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William T. Reid, IV Gregory S. Schwegmann Brandon V. Lewis REID COLLINS & TSAI LLP 810 Seventh Avenue, Suite 410 New York, NY 10019 Tel: 212.344.5200 Fax: 212.344.5299 [email protected] [email protected] [email protected]
Joshua L. Hedrick Laura M. Fontaine HEDRICK KRING PLLC 1700 Pacific Avenue, Suite 4650 Dallas, TX 75201 Tel: 214.880.9600 Fax: 214.481.1844 [email protected] [email protected]
Attorneys for Plaintiff Mark Holliday, the Liquidating Trustee of the BosGen Liquidating Trust
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------x : Chapter 11 In re : BOSTON GENERATING LLC, et al., : Case No. 10-14419 (SCC) : Debtors. : Jointly Administered : ------x : MARK HOLLIDAY, the Liquidating Trustee : of the BosGen Liquidating Trust, : : Adv. Proc. No. 12-01879 (MEW) Plaintiff, : : -versus- : : EX ORBIT, LTD., D.E. SHAW LAMINAR : PORTFOLIOS, LLC, SATELLITE SENIOR : INCOME FUND, LLC, ANCHORAGE CAPITAL :
12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 2 of 510
MASTER OFFSHORE II, LTD., CMI HOLDINGS : INVESTMENTS LTD., THE RAPTOR, GLOBAL : PORTFOLIO LTD., TACONIC CAPITAL : PARTNERS 1.5 LP, BOSTON GENERATING : OFFSHORE HOLDINGS LTD., MORGAN : STANLEY & CO., LLC, GOLDMAN : SACHS & CO., STONEHILL INSTITUTIONAL : PARTNERS, LP, TRADE CLAIM : ACQUISISTION, LLC, J.P. MORGAN : SECURITIES LLC, CREDIT SUISSE : SECURITIES (USA) LLC, CREDIT : SUISSE (USA), INC., SENECA CAPITAL : INTERNATIONAL TLD., GREENWICH : INTERNATIONAL LTD., SENECA : CAPITAL LP, DB HOLDINGS INC., : LONGACRE MASTER FUND, LTD., : THE TUDOR BVI GLOBAL PORTFOLIO LP, : EPIC DISTRESSED DEBT HOLDINGS, INC., : CASTLERIGG PARTNERS, LP, TUDOR : PROPRIETARY TRADING LLC, HIGHLAND : CRUSADER OFFSHORE PARNTERS, LP, : SCOTTWOD FUND, LTD., GK DEBT : OPPORTUNITY FUND, LTD., MASON : CAPITAL LTD., EPIC DISTRESSED DEBT : OPPORTUNITY FUND LP, LATIGO MASTER : FUND, LTD., CEDARVIEW EBG HOLDINGS, : LTD., J.P. MORGAN SECURITIES LLC, : LONGACRE CAPITAL PARTNERS (QP) LP, : GUGGENHEIM PORTFOLIO CO. XII LLC, : POWER MANAGEMENT FINANCING LLC, : BOSTON HARBOR POWER LLC, : HARBINGER CAPITAL PARTNERS, : HARBERT DISTRESSED INVESTMENT : MASTER FUND, LTD, HARBINGER : CAPITAL PARTNERS MASTER FUND I, LTD., : SATELLITE ASSET MANAGEMENT, LP, : D.E. SHAW & CO. LP, ANCHORAGE CAPITAL : GROUP, LL, SANDELL ASSET : MANAGEMENT CORPORATION, : TUDOR INVESTMENT CORPORATION, : STONEHILL CAPITAL MANAGEMENT LLC, : SCOTTWOOD CAPITAL MANAGEMENT LLC, : ONEX CREDIT PARTNERS, LLC, : MASON CAPITAL MANAGEMENT LLC, : LATIGO PARNTER LP, CEDARVIEW :
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CAPITAL MANAGEMENT, LP, CITIGROUP : ALTERNATIVE INVESTMENTS : (AS SUCCESSOR IN INTEREST TO EPIC : ASSET MANAGEMENT LLC), RBS HOLDINGS : USA, INC., SATELLITE OVERSEAR FUND, : LTD, THE APOGEE FUND, LTD., SATELLITE : FUND IV, LP, SATELLITE OVERSEAS FUND : V, LTD., SATELLITE OVERSEAS FUND VI, : LTD., SATELLITE OVERSEAS FUND VIII, : LTD., SATELLITE OVERSEAS FUND IX, LTD., : SATELLITE FUND I, LP, SATELLITE FUND II, : LP, DOES 1-100, : such names being fictitious and unknown to : Plaintiff, representing individuals or entities who or : that may be legal or beneficial owners of : membership units and warrants that were : repurchased or redeemed in connection with the : Leveraged Recap Transaction underlying this : action, or who or that benefited from the transfers : underlying this action, or who engaged in the acts : and conduct described in the Complaint, : INDIVIDUALLY AND AS CLASS : REPRESENTATIVES OF A CLASS OF : SIMILARLY SITUATED INDIVIDUALS : OR ENTITIES : : Defendants. : ------x
