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REVOLVING CREDIT AGREEMENT
DATED AS OF
MARCH 17, 1997
AMONG
NRG ENERGY, INC.
THE BANKS PARTY HERETO,
AND
ABN AMRO BANK N.V.
As Agent
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TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS; INTERPRETATION.................................... 1
Section 1.1. Definitions............................................ 1
Section 1.2. Interpretation......................................... 11
SECTION 2. THE REVOLVING CREDIT........................................... 12
Section 2.1. The Loan Commitment.................................... 12
Section 2.2. Letters of Credit...................................... 13
Section 2.3. Applicable Interest Rates.............................. 17
Section 2.4. Minimum Borrowing Amounts.............................. 19
Section 2.5. Manner of Borrowing Loans and Designating
Interest Rates Applicable to Loans..................... 20
Section 2.6. Interest Periods....................................... 22
Section 2.7. Maturity of Loans...................................... 23
Section 2.8. Prepayments............................................ 23
Section 2.9. Default Rate........................................... 24
Section 2.10. The Notes.............................................. 25
Section 2.11. Funding Indemnity...................................... 25
Section 2.12. Commitment Terminations................................ 26
SECTION 3. FEES AND EXTENSIONS............................................ 27
Section 3.1. Fees................................................... 27
Section 3.2. Extension of Termination Date.......................... 28
SECTION 4. PLACE AND APPLICATION OF PAYMENTS.............................. 28
Section 4.1. Place and Application of Payments...................... 28
SECTION 5. REPRESENTATIONS AND WARRANTIES................................. 29
Section 5.1. Corporate Organization and Authority................... 29
Section 5.2. Subsidiaries........................................... 29
Section 5.3. Corporate Authority and Validity of Obligations........ 30
Section 5.4. Financial Statements................................... 30
Section 5.5. No Litigation; No Labor Controversies.................. 30
Section 5.6. Taxes.................................................. 31
Section 5.7. Approvals.............................................. 31
Section 5.8. Validity of Notes...................................... 31
Section 5.9. ERISA.................................................. 32
Section 5.10. Government Regulation.................................. 32
Section 5.11. Margin Stock; Use of Proceeds.......................... 32
Section 5.12. Licenses and Authorizations; Compliance Laws........... 32
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Section 5.13. Ownership of Property; Liens........................... 33
Section 5.14. No Burdensome Restrictions; Compliance
with Agreements........................................ 33
Section 5.15. Full Disclosure........................................ 33
SECTION 6. CONDITIONS PRECEDENT........................................... 33
Section 6.1. Initial Credit Event................................... 34
Section 6.2. All Credit Events...................................... 35
SECTION 7. COVENANTS...................................................... 36
Section 7.1. Corporate Existence; Subsidiaries...................... 36
Section 7.3. Taxes.................................................. 36
Section 7.4. ERISA.................................................. 37
Section 7.5. Insurance.............................................. 37
Section 7.6. Financial Reports and Other Information................ 37
Section 7.7. Bank Inspection Rights................................. 40
Section 7.8. Conduct of Business.................................... 40
Section 7.9. Liens.................................................. 41
Section 7.10. Use of Proceeds; Regulation U.......................... 41
Section 7.11. Mergers, Consolidations and Sales of Assets............ 41
Section 7.12. Consolidated Tangible Net Worth........................ 42
Section 7.13. Compliance with Laws................................... 42
Section 7.14. PUHCA.................................................. 43
SECTION 8. EVENTS OF DEFAULT AND REMEDIES................................. 43
Section 8.1. Events of Default...................................... 43
Section 8.2. Non-Bankruptcy Defaults................................ 45
Section 8.3. Bankruptcy Defaults.................................... 46
Section 8.4. Collateral for Undrawn Letters of Credit............... 46
Section 8.5. Notice of Default...................................... 47
Section 8.6. Expenses............................................... 47
SECTION 9. CHANGE IN CIRCUMSTANCES........................................ 47
Section 9.1. Change of Law.......................................... 47
Section 9.2. Unavailability of Deposits or Inability to Ascertain,
or Inadequacy of, LIBOR................................ 48
Section 9.4. Lending Offices........................................ 51
Section 9.5. Discretion of Bank as to Manner of Funding............. 52
SECTION 10. THE AGENT..................................................... 52
Section 10.1. Appointment and Authorization of Agent................. 52
Section 10.2. Agent and its Affiliates............................... 52
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Section 10.3. Action by Agent........................................ 52
Section 10.4. Consultation with Experts.............................. 53
Section 10.6. Indemnity.............................................. 54
Section 10.7. Resignation of Agent and Successor Agent............... 55
SECTION 11. MISCELLANEOUS................................................. 55
Section 11.1. Withholding Taxes...................................... 55
Section 11.2. No Waiver of Rights.................................... 57
Section 11.3. Non-Business Day....................................... 57
Section 11.4. Documentary Taxes...................................... 57
Section 11.5. Survival of Representations............................ 58
Section 11.6. Survival of Indemnities................................ 58
Section 11.7. Set-Off................................................ 58
Section 11.8. Notices................................................ 59
Section 11.9. Counterparts........................................... 60
Section 11.10. Successors and Assigns................................. 61
Section 11.11. Participants and Note Assignees........................ 61
Section 11.12. Assignment of Commitments by Banks..................... 62
Section 11.13. Amendments............................................. 62
Section 11.14. Headings............................................... 63
Section 11.15. Legal Fees, Other Costs and Indemnification............ 63
Section 11.16. Entire Agreement....................................... 64
Section 11.18. Governing Law.......................................... 64
Section 11.19. Submission to Jurisdiction; Waiver of Jury Trial....... 64
EXHIBITS
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A - Form of Notice of Payment Request
B - Form of Note
C - Form of Compliance Certificate
D - Form of Legal Opinion of Counsel to the Borrower
E - Form of Application
SCHEDULES
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Schedule 1 Pricing Grid
Schedule 5.2 Schedule of Existing Subsidiaries
Schedule 5.5 Litigation and Labor Controversies
Schedule 7.9 Existing Liens
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REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated as of March 17, 1997 among NRG
Energy, Inc., a Delaware corporation (the "Borrower"), the banks from time to
time party hereto (each a "Bank," and collectively the "Banks") and ABN AMRO
Bank N.V. in its capacity as agent for the Banks hereunder (in such capacity,
the "Agent").
WITNESSETH THAT:
WHEREAS, the Borrower desires to obtain the several commitments of the
Banks to make available a revolving credit for loans and letters of credit (the
"Revolving Credit"), as described herein; and
WHEREAS, the Banks are willing to extend such commitments subject to
all of the terms and conditions hereof and on the basis of the representations
and warranties hereinafter set forth;
NOW, THEREFORE, in consideration of the recitals set forth above and
for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
Section 1.1. Definitions. The following terms when used herein have
the following meanings:
"Account" is defined in Section 8.4(b) hereof.
"Adjusted LIBOR" is defined in Section 2.3(b) hereof.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "control" (including, with their
correlative meanings, "controlled by" and "under common control with") means
possession, directly or indirectly, of power to direct or cause the direction
of management or policies of a Person (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise),
provided that, in any event for purposes of this definition: (i) any Person
which owns directly or indirectly 5% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person; and (ii) each director and
executive officer of the Borrower or any Subsidiary shall be deemed an
Affiliate of the Borrower and each Subsidiary.
"Agent" is defined in the first paragraph of this Agreement and
includes any successor Agent pursuant to Section 10.7 hereof.
"Agreement" means this Revolving Credit Agreement, including all
Exhibits and Schedules hereto, as it may be amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof.
"Applicable Margin" means, at any time (i) with respect to Base Rate
Loans, the Base Rate Margin and (ii) with respect to Eurocurrency Loans, the
Eurocurrency Margin.
"Application" is defined in Section 2.2(b) hereof.
"Applicable Telerate Page" is defined in Section 2.3(b) hereof.
"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(e) hereof, or on any
updated such list provided by the Borrower to the Agent, or any further or
different officer of the Borrower so named by any Authorized Representative of
the Borrower in a written notice to the Agent.
"Bank" is defined in the first paragraph of this Agreement.
"Base Rate" is defined in Section 2.3(a) hereof.
"Base Rate Loan" means a Loan bearing interest prior to maturity at a
rate specified in Section 2.3(a) hereof.
"Base Rate Margin" means the percentage set forth in Schedule 1 hereto
beside the then applicable Rating.
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"Borrower" is defined in the first paragraph of this Agreement.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different type
into such type by the Banks on a single date and for a single Interest Period.
Borrowings of Loans are made and maintained ratably from each of the Banks
according to their Percentages. A Borrowing is "advanced" on the day Banks
advance funds comprising such Borrowing to the Borrower, is "continued" on the
date a new Interest Period for the same type of Loan commences for such
Borrowing, and is "converted" when such Borrowing is changed from one type of
Loan to the other, all as requested by the Borrower pursuant to Section 2.5(a).
"Business Day" means any day other than a Saturday or Sunday on which
Banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan, on which dealings in U.S. Dollars may be carried on by the Agent in the
interbank eurodollar market.
"Capital Lease" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance sheet
of the lessee.
"Capitalized Lease Obligations" means, for any Person, the amount of
such Person's liabilities under Capital Leases determined at any date in
accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitments" means the Revolving Credit Commitments.
"Compliance Certificate" means a certificate in the form of Exhibit C
hereto.
"Consolidated Capitalization" means Consolidated Tangible Net Worth
plus Indebtedness of the Borrower and its Subsidiaries.
"Consolidated Current Liabilities" mean such liabilities of the
Borrower on a consolidated basis as shall be
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determined in accordance with GAAP to constitute current liabilities.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Borrower and its Subsidiaries for such period computed on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" means, as of the date of
determination thereof, Consolidated Total Assets as of such date less the sum
of (i) Consolidated Current Liabilities and (ii) Intangible Assets.
"Consolidated Tangible Net Worth" means, as of the date of any
determination thereof, the amount reflected as stockholders' equity upon a
consolidated balance sheet of the Borrower and its Subsidiaries less, without
duplication, the total amount of such assets that constitute patents,
tradenames, trademarks, copyrights, franchises, experimental expense,
organization expense, unamortized debt discount and expense, deferred assets
other than deferred income taxes, prepaid insurance and prepaid taxes,
goodwill, and any other assets as are properly classified as "intangible
assets" in accordance with GAAP.
"Consolidated Total Assets" means, as of the date of determination
thereof, the total amount of all assets of the Borrower determined on a
consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking
to which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated) under
common control that, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Credit Documents" means this Agreement, the Notes, the Fee Letter,
the Applications and the Letters of Credit.
"Credit Event" means the advancing of any Loan, the continuation of or
conversion into a Eurocurrency Loan, or
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the issuance of, or extension of the expiration date or increase in the amount
of, any Letter of Credit.
"Debt" means, for any Person, any Indebtedness of such Person only of
the types described in clauses (i) through (vi) of the definition of such term.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"Effective Date" means the date on which the Agent has received signed
counterpart signature pages of this Agreement from each of the signatories (or,
in the case of a Bank, confirmation that such Bank has executed such a
counterpart and dispatched it for delivery to the Agent) and the documents
required by Section 6.1 hereof.
"Environmental Law" means the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1802 et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. Section 1252 et seq., the Clean Water Act, 33
U.S.C. Section 1321 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq.,
and any other federal, state, county, municipal, local or other statute, law,
ordinance or regulation which may relate to or deal with human health or the
environment, all as may be from time to time amended.
"ERISA" is defined in Section 5.8 hereof.
"Eurocurrency Loan" means a Loan bearing interest prior to maturity at
the rate specified in Section 2.3(b) hereof.
"Eurocurrency Margin" means the percentage set forth in Schedule 1
hereto beside the then applicable Rating.
"Eurocurrency Reserve Percentage" is defined in Section 2.3(b) hereof.
"Event of Default" means any of the events or circumstances specified
in Section 8.1 hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Facility Fee Rate" means the percentage set forth in Schedule 1
hereto beside the then applicable Rating.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Base Rate set forth
in Section 2.3(a) hereof.
"Fee Letter" means that certain letter between the Agent and the
Borrower dated as of the date hereof pertaining to fees to be paid by the
Borrower to the Agent for the Agent's sole account and benefit.
"GAAP" means generally accepted accounting principles as in effect in
the United States from time to time, applied by the Borrower and its
Subsidiaries on a basis consistent with the preparation of the Borrower's
financial statements furnished to the Banks.
"Guaranty" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing
any Indebtedness, dividend or other obligation (including, without limitation,
limited or full recourse obligations in connection with sales of receivables or
any other Property) of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, all obligations
incurred through an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any Property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or obligation, or (y) to maintain working capital
or other balance sheet condition, or otherwise to advance or make available
funds for the purchase or payment of such Indebtedness or obligation, or (iii)
to lease property or to purchase Securities or other property or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the primary obligor to make payment of the
Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purpose of all computations made under this Agreement, the
amount of a Guaranty in respect
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of any obligation shall be deemed to be equal to the maximum aggregate amount
of such obligation or, if the Guaranty is limited to less than the full amount
of such obligation, the maximum aggregate potential liability under the terms
of the Guaranty.
"Hazardous Material" means any substance or material which is
hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls, dioxins and petroleum or its by-products or
derivatives (including crude oil or any fraction thereof) and (b) any other
material or substance classified or regulated as "hazardous" or "toxic"
pursuant to any Environmental Law.
