. Assignments and Participations. (a) Assignments. (i)
The Borrower may not assign any of its rights or obligations under the Loan
Documents without the prior written consent of the Agent, the Issuing Bank and
each Bank, and no assignment of any such obligation shall release the Borrower
therefrom unless the Agent or the Issuing Bank and each Bank, as applicable,
shall have consented to such release in a writing specifically referring to the
obligation from which the Borrower is to be released.
(ii) Each Bank may from time to time assign any or all of its rights
and obligations under the Loan Documents to one or more Eligible Assignees;
provided that, except in the case of the grant of a security interest to a
Federal Reserve Bank (which may be made without condition or restriction), no
such assignment shall be effective unless (A) the assignment is consented to by
the Borrower (unless an Event of Default specified in Section 6.01(e) of the
Other Credit Facility with respect to the Borrower exists), which consent shall
not be unreasonably withheld (it being agreed that the failure of a proposed
assignee to have a long term debt rating of A- or higher is a valid reason for
withholding consent), the Issuing Bank and the Agent (which consents shall not
be unreasonably withheld), (B) if less than the full amount of the assignor
Bank's Commitment, the assignment shall involve the assignment of not less than
$5,000,000 of the assignor Bank's Commitment, (C) a Notice of Assignment with
respect the assignment, duly executed by the assignor and the assignee, shall
have been given to the Borrower and the Agent, (D) in the case of an assignment
of a Registered Note, such Registered Note shall have been surrendered for
registration of assignment duly endorsed by (or accompanied by a written
instrument of assignment duly executed by) the Registered Holder and such
assignment shall have been recorded on the Register and (E) except in the case
of an assignment by the Bank that is the Agent, the Agent shall have been paid
an assignment fee of $2,500. Upon any effective assignment, the assignor shall
be released from the obligations so assigned and, in the case of an assignment
of all of its Loans and Commitment, shall cease to be a Bank. In the event of
any effective assignment by a Bank, the Borrower shall, against receipt of the
existing Note of the assignor Bank, issue a new Note to the assignee Bank and,
in the case of a partial assignment, to the assignor Bank, appropriately
reflecting such assignment.
(b) Participations. Each Bank may from time to time sell or otherwise
grant participations in any or all of its rights and obligations under the Loan
Documents without the consent of the Borrower, the Agent, the Issuing Bank or
any other Bank. In the event of any such grant by a Bank of a participation,
such Bank's obligations under the Loan Documents to the other parties thereto
shall remain unchanged, such Bank shall remain solely responsible for the
performance thereof, and the Borrower, the Agent and the other Banks may
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations thereunder. A Bank may not grant to any holder of
a participation the right to require such Bank to take or omit to take any
action under the Loan Documents, except that a Bank may grant to any such holder
the right to require such holder's consent to (i) reduce (A) the principal of or
the rate of interest on (1) such Bank's Loans or Notes or (2) any of the
Drawings or (B) the fees payable to such Bank hereunder, (ii) postpone any date
fixed for (A) any payment of (1) principal of or interest on (aa) such Bank's
Loans or Notes or (bb) any of the Drawings or (2) the fees payable to such Bank
hereunder or (B) the expiration of any Letter of Credit if such postponement
would extend the expiration date of such Letter of Credit beyond the Termination
Date or (iii) except in connection with a transaction that is permitted under
the Loan Documents, permit the Borrower to assign any of its obligations under
the Loan Documents to any other Person. Each holder of a participation in any
rights under the Loan Documents, if and to the extent the applicable
participation agreement so provides, shall, with respect to such participation,
be entitled to all of the rights of a Bank as fully as though it were a Bank
under Sections 1.13 and 9.02(d) of this Agreement or 7.02, 7.03, 7.04 of the
Other Credit Facility (subject to any conditions imposed on a Bank hereunder
with respect thereto, including delivery of the forms and certificates required
under Section 1.13(c)) and may, to the extent permitted by Applicable Law,
exercise any and all rights of set-off with respect to such participation as
fully as though the Borrower was directly indebted to the holder of such
participation for Loans made to the Borrower in the amount of such
participation; provided, however, that no holder of a participation shall be
entitled to any amounts that would otherwise be payable to it with respect to
its participation under Section 1.13 of this Agreement or 7.02 of the Other
Credit Facility unless (x) such amounts are payable in respect of Regulatory
Changes that are enacted, adopted or issued after the date the applicable
participation agreement was executed or (y) such amounts would have been payable
to the Bank that granted such participation if such participation had not been
granted. Each Bank selling or granting a participation shall indemnify the
Borrower and the Agent for any Taxes and Liabilities that they may sustain as a
result of such Bank's failure to withhold and pay any Taxes applicable to
payments by such Bank to its participant in respect of such participation.