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THIRD AMENDED COMPLAINT
Plaintiff Mark Holliday, the Liquidating Trustee (the “Liquidating Trustee”) of the
BosGen Liquidating Trust (the “Liquidating Trust” or “Plaintiff”), through his undersigned
counsel, as and for his complaint (the “Complaint”) against the above-captioned defendants (the
“Defendants”), alleges as follows:
I. PRELIMINARY STATEMENT
1. This case is brought to recover damages for a $2 billion fraud perpetrated on the
creditors of EBG Holdings LLC (“EBG”) and its subsidiaries, including Boston Generating LLC
(“BostonGen,” and collectively the “Debtors”).1 In 2006, under direction from their secret principal and self-described “joint-venturer” and “partner” Harbinger (defined below) to cash out
of their joint investment in EBG, K Road (defined below) devised a scheme to falsely pump up
the value of the Debtors, to leverage the Debtors based on these false values, and to extract the
borrowed money of the Debtors and pay it out to themselves, Harbinger, and EBG’s other equity
unit holders. With a looming self-predicted wholesale energy market decline, K Road and
Harbinger became anxious to exit their investment. Because they doubted the prospects for a sale
or IPO of EBG, K Road caused the Debtors to borrow an aggregate amount of almost $2 billion,
and to use more than $1 billion to redeem equity interests in EBG, redeem warrants, and pay a
dividend to equity (the “Leveraged Recap Transaction”). The Debtors, who were worth far less
than the previous debt incurred at the time of the Leveraged Recap Transaction, had no chance, or
intention, of ever repaying the debt incurred. Accordingly, K Road, with the encouragement of the
1 The Debtors, along with the last four digits of their federal tax identification numbers, are Boston Generating, LLC (0631), EBG Holdings LLC (3635), Fore River Development, LLC (7933), Mystic I, LLC (3640), Mystic Development, LLC (7940), BG New England Power Services, Inc. (0476), and BG Boston Services, LLC (6921). In accordance with the Final Cumulative Joint Plan of Liquidation of Boston Generating, LLC et al. [ECF No. 934] (the “Plan”), the Debtors have been dissolved and each of their cases has been closed, except for the jointly administered case bearing Case No. 10-14419 (SCC), which shall remain open and subject to the provisions of Section 7.08 of the Plan. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Plan.
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Nominating Committee (defined below) and under the direction of Harbinger, prepared fraudulent projections by “compartmentalizing” away the day to day operations of the company and began keeping two sets of books. In doing so, K Road concealed from the creditors the material details of the Debtors’ business.