"Indebtedness" means and includes, for any Person, all obligations of
such Person, without duplication, which are required by GAAP to be shown as
liabilities on its balance sheet, and in any event shall include all of the
following whether or not so shown as liabilities (i) obligations of such Person
for borrowed money, (ii) obligations of such Person representing the deferred
purchase price of property or services, (iii) obligations of such Person
evidenced by notes, acceptances, or other instruments of such Person or arising
out of letters of credit issued for such Person's account, (iv) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such Person, (v)
Capitalized Lease Obligations of such Person and (vi) obligations for which
such Person is obligated pursuant to a Guaranty.
"Interest Period" is defined in Section 2.6 hereof.
"Intangible Assets" means, as of the date of determination thereof,
all assets of the Borrower properly classified as intangible assets determined
on a consolidated basis in accordance with GAAP.
"L/C Documents" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the Applications
and this Agreement.
"L/C Fee Rate" means the percentage set forth in Schedule 1 hereto
beside the then applicable Rating.
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"L/C Obligations" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"Lending Office" is defined in Section 9.4 hereof.
"Letter of Credit" is defined in Section 2.2(a) hereof.
"LIBOR" is defined in Section 2.3(b) hereof.
"LIBOR Index Rate" is defined in Section 2.3(b) hereof.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, including, but not
limited to, the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale, security agreement or trust receipt, or a lease,
consignment or bailment for security purposes. The term "Lien" shall also
include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting Property. For the purposes of this definition, a Person
shall be deemed to be the owner of any Property which it has acquired or holds
subject to a conditional sale agreement, Capital Lease or other arrangement
pursuant to which title to the Property has been retained by or vested in some
other Person for security purposes, and such retention of title shall
constitute a "Lien."
"Loan" is defined in Section 2.1(a) hereof and, as so defined,
includes a Base Rate Loan or Eurocurrency Loan, each of which is a "type" of
Loan hereunder.
"Material Adverse Effect" means any material adverse change in, or any
adverse development which materially affects or could reasonably be expected to
affect, the business, financial position or results of operations of the
Borrower and its Subsidiaries, taken as a whole, or the ability of the Borrower
to perform its obligations under the Credit Documents.
"Minimum Consolidated Tangible Net Worth" means an amount, as of the
date of any determination thereof, equal
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to the sum of $175,000,000 plus 25% of Consolidated Net Income for the period
from and including April 1, 1996 to such determination date but which amount
shall in no event be less than $175,000,000.
"Note" is defined in Section 2.10(a) hereof.
"Obligations" means all fees payable hereunder, all obligations of the
Borrower to pay principal or interest on Loans, all obligations of the Borrower
to pay L/C Obligations, and all other payment obligations of the Borrower
arising under or in relation to any Credit Document.
"Original Dollar Amount" means the amount of any Loan or L/C
Obligation.
"Participating Interest" is defined in Section 2.2(d) hereof.
"Percentage" means, for each Bank, the percentage of the Revolving
Credit Commitments represented by such Bank's Revolving Credit Commitment or,
if the Revolving Credit Commitments have been terminated, the percentage held
by such Bank (including through participation interests in L/C Obligations) of
the aggregate principal amount of all outstanding Obligations.
"Person" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code that is either (i) maintained by a member of the Controlled Group
or (ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions.
"PBGC" is defined in Section 5.9 hereof.
"Primergy Merger" means that certain merger between Northern States
Power Company, a Minnesota corporation and
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Wisconsin Energy Corporation, a Wisconsin corporation, to be consummated
pursuant to that certain Amended and Restated Agreement and Plan of Merger
dated as of April 28, 1995, as amended and restated as of July 26, 1995.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now owned
or hereafter acquired.
"Rating" means the rating given to senior unsecured debt obligations
of the Borrower by ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's
Ratings Service, Inc., and any successors thereto.
"Reference Banks" means ABN AMRO Bank N.V., and one other
representative of the Banks. In the event that any of such Banks ceases to be a
"Bank" hereunder or fails to provide timely quotations of interests rates to
the Agent as and when required by this Agreement, then such Bank shall be
replaced by a new reference bank jointly designated by the Agent and the
Borrower.
"Reimbursement Obligation" is defined in Section 2.2(c) hereof.
"Replaceable Bank" is defined in Section 11.13(iii).
"Replacement Bank" is defined in Sectino 11.13(iii).
"Required Banks" means, as of the date of determination thereof, Banks
holding at least 66-2/3% of the Percentages.
"Revolving Credit Commitment" is defined in Section 2.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Security" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"Subsidiary" means, as to the Borrower, any active, domestic
corporation or other entity of which one hundred percent (100%) of the
outstanding stock or comparable equity interests having ordinary voting power
for the election of the Board of Directors of such corporation or similar
governing body in the case of a non-corporation
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(irrespective of whether or not, at the time, stock or other equity interests
of any other class or classes of such corporation or other entity shall have or
might have voting power by reason of the happening of any contingency) is at
the time directly owned by the Borrower.
"Syndication Date" means the date on which additional Banks become
parties to this Agreement and make Commitments hereunder. The Syndication Date
shall occur, if at all, within ninety (90) days of the date hereof, unless such
date is extended by the mutual agreement of the parties hereto.
"Telerate Service" means the Dow ▇▇▇▇▇ Telerate Service.
"Termination Date" means March 17, 2000, subject to any extension of
such date pursuant to Section 3.2 hereof.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the Controlled Group to
the PBGC or the Plan under Title IV of ERISA.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary voting
power for the election of directors or similar governing body of such Person.
"Welfare Plan" means a "welfare plan", as defined in Section 3(l) of
ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the
Borrower means a Subsidiary of which all of the issued and outstanding shares
of stock or other equity interests (other than directors' qualifying shares as
required by law) shall be owned by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
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Section 1.2. Interpretation. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms defined.
All references to times of day in this Agreement shall be references to
Chicago, Illinois time unless otherwise specifically provided. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, the same shall be
done in accordance with GAAP, to the extent applicable, except where such
principles are inconsistent with the specific provisions of this Agreement.
SECTION 2. THE REVOLVING CREDIT.
Section 2.1. The Loan Commitment. (a) General Terms. Subject to the
terms and conditions hereof, each Bank, by its acceptance hereof, severally
agrees to make a loan or loans (individually a "Loan" and collectively "Loans")
to the Borrower from time to time on a revolving basis in U.S. Dollars in an
aggregate outstanding Original Dollar Amount up to the amount of its revolving
credit commitment set forth on the applicable signature page hereof (such
amount, as reduced pursuant to Section 2.1(b) or Section 2.12 or changed as a
result of one or more assignments under Section 11.12 or 11.13(iii), its
"Revolving Credit Commitment" and, cumulatively for all the Banks, the
"Revolving Credit Commitments") before the Termination Date. The sum of the
aggregate Original Dollar Amount of Loans and of L/C Obligations at any time
outstanding shall not exceed the Revolving Credit Commitments in effect at such
time. Each Borrowing of Loans shall be made ratably from the Banks in
proportion to their respective Percentages. As provided in Section 2.5(a)
hereof, the Borrower may elect that each Borrowing of Loans be either Base Rate
Loans or Eurocurrency Loans. Loans may be repaid and the principal amount
thereof reborrowed before the Termination Date, subject to all the terms and
conditions hereof.
(b) Specific Terms Applicable to the Agent's Commitments.
Notwithstanding anything to the contrary set forth in clause (a) above, if, on
the Syndication Date, the aggregate Commitments of the Banks other than the
Agent is less than $75,000,000, then the commitment of the Agent shall be
reduced to an amount equal to twenty-five percent (25 %) of the aggregate
Commitments of all Banks, inclusive
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of the Agent, and this Agreement shall be modified accordingly.
Section 2.2. Letters of Credit. (a) General Terms. Subject to the
terms and conditions hereof, as part of the Revolving Credit the Agent shall
issue letters of credit denominated in U.S. Dollars (each a "Letter of Credit")
for the Borrower's account, provided that the aggregate L/C Obligations at any
time outstanding shall not exceed the difference between the Revolving Credit
Commitments in effect at such time and the aggregate Original Dollar Amount of
Loans then outstanding. Each Letter of Credit shall be issued by the Agent, but
each Bank shall be obligated to purchase an undivided percentage participation
interest of such Letter of Credit from the Agent pursuant to Section 2.2(d)
hereof in an amount equal to its Percentage of the amount of each drawing
thereunder and, accordingly, the undrawn face amount of each Letter of Credit
shall constitute usage of the Revolving Credit Commitment of each Bank pro rata
in accordance with each Bank's Percentage.
(b) Applications. At any time before the Termination Date, the Agent
shall, at the request of the Borrower, issue one or more Letters of Credit, in
a form satisfactory to the Agent, with expiration dates no later than the
Termination Date, in an aggregate face amount as set forth above, upon the
receipt of a duly executed application for the relevant Letter of Credit in the
form attached hereto as Exhibit E (each an "Application"). Notwithstanding
anything contained in any Application to the contrary (i) the Borrower's
obligation to pay fees in connection with each Letter of Credit shall be as set
forth in Section 3.1(c) hereof, and (ii) any drawing under a Letter of Credit
shall bear interest (which the Borrower hereby agrees to pay on demand) from
and after the date such drawing is paid at a rate per annum equal to the sum of
the Base Rate Margin plus the Base Rate from time to time in effect; provided,
however, if the Agent is not timely reimbursed for the amount of any drawing
under a Letter of Credit three (3) Business Days from the date such drawing is
paid, the Borrower's obligation to reimburse the Agent for the amount of such
drawing shall bear interest (which the Borrower hereby promises to pay on
demand) from and after the date three (3) Business Days after such drawing is
paid at a rate per annum equal to the sum of 2% plus the Base Rate Margin plus
the Base Rate from time to time in
13
effect. The Agent will promptly notify the Banks of each issuance by it of a
Letter of Credit. If the Agent issues any Letters of Credit with expiration
dates that are automatically extended unless the Agent gives notice that the
expiration date will not so extend beyond its then scheduled expiration date,
the Agent will give such notice of non-renewal before the time necessary to
prevent such automatic extension if before such required notice date (i) the
expiration date of such Letter of Credit if so extended would be after the
Termination Date, (ii) the Commitments have been terminated or (iii) a Default
or Event of Default exists and the Required Banks have given the Agent
instructions not to so permit the extension of the expiration date of such
Letter of Credit. The Agent agrees to issue amendments to the Letter(s) of
Credit increasing the amount, or extending the expiration date, thereof at the
request of the Borrower subject to the conditions set forth herein (including
the conditions set forth in Section 6.2 and the other terms of this Section
2.2). Without limiting the generality of the foregoing, the Agent's obligation
to issue, amend or extend the expiration date of a Letter of Credit is subject
to the conditions set forth herein (including the conditions set forth in
Section 6.2 and the other terms of this Section 2.2).
(c) The Reimbursement Obligations. Subject to Section 2.2(b) hereof,
the obligation of the Borrower to reimburse the Agent for all drawings under a
Letter of Credit (a "Reimbursement Obligation") shall be governed by the
Application related to such Letter of Credit, except that reimbursement of each
drawing shall be made in immediately available funds at the Agent's principal
office in Chicago, Illinois by no later than 12:00 Noon (Chicago time) on the
date when such drawing is paid or, if such drawing was paid after 11:30 a.m.
(Chicago time), by the end of such day. If the Borrower does not make any such
reimbursement payment on the date due and the Banks fund their participations
therein in the manner set forth in Section 2.2(d) below, then all payments
thereafter received by the Agent in discharge of any of the relevant
Reimbursement Obligations shall be distributed in accordance with Section
2.2(d) below. In addition, for the benefit of the Agent and each Bank, the
Borrower agrees that, notwithstanding any provision of any Application, the
obligations of the Borrower under this Section 2.2(c) and each Application
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of
14
this Agreement and the Applications, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any L/C Document;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of any L/C Document;
(iii) the existence of any claim, set-off, defense or other right
the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any Person for whom a beneficiary may be acting), the
Agent, any Bank or any other Person, whether in connection with this
Agreement, another L/C Document or any unrelated transaction;
(iv) any statement or any other document presented under a 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;
(v) payment by the Agent under a Letter of Credit against
presentation to the Agent of a draft or certificate that does not
comply with the terms of the Letter of Credit, provided that the
Agent's determination that documents presented under the Letter of
Credit comply with the terms thereof did not constitute gross
negligence or willful misconduct of the Agent; or
(vi) any other act or omission to act or any other delay by the
Agent, any Bank or any other Person or any other event or circumstance
whatsoever that might, but for the provisions of this Section 2.2(c),
constitute a legal or equitable discharge of the Borrower's
obligations hereunder or under an Application.
(d) The Participating Interests. Each Bank, by its acceptance hereof,
severally agrees to purchase from the Agent, and the Agent hereby agrees to
sell to each such Bank, an undivided percentage participating interest (a
"Participating Interest"), to the extent of its Percentage,
15
in each Letter of Credit issued by, and each Reimbursement Obligation owed to,
the Agent. Upon any failure by the Borrower to pay any Reimbursement Obligation
at the time required on the date the related drawing is paid, as set forth in
Section 2.2(c) above, or if the Agent is required at any time to return to the
Borrower or to a trustee, receiver, liquidator, custodian or other Person any
portion of any payment of any Reimbursement Obligation, each Bank shall, not
later than the Business Day it receives a certificate in the form of Exhibit A
hereto from the Agent to such effect, if such certificate is received before
1:00 p.m. (Chicago time), or not later than the following Business Day, if such
certificate is received after such time, pay to the Agent an amount equal to
its Percentage of such unpaid or recaptured Reimbursement Obligation together
with interest on such amount accrued from the date the related payment was made
by the Agent to the date of such payment by such Bank at a rate per annum equal
to (i) from the date the related payment was made by the Agent to the date two
(2) Business Days after payment by such Bank is due hereunder, the Federal
Funds Rate for each such day and (ii) from the date two (2) Business Days after
the date such payment is due from such Bank to the date such payment is made by
such Bank, the Base Rate in effect for each such day. Each such Bank shall
thereafter be entitled to receive its Percentage of each payment received in
respect of the relevant Reimbursement Obligation and of interest paid thereon,
with the Agent retaining its Percentage as a Bank hereunder.