Section 9.11. Governing Law. This Agreement and the Notes (including
matters relating to the Maximum Permissible Rate) shall be construed in
accordance with and governed by the law of the State of New York (without giving
effect to its choice of law principles other than Section 5-1401 of the New York
General Obligations Law).
Section 9.12. Judicial Proceedings; Waiver of Jury Trial. Any judicial
proceeding brought against the Borrower with respect to any Loan Document
Related Claim may be brought in any court of competent jurisdiction in The City
of New York, and, by execution and delivery of this Agreement, the Borrower (a)
accepts, generally and unconditionally, the nonexclusive jurisdiction of such
courts and any related appellate court and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with any Loan Document Related
Claim and (b) irrevocably waives, to the extent permitted by Applicable Law, any
objection it may now or hereafter have as to the venue of any such proceeding
brought in such a court or that such a court is an inconvenient forum. The
Borrower hereby waives personal service of process and consents that service of
process upon it may be made by certified or registered mail, return receipt
requested, at its address specified or determined in accordance with the
provisions of Section 9.01(a)(ii), and service so made shall be deemed completed
on the third Business Day after such service is deposited in the mail. Nothing
herein shall affect the right of any Agent, the Issuing Bank, any Bank or any
other Indemnified Person to serve process in any other manner permitted by law
or shall limit the right of any Agent, the Issuing Bank, any Bank or any other
Indemnified Person to bring proceedings against the Borrower in the courts of
any other jurisdiction. THE BORROWER, THE AGENT, THE ISSUING BANK AND EACH BANK
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY LOAN
DOCUMENT RELATED CLAIM.
Section 9.13. Judgment Currency. If in connection with determining the
amount of a judgment to be rendered in a currency other than Dollars (a "Foreign
Currency"), it is necessary to convert a sum payable by the Borrower to an
Indemnified Person under the Loan Documents in Dollars into such Foreign
Currency, then, unless another rate of exchange is required under Applicable
Law, the rate of exchange used shall be the Agent's Spot Rate of Exchange on the
Business Day preceding the day on which final judgment is to be rendered. The
obligations of the Borrower in respect of any such sum payable by it to such
Indemnified Person under the Loan Documents in Dollars shall, notwithstanding
any such judgment in such Foreign Currency, be discharged only to the extent
that on the Business Day following actual receipt by such Indemnified Person of
the amount of the judgment in such Foreign Currency, such Indemnified Person is
able to purchase Dollars in New York with such sum of Foreign Currency, whether
or not at the Agent's Spot Rate of Exchange. As a separate obligation and
notwithstanding any such judgment, the Borrower shall pay such Indemnified
Person on demand in Dollars any difference between the amount originally payable
by the Borrower to such Indemnified Person in Dollars and the amount of Dollars
that may be so purchased. In the event that the amount that may be so purchased
exceeds the amount originally payable, such Indemnified Person shall promptly
remit such excess to the Borrower.
Section 9.14. LIMITATION OF LIABILITY. NEITHER THE AGENT, THE ISSUING
BANK, THE BANKS, ANY OTHER INDEMNIFIED PERSON NOR (EXCEPT AS OTHERWISE PROVIDED
HEREIN) THE BORROWER SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND EACH PARTY
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY SUCH PARTY IN CONNECTION WITH ANY LOAN
DOCUMENT RELATED CLAIM.
Section 9.15. Severability of Provisions. Any provision of the Loan
Documents that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Borrower hereby
waives any provision of Applicable Law that renders any provision of the Loan
Documents prohibited or unenforceable in any respect.
Section 9.16. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument.
Section 9.17. Survival of Obligations. Except as otherwise expressly
provided therein, the rights and obligations of the Borrower, the Agent, the
Issuing Bank, the Banks and the other Indemnified Persons under the Loan
Documents shall survive the Repayment Date.