2. In order to generate the kind of profits that would justify increased leverage, K
Road had to establish a value for the Debtors far higher than their past performance or a reasonable forward outlook would support. K Road sought to cloak the transaction in legitimacy by retaining
Lehman Brothers, Inc. (“Lehman”), Duff & Phelps, LLC (“Duff & Phelps”), Navigant
Consulting Inc. (“Navigant”) and Black & Veatch Corporation (“Black & Veatch”) to provide consulting services and opinions to support the transaction desired by K Road and Harbinger. K
Road, Harbinger, and the Nominating Committee controlled the output—the opinions—by controlling the input—the Debtors’ projections (the “Projections”). Each of the consultants acknowledged relying upon the legitimacy of K Road’s Projections in forming their opinions. K
Road crafted the Projections to misrepresent the Debtors as a “contract” energy provider, rather than its true status as a “merchant” energy provider. Fundamentally, contract energy providers have fixed, reliable revenue streams, and are attractive to lenders, whereas wholesale energy providers are at the mercy of fluctuating gas and electricity markets. Historically, lenders avoid lending to wholesale market producers or require significantly higher returns, tighter covenants, or collateral guarantees, in the event they provide funding.
3. The Projections, aside from misrepresenting the function of the Debtors’ Hedges
(as that term is defined herein), assumed that revenues would increase over the long term, hedge revenues would be steady and immune from market risks, and expenses would dramatically decline, thus enabling the Debtors to service their significantly increased debts. K Road, however,
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had no actual internal plan to increase revenues, cut expenses, or otherwise explain this sunny
future (as projected) vis-a-vis the actual performance of the Debtors. The Projections prepared by
K Road and disseminated to the consultants, attorneys, and ultimately, the lenders, were
fraudulent. K Road knew the Debtors never stood a chance of attaining the performance laid out
in the Projections. As alleged herein, William Kriegel, Barry Sullivan and Paul Ehrenzeller
(together with David Tohir, Nicholas Donahue, Mark Friedland, Daniel O’Shea, and Scott
Silverstein, the “K Road Insiders”), played key roles in formulating the Projections, developing the strategy underlying the Leveraged Recap Transaction, and preparing the materials used to induce lending parties to fund, the Rating Agencies (as defined herein) to provide positive support, and the Board to approve it. Each of the K Road Insiders also personally profited from the
Leveraged Recap Transaction.
II. PARTIES AND RELEVANT THIRD-PARTIES
A. The Plaintiff
4. Plaintiff Mark Holliday is the Successor Liquidating Trustee of the Liquidating
Trust established pursuant to a certain Litigating Trust Agreement, dated September 15, 2011, by
and between the Plaintiff and, inter alia, non-parties EBG and BostonGen (the “LT Agreement”).
Pursuant to the LT Agreement, the Liquidating Trustee is the successor to all of the Debtors’ rights,
title and interests in certain rights, claims, causes of action, and defenses arising from, relating to
or in connection with the Leveraged Recap Transaction. Pursuant to the Plan, the Plaintiff is also
the assignee or representative of creditors who hold Class 4B unsecured claims against the Debtors.
In that capacity, he is authorized to bring or assert their rights, claims, causes of action and defenses
arising from, relating to or in connection with the Leveraged Recap Transaction.
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B. The Debtors/Transferors
5. EBG was a Delaware limited liability company with its principal place of business in New York, New York. EBG served as a holding company and had no operations of its own.
Rather, EBG wholly owned and controlled BostonGen.
6. BostonGen was also a Delaware limited liability company with its principal place of business in New York, New York. BostonGen was also structured as a holding company that held several operating entities, including Mystic I, LLC (“Mystic I”), Mystic Development, LLC
(“Mystic Development”), Fore River Development, LLC (“Fore River”) and BG Boston
Services, LLC (“BG Boston”) and BG New England Power Services, Inc. (“BG New England”).
As such, Mystic I, Mystic Development, Fore River, BG Boston and BG New England were direct subsidiaries of BostonGen and indirect subsidiaries of EBG.
C. The Transferee Defendants
7. Annexed hereto as Exhibit A and made a part hereof is a chart reflecting: (a) the names of those Defendants (each, a “Transferee Defendant” and collectively, the “Transferee
Defendants”) (i) who or that received a transfer or distribution pursuant to the Leveraged Recap
Transaction; (ii) the class defendants consisting of all persons or entities who, directly or indirectly, through one or more related transfers, received payments or transfers pursuant to or in connection with the Leveraged Recap Transaction; or (iii) who or that benefited from such a transfer or distribution, (b) to the extent available and applicable, the Transferee Defendants’ respective states of incorporation and last known addresses; and (c) to the extent available, the amount of the transfer or distribution made to or for the benefit of each of the Transferee Defendants pursuant to the Leveraged Recap Transaction. The Transferee Defendants include the Doe Defendants discussed in Paragraph 29 herein, each a member of the Defendant Class referenced Paragraph 34 hereof.