The several obligations of the Banks to the Agent under this Section
2.2 shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever and shall not be subject to any set-off, counterclaim
or defense to payment which any Bank may have or have had against the Borrower,
the Agent, any other Bank or any other Person whatsoever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of any
Commitment of any Bank, and each payment by a Bank under this Section 2.2 shall
be made without any offset, abatement, withholding or reduction whatsoever. The
Agent shall be entitled to offset amounts received for the account of a Bank
under the Credit Documents against unpaid amounts due from such Bank to the
Agent hereunder (whether as fundings of participations, indemnities or
otherwise).
16
(e) Indemnification. The Banks shall, to the extent of their
respective Percentages, indemnify the Agent (to the extent not reimbursed by
the Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Agent's gross negligence or willful misconduct) that the Agent may
suffer or incur in connection with any Letter of Credit. The obligations of the
Banks under this Section 2.2(e) and all other parts of this Section 2.2 shall
survive termination of this Agreement and of all other L/C Documents.
Section 2.3. Applicable Interest Rates. (a) Base Rate Loans. Each Base
Rate Loan made or maintained by a Bank shall bear interest during each Interest
Period it is outstanding computed on the basis of a year of 365 or 366 days, as
applicable, and actual days elapsed on the unpaid principal amount thereof from
the date such Loan is advanced, continued or created by conversion from a
Eurocurrency Loan until maturity (whether by acceleration or otherwise) at a
rate per annum equal to the sum of the Applicable Margin plus the Base Rate
from time to time in effect, payable on the last day of its Interest Period and
at maturity (whether by acceleration or otherwise).
"Base Rate" means for any day the greater of:
(i) the rate of interest announced by the Agent at its offices in
Chicago, Illinois, from time to time as its prime rate, or equivalent,
for U.S. Dollar loans as in effect on such day, with any change in the
Base Rate resulting from a change in said prime rate to be effective
as of the date of the relevant change in said prime rate; and
(ii) the sum of (x) the rate determined by the Agent to be the
prevailing rate per annum (rounded upwards, if necessary, to the
nearest one hundred-thousandth of a percentage point) at
approximately 10:00 a.m. (New York time) (or as soon thereafter as is
practicable) on such day (or, if such day is not a Business Day, on
the immediately preceding Business Day) for the purchase at face value
of overnight Federal funds, as published by the Federal Reserve bank
of New York, in an amount comparable to the principal amount owed to
the Agent for which such rate is being determined, plus (y) 1/2 of 1%
(0.50%).
17
(b) Eurocurrency Loans. Each Eurocurrency Loan made or maintained by a
Bank shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed) on the
unpaid principal amount thereof from the date such Loan is advanced, continued,
or created by conversion from a Base Rate Loan until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the
Applicable Margin plus the Adjusted LIBOR applicable for such Interest Period,
payable on the last day of the Interest Period and at maturity (whether by
acceleration or otherwise), and, if the applicable Interest Period is longer
than three months, on each day occurring every three months after the
commencement of such Interest Period. All payments of principal and interest on
a Loan (whether a Base Rate Loan or Eurocurrency Loan) shall be made in U.S.
Dollars.
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a
rate per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
---------------------------
1 - Eurocurrency Reserve Percentage
"LIBOR" means, for an Interest Period, (a) the LIBOR Index Rate for
such Interest Period as from time to time quoted by the Telerate Service, if
such rate is available, and (b) if the LIBOR Index Rate is not quoted by the
Telerate Service, the arithmetic average of the rates of interest per annum
(rounded upwards, if necessary, to the nearest one-sixteenth of one percent) at
which deposits in U.S. Dollars in immediately available funds are offered to
each Reference Bank at 11:00 a.m. (London, England time) two (2) Business Days
before the beginning of such Interest Period by major banks in the interbank
eurocurrency market for delivery on the first day of and for a period equal to
such Interest Period in an amount equal or comparable to the principal amount
of the Eurocurrency Loan scheduled to be made by the Agent as part of such
Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one-sixteenth of one
percent) for deposits in U.S. Dollars for delivery on the first day of and for
a period equal to such Interest Period in an amount equal or comparable to the
principal amount of the Loan scheduled to
18
be made by the Agent as part of such Borrowing, which appears on the Applicable
Telerate Page, as of 11:00 a.m. (London, England time) on the day two (2)
Business Days before the commencement of such Interest Period.
"Applicable Telerate Page" means the display page designated as "Page
3750" on the Telerate Service (or such other page as may replace such pages, as
appropriate, on that service or such other service as may be nominated by the
British Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement Rates for deposits
in U.S. Dollars).
"Eurocurrency Reserve Percentage" means the daily average for the
applicable Interest Period of the maximum rate, expressed as a decimal, at
which reserves (including, without limitation, any supplemental, marginal and
emergency reserves) are imposed during such Interest Period by the Board of
Governors of the Federal Reserve System (or any successor) on "eurocurrency
liabilities", as defined in such Board's Regulation D (or in respect of any
other category of liabilities that includes deposits by reference to which the
interest rate is determined or any category of extensions of credit or other
assets that include loans by non-United States offices of any Bank to United
States residents), subject to any amendments of such reserve requirement by
such Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Eurocurrency Loans shall be
deemed to be "eurocurrency liabilities" as defined in Regulation D without
benefit or credit for any prorations, exemptions or offsets under Regulation D.
(c) Rate Determinations. The Agent shall determine each interest rate
applicable to Obligations and the Original Dollar Amount of Loans, and a
determination thereof by the Agent shall be conclusive and binding except in
the case of manifest error.
Section 2.4. Minimum Borrowing Amounts. Each Borrowing of Base Rate
Loans and Eurocurrency Loans denominated in U.S. Dollars shall be in an amount
not less than $1,000,000 and in integral multiples of $1,000,000 provided that
a Borrowing of Base Rate Loans applied to pay a Reimbursement Obligation
pursuant to Section 2.5(c) hereof shall be in an amount equal to such
Reimbursement Obligation.
19
Section 2.5. Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans. (a) Notice to the Agent. The Borrower shall give written
notice to the Agent by no later than 10:00 a.m. (Chicago time) (i) at least
three (3) Business Days before the date on which the Borrower requests the
Banks to advance a Borrowing of Eurocurrency Loans and (ii) on the date the
Borrower requests the Banks to advance a Borrowing of Base Rate Loans. The
Loans included in each Borrowing shall bear interest initially at the type of
rate specified in such notice of a new Borrowing. Thereafter, the Borrower may
from time to time elect to change or continue the type of interest rate borne
by each Borrowing or, subject to Section 2.4's minimum amount requirement for
each outstanding Borrowing, a portion thereof, as follows: (i) if such
Borrowing is of Eurocurrency Loans, on the last day of the Interest Period
applicable thereto, the Borrower may continue part or all of such Borrowing as
Eurocurrency Loans for an Interest Period or Interest Periods specified by the
Borrower or convert part or all of such Borrowing into Base Rate Loans, (ii) if
such Borrowing is of Base Rate Loans, on any Business Day, the Borrower may
convert all or part of such Borrowing into Eurocurrency Loans for an Interest
Period or Interest Periods specified by the Borrower. The Borrower shall give
all such notices requesting the advance, continuation, or conversion of a
Borrowing to the Agent by telephone or telecopy (which notice shall be
irrevocable once given and, if by telephone, shall be promptly confirmed in
writing). Notices of the continuation of a Borrowing of Eurocurrency Loans for
an additional Interest Period or of the conversion of part or all of a
Borrowing of Eurocurrency Loans into Base Rate Loans or of Base Rate Loans into
Eurocurrency Loans must be given by no later than 10:00 a.m. (Chicago time) at
least three (3) Business Days before the date of the requested continuation or
conversion. All such notices concerning the advance, continuation, or
conversion of a Borrowing shall specify the date of the requested advance,
continuation or conversion of a Borrowing (which shall be a Business Day), the
amount of the requested Borrowing to be advanced, continued, or converted, the
type of Loans to comprise such new, continued or converted Borrowing and, if
such Borrowing is to be comprised of Eurocurrency Loans, the Interest Period
applicable thereto. The Borrower agrees that the Agent may rely on any such
telephonic or telecopy notice given by any person it in good faith believes is
an Authorized Representative without the
20
necessity of independent investigation, and in the event any such notice by
telephone conflicts with any written confirmation, such telephonic notice shall
govern if the Agent has acted in reliance thereon. There may be no more than
five different Interest Periods in effect at any one time.
(b) Notice to the Banks. The Agent shall give prompt telephonic or
telecopy notice to each Bank of any notice from the Borrower received pursuant
to Section 2.5.(a) above. The Agent shall give notice to the Borrower and each
Bank by like means of the interest rate applicable to each Borrowing of
Eurocurrency Loans and the Original Dollar amount thereof.
(c) Borrower's Failure to Notify. Any outstanding Borrowing of Base
Rate Loans shall, subject to Section 6.2 hereof, automatically be continued for
an additional Interest Period on the last day of its then current Interest
Period unless the Borrower has notified the Agent within the period required by
Section 2.5(a) that it intends to convert such Borrowing into a Borrowing of
Eurocurrency Loans or notifies the Agent within the period required by Section
2.8(a) that it intends to prepay such Borrowing. If the Borrower fails to give
notice pursuant to Section 2.5(a) above of the continuation or conversion of
any outstanding principal amount of a Borrowing of Eurocurrency Loans before
the last day of its then current Interest Period within the period required by
Section 2.5(a) and has not notified the Agent within the period required by
Section 2.8(a) that it intends to prepay such Borrowing, such Borrowing shall
automatically be converted into a Borrowing of Base Rate Loans, subject to
Section 6.2 hereof. In the event the Borrower fails to give notice pursuant to
Section 2.5(a) above of a Borrowing equal to the amount of a Reimbursement
Obligation and has not notified the Agent by 10:00 a.m. (Chicago time) on the
day such Reimbursement Obligation becomes due that it intends to repay such
Reimbursement Obligation through funds not borrowed under this Agreement, the
Borrower shall be deemed to have requested a Borrowing of Base Rate Loans on
such day in the amount of the Reimbursement Obligation then due, subject to
Section 6.2 hereof, which Borrowing shall be applied to pay the Reimbursement
Obligation then due.
(d) Disbursement of Loans. Not later than 11:00 a.m. (Chicago time) on
the date of any requested advance of a
21
new Borrowing of Eurocurrency Loans, and not later than 12:00 noon (Chicago
time) on the date of any requested advance of a new Borrowing of Base Rate
Loans, subject to Section 6 hereof, each Bank shall make available its Loan
comprising part of such Borrowing in funds immediately available at the
principal office of the Agent in Chicago, Illinois. The Agent shall make
available to the Borrower Loans at the Agent's principal office in Chicago,
Illinois or such other office as the Agent has previously agreed to, in
writing, with the Borrower.
(e) Agent Reliance on Bank Funding. Unless the Agent shall have been
notified by a Bank before the date on which such Bank is scheduled to make
payment to the Agent of the proceeds of a Loan (which notice shall be effective
upon receipt) that such Bank does not intend to make such payment, the Agent
may assume that such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make available to
the Borrower the proceeds of the Loan to be made by such Bank and, if any Bank
has not in fact made such payment to the Agent, such Bank shall, on demand, pay
to the Agent the amount made available to the Borrower attributable to such
Bank together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Borrower and
ending on (but excluding) the date such Bank pays such amount to the Agent at a
rate per annum equal to the Federal Funds Rate. If such amount is not received
from such Bank by the Agent immediately upon demand, the Borrower will, on
demand, repay to the Agent the proceeds of the Loan attributable to such Bank
with interest thereon at a rate per annum equal to the interest rate applicable
to the relevant Loan.
Section 2.6. Interest Periods. As provided in Section 2.5(a) hereof,
at the time of each request to advance, continue, or create by conversion a
Borrowing of Eurocurrency Loans, the Borrower shall select an Interest Period
applicable to such Loans from among the available options. The term "Interest
Period" means the period commencing on the date a Borrowing of Loans is
advanced, continued, or created by conversion and ending: (a) in the case of
Base Rate Loans, on the last Business Day of the calendar quarter in which such
Borrowing is advanced, continued, or created by conversion (or on the last day
of the following calendar quarter if such Loan is advanced, continued or
created by conversion on the last Business Day
22
of a calendar quarter), and (b) in the case of Eurocurrency Loans, 1, 2, 3, or
6 months thereafter; provided, however, that:
(a) any Interest Period for a Borrowing of Base Rate Loans that
otherwise would end after the Termination Date shall end on the
Termination Date;
(b) for any Borrowing of Eurocurrency Loans, the Borrower may not
select an Interest Period that extends beyond the Termination Date;
(c) whenever the last day of any Interest Period would otherwise
be a day that is not a Business Day, the last day of such Interest
Period shall be extended to the next succeeding Business Day, provided
that, if such extension would cause the last day of an Interest Period
for a Borrowing of Eurocurrency Loans to occur in the following
calendar month, the last day of such Interest Period shall be the
immediately preceding Business Day; and
(d) for purposes of determining an Interest Period for a
Borrowing of Eurocurrency Loans, a month means a period starting on
one day in a calendar month and ending on the numerically
corresponding day in the next calendar month; provided, however, that
if there is no numerically corresponding day in the month in which
such an Interest Period is to end or if such an Interest Period begins
on the last Business Day of a calendar month, then such Interest
Period shall end on the last Business Day of the calendar month in
which such Interest Period is to end.