Section 9.18. Entire Agreement. This Agreement and the Notes embody the
entire agreement among the Borrower, the Agent, the Issuing Bank and the Banks
relating to the subject matter hereof and supersede all prior agreements,
representations and understandings, if any, relating to the subject matter
hereof.
Section 9.19. Successors and Assigns. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 9.20. Registered Notes. A Bank that is a Non-US Bank that has
complied with Section 1.13(c)(A)(1)(bb) may have its Note issued as a Registered
Note, and for this purpose the Borrower shall cause to be maintained a Register.
Once issued, Registered Notes may not be exchanged for Notes that are not
Registered Notes, and of the Loans evidenced thereby, may be transferred only in
accordance with the provisions of Section 9.10(a)(ii)(D).
ARTICLE 10
INTERPRETATION
Section 10.1. Defined Terms. Terms used herein and not defined herein
shall have the meanings set forth in Article 10 of the Other Credit Facility.
For the purposes of this Agreement:
"Agent" means Societe Generale, as agent for the Banks and the Issuing
Bank under the Loan Documents, and any successor Agent appointed pursuant to
Section 8.08.
"Agent's Office" means the address of the Agent specified in or
determined in accordance with the provisions of Section 9.01.
"Agreement" means this Revolving Credit Facility, including all
schedules, annexes and exhibits hereto, as the same may be amended, modified or
supplemented from time to time.
"Agreement Date" means the date set forth as such on the first page
hereof, which date is the date the executed copies of this Agreement were deemed
delivered by all parties hereto and, accordingly, this Agreement became
effective and the Banks first became committed to make the Loans and other
extensions of credit contemplated by this Agreement.
"Bank" means (a) any Person listed on the signature pages hereof
following the Agent and (b) any Person (other than the Borrower or any of its
Affiliates) that has been assigned any or all of the rights or obligations of a
Bank pursuant to Section 9.10 or has replaced a Bank pursuant to Section 7.07.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(a) the Prime Rate in effect on such day; or (b) the sum of the Federal Funds
Rate in effect on such day plus 1/2%.
"Base Rate Loan" means any Loan the interest on which is, or is to be, as
the context may require, computed on the basis of the Base Rate.
"Borrower" means Trigen Energy Corporation, a Delaware corporation.
"Commitment" of any Bank means (a) the amount set forth opposite such
Bank's name under the heading "Commitment" on Annex A or, in the case of a Bank
that becomes a Bank pursuant to an assignment, the amount of the assignor's
Commitment assigned to such Bank, in either case, as the same may be reduced
from time to time pursuant to Section 1.07 or increased or reduced from time to
time pursuant to assignments in accordance with Section 9.10(a), or (b) as the
context may require, the obligation of such Bank to make Loans in an aggregate
unpaid principal amount not exceeding such amount.
"Commitment Fee" shall have the meaning set forth in Section 1.08(a).
"Credit Extension" means (a) the making by any Bank of any Loan or (b)
the issuance or renewal by the Issuing Bank of any Letter of Credit.
"Default" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Domestic Lending Office" of any Bank means, (a) as applied to any Bank,
(i) the branch or office of such Bank set forth below such Bank's name under the
heading "Domestic Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Domestic Lending Office" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment or (ii) such
other branch or office of such Bank designated by such Bank from time to time as
the branch or office at which its Base Rate Loans are to be made or maintained
and (b) as applied to the Issuing Bank, (i) the branch or office of the Issuing
Bank set forth below under the heading "Issuing Bank Domestic Lending Office" on
Annex A or (ii)such other branch or office of such Bank designated by the
Issuing Bank from time to time at which Drawings are to be made or maintained.