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D. K Road (Relevant Third-Parties/Former Defendants)2
8. K Road Power Management, LLC (“K Road Power”) is, upon information and belief, a limited liability company organized under Delaware law with its principal place of business located at 295 Madison Avenue, 37th Floor, New York, NY 10017.
9. K Road BG LLC is, upon information and belief, a limited liability company organized under Delaware law with its principal place of business located at 295 Madison Avenue,
37th Floor, New York, NY 10017.
10. K Road BG Holdings LLC, is, upon information and belief, a limited liability company organized under Delaware law with its principal place of business located at 295
Madison Avenue, 37th Floor, New York, NY 10017.
11. K Road BG Management LLC, is, upon information and belief, a limited liability company organized under Delaware law with its principal place of business located at 295
Madison Avenue, 37th Floor, New York, NY 10017.
12. K Road Holdings LLC, is, upon information and belief, a limited liability company organized under Delaware law with its principal place of business located at 295 Madison Avenue,
37th Floor, New York, NY 10017.
13. K Road Power BG LLC is, upon information and belief, a limited liability company organized under Delaware law with its principal place of business located at 295 Madison Avenue,
37th Floor, New York, NY 10017.
14. K Road BG MM LLC, is, upon information and belief, a limited liability company organized under Delaware law with its principal place of business located at 295 Madison Avenue,
37th Floor, New York, NY 10017.
2 The claims against the entities listed in this section have been dismissed pursuant to the terms of a settlement agreement.
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15. WBD K Road Power BG LLC, is, upon information and belief, a limited liability
company organized under Delaware law with its principal place of business located at 295
Madison Avenue, 37th Floor, New York, NY 10017.
16. The foregoing eight entities (collectively, “K Road” or the “K Road Entities”)
dominated and controlled the Debtors, managed the Debtors, personally profited from the
transactions at issue in this case, and were closely involved with every aspect of the Leveraged
Recap Transaction.
E. The K Road Insiders (Relevant Third-Parties/Former Defendants)3
17. William Kriegel (“Kriegel”), at all relevant times, was the President,
Chairman and CEO of K Road Power and, upon information and belief, held these positions in
numerous other K Road Entities. From approximately January 2006 through May 2007, Kriegel
was the Chairman and CEO of EBG.
18. Barry Sullivan (“Sullivan”), at all relevant times, was the Vice Chairman and COO of K Road Power, and upon information and belief, held these positions in numerous other K Road
Entities. From approximately April 2006 through May 2007, Sullivan was the Vice Chairman and
COO of EBG.
19. David Tohir (“Tohir”), at all relevant times, was the Executive Vice President of
K Road Power, and upon information and belief, held this position in numerous other K Road
Entities. From approximately April 2006 through May 2007, Tohir was the President of
BostonGen, Fore River, Mystic I, Mystic Development, and BG Boston, and the President and a
director of BG New England.
3 The claims against the individuals listed in this section have been dismissed pursuant to the terms of a settlement agreement.
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20. Nicholas Donahue (“Donahue”), at all relevant times, was the Senior Vice
President of K Road Power, and upon information and belief, held this position in numerous other
K Road Entities. From approximately April 2006 through May 2007, Donahue was the Treasurer of BostonGen and a director of BG New England.
21. Mark Friedland (“Friedland”), at all relevant times, was the Senior Vice President
of K Road Power, and upon information and belief, held this position in numerous other K Road
Entities. From approximately April 2006 through May 2007, Friedland was the Senior Vice
President of Acquisitions and Restructuring of EBG.
22. Daniel O’Shea (“O’Shea”), at all relevant times, was the Senior Vice President and
General Counsel of K Road Power, and upon information and belief, held this position in numerous
other K Road Entities. From approximately April 2006 through May 2007, O’Shea was the Senior
Vice President, General Counsel and Secretary of EBG.