Section 2.7. Maturity of Loans. Unless an earlier maturity is provided
for hereunder (whether by acceleration or otherwise), each Loan shall mature
and become due and payable by the Borrower on the Termination Date.
Section 2.8. Prepayments. (a) The Borrower may prepay without premium
or penalty and in whole or in part (but, if in part, then: (i) if such
Borrowing is of Base Rate Loans, in an amount not less than $1,000,000, (ii) if
such Borrowing is of Eurocurrency Loans in an amount not less than $1,000,000,
and (iii) in an amount such that the minimum amount required for a Borrowing
pursuant to Section 2.4 hereof remains outstanding) any Borrowing of
23
Eurocurrency Loans upon three Business Days prior notice to the Agent or, in
the case of a Borrowing of Base Rate Loans, notice delivered to the Agent no
later than 10:00 a.m. (Chicago time) on the date of prepayment, such prepayment
to be made by the payment of the principal amount to be prepaid and accrued
interest thereon to the date fixed for prepayment. In the case of Eurocurrency
Loans, such prepayment may only be made on the last day of the Interest Period
then applicable to such Loans. The Agent will promptly advise each Bank of any
such prepayment notice it receives from the Borrower. Any amount paid or
prepaid before the Termination Date may, subject to the terms and conditions of
this Agreement, be borrowed, repaid and borrowed again.
(b) If the aggregate principal amount of outstanding Loans and L/C
Obligations shall at any time for any reason exceed the Revolving Credit
Commitments then in effect, the Borrower shall, immediately and without notice
or demand, pay the amount of such excess to the Agent for the ratable benefit
of the Banks as a prepayment of the Loans and, if necessary, a prefunding of
Letters of Credit. Immediately upon determining the need to make any such
prepayment the Borrower shall notify the Agent of such required prepayment.
Each such prepayment shall be accompanied by a payment of all accrued and
unpaid interest on the Loans prepaid and shall be subject to Section 2.11.
Section 2.9. Default Rate. If any payment of principal on any Loan is
not made when due (whether by acceleration or otherwise), such Loan shall bear
interest, computed on the basis of a year of 360 days and actual days elapsed
(except for Loans based on the rate described in clause (i) of the definition
of Base Rate, in which case such Loan shall bear interest computed on the basis
of a year of 365 or 366 days, as applicable, and the actual number of days
elapsed) from the date such payment was due until paid in full, payable on
demand, at a rate per annum equal to:
(a) for any Base Rate Loan, the sum of two percent (2%) plus the
Applicable Margin plus the Base Rate from time to time in effect; and
(b) for any Eurocurrency Loan, the sum of two percent (2%) plus
the rate of interest in effect thereon at the time of such default
until the end of the Interest Period applicable thereto and, thereaf-
24
ter, at a rate per annum equal to the sum of two percent (2%) plus the
Applicable Margin plus the Base Rate from time to time in effect.
Section 2.10. The Notes. (a) The Loans made to the Borrower by a Bank
shall be evidenced by a single promissory note of the Borrower issued to such
Bank in the form of Exhibit B hereto. Each such promissory note is hereinafter
referred to as a "Note" and collectively such promissory notes are referred to
as the "Notes."
(b) Each Bank shall record on its books and records or on a schedule
to its Note the amount of each Loan advanced, continued, or converted by it,
all payments of principal and interest and the principal balance from time to
time outstanding thereon, the type of such Loan, and, for any Eurocurrency
Loan, the Interest Period and the interest rate applicable thereto. The record
thereof, whether shown on such books and records of a Bank or on a schedule to
any Note, shall be prima facie evidence as to all such matters; provided,
however, that the failure of any Bank to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation of
the Borrower to repay all Loans made to it hereunder together with accrued
interest thereon. At the request of any Bank and upon such Bank tendering to
the Borrower the Note to be replaced, the Borrower shall furnish a new Note to
such Bank to replace any outstanding Note, and at such time the first notation
appearing on a schedule on the reverse side of, or attached to, such Note shall
set forth the aggregate unpaid principal amount of all Loans, if any, then
outstanding thereon.
Section 2.11. Funding Indemnity. If any Bank shall incur any loss,
cost or expense (including, without limitation, any loss of profit, and any
loss, cost or expense incurred by reason of the liquidation or re-employment of
deposits or other funds acquired by such Bank to fund or maintain any
Eurocurrency Loan or the relending or reinvesting of such deposits or amounts
paid or prepaid to such Bank) as a result of:
(a) any payment (whether by acceleration or otherwise),
prepayment or conversion of a Eurocurrency Loan on a date other than
the last day of its Interest Period,
25
(b) any failure (because of a failure to meet the conditions of
Section 6 or otherwise) by the Borrower to borrow or continue a
Eurocurrency Loan, or to convert a Base Rate Loan into a Eurocurrency
Loan, on the date specified in a notice given pursuant to Section
2.5(a) or established pursuant to Section 2.5(c) hereof,
(c) any failure by the Borrower to make any payment of principal
on any Eurocurrency Loan when due (whether by acceleration or
otherwise), or
(d) any acceleration of the maturity of a Eurocurrency Loan as a
result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Agent, a certificate executed by an officer of such Bank setting
forth the amount of such loss, cost or expense in reasonable detail (including
an explanation of the basis for and the computation of such loss, cost or
expense) and the amounts shown on such certificate if reasonably calculated
shall be conclusive absent manifest error.
Section 2.12. Commitment Terminations. The Borrower shall have the
right at any time and from time to time, upon five (5) Business Days prior
written notice to the Agent, to terminate the Revolving Credit Commitments
without premium or penalty, in whole or in part, any partial termination to be
(i) in an amount not less than $5,000,000, and (ii) allocated ratably among the
Banks in proportion to their respective Percentages, provided that the
Revolving Credit Commitments may not be reduced to an amount less than the sum
of the Original Dollar Amount of all Loans and all L/C Obligations then
outstanding. The Agent shall give prompt notice to each Bank of any such
termination of Commitments. Any termination of Revolving Credit Commitments
pursuant to this Section 2.12 may not be reinstated.
26
SECTION 3. FEES AND EXTENSIONS.
Section 3.1. Fees.
(a) Certain Fees. The Borrower shall pay, or cause to be paid, to
the Agent certain fees set forth in the Fee Letter at the time
specified in the Fee Letter for payment of such amounts.
(b) Facility Fee. For the period from the Effective Date to and
including the Termination Date, the Borrower shall pay to the Agent
for the ratable account of the Banks in accordance with their
Percentages a facility fee accruing at a rate per annum equal to the
Facility Fee Rate on the average daily amount of the Commitments
(whether used or unused) less issued and outstanding Letters of
Credit, or if the Commitments have expired or terminated, on the
principal amount of Loans. Such facility fee is payable in arrears on
the last Business Day of each calendar quarter quarterly and on the
Termination Date, unless the Revolving Credit Commitments are
terminated in whole on an earlier date, in which event the fee for the
period to but not including the date of such termination shall be paid
in whole on the date of such termination.
(c) Letter of Credit Fees. (i) The Borrower shall pay to the
Agent for the account of each Bank letter of credit fees with respect
to the Letters of Credit at a rate per annum equal to the Letter of
Credit Fee Rate on the average daily maximum amount available to be
drawn under the outstanding Letters of Credit for the applicable
period computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter and on the Termination Date.
(ii) The letter of credit fees payable under Section
3.1(c)(i) shall be due and payable quarterly in arrears on the
last Business Day of each calendar quarter during which Letters
of Credit are outstanding, commencing on the first such quarterly
date to occur after the Effective Date, through the Termination
Date, with the final payment to be made on the Termination Date
(or such later expiration date), unless the Revolving Credit
Commitments are terminated in
27
whole on an earlier date, in which event the fee for the period
to but not including the date of such termination shall be paid
in whole on the date of such termination.
(iii) The Borrower shall pay to the Agent from time to time
on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the
Agent relating to Letters of Credit as from time to time in
effect.
(d) Fee Calculations. All fees payable under this Agreement shall
be payable in U.S. Dollars and shall be computed on the basis of a
year of 360 days, for the actual number of days elapsed. All
determinations of the amount of fees owing hereunder (and the
components thereof) shall be made by the Agent and shall be conclusive
absent manifest error.
Section 3.2. Extension of Termination Date. No later than ninety (90)
days before the second anniversary date of this Agreement the Borrower may make
a request for a one year extension of the Termination Date in a written notice
to the Agent. The Agent will promptly inform the Banks of any such request, and
each Bank shall notify the Agent in writing within thirty (30) days before the
anniversary date following such request whether it agrees to the requested
extension. If a Bank fails to so notify the Agent whether it agrees to such
extension, such Bank shall be deemed to have refused to grant the requested
extension. Upon receipt by the Agent of the written consent of all the Banks,
the Termination Date shall be automatically extended an additional year.
Otherwise, the Termination Date will remain as then scheduled.
SECTION 4. PLACE AND APPLICATION OF PAYMENTS.
Section 4.1. Place and Application of Payments. All payments of
principal of and interest on the Loans and the Reimbursement Obligations, and
of all other amounts payable by the Borrower under this Agreement, shall be
made by the Borrower to the Agent by no later than 12:00 Noon (Chicago time) on
the due date thereof at the principal office of the Agent in Chicago, Illinois
(or such other location in the United States as the Agent may designate to the
Borrower) or, if such payment is on a Reimbursement
28
Obligation, no later than provided by Section 2.2(c) hereof. Any payments
received after such time shall be deemed to have been received by the Agent on
the next Business Day. All such payments shall be made free and clear of, and
without deduction for, any set-off, counterclaim, levy, withholding or any
other deduction of any kind in U.S. Dollars, in immediately available funds at
the place of payment. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest on
Loans or applicable fees ratably to the Banks and like funds relating to the
payment of any other amount payable to any Person to such Person, in each case
to be applied in accordance with the terms of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to each Bank as to itself
and, where the following representations and warranties apply to Subsidiaries,
as to each of its Subsidiaries, as follows:
Section 5.1. Corporate Organization and Authority. The Borrower and
each of its Subsidiaries is, and at the Closing Date will be, duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, except where such failure to be in good standing would not,
individually or in the aggregate, have a Material Adverse Effect. Each is duly
qualified to transact business in each jurisdiction in which such qualification
is required, whether by reason of ownership or leasing of property or the
conduct of business or otherwise, except where failure to be so qualified would
not, individually or in the aggregate, have a Material Adverse Effect. Each has
the power and authority required to own, lease and operate its properties and
to conduct its business as currently conducted, except where failure to have
such power and authority would not, individually or in the aggregate, have a
Material Adverse Effect.
Section 5.2. Subsidiaries. Schedule 5.2 (as updated from time to time
pursuant to Section 7.1) hereto identifies each Subsidiary and the jurisdiction
of its incorporation. All of the issued and outstanding shares of capital stock
of each Subsidiary are validly issued and outstanding and fully paid and
nonassessable except as set forth on
29
Schedule 5.2 hereto. All such shares owned by the Borrower are owned
beneficially, and of record, free of any Lien.
Section 5.3. Corporate Authority and Validity of Obligations. The
Borrower has full right and authority to enter into this Agreement and the
other Credit Documents to which it is a party, to make the borrowings herein
provided for, to issue its Notes in evidence thereof, to apply for the issuance
of the Letters of Credit, and to perform all of its obligations under the
Credit Documents to which it is a party. Each Credit Document to which it is a
party has been duly authorized, executed and delivered by the Borrower and
constitutes valid and binding obligations of the Borrower enforceable in
accordance with its terms. No Credit Document, nor the performance or
observance by the Borrower of any of the matters or things therein provided
for, contravenes any provision of law or any charter or by-law provision of the
Borrower or any material Contractual Obligation of or affecting the Borrower or
any of its Properties or results in or requires the creation or imposition of
any Lien on any of the Properties or revenues of the Borrower.
Section 5.4. Financial Statements. All financial statements heretofore
delivered to the Banks showing historical performance of the Borrower for each
of the Borrower's fiscal years ending on or before December 31, 1995, and for
the Borrower's quarter ended September 30, 1996 have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent, except as otherwise noted therein, with that of the previous fiscal
year. Each of such financial statements fairly presents on a consolidated basis
the financial condition of the Borrower and its Subsidiaries as of the dates
thereof and the results of operations for the periods covered thereby. The
Borrower and its Subsidiaries have no material contingent liabilities other
than those disclosed in such financial statements referred to in this Section
5.4 or in comments or footnotes thereto, or in any report supplementary
thereto, heretofore furnished to the Banks. Since December 31, 1995, there has
been no material adverse change in the business, operations, Property or
financial or other condition, or business prospects, of the Borrower or any of
its Subsidiaries.
Section 5.5. No Litigation; No Labor Controversies. (a) Except as set
forth on Schedule 5.5 (as amended from
30
time to time in accordance with the provisions hereof), there is no litigation
or governmental proceeding pending, or to the knowledge of the Borrower,
threatened, against the Borrower or any Subsidiary which, if adversely
determined, could (individually or in the aggregate) have a Material Adverse
Effect.