"Eurodollar Lending Office" of any Bank means (a) as applied to any Bank
(i) the branch or office of such Bank set forth below such Bank's name under the
heading "Eurodollar Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Eurodollar Lending Office" in the Notice of Assignment
given to the Borrower and the Agent with respect to such assignment or (ii) such
other branch or office of such Bank designated by such Bank from time to time as
the branch or office at which its Eurodollar Rate Loans are to be made or
maintained and (b) as applied to the Issuing Bank, if such branch or office is
different from the Eurodollar Lending Office of the Bank that is the Issuing
Bank, (i) the branch or office of the Issuing Bank set forth below the name of
the Bank that is the Issuing Bank under the heading" Issuing Bank Eurodollar
Lending Office on Annex A or (ii)such other branch or office of such Bank
designated by the Issuing Bank from time to time as the branch or the office at
which Drawings are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the Rate that appears
on the Telerate Screen Page in the column headed "USD" for a period equal to
such Interest Period, at 11:00 a.m. (London time) two Eurodollar Business Days
before the first day of such Interest Period. If the Telerate Screen Page
becomes unavailable or if for any other reason determined by the Agent in good
faith, the Agent is unable to determine the appropriate Eurodollar Rate by
reference to the Telerate Screen Page, then "Eurodollar Rate" shall mean, for
such Interest Period, the rate per annum determined by the Agent to be the rate
per annum determined by the Reference Bank to be the rate at which the Reference
Bank offered or would have offered to place with first-class banks in the London
interbank market deposits in Dollars in amounts comparable to the Eurodollar
Rate Loan of the Reference Bank to which such Interest Period applies, for a
period equal to such Interest Period, at 11:00 a.m. (London time) on the second
Eurodollar Business Day before the first day of such Interest Period.
"Eurodollar Rate Loan" means any Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Eurodollar Rate.
"Eurodollar Rate Margin" means (a) .75% so long as the Borrower shall not
maintain an S & P Rating of at least BBB-; and (b) so long as the Borrower shall
receive and maintain an S & P Rating of at least BBB-, the Eurodollar Rate
Margin shall be determined in accordance with the following table:
S & P Rating Eurodollar Rate Margin
A- or higher .30%
BBB+ .35%
BBB .40%
BBB- .45%
The Eurodollar Rate Margin shall be increased or decreased in accordance with
this definition upon any change in the S & P Rating and such increased or
decreased Eurodollar Rate Margin shall be effective from the date of the
announcement of such new S & P Rating.
"Event of Default" means any of the events specified in Section 6.01.
"Facility" means the revolving credit of up to Thirty-Five Million
Dollars ($35,000,000) granted to the Borrower subject and pursuant to the
Agreement, as the same may be reduced pursuant to Section 1.07.
"Facility Period" means the period commencing on the June 24, 1997 and
ending on the Termination Date.
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of quotations for such day on such
transactions received by Societe Generale from three Federal funds brokers of
recognized standing selected by such bank.
"Interest Payment Date" means (a) for any Base Rate Loan, (i) the last
Business Day of each month; and (ii) the day on which any principal amount of
such Base Rate Loan matures and becomes due and payable; and (b) for any
Eurodollar Loan, (i) the last day of each Interest Period for such Eurodollar
Loan; (ii) the last day of each three month portion of each Interest Period
which is longer than three months; and (iii) the day on which any principal
amount of such Eurodollar Loan matures and becomes due and payable.
"Interest Period" means a period commencing, in the case of the first
Interest Period applicable to a Eurodollar Rate Loan, on the date of the making
of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day in the first, second, third or sixth calendar month
thereafter, except that (a) any Interest Period that would otherwise end on a
day that is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day and (b) any Interest Period that begins on the
last Eurodollar Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month in which such Interest
Period ends) shall end on the last Eurodollar Business Day of a calendar month.
"Issuing Bank" means with respect to each Letter of Credit issued by
Societe Generale pursuant to Section 1.02(b), Societe Generale in its capacity
as the issuing bank of the Letter of Credit.
"Issuing Bank's Office" means the address of the Issuing Bank specified
in or determined in accordance with the provisions of Section 9.01.
"Lending Office" of any Bank means the Domestic Lending Office or the
Eurodollar Lending Office of such Bank.
"Letter of Credit" means any standby letter of credit issued by the
Issuing Bank pursuant to Section 1.01(b).
"Letter of Credit Amount" means, at any time, an amount equal to the
product of: (a) the aggregate undrawn amount under such Letter of Credit at
such time; multiplied by (b) such Bank's Percentage Interest.
"Letter of Credit Commission" means a commission equal to the Applicable
LC Fee Rate based on the aggregate Letter of Credit Amount.
"Letter of Credit Fees" shall mean the fees described in Section 1.08(b).
"Letter of Credit Fronting Fee" means a fee of .10% of the aggregate
undrawn amount of all Letters of Credit issued hereunder, which fee is to be
paid quarterly in arrears to the Issuing Bank.