23. Scott Silverstein (“Silverstein”), at all relevant times, was the Senior Vice
President of Regulatory Affairs of K Road Power, and upon information and belief, held this
position in numerous other K Road Entities. From approximately April 2006 through May 2007,
Silverstein was the Senior Vice President of Regulatory Affairs of EBG.
24. Paul Ehrenzeller (“Ehrenzeller”), at all relevant times, was the Senior Vice
President and CFO of K Road Power, and upon information and belief, held this position in
numerous other K Road Entities. From approximately April 2006 through May 2007, Ehrenzeller
was the Director of Finance of EBG.
25. The foregoing individuals dominated and controlled the Debtors, managed the
Debtors, and were closely involved in the Leveraged Recap Transaction, all as described in this
Complaint.
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F. The Nominating Committee
26. During the relevant time period, the Debtors were also controlled by a group of
hedge funds holding the majority of the EBG units, and who had previously held BostonGen’s
secured debt. These hedge funds, whose affiliates formed the “Nominating Committee” of EBG,
or the group responsible for nominating the non-K Road “independent” directors, were Anchorage
Capital Master Offshore II, Ltd., Satellite Asset Management, L.P., Stonehill Institutional Partners,
L.P., and Sandell Asset Management Corp. (collectively, the “Nominating Committee”). While they represented about 50% of the equity of EBG, this group controlled all of the non-K Road directors of EBG. The only concern expressed by the Nominating Committee was to maintain its ability to freely trade EBG units while still controlling the EBG Board of Directors and obtaining insider information. As K Road internally acknowledged, the EBG Board of Directors would approve whatever K Road told them to, as long as the Nominating Committee was in agreement.
The Nominating Committee therefore acted as an upper chamber of the Board of Directors, and met with K Road in advance of Board of Directors meetings to determine what the Board would consider, and how the Board would vote.
27. Communications between K Road and the Nominating Committee primarily occurred via telephone. On information and belief, this was to avoid leaving a trail that might
implicate Kriegel if the members of the Nominating Committee traded based upon insider
information. On information and belief, based upon interviews with former officers of the Debtors,
the Nominating Committee was provided with internal EBG/BostonGen financial information that
the independent directors of EBG did not receive, and which demonstrated the falsity of the
Projections. In late October 2006, Kriegel reached out to the Nominating Committee with the terms of the Leveraged Recap Transaction and a “BG Liquidity Proposal.” K Road also sent its
contacts on the Nominating Committee details of the Hedges not included in the lender materials.
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According to K Road, the Nominating Committee had “everything” that K Road did. The
Nominating Committee knew that EBG, through K Road, had provided false information for the
use of the lenders, yet did not disclose K Road’s fraud, because the Nominating Committee, as the
largest group of equity holders of EBG, had the most to gain from any “liquidity event” favoring
equity. The Nominating Committee had the ability to control EBG’s dissemination of false
information by voting against the Leveraged Recap Transaction, but nonetheless approved and
ratified the Leveraged Recap Transaction by providing the majority unitholder votes in favor of
the transaction. After the Leveraged Recap Transaction closed, Harbinger (defined below)
thanked K Road for bringing the “major shareholders,” e.g., the Nominating Committee, on board
with the terms of the Leveraged Recap Transaction.
G. Class Representatives
28. The Defendants named in Exhibit A are also representatives of a class of individuals
who or entities that also benefited, directly or indirectly, from the Leveraged Recap Transaction
and/or received contemporaneous or subsequent transfers of money, stock or property of the
Debtors from the Transferee Defendants or otherwise in connection with the Leveraged Recap
Transaction.
H. “Doe” Defendants
29. Upon information and belief, there exist numerous individuals who or entities that
benefited, directly or indirectly, from the Leveraged Recap Transaction and/or received
contemporaneous or subsequent transfers of money, stock, or other property of the Debtors from
the Transferee Defendants in connection with the Leveraged Recap Transaction whose identities remain unknown to the Plaintiff. Such Defendants are sued herein as Does 1-100.