(b) Except as set forth on Schedule 5.5 (as amended from time to time
in accordance with the provisions hereof), there are no labor controversies
pending or, to the best knowledge of the Borrower, threatened against the
Borrower or any Subsidiary which could have a Material Adverse Effect.
Section 5.6. Taxes. The Borrower and its Subsidiaries have filed all
United States federal tax returns, and all other tax returns, required to be
filed and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary, except such taxes, if
any, as are being contested in good faith and for which adequate reserves have
been provided. No notices of tax liens have been filed and no claims are being
asserted concerning any such taxes, which liens or claims are material to the
financial condition of the Borrower or any of its Subsidiaries (individually or
in the aggregate). The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries for any taxes or other governmental charges are
adequate.
Section 5.7. Approvals. Except as contemplated by Section 7.14,
authorization, consent, license, exemption, filing or registration with any
court or governmental department, agency or instrumentality, nor any approval
or consent of the stockholders of the Borrower or any Subsidiary or from any
other Person, is necessary to the valid execution, delivery or performance by
the Borrower or any Subsidiary of any Credit Document to which it is a party.
Section 5.8. Validity of Notes. When executed, authenticated and
delivered pursuant to the provisions of this Agreement against payment of the
consideration therefor, the Notes will be duly issued and will constitute
legal, valid and binding obligations of the Borrower, enforceable in accordance
with their terms, except for the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting the
rights of creditors generally, and will rank pari passu
31
with all other outstanding unsecured indebtedness of the Borrower.
Section 5.9. ERISA. With respect to each Plan, the Borrower and each
other member of the Controlled Group has fulfilled its obligations under the
minimum funding standards of and is in compliance in all material respects with
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
with the Code to the extent applicable to it and has not incurred any liability
to the Pension Benefit Guaranty Corporation ("PBGC") or a Plan under Title IV
of ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA. The Borrower does not have any contingent liabilities for any
post-retirement benefits under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
Section 5.10. Government Regulation. Neither the Borrower nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. Prior to the consummation of the Primergy
Merger, no approvals by the SEC under the Public Utility Holding Company Act of
1935, as amended, are required in connection with the execution by the Borrower
of the Credit Documents or the performance by the Borrower of any of the
transactions contemplated thereby.
Section 5.11. Margin Stock; Use of Proceeds. Neither the Borrower nor
any Subsidiary is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock ("margin stock" to have the same meaning herein as in Regulation U
of the Board of Governors of the Federal Reserve System). The proceeds of the
Loans and Letters of Credit are to be used solely for the purposes set forth in
and permitted by Section 7.10. The Borrower will not use the proceeds of any
Loan or Letter of Credit in a manner that violates any provision of Regulation
U or X of the Board of Governors of the Federal Reserve System.
Section 5.12. Licenses and Authorizations; Compliance Laws. The
Borrower and each of its Subsidiaries has all necessary licenses, permits and
governmental authorizations to own and operate its Properties and to carry on
its business as currently conducted and contemplated. The Borrower and each of
its Subsidiaries is in compliance with
32
all applicable laws, regulations, ordinances and orders of any governmental or
judicial authorities except for any such law, regulation, ordinance or order
which, the failure to comply therewith, could not reasonably expected to have a
Material Adverse Effect.
Section 5.13. Ownership of Property; Liens. The Borrower and each
Subsidiary has good title to or valid leasehold interests in all its Property.
None of the Borrower's Property is subject to any Lien, except as permitted in
Section 7.9.
Section 5.14. No Burdensome Restrictions; Compliance with Agreements.
Neither the Borrower nor any Subsidiary is (a) party or subject to any law,
regulation, rule or order, or any Contractual Obligation that (individually or
in the aggregate) could have a Material Adverse Effect or (b) in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in, nor has any event occurred (and is continuing) that
constitutes or would (whether or not with the giving of notice and/or with the
passage of time and/or the fulfillment of any other requirement) constitute, to
the knowledge of the Borrower, a default or any breach or failure to perform by
the Borrower under any indenture, mortgage, loan agreement lease or other
agreement or instrument to which it is a party, which default could have a
Material Adverse Effect.
Section 5.15. Full Disclosure. All information heretofore furnished by
the Borrower to the Agent or any Bank for purposes of or in connection with the
Credit Documents or any transaction contemplated thereby is, and all such
information hereafter furnished by the Borrower to the Agent or any Bank will
be, true and accurate in all material respects and not misleading on the date
as of which such information is stated or certified.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan,
or of the Agent to issue, extend the expiration date (including by not giving
notice of non-renewal) of or increase the amount of any Letter of Credit, shall
be subject to the following conditions precedent:
33
Section 6.1. Initial Credit Event. Before or concurrently with the
initial Credit Event:
(a) The Agent shall have received for each Bank the favorable
written opinion of counsel to the Borrower in substantially the form
attached hereto as Exhibit D hereto;
(b) The Agent shall have received for each Bank copies of (i) the
Articles of Incorporation, together with all amendments, and a
certificate of good standing, for the Borrower, both certified as of a
date not earlier than 20 days prior to the date hereof by the
appropriate governmental officer of the Borrower's jurisdiction of
incorporation and (ii) the Borrower's bylaws (or comparable
constituent documents) and any amendments thereto, certified in each
instance by its Secretary or an Assistant Secretary;
(c) The Agent shall have received for each Bank copies of
resolutions of the Borrower's Board of Directors authorizing the
execution and delivery of the Credit Documents and the consummation of
the transactions contemplated thereby together with specimen
signatures of the persons authorized to execute such documents on the
Borrower's behalf, all certified in each instance by its Secretary or
Assistant Secretary;
(d) The Agent shall have received for each Bank such Bank's duly
executed Note of the Borrower dated the date hereof and otherwise in
compliance with the provisions of Section 2.10(a) hereof;
(e) The Agent shall have received for each Bank a list of the
Borrower's Authorized Representatives and such other documents as any
Bank may reasonably request;
(f) All legal matters incident to the execution and delivery of
the Credit Documents shall be satisfactory to the Banks; and
(g) The Agent shall have received a certificate by the chief
financial officer, treasurer, vice president of finance or corporate
controller of the Borrower, stating that on the date of such initial
34
Credit Event no Default or Event of Default has occurred and is
continuing.
Section 6.2. All Credit Events. As of the time of each Credit Event
hereunder (including the initial Credit Event):
(a) In the case of a Borrowing, the Agent shall have received the
notice required by Section 2.5 hereof, in the case of the issuance of
any Letter of Credit, the Agent shall have received a duly completed
Application for a Letter of Credit and, in the case of an extension or
increase in the amount of a Letter of Credit, a written request
therefor, in a form acceptable to the Agent;
(b) Each of the representations and warranties set forth in
Section 5 hereof shall be and remain true and correct in all material
respects as of said time, taking into account any amendments to such
Section (including, without limitation, any amendments to the
Schedules referenced therein) made after the date of this Agreement in
accordance with its provisions, except that if any such representation
or warranty relates solely to an earlier date it need only remain true
as of such date;
(c) The Borrower shall be in full compliance with all of the
terms and conditions hereof, and no Default or Event of Default shall
have occurred and be continuing or would occur as a result of such
Credit Event;
(d) No event of default by the Borrower has been declared and is
continuing under any existing debt agreements; and
(e) Such Credit Event shall not violate any order, judgment or
decree of any court or other authority or any provision of law or
regulation applicable to any Bank (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the
issuance of, increase in the amount of, or extension of the expiration date of,
a Letter of Credit
35
shall be deemed to be a representation and warranty by the Borrower on the date
of such Credit Event as to the facts specified in paragraphs (b) and (c) of
this Section 6.2, provided, that solely in the case of a Credit Event which is
a continuation of a previous Borrowing, the Borrower shall not be deemed to
have made any representation or warranty with regard to the matters set forth
in Section 5.5(a) and (b) hereof.
SECTION 7. COVENANTS.
The Borrower covenants and agrees that, so long as any Loan or any L/C
Obligation is outstanding hereunder, or any Commitment is available to or in
use by the Borrower hereunder, except to the extent compliance in any case is
waived in writing by the Required Banks:
Section 7.1. Corporate Existence; Subsidiaries. The Borrower shall,
and shall cause each of its Subsidiaries to, preserve and maintain its
corporate existence, subject to the provisions of Section 7.11 hereof.
Section 7.2. Maintenance. The Borrower will maintain, preserve and
keep its plants, Properties and equipment necessary to the proper conduct of
its business in reasonably good repair, working order and condition and will
from time to time make all reasonably necessary repairs, renewals,
replacements, additions and betterments thereto so that at all times such
plants, Properties and equipment shall be reasonably preserved and maintained,
and the Borrower will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; provided, however, that nothing in this Section
7.2 shall prevent the Borrower or a Subsidiary from discontinuing the operation
or maintenance of any such Properties if such discontinuance is not
disadvantageous to the Banks or the holders of the Notes, and is, in the
judgment of the Borrower, desirable in the conduct of its business or the
business of its Subsidiary.
Section 7.3. Taxes. The Borrower will duly pay and discharge, and will
cause each of its Subsidiaries duly to pay and discharge, all taxes, rates,
assessments, fees and governmental charges upon or against it or against its
Properties, in each case before the same becomes delinquent and before
penalties accrue thereon, unless and to the extent that the same is being
contested in good faith by
36
appropriate proceedings and reserves in conformity with GAAP have been provided
therefor on the books of the Borrower.
Section 7.4. ERISA. The Borrower will promptly pay and discharge all
obligations and liabilities arising under ERISA of a character which if unpaid
or unperformed might result in the imposition of a Lien against any of its
properties or assets and will promptly notify the Agent of (i) the occurrence
of any reportable event (as defined in ERISA) affecting a Plan, other than any
such event of which the PBGC has waived notice by regulation, (ii) receipt of
any notice from PBGC of its intention to seek termination of any Plan or
appointment of a trustee therefor, (iii) its intention to terminate or withdraw
from any Plan, and (iv) the occurrence of any event affecting any Plan which
could result in the incurrence by the Borrower of any material liability, fine
or penalty, or any material increase in the contingent liability of the
Borrower under any post-retirement Welfare Plan benefit. The Agent will
promptly distribute to each Bank any notice it receives from the Borrower
pursuant to this Section 7.4.
Section 7.5. Insurance. The Borrower will insure, and keep insured,
and will cause each of its Subsidiaries to insure, and keep insured, with good
and responsible insurance companies, all insurable Property owned by it of a
character usually insured by companies similarly situated and operating like
Property. To the extent usually insured (subject to self-insured retentions) by
companies similarly situated and conducting similar businesses, the Borrower
will also insure, and cause each of its Subsidiaries to insure, employers' and
public and product liability risks with good and responsible insurance
companies. The Borrower will upon request of the Agent furnish to the Agent a
summary setting forth the nature and extent of the insurance maintained
pursuant to this Section 7.5.
Section 7.6. Financial Reports and Other Information. (a) The Borrower
will maintain a system of accounting in accordance with GAAP and will furnish
to the Banks and their respective duly authorized representatives such
information respecting the business and financial condition of the Borrower and
its subsidiaries as any Bank may reasonably request; and without any request,
the Borrower will furnish each of the following to each Bank:
37
(i) within 120 days after the end of each fiscal year of the
Borrower, (A) a copy of the Borrower's audited financial statements
for such fiscal year, including the consolidated balance sheet of the
Borrower for such year and the related statement of income and
statement of cash flow, as certified by independent public accountants
of recognized national standing selected by the Borrower in accordance
with GAAP with such accountants' unqualified opinion to the effect
that the financial statements have been prepared in accordance with
GAAP and present fairly in all material respects in accordance with
GAAP the consolidated financial position of the Borrower and its
subsidiaries as of the close of such fiscal year and the results of
their operations and cash flows for the fiscal year then ended and
that an examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted
auditing standards and, accordingly, such examination included such
tests of the accounting records and such other auditing procedures as
were considered necessary in the circumstances; (B) a copy of the
Borrower's unaudited consolidating financials for such fiscal year,
including a consolidating unaudited balance sheet of the Borrower, and
the related statement of income and shall use its best efforts to
provide a statement of cash flow in a format acceptable to the Agent;
all of the foregoing prepared by the Borrower in reasonable detail in
accordance with GAAP and certified by the Borrower's chief financial
officer, vice president of finance or corporate controller as fairly
presenting the financial condition as at the dates thereof and the
results of operations for the periods covered thereby;
(ii) within 60 days after the end of each of the first three
quarterly fiscal periods of the Borrower, a condensed consolidated
unaudited balance sheet of the Borrower, and the related statement of
income and statement of cash flow, as of the close of such period, all
of the foregoing prepared by the Borrower in reasonable detail in
accordance with GAAP and certified by the Borrower's chief financial
officer, vice president of finance or corporate controller as fairly
presenting the financial condition as at the dates thereof and the
results of operations for the periods covered thereby;
38
(iii) within the period provided in subsection (i) above, the
written statement of the accountants who certified the audit report
thereby required that in the course of their audit they have obtained
no knowledge of any Default or Event of Default, or, if such
accountants have obtained knowledge of any such Default or Event of
Default, they shall disclose in such statement the nature and period
of the existence thereof;
(iv) promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports the Borrower sends
to its shareholders, and copies of all other regular, periodic and
special reports and all registration statements the Borrower files
with the SEC or any successor thereto, or with any national securities
exchanges.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) or (ii) of this Section 7.6 shall be accompanied by (A) a
written certificate signed by the Borrower's chief financial officer, vice
president of finance, or corporate controller to the effect that (i) no Default
or Event of Default has occurred during the period covered by such statements
or, if any such Default or Event of Default has occurred during such period,
setting forth a description of such Default or Event of Default and specifying
the action, if any, taken by the Borrower to remedy the same, (ii) the
representations and warranties contained in Section 5 hereof are true and
correct in all material respects as though made on the date of such certificate
(other than those made solely as of an earlier date, which need only remain
true as of such date), taking into account any amendments to such Section
(including, without limitation, any amendments to the Schedules referenced
therein) made after the date of this Agreement in accordance with its
provisions and except as otherwise described therein, and (B) a Compliance
Certificate in the form of Exhibit C hereto showing the Borrower's compliance
with the covenants set forth in Sections 7.9, 7.11, 7.12 and 7.13 hereof.