"Loan" means any amount advanced by a Bank pursuant to Section 1.01(a).
"Loan Document Representation and Warranty" means any "Representation and
Warranty" as defined in any Loan Document or the Existing Credit Agreement and
any other representation or warranty made or deemed made under any Loan Document
or the Existing Credit Agreement.
"Loan Documents" means (a) this Agreement, the Notes and the Letters of
Credit and (b) the Other Credit Facility, Other Credit Facility Notes and the
Letters of Credit issued pursuant to the Other Credit Facility and (c) all other
agreements, documents and instruments delivered pursuant to any of the
foregoing.
"Maturity Date" means for any Loan, the earlier of: (a) the Termination
Date; and (b) the date on which the maturity of the Loan has been accelerated
pursuant to Section 6.02.
"Note" means any Note in the form of Exhibit A and includes such a Note
that is a Registered Note.
"Notice of Assignment" means any notice to the Borrower and the Agent
with respect to an assignment and acceptance pursuant to Section 9.10 in the
form of Schedule 9.10.
"Other Credit Facility" means the $125,000,000 Revolving Credit Facility
dated as of April 4, 1997 among the Borrower, Agent, and the Banks, as the same
may be restated or amended from time to time.
"Other Credit Facility Commitments" of any Bank means (a) the amount set
forth opposite such Bank's name under the heading "Commitment" on Annex A of the
Other Credit Facility or, in the case of a Bank that becomes a Bank pursuant to
an assignment, the amount of the assignor's Commitment assigned to such Bank, as
the same may be reduced from time to time pursuant to Section 1.07 of the Other
Credit Facility or increased or reduced from time to time pursuant to
assignments in accordance with Section 9.10(a) of the Other Credit Facility; or
(b) as the context may require, the obligation of such Bank to make loans
pursuant to the Other Credit Facility in an aggregate unpaid principal amount
not exceeding such amount.
"Other Credit Facility Notes" means the notes issued by the Borrower
pursuant to the Other Credit Facility.
"Percentage Interest" means, as to a Bank, the percentage set forth
opposite such Bank's name on Annex A of this Agreement and any amendment or
assignment hereto, or if applicable, in the Register.
"Post-Default Rate" means the rate otherwise applicable under Section
1.03(a) plus 2%.
"Prime Rate" means the rate of interest from time to time announced by
Societe Generale at its office in New York, New York as its prime commercial
lending rate for extensions of credit in Dollars, which rate is not necessarily
the lowest rate of interest charged or received by Societe Generale. Each
change in the Prime Rate resulting from a change in such prime commercial
lending rate shall take effect when such prime commercial lending rate changes.
"Reference Bank" means Societe Generale, New York.
"Register" means a register kept at the Agent's office by the Agent on
behalf of the Borrower, on which the Agent records the names of the Registered
holders of Registered Notes.
"Registered Holder" means the Person in whose name a Registered Note is
registered.
"Registered Note" means a Note the name of the holder of which has been
recorded on the Register. The registration of a Note shall constitute the
registration of the Loan evidenced thereby.
"Repayment Date" means the later of (a) the termination of the
Commitments (whether as a result of the occurrence of the Termination Date,
reduction to zero pursuant to Section 1.07 or termination pursuant to Section
6.02) and (b) the payment in full of the Loans, Drawings and all other amounts
payable or accrued hereunder.
"Required Banks" means, at any time, Banks having more than two thirds
(66-2/3%) of the Loans and Participations outstanding, or if there are no Loans
or Participations outstanding, more than two thirds (66-2/3%) of the aggregate
amount of the Commitment. Any determination of those Banks constituting Required
Banks shall be made by the Agent and shall be conclusive and binding on all
parties absent manifest error.
"Telerate Screen" means the display of interest settlement rates
(commonly known as LIBOR) for Dollar deposits in London designated as page 3750
on the Dow Jones Telerate Service (or any other page that replaces page 3750 and
displays London interbank settlement rates for Dollar deposits).
"Termination Date" means: (a) the Business Day immediately prior to the
first anniversary of the Agreement Date; or (b) if the Facility Period has been
extended pursuant to Section 1.01(c), the Business Day as contained in a notice
from the Agent to the Borrower.