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III. JURISDICTION, VENUE
30. This adversary proceeding has been commenced to resolve an actual controversy
between the Liquidating Trustee and the Defendants.
31. The United States Bankruptcy Court for the Southern District of New York (the
“Bankruptcy Court”) has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §
157(a) and 1334, Rule 7001 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy
Rules”), and Section 13.01 of the Plan. This adversary proceeding is related to the jointly administered Chapter 11 proceeding pending before the Bankruptcy Court, captioned In re Boston
Generating, LLC et al. (No. 10-14419) (the “Chapter 11 Cases”).
32. Pursuant to Bankruptcy Rule 7008, the Liquidating Trustee states that he hereby consents to the Bankruptcy Court’s entry of final orders and judgment in this adversary proceeding.
33. Venue of this adversary proceeding in this district is proper pursuant to 28 U.S.C.
§§ 1408 and 1409.
IV. DEFENDANT CLASS ALLEGATIONS
34. Plaintiff also brings this action as a defendant class action pursuant to, inter alia,
Federal Rules of Civil Procedure 23(a), 23(b)(1)(B), and 23(b)(3), made applicable to this
proceeding by Bankruptcy Rule 7023, against a class consisting of all persons who or entities that, directly, or indirectly through one or more intermediate transferors, received payments or transfers pursuant to the Leveraged Recap Transaction (the “Class”). As set forth herein, Counts One through Six are asserted as Class claims.
35. The members of the Class (“Class Members”) are so numerous that joinder of all members is impractical. The exact number of Class Members is unknown to the Plaintiff at this time, but is sufficiently numerous to make class treatment appropriate for Counts One through Six.
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36. Any claims against and claimed defenses of the named representatives of the Class
(the “Class Representatives”) are typical of the claims against and alleged defenses of the
unnamed Class Members. The claims against and claimed defenses of each of the Class Members
arise out of the same factual circumstances involving the Leveraged Recap Transaction.
37. There are numerous questions of law and fact that are common to the unnamed
Class Members, and that predominate over any questions affecting only individual Class Members,
including, but not limited to: (a) each of the allegations relating to insolvency, financial condition
and inability to pay debts set forth herein; (b) each of the allegations relating to the Leveraged
Recap Transaction, funding, and distribution of funds set forth herein; and (c) each of the allegations relating to actual and constructive fraud set forth herein.
38. The Class Representatives will fairly and adequately protect and represent the interests of the unnamed Class Members, such Class Representatives have tens of millions of dollars at issue, the issues related to liability are virtually identical for the Class Representatives and Class Members, and the Class Representatives have as much incentive to vigorously defend against the Plaintiff’s claims as any unnamed Class Member would.
V. CURRENTLY KNOWN SUBSEQUENT TRANSFEREES
39. Each of the transferees described below are among those included in the Class as
Class Members.