(c) The Borrower will promptly (and in any event within three Business
Days after an officer of the Borrower has knowledge thereof) give notice to the
Agent and each Bank:
39
(i) of the occurrence of any Default or Event of Default;
(ii) of any payment default or payment event of default
aggregating $20,000,000 or more under any Contractual Obligation of
the Borrower;
(iii) of any material adverse change in the business, operations,
Property or financial or other condition of the Borrower and its
Subsidiaries (individually or in the aggregate);
(iv) of any litigation or governmental proceeding of the type
described in Section 5.5 hereof; and
(v) of any change in the information set forth on the Schedules
hereto.
Section 7.7. Bank Inspection Rights. Upon reasonable notice from any
Bank, the Borrower will, at the Borrower's expense, (such expenses to be
reasonably incurred) permit such Bank (and such Persons as any Bank may
designate) during normal business hours to visit and inspect, under the
Borrower's guidance, any of the properties of the Borrower or any of its
Subsidiaries, to examine all of their books of account, records, reports and
other papers, to make copies and extracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and with their independent public accountants (and by this provision
the Borrower authorizes such accountants to discuss with the Banks (and such
Persons as any Bank may designate subject to confidentiality agreements
reasonably acceptable to the Borrower) the finances and affairs of the Borrower
and its Subsidiaries) all at such reasonable times and as often as may be
reasonably requested; provided, however, that except upon the occurrence and
during the continuation of any Default or Event of Default, not more than one
such set of visits and inspections may be conducted each calendar quarter.
Section 7.8. Conduct of Business. The Borrower will not engage in any
line of business other than business associated with or related to energy
generation, transmission and distribution or other infrastructure lines of
business.
40
Section 7.9. Liens. The Borrower will not create, incur, permit to
exist or to be incurred any Lien of any kind on any Property owned by the
Borrower; provided, however, that this Section 7.9 shall not apply to nor
operate to prevent:
(a) Liens upon any Property acquired by the Borrower to secure
any Indebtedness of the Borrower incurred at the time of the
acquisition of such Property to finance the purchase price of such
Property, provided that any such Lien shall apply only to the Property
that was so acquired and the aggregate principal amount of
Indebtedness secured by such Liens shall not exceed the cost or value
of the acquired Property;
(b) Liens existing on the date hereof and listed on Schedule 7.9
hereto which were in existence as of the date of issue of the
Borrower's 7.625% senior notes due 2006;
(c) Other liens not to exceed 10% of Consolidated Net Tangible
Assets; and
(d) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing paragraphs (a) through (c), inclusive.
Section 7.10. Use of Proceeds; Regulation U. The proceeds of each
Borrowing, and the credit provided by Letters of Credit, will be used by the
Borrower for working capital, issuance of letters of credit and general
corporate purposes. The Borrower will not use any part of the proceeds of any
of the Borrowings or of the Letters of Credit directly or indirectly to
purchase or carry any margin stock (as defined in Section 5.1 hereof) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock.
Section 7.11. Mergers, Consolidations and Sales of Assets.
(a) The Borrower will not consolidate with or merge into any
other Person or sell, convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and the Borrower
shall not
41
permit any Person to consolidate with or merge into the Borrower,
unless: (i) immediately prior to and immediately following such
consolidation, merger, sale or lease, and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing;
and (ii) the Borrower is the surviving or continuing corporation, or
the surviving or continuing corporation that acquires by sale,
conveyance, transfer or lease is incorporated in the United States or
Canada and expressly assumes the payment and performance of all
Obligations of the Borrower under the Credit Documents.
(b) Except for the sale of the properties and assets of the
Borrower substantially as an entirety pursuant to subsection (a)
above, and other than assets required to be sold to conform with
governmental regulations, the Borrower shall not sell or otherwise
dispose of any assets (other than short-term, readily marketable
investments purchased for cash management purposes with funds not
representing the proceeds of other asset sales) if on a pro forma
basis, the aggregate net book value of all such sales during the most
recent 12-month period would exceed 10 percent of Consolidated Net
Tangible Assets computed as of the end of the most recent fiscal
quarter preceding such sale; provided, however, that any such sales
shall be disregarded for purposes of this 10 percent limitation if the
proceeds are invested in assets in similar or related lines of
business of the Borrower and, provided further, that the Borrower may
sell or otherwise dispose of assets in excess of such 10 percent if
the proceeds from such sales or dispositions, which are not reinvested
as provided above, are retained by the Borrower as cash or cash
equivalents.
Section 7.12. Consolidated Tangible Net Worth. (a) The Borrower will
at all times maintain a ratio of Consolidated Tangible Net Worth to
Consolidated Capitalization of at least 0.32 to 1.00, and (b) the Borrower will
at all times cause its Consolidated Tangible Net Worth to be equal to or
greater than the Minimum Consolidated Tangible Net Worth.
Section 7.13. Compliance with Laws. Without limiting any of the other
covenants of the Borrower in this Section 7, the Borrower will conduct its
business, and otherwise
42
be, in compliance with all applicable laws, regulations, ordinances, writs,
judgments, injunctions, decrees, awards and orders of any governmental or
judicial authorities; provided, however, that the Borrower shall not be
required to comply with any such law, rule, regulation, ordinance, writ,
judgments, injunction, decree, award or order if the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
Section 7.14. PUHCA. From and after the consummation of the Primergy
Merger, the Borrower will obtain, or cause to be obtained, all necessary
approvals, if any, under the Public Utility Holding Company Act of 1935, as
amended, in connection with the Borrower's performance under the Credit
Documents.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default. Any one or more of the following shall
constitute an Event of Default:
(a) The Borrower shall (i) fail to make when due any payment of
principal on the Notes, or (ii) fail to make when due, and continuance
of such failure for three or more Business Days, payment of interest
on the Notes or any fee or other amount required to be made to the
Agent pursuant to the Credit Documents;
(b) Any representation or warranty made or deemed to have been
made by or on behalf of the Borrower in the Credit Documents or on
behalf of the Borrower in any certificate, statement, report or other
writing furnished by or on behalf of the Borrower to the Agent
pursuant to the Credit Documents or any other instrument, document or
agreement shall prove to have been false or misleading in any material
respect on the date as of which the facts set forth are stated or
certified or deemed to have been stated or certified;
(c) The Borrower shall fail to comply with Section 7 hereof and
such failure to comply shall continue for 30 calendar days after
notice thereof to the Borrower by the Agent;
(d) The Borrower shall fail to comply with any agreement,
covenant, condition, provision or term con-
43
tained in the Credit Documents (and such failure shall not constitute
an Event of Default under any of the other provisions of this Section
8) and such failure to comply shall continue for 30 calendar days
after notice thereof to the Borrower by the Agent;
(e) The Borrower shall become insolvent or shall generally not
pay its debts as they mature or shall apply for, shall consent to, or
shall acquiesce in the appointment of a custodian, trustee or receiver
of the Borrower or for a substantial part of the property thereof or,
in the absence of such application, consent or acquiescence, a
custodian, trustee or receiver shall be appointed for the Borrower or
for a substantial part of the property thereof and shall not be
discharged within 90 days;
(f) Any bankruptcy, reorganization, debt arrangement or other
proceedings under any bankruptcy or insolvency law shall be instituted
by or against the Borrower, and, if instituted against the Borrower,
shall have been consented to or acquiesced in by the Borrower, or
shall remain undismissed for 90 days, or an order for relief shall
have been entered against the Borrower, or the Borrower shall take any
corporate action to approve institution of, or acquiescence in, such a
proceeding;
(g) Any dissolution or liquidation proceeding shall be instituted
by or against the Borrower and, if instituted against the Borrower,
shall be consented to or acquiesced in by the Borrower or shall remain
for 90 days undismissed, or the Borrower shall take any corporate
action to approve institution of, or acquiescence in, such a
proceeding;
(h) A judgment or judgments, decrees or orders of any court,
tribunal, arbitrator, administrative or other governmental body or
entity for the payment of money in excess of the sum of $20,000,000 in
the aggregate shall be rendered against the Borrower (excluding the
amount thereof covered by insurance) or any of the Borrower's
properties and such judgment, decree or order shall remain unvacated
and undischarged and unstayed for 90 consecutive days, except while
being contested in good faith by appropriate proceedings;
44
(i) The institution by the Borrower of steps to terminate any
Plan if in order to effectuate such termination, the Borrower would be
required to make a contribution to such Plan, or would incur a
liability or obligation to such Plan, in excess of $20,000,000, or the
institution by the PBGC of steps to terminate any Plan;
(j) A default in payment of any principal of or any interest
aggregating $20,000,000 or more on any bond, debenture, note or other
evidence of indebtedness of the Borrower or under any indenture or
other instrument under which any such evidence of indebtedness has
been issued or by which it is governed that has resulted in the
acceleration of such indebtedness; or
(k) if at any time Northern States Power Company, a Minnesota
corporation, or its successors, ceases to own a majority of the
outstanding Voting Stock of the Borrower. For purposes of this
subsection (k), Northern States Power Company's "successors" shall be
deemed to include the "Company" as that term is defined in the Amended
and Restated Agreement and Plan of Merger dated as of April 28, 1995,
as amended and restated as of July 26, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Power Company and Wisconsin Energy Corporation, a Wisconsin
corporation.
Section 8.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsections (e) or (f) of Section 8.1 hereof has
occurred and is continuing, the Agent shall, by written notice to the Borrower:
(a) if so directed by the Required Banks, terminate the remaining Commitments
and all other obligations of the Banks hereunder on the date stated in such
notice (which may be the date thereof); (b) if so directed by the Required
Banks, declare the principal of and the accrued interest on all outstanding
Notes to be forthwith due and payable and thereupon all outstanding Notes,
including both principal and interest thereon, shall be and become immediately
due and payable together with all other amounts payable under the Credit
Documents without further demand, presentment, protest or notice of any kind;
and (c) if so directed by the Required Banks, demand that the Borrower
immediately pay to the Agent, subject to Section 8.4, the full amount then
available for drawing under each or any Letter of
45
Credit, and the Borrower agrees to immediately make such payment and
acknowledges and agrees that the Banks would not have an adequate remedy at law
for failure by the Borrower to honor any such demand and that the Agent, for
the benefit of the Banks, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any drawings or other
demands for payment have been made under any Letter of Credit. The Agent, after
giving notice to the Borrower pursuant to Section 8.1(c), 8.1(d) or this
Section 8.2, shall also promptly send a copy of such notice to the other Banks,
but the failure to do so shall not impair or annul the effect of such notice.
Section 8.3. Bankruptcy Defaults. When any Event of Default described
in subsections (e) or (f) of Section 8.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Credit Documents without presentment,
demand, protest or notice of any kind, the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Borrower shall immediately pay to the Agent, subject to Section 8.4,
the full amount then available for drawing under all outstanding Letters of
Credit, the Borrower acknowledging that the Banks would not have an adequate
remedy at law for failure by the Borrower to honor any such demand and that the
Banks, and the Agent on their behalf, shall have the right to require the
Borrower to specifically perform such undertaking whether or not any draws or
other demands for payment have been made under any of the Letters of Credit.
Section 8.4. Collateral for Undrawn Letters of Credit. (a) If the
payment or prepayment of the amount available for drawing under any or all
outstanding Letters of Credit is required under Section 2.8(b) or under Section
8.2 or 8.3 above, the Borrower shall forthwith pay the amount required to be so
prepaid, to be held by the Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held
by the Agent in a separate collateral account (such account, and the credit
balances, properties and any investments from time to time held therein, and
any substitutions for such account, any certificate of deposit or other
instrument evidencing any of the foregoing and all
46
proceeds of and earnings on any of the foregoing being collectively called the
"Account") as security for, and for application by the Agent (to the extent
available) to, the reimbursement of any payment under any Letter of Credit then
or thereafter made by the Agent, and to the payment of the unpaid balance of
any Loans and all other Obligations. The Account shall be held in the name of
and subject to the exclusive dominion and control of the Agent for the benefit
of the Agent and the Banks. If and when requested by the Borrower, the Agent
shall invest funds held in the Account from time to time in direct obligations
of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America with a remaining maturity of one
year or less, provided that the Agent is irrevocably authorized to sell
investments held in the Account when and as required to make payments out of
the Account for application to amounts due and owing from the Borrower to the
Agent or Banks; provided, however, that if (i) the Borrower shall have made
payment of all such obligations referred to in subsection (a) above, (ii) all
relevant preference or other disgorgement periods relating to the receipt of
such payments have passed, and (iii) no Letters of Credit, Commitments, Loans
or other Obligations remain outstanding hereunder, then the Agent shall repay
to the Borrower any remaining amounts held in the Account.
Section 8.5. Notice of Default. The Agent shall give notice to the
Borrower under Section 8.1(c) or 8.1(d) hereof promptly upon being requested to
do so by any Bank and shall thereupon notify all the Banks thereof.