"Type" means, with respect to Loans, any of the following, each of which
shall be deemed to be a different "Type" of Loan: Base Rate Loans, Eurodollar
Rate Loans having a one-month Interest Period, Eurodollar Rate Loans having a
two-month Interest Period, Eurodollar Rate Loans having a three-month Interest
Period and Eurodollar Rate Loans having a six-month Interest Period. Any
Eurodollar Rate Loan having an Interest Period that differs from the duration
specified for a Type of Eurodollar Rate Loan listed above solely as a result of
the operation of clauses (a) and (b) of the definition of "Interest Period"
shall be deemed to be a Loan of such above-listed Type notwithstanding such
difference in duration of Interest Periods.
"Uniform Customs" means Uniform Customs and Practice for Commercial
Documentary Credits of the International Chamber of Commerce, revision 500 of
1993 and as the same may be amended, modified or supplemented.
"Unreimbursed Letter of Credit Obligations" means any amounts which the
Borrower is required to reimburse the Issuing Bank for Drawings.
Section 10.02. Other Interpretive Provisions. (a) Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors and assigns, (ii) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or Contract
defined or referred to herein shall be deemed references to such Loan Document
or Contract (and, in the case of any Note or any other instrument, any
instrument issued in substitution therefor) as the terms thereof may have been
or may be amended, supplemented, waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word "including",
"include" or "includes" is set forth only for the purpose of indicating that,
regardless of whatever other items are in the category in which such item or
items are "included", such item or items are in such category, and shall not be
construed as indicating that the items in the category in which such item or
items are "included" are limited to such items or to items similar to such
items.
(e) Each authorization in favor of the Agent, the Issuing Bank, the
Banks or any other Person granted by or pursuant to this Agreement shall be
deemed to be irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all references to the time of
day shall be deemed to be to New York City time as then in effect.
Section 10.03. Accounting Matters. Unless otherwise specified herein,
all accounting determinations hereunder and all computations utilized by the
Borrower shall be made in accordance with Section 10.03 of the Other Credit
Facility.
Section 10.04. Representations and Warranties. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made, at and as of such time and (c) in the case of any particular
Representation and Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in connection
with which such Representation and Warranty is made or deemed made.
Section 10.05. Captions. Captions to Articles, Sections and subsections
of, and Annexes, Schedules and Exhibits to, this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 10.06. Interpretation of Related Documents. Except as otherwise
specified herein or therein, terms that are defined herein that are used in
Notes, certificates, opinions and other documents delivered in connection
herewith shall have the meanings ascribed to them herein and such documents
shall be otherwise interpreted in accordance with the provisions of this
Article 10.
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
TRIGEN ENERGY CORPORATION
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
SOCIETE GENERALE,
as Agent, as Issuing Bank and as a Bank
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
CREDIT LOCAL DE FRANCE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
CREDIT COMMERCIAL DE FRANCE
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Revolving
Credit Facility to be executed by their duly authorized officers as of the
Agreement Date.
MELLON BANK, N.A.
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Credit
Facility to be executed by their duly authorized officers as of the Agreement
Date.
THE DAI-ICHI KANGYO BANK, LTD.
By
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this 364-Day Credit
Facility to be executed by their duly authorized officers as of the Agreement
Date.
UMB BANK, N.A.
By
Name:
Title:
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<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from SEC Form
10-Q for quarter ending June 30, 1997 and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
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<ALLOWANCES> 1,215
<INVENTORY> 6,535
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<PP&E> 449,692
<DEPRECIATION> 69,712
<TOTAL-ASSETS> 486,638
<CURRENT-LIABILITIES> 53,161
<BONDS> 234,858
0
0
<COMMON> 121
<OTHER-SE> 143,791
<TOTAL-LIABILITY-AND-EQUITY> 486,638
<SALES> 131,628
<TOTAL-REVENUES> 131,628
<CGS> 99,840
<TOTAL-COSTS> 116,877
<OTHER-EXPENSES> 1,529
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<INTEREST-EXPENSE> 8,261
<INCOME-PRETAX> 4,961
<INCOME-TAX> 2,034
<INCOME-CONTINUING> 2,927
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<NET-INCOME> 2,927
<EPS-PRIMARY> .24
<EPS-DILUTED> .24
</TABLE>