Section 8.6. Expenses. The Borrower agrees to pay to the Agent and
each Bank, and any other holder of any Note outstanding hereunder, all
reasonable costs and expenses incurred or paid by the Agent or such Bank or any
such holder, including attorneys' fees and court costs, in connection with any
Default or Event of Default by the Borrower hereunder or in connection with the
enforcement of any of the Credit Documents.
SECTION 9. CHANGE IN CIRCUMSTANCES.
Section 9.1. Change of Law. Notwithstanding any other provisions of
this Agreement or any Note if at any time after the date hereof any change in
applicable law or regulation or in the interpretation thereof makes it unlawful
for any Bank to make or continue to maintain
47
Eurocurrency Loans or to perform its obligations as contemplated hereby, such
Bank shall promptly give notice thereof to the Borrower and such Bank's
obligations to make or maintain Eurocurrency Loans under this Agreement shall
terminate until it is no longer unlawful for such Bank to make or maintain
Eurocurrency Loans. The Borrower shall prepay on demand the outstanding
principal amount of any such affected Eurocurrency Loans, together with all
interest accrued thereon at a rate per annum equal to the interest rate
applicable to such Loan; provided, however, subject to all of the terms and
conditions of this Agreement, the Borrower may then elect to borrow the
principal amount of the affected Eurocurrency Loans from such Bank by means of
Base Rate Loans from such Bank, which Base Rate Loans shall not be made ratably
by the Banks but only from such affected Bank.
Section 9.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period
for any Borrowing of Eurocurrency Loans:
(a) the Agent determines that deposits in U.S. Dollars (in the
applicable amounts) are not being offered to it in the eurocurrency
interbank market for such Interest Period, or that by reason of
circumstances affecting the interbank eurocurrency market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR;
or
(b) Banks having 25% or more of the aggregate amount of the
Revolving Credit Commitments reasonably determine and so advise the
Agent that LIBOR as reasonably determined by the Agent will not
adequately and fairly reflect the cost to such Banks or Bank of
funding their or its Eurocurrency Loans or Loan for such Interest
Period;
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks or
of the relevant Bank to make Eurocurrency Loans in the currency so affected
shall be suspended.
48
Section 9.3. Increased Cost and Reduced Return. (a) If, on or after
the date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law but, if not having the force of law, compliance with which is customary
in the relevant jurisdiction) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Eurocurrency Loans, its
Notes, its Letter(s) of Credit, or its participation in any thereof,
any Reimbursement Obligations owed to it or its obligation to make
Eurocurrency Loans, issue a Letter of Credit, or to participate
therein, or shall change the basis of taxation of payments to any Bank
(or its Lending Office) of the principal of or interest on its
Eurocurrency Loans, Letter(s) of Credit, or participations therein or
any other amounts due under this Agreement in respect of its
Eurocurrency Loans, Letter(s) of Credit, or participations therein,
any Reimbursement Obligations owed to it, or its obligation to make
Eurocurrency Loans, issue a Letter of Credit, or acquire
participations therein (except for changes in the rate of tax on the
overall net income or profits of such Bank or its Lending Office
imposed by the jurisdiction in which such Bank or its lending office
is incorporated in which such Bank's principal executive office or
Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any
such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Eurocurrency Loans
any such requirement included in an applicable Eurocurrency Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office) or shall impose
on any Bank (or its Lending Office) or on the interbank market any
other condition affecting its Eurocurrency Loans, its Notes, its
Letter(s) of
49
Credit, or its participation in any thereof, any Reimbursement
Obligation owed to it, or its obligation to make Eurocurrency Loans,
to issue a Letter of Credit, or to participate therein; and the result
of any of the foregoing is to increase the cost to such Bank (or its
Lending Office) of making or maintaining any Eurocurrency Loan,
issuing or maintaining a Letter of Credit, or participating therein,
or to reduce the amount of any sum received or receivable by such Bank
(or its Lending Office) under this Agreement or under its Notes with
respect thereto, by an amount deemed by such Bank to be material,
then, within fifteen (15) days after demand by such Bank (with a copy
to the Agent), the Borrower shall be obligated to pay to such Bank
such additional amount or amounts as will compensate such Bank for
such increased cost or reduction. In the event any law, rule,
regulation or interpretation described above is revoked, declared
invalid or inapplicable or is otherwise rescinded, and as a result
thereof a Bank is determined to be entitled to a refund from the
applicable authority for any amount or amounts which were paid or
reimbursed by Borrower to such Bank hereunder, such Bank shall refund
such amount or amounts to Borrower without interest.
(b) If, after the date hereof, any Bank or the Agent shall have
determined that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein (including, without
limitation, any revision in the Final Risk-Based Capital Guidelines of the
Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A;
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) or of the Office of the Comptroller of the
Currency (12 CFR Part 3, Appendix A), or in any other applicable capital rules
heretofore adopted and issued by any governmental authority), or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having the
force of law but, if not having the force of law, compliance with which is
customary in the applicable jurisdiction) of any such authority, central bank
or comparable agency, has or would have the effect of reducing the rate of
return on such Bank's capital, or on the capital of any corporation controlling
such Bank, as a consequence of its obligations hereunder to a level below
50
that which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within fifteen (15) days after demand by such Bank (with a copy
to the Agent), the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction.
(c) Each Bank that determines to seek compensation under this Section
9.3 shall notify the Borrower and the Agent of the circumstances that entitle
the Bank to such compensation pursuant to this Section 9.3 and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section 9.3 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) If any Bank (other than ABN AMRO Bank N.V.) has demanded
compensation or given notice of its intention to demand compensation under this
Section 9.3 or the Borrower is required to pay any additional amount to any
Bank under Section 9.3, the Borrower shall have the right, with the assistance
of the Agent, to seek a substitute Bank or Banks reasonably satisfactory to the
Agent (which may be one or more of the Banks) to replace such Bank under this
Agreement. The Bank to be so replaced shall cooperate with the Borrower and
substitute Bank to accomplish such substitution, provided that all of such
Bank's Loan Commitment is replaced.
Section 9.4. Lending Offices. Each Bank may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof or in the assignment agreement which any
assignee bank executes pursuant to Section 11.12 hereof (each a "Lending
Office") for each type of Loan available hereunder or at such other of its
branches, offices or affiliates as it may from time to time elect and designate
in a written notice to the Borrower and the Agent.
51
Section 9.5. Discretion of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in
any manner it sees fit, it being understood, however, that for the purposes of
this Agreement all determinations hereunder shall be made as if each Bank had
actually funded and maintained each Eurocurrency Loan through the purchase of
deposits of U.S. Dollars in the eurocurrency interbank market having a maturity
corresponding to such Loan's Interest Period and bearing an interest rate equal
to LIBOR for such Interest Period.
SECTION 10. THE AGENT.
Section 10.1. Appointment and Authorization of Agent. Each Bank hereby
appoints ABN AMRO Bank N.V. as the Agent under the Credit Documents and hereby
authorizes the agent to take such action as Agent on its behalf and to exercise
such powers under the Credit Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
The relationship between the Agent and the Banks is and shall be that of agent
and principal only, and nothing contained in this Agreement or any other Credit
Document shall be construed to constitute the Agent as a trustee or fiduciary
for any Bank or the Borrower.
Section 10.2. Agent and its Affiliates. The Agent shall have the same
rights and powers under this Agreement and the other Credit Documents as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and the Agent and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower
or any Affiliate of the Borrower as if it were not the Agent under the Credit
Documents. The term "Bank" as used herein and in all other Credit Documents,
unless the context otherwise clearly requires, includes the Agent in its
individual capacity as a Bank. References in Section 2 hereof to the Agent's
Loans, or to the amount owing to the Agent for which an interest rate is being
determined, refer to the Agent in its individual capacity as a Bank.
Section 10.3. Action by Agent. If the Agent receives from the Borrower
a written notice of an Event of Default pursuant to Section 7.6(c)(i) hereof,
the Agent shall
52
promptly give each of the Banks written notice thereof. The obligations of the
Agent under the Credit Documents are only those expressly set forth therein.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action hereunder with respect to any Default or Event of
Default, except as expressly provided in Sections 8.2 and 8.5. In no event,
however, shall the Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the Agent shall
in all cases be fully justified in failing or refusing to act hereunder or
under any other Credit Document unless it shall be first indemnified to its
reasonable satisfaction by the Banks against any and all costs, expense, and
liability which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall be entitled to assume that no Default or Event
of Default exists unless notified to the contrary by a Bank or the Borrower. In
all cases in which this Agreement and the other Credit Documents do not require
the Agent to take certain actions, the Agent shall be fully justified in using
its discretion in failing to take or in taking any action hereunder and
thereunder.
Section 10.4. Consultation with Experts. The Agent may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
Section 10.5. Liability of Agent; Credit Decision. Neither the Agent
nor any of its directors, officers, agents, or employees shall be liable for
any action taken or not taken by it in connection with the Credit Documents (i)
with the consent or at the request of the Required Banks or (ii) in the absence
of its own gross negligence or willful misconduct. Neither the Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify: (i) any statement, warranty or
representation made in connection with this Agreement, any other Credit
Document or any Credit Event; (ii) the performance or observance of any of the
covenants or agreements of the Borrower or any other party contained herein or
in any other Credit Document; (iii) the satisfaction of any condition specified
in Section 6 hereof, except receipt of items required to be delivered to the
Agent; or (iv) the
53
validity, effectiveness, genuineness, enforceability, perfection, value, worth
or collectability hereof or of any other Credit Document or of any other
documents or writing furnished in connection with any Credit Document; and the
Agent makes no representation of any kind or character with respect to any such
matter mentioned in this sentence. The Agent may execute any of its duties
under any of the Credit Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Banks, the Borrower, or
any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other
document or statement (whether written or oral) believed by it to be genuine or
to be sent by the proper party or parties. In particular and without limiting
any of the foregoing, the Agent shall have no responsibility for confirming the
accuracy of any Compliance Certificate or other document or instrument received
by it under the Credit Documents. The Agent may treat the payee of any Note as
the holder thereof until written notice of transfer shall have been filed with
the Agent signed by such payee in form satisfactory to the Agent. Each Bank
acknowledges that it has independently and without reliance on the Agent or any
other Bank, and based upon such information, investigations and inquiries as it
deems appropriate, made its own credit analysis and decision to extend credit
to the Borrower in the manner set forth in the Credit Documents. It shall be
the responsibility of each Bank to keep itself informed as to the
creditworthiness of the Borrower and any other relevant Person, and the Agent
shall have no liability to any Bank with respect thereto.
Section 10.6. Indemnity. The Banks shall ratably, in accordance with
their respective Percentages, indemnify and hold the Agent, and its directors,
officers, employees, agents and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any
Credit Document or in connection with the transactions contemplated thereby,
regardless of when asserted or arising, except to the extent they are promptly
reimbursed for the same by the Borrower and except to the extent that any event
giving rise to a claim was caused by the gross negligence or willful misconduct
of the party seeking to be indemnified. The obligations of the Banks under this
Section 10.6 shall survive termination of this Agreement.
54
Section 10.7. Resignation of Agent and Successor Agent. The Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation of the Agent, the Required Banks shall have
the right to appoint a successor Agent with the consent of the Borrower. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, with the consent of the Borrower, appoint a successor Agent,
which shall be any Bank hereunder or any commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $200,000,000. Upon the acceptance of
its appointment as the Agent hereunder, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring or
removed Agent under the Credit Documents, and the retiring Agent shall be
discharged from its duties and obligations thereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 10 and
all protective provisions of the other Credit Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 11. MISCELLANEOUS.
Section 11.1. Withholding Taxes. (a) Payments Free of Withholding.
Subject to Section 11.1(b) hereof, each payment by the Borrower under this
Agreement or the other Credit Documents shall be made without withholding for
or on account of any present or future taxes (other than overall net income
taxes on the recipient). If any such withholding is so required, the Borrower
shall make the withholding, pay the amount withheld to the appropriate
governmental authority before penalties attach thereto or interest accrues
thereon and forthwith pay such additional amount as may be necessary to ensure
that the net amount actually received by each Bank and the Agent free and clear
of such taxes (including such taxes on such additional amount) is equal to the
amount which that Bank or the Agent (as the case may be) would have received
had such withholding not been made. If the Agent or any Bank pays any amount in
respect of any such taxes, penalties or interest the Borrower shall reimburse
the Agent or that Bank for that payment on demand in the currency in which such
55
payment was made. If the Borrower pays any such taxes, penalties or interest,
it shall deliver official tax receipts evidencing that payment or certified
copies thereof to the Bank or Agent on whose account such withholding was made
(with a copy to the Agent if not the recipient of the original) on or before
the thirtieth day after payment. If any Bank or the Agent determines it has
received or been granted a credit against or relief or remission for, or
repayment of, any taxes paid or payable by it because of any taxes, penalties
or interest paid by the Borrower and evidenced by such a tax receipt, such Bank
or Agent shall, to the extent it can do so without prejudice to the retention
of the amount of such credit, relief, remission or repayment, pay to the
Borrower such amount as such Bank or Agent determines is attributable to such
deduction or withholding and which will leave such Bank or Agent (after such
payment) in no better or worse position than it would have been in if the
Borrower had not been required to make such deduction or withholding. Nothing
in this Agreement shall interfere with the right of each Bank and the Agent to
arrange its tax affairs in whatever manner it thinks fit nor oblige any Bank or
the Agent to disclose any information relating to its tax affairs or any
computations in connection with such taxes.
(b) U.S. Withholding Tax Exemptions. Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
shall submit to the Borrower and the Agent on or before the earlier of the date
the initial Borrowing is made hereunder and thirty (30) days after the date
hereof, two duly completed and signed copies of either Form 1001 (relating to
such Bank and entitling it to a complete exemption from withholding under the
Code on all amounts to be received by such Bank, including fees, pursuant to
the Credit Documents and the Loans) or Form 4224 (relating to all amounts to be
received by such Bank, including fees, pursuant to the Credit Documents and the
Loans) of the United States Internal Revenue Service. Thereafter and from time
to time, each Bank shall submit to the Borrower and the Agent such additional
duly completed and signed copies of one or the other of such Forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may be (i) requested by the Borrower in a written
notice, directly or through the Agent, to such Bank and (ii) required under
then-current United States law or regulations to avoid or reduce United States
withholding
56
taxes on payments in respect of all amounts to be received by such Bank,
including fees, pursuant to the Credit Documents or the Loans.
(c) Inability of Bank to Submit Forms. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit to
the Borrower or Agent any form or certificate that such Bank is obligated to
submit pursuant to subsection (b) of this Section 11.1 or that such Bank is
required to withdraw or cancel any such form or certificate previously
submitted or any such form or certificate otherwise becomes ineffective or
inaccurate, such Bank shall promptly notify the Borrower and Agent of such fact
and the Bank shall to that extent not be obligated to provide any such form or
certificate and will be entitled to withdraw or cancel any affected form or
certificate, as applicable.
Section 11.2. No Waiver of Rights. No delay or failure on the part of
the Agent or any Bank or on the part of the holder or holders of any Note in
the exercise of any power or right under any Credit Document shall operate as a
waiver thereof, nor as an acquiescence in any default, nor shall any single or
partial exercise thereof preclude any other or further exercise of any other
power or right, and the rights and remedies hereunder of the Agent, the Banks
and the holder or holders of any Notes are cumulative to, and not exclusive of,
any rights or remedies which any of them would otherwise have.
Section 11.3. Non-Business Day. If any payment of principal or
interest on any Loan or of any other Obligation shall fall due on a day which
is not a Business Day, interest or fees (as applicable) at the rate, if any,
such Loan or other Obligation bears for the period prior to maturity shall
continue to accrue on such Obligation from the stated due date thereof to and
including the next succeeding Business Day, on which the same shall be payable.
Section 11.4. Documentary Taxes. The Borrower agrees that it will pay
any documentary, stamp or similar taxes payable in respect to any Credit
Document, including interest and penalties, in the event any such taxes are
assessed, irrespective of when such assessment is made and
57
whether or not any credit is then in use or available hereunder.
Section 11.5. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents,
and shall continue in full force and effect with respect to the date as of
which they were made as long as any credit is in use or available hereunder.
Section 11.6. Survival of Indemnities. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 2.11, Section 9.3 and Section 11.15 hereof, shall survive
the termination of this Agreement and the other Credit Documents and the
payment of the Loans and all other Obligations.
Section 11.7. Set-Off. (a) In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Bank and each subsequent
holder of any Note is hereby authorized by the Borrower at any time or from
time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, and in whatever currency denominated) and any other Indebtedness at
any time held or owing by that Bank or that subsequent holder to or for the
credit or the account of the Borrower, whether or not matured, against and on
account of the obligations and liabilities of the Borrower to that Bank or that
subsequent holder under the Credit Documents, including, but not limited to,
all claims of any nature or description arising out of or connected with the
Credit Documents, irrespective of whether or not (a) that Bank or that
subsequent holder shall have made any demand hereunder or (b) the principal of
or the interest on the Loans or Notes and other amounts due hereunder shall
have become due and payable pursuant to Section 8 and although said obligations
and liabilities, or any of them, may be contingent or unmatured.
58
(b) Each Bank agrees with each other Bank a party hereto that if such
Bank shall receive and retain any payment, whether by set-off or application of
deposit balances or otherwise, on any of the Loans or Reimbursement Obligations
in excess of its ratable share of payments on all such obligations then
outstanding to the Banks, then such Bank shall purchase for cash at face value,
but without recourse, ratably from each of the other Banks such amount of the
Loans or Reimbursement Obligations, or participations therein, held by each
such other Banks (or interest therein) as shall be necessary to cause such Bank
to share such excess payment ratably with all the other Banks; provided,
however, that if any such purchase is made by any Bank, and if such excess
payment or part thereof is thereafter recovered from such purchasing Bank, the
related purchases from the other Banks shall be rescinded ratably and the
purchase price restored as to the portion of such excess payment so recovered,
but without interest. For purposes of this Section 11.7(b), amounts owed to or
recovered by, the Agent in connection with Reimbursement Obligations in which
Banks have been required to fund their participation shall be treated as
amounts owed to or recovered by the Agent as a Bank hereunder.
Section 11.8. Notices. Except as otherwise specified herein, all
notices under the Credit Documents shall be in writing (including telecopy or
other electronic communication) and shall be given to a party hereunder at its
address or telecopier number set forth below or such other address or
telecopier number as such party may hereafter specify by notice to the Agent
and the Borrower, given by courier, by United States certified or registered
mail, or by other telecommunication device capable of creating a written record
of such notice and its receipt. Notices under the Credit Documents to the Banks
shall be addressed to their respective addresses, telecopier or telephone
numbers set forth on the signature pages hereof or in the assignment agreement
which any assignee bank executes pursuant to Section 11.12 hereof, and to the
Borrower and to the Agent to:
If to the Borrower:
NRG Energy, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent:
ABN AMRO Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
ABN AMRO Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/904-2131
ABN AMRO Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section 11.8 or on the signature pages hereof and a
confirmation of receipt of such telecopy has been received by the sender, (ii)
if given by courier, when delivered, (iii) if given by mail, three business
days after such communication is deposited in the mail, registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other means,
when delivered at the addresses specified in this Section 11.8; provided that
any notice given pursuant to Section 2 hereof shall be effective only upon
receipt.
60
Section 11.9. Counterparts. This Agreement may be executed in any
number of counterpart signature pages, and by the different parties on
different counterparts, each of which when executed shall be deemed an original
but all such counterparts taken together shall constitute one and the same
instrument.
Section 11.10. Successors and Assigns. This Agreement shall be binding
upon the Borrower and its successors and assigns, and shall inure to the
benefit of each of the Banks and the benefit of their respective successors and
assigns, including any subsequent holder of any Note. The Borrower may not
assign any of its rights or obligations under any Credit Document without the
written consent of all of the Banks.
Section 11.11. Participants and Note Assignees. Each Bank shall have
the right at its own cost to grant participations (to be evidenced by one or
more agreements or certificates of participation) in the Loans made, Revolving
Credit Commitments held and/or participations in Letters of Credit, by such
Bank at any time and from time to time, and to assign its rights under such
Loans or the Note evidencing such Loans to a federal reserve bank; provided
that (i) no such participation or assignment shall relieve any Bank of any of
its obligations under this Agreement, (ii) no such assignee or participant
shall have any rights under this Agreement except as provided in this Section
11.11, and (iii) the Agent shall have no obligation or responsibility to such
participant or assignee, except that nothing herein is intended to affect the
rights of an assignee of a Note to enforce the Note assigned. Any party to
which such a participation or assignment has been granted shall have the
benefits of Section 2.11 and Section 9.3, but shall not be entitled to receive
any greater payment under either such Section than the Bank granting such
participation would have been entitled to receive in connection with the rights
transferred. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder,
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement that would (A) increase any Revolving
Credit
61
Commitment of such Bank if such increase would also increase the participant's
obligations, (B) forgive any amount of or postpone the date for payment of any
principal of or interest on any Loan or of any fee payable hereunder in which
such participant has an interest or (C) reduce the stated rate at which
interest or fees in which such participant has an interest accrue hereunder.
Section 11.12. Assignment of Commitments by Banks. Each Bank shall
have the right at any time, with the written consent of the Borrower and Agent
(which consent shall not be unreasonably withheld), to assign all or any part
of its Revolving Credit Commitment (including the same percentage of its Note,
outstanding Loans and participations in Letters of Credit) to one or more other
Persons; provided that such assignment is in an amount of at least $10,000,000
or the entire Revolving Credit Commitment of such Bank, and if such assignment
is not for such Bank's entire Revolving Credit Commitment then such Bank's
Revolving Credit Commitment after giving effect to such assignment shall not be
less than $10,000,000; and provided further that neither the consent of the
Borrower nor of the Agent shall be required for any Bank to assign all or part
of its Revolving Credit Commitment to any Affiliate of the assigning Bank. Each
such assignment shall set forth the assignees address for notices to be given
under Section 11.8 hereof hereunder and its designated Lending Office pursuant
to Section 9.4 hereof. Upon any such assignment, delivery to the Agent of an
executed copy of such assignment agreement and the forms referred to in Section
11.1 hereof, if applicable, and the payment of a $3,500 recordation fee to the
Agent, the assignee shall become a Bank hereunder, all Loans, participations in
Letters of Credit and the Revolving Credit Commitment it thereby holds shall be
governed by all the terms and conditions hereof and the Bank granting such
assignment shall have its Revolving Credit Commitment, and its obligations and
rights in connection therewith, reduced by the amount of such assignment;
provided, however, in the event a Bank assigns all of its Revolving Credit
Commitment at the request of the Borrower, pursuant to Section 11.13(iii)
below, no recordation fee shall be required hereunder.
Section 11.13. Amendments. Any provision of the Credit Documents may
be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by (a)
62
the Borrower, (b) the Required Banks, and (c) if the rights or duties of the
Agent are affected thereby, the Agent; provided that:
(i) no amendment or waiver pursuant to this Section 11.13 shall
(A) increase any Commitment of any Bank without the consent of such
Bank or (B) reduce the amount of or postpone any fixed date for
payment of any principal of or interest on any Loan or Reimbursement
Obligation or of any fee payable hereunder without the consent of each
Bank;
(ii) no amendment or waiver pursuant to this Section 11.13 shall,
unless signed by each Bank, change this Section 11.13, or the
definition of Required Banks, or affect the number of Banks required
to take any action under the Credit Documents; and
(iii) if the Borrower requests an amendment to this Agreement
which requires the approval of all of the Banks and one of the Banks
(a "Replaceable Bank") does not approve it, the Borrower may propose
that another bank which is reasonably acceptable to the Agent (a
"Replacement Bank") be substituted for and replace the Replaceable
Bank for purposes of this Agreement. If a Replacement Bank is so
substituted for the Replaceable Bank, the Replaceable Bank shall enter
into an assignment agreement with the Replacement Bank, the Borrower
and the Agent to assign and transfer to the Replacement Bank, the
Replaceable Bank's Commitment hereunder; provided, however, if a
Replacement Bank can't be found, then the Borrower may elect to take
out the Replaceable Bank and reduce the facility accordingly by making
a prepayment in the amount of such Replaceable Bank's Commitment
(including the same percentage of its Note, outstanding Loans and
participations in Letters of Credit) plus all accrued and unpaid
interest thereon. Notwithstanding anything to the contrary contained
herein, in no event shall the Agent be a Replaceable Bank.
Section 11.14. Headings. Section headings used in this Agreement are
for reference only and shall not affect the construction of this Agreement.
Section 11.15. Legal Fees, Other Costs and Indemnification. The
Borrower agrees to pay all reasonable costs
63
and expenses of the Agent in connection with the preparation and negotiation of
the Credit Documents, including, without limitation, the reasonable fees and
disbursements of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Agent, in connection with the
preparation and execution of the Credit Documents and any amendment, waiver or
consent related hereto, whether or not the transactions contemplated herein are
consummated. The Borrower further agrees to indemnify each Bank, the Agent, and
their respective directors, agents, officers and employees, against all losses,
claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all expenses of litigation or preparation therefor, whether
or not the indemnified Person is a party thereto) which any of them may incur
or reasonably pay arising out of or relating to any Credit Document or any of
the transactions contemplated thereby or the direct or indirect application or
proposed application of the proceeds of any Loan or Letter of Credit, other
than those which arise from the gross negligence or willful misconduct of the
party claiming indemnification. The Borrower, upon demand by the Agent or a
Bank at any time, shall reimburse the Agent or Bank for any reasonable legal or
other expenses incurred in connection with investigating or defending against
any of the foregoing except if the same is directly due to the gross negligence
or willful misconduct of the party to be indemnified.
Section 11.16. Entire Agreement. The Credit Documents constitute the
entire understanding of the parties thereto with respect to the subject matter
thereof and any prior or contemporaneous agreements, whether written or oral,
with respect thereto are superseded thereby.
Section 11.17. Construction. The parties hereto acknowledge and agree
that neither this Agreement nor the other Credit Documents shall be construed
more favorably in favor of one than the other based upon which party drafted
the same, it being acknowledged that all parties hereto contributed
substantially to the negotiation of this Agreement and the other Credit
Documents.
Section 11.18. Governing Law. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of New York.
64
Section 11.19. Submission to Jurisdiction; Waiver of Jury Trial. THE
BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE BORROWER IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. THE BORROWER HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO ANY CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
65
In Witness Whereof, the parties hereto have caused this Agreement to
be duly executed and delivered in Chicago, Illinois by their duly authorized
officers as of the day and year first above written.
NRG ENERGY, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Treasurer
------------------------
Commitment $25,000,000 ABN AMRO BANK N.V., in its
individual capacity as a
Bank and as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. McFaddden
-------------------------
Title: Vice President
------------------------
Lending Offices:
Base Rate Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: Loan Administration
Eurocurrency Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: Loan Administration
66