40. Satellite Asset Management L.P. managed and/or controlled both Ex Orbit Group,
Ltd. and Satellite Senior Income Fund, LLC at the time of the Leveraged Recap Transaction, and
was responsible for the decisions of Ex Orbit Group, Ltd. and Satellite Senior Income, LLC to
participate in the Leveraged Recap Transaction. On information and belief, some of the Leveraged
Recap Transaction proceeds transferred to Ex Orbit Group, Ltd. and Satellite Senior Income Fund,
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LLC were subsequently transferred, directly or indirectly, to Satellite Asset Management L.P. in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
41. D.E. Shaw & Co. L.P. managed and/or controlled D.E. Shaw Laminar Portfolio
LLC and Trade Claim Acquisition LLC at the time of the Leveraged Recap Transaction, and was responsible for the decisions of D.E. Shaw Laminar Portfolio LLC and Trade Claim Acquisition
LLC to participate in the Leveraged Recap Transaction. On information and belief, some of the
Leveraged Recap Transaction proceeds transferred to D.E. Shaw Laminar Portfolio LLC and
Trade Claim Acquisition LLC were subsequently transferred, directly or indirectly, to D.E. Shaw
& Co. L.P. in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
42. Anchorage Capital Group, LLC f/k/a Anchorage Advisors, LLC managed and/or controlled Anchorage Capital Master Offshore II, Ltd. at the time of the Leveraged Recap
Transaction, and was responsible for the decision of Anchorage Capital Master Offshore II, Ltd. to participate in the Leveraged Recap Transaction. On information and belief, some of the
Leveraged Recap Transaction proceeds transferred to Anchorage Capital Master Offshore II, Ltd. were subsequently transferred, directly or indirectly, to Anchorage Capital Group, LLC f/k/a
Anchorage Advisors, LLC in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
43. Sandell Asset Management Corporation managed and/or controlled CMI Holdings
Investments, Ltd. and Castlerigg Partners, L.P. at the time of the Leveraged Recap Transaction and was responsible for the decisions of CMI Holdings Investments, Ltd. and Castlerigg Partners,
L.P. to participate in the Leveraged Recap Transaction. On information and belief, some of the
Leveraged Recap Transaction proceeds transferred to CMI Holdings Investments, Ltd. and
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Castlerigg Partners, L.P. were subsequently transferred, directly or indirectly, to Sandell Asset
Management Corporation in the form of payment of compensation, investment repayment,
commissions, fees or otherwise.
44. Tudor Investment Corporation managed and/or controlled The Tudor BVI Global
Portfolio L.P. f/k/a The Tudor BVI Global Portfolio, Ltd., Tudor Proprietary Trading, LLC and
The Raptor Global Portfolio, Ltd. at the time of the Leveraged Recap Transaction and was
responsible for the decisions of The Tudor BVI Global Portfolio L.P. f/k/a The Tudor BVI Global
Portfolio, Ltd., Tudor Proprietary Trading, LLC and The Raptor Global Portfolio, Ltd. to
participate in the Leveraged Recap Transaction. On information and belief, some of the Leveraged
Recap Transaction proceeds transferred to The Tudor BVI Global Portfolio L.P. f/k/a The Tudor
BVI Global Portfolio, Ltd., Tudor Proprietary Trading, LLC and The Raptor Global Portfolio, Ltd. were subsequently transferred, directly or indirectly, to Tudor Investment Corporation in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
45. Stonehill Capital Management LLC managed and/or controlled Stonehill
Institutional Partners, L.P. and Boston Generating Offshore Holdings, Ltd. at the time of the
Leveraged Recap Transaction and was responsible for the decisions of Stonehill Institutional
Partners, L.P. and Boston Generating Offshore Holdings, Ltd. to participate in the Leveraged
Recap Transaction. On information and belief, some of the Leveraged Recap Transaction proceeds transferred to Stonehill Institutional Partners, L.P. and Boston Generating Offshore Holdings, Ltd. were subsequently transferred, directly or indirectly, to Stonehill Capital Management LLC in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
46. Scottwood Capital Management LLC managed and/or controlled Scottwood Fund.
Ltd. at the time of the Leveraged Recap Transaction and was responsible for the decision of
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Scottwood Fund. Ltd. to participate in the Leveraged Recap Transaction. On information and belief, some of the Leveraged Recap Transaction proceeds transferred to Scottwood Fund. Ltd. were subsequently transferred, directly or indirectly, to Scottwood Capital Management LLC in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
47. Onex Credit Partners, LLC f/k/a GK Capital, LLC managed and/or controlled GK
Debt Opportunity Fund, Ltd. at the time of the Leveraged Recap Transaction and was responsible for the decision of GK Debt Opportunity Fund, Ltd. to participate in the Leveraged Recap
Transaction. On information and belief, some of the Leveraged Recap Transaction proceeds transferred to GK Debt Opportunity Fund, Ltd. were subsequently transferred, directly or indirectly, to Onex Credit Partners, LLC f/k/a GK Capital, LLC in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
48. Mason Capital Management LLC managed and/or controlled Mason Capital Ltd. at the time of the Leveraged Recap Transaction and was responsible for the decision of Mason
Capital Ltd. to participate in the Leveraged Recap Transaction. On information and belief, some of the Leveraged Recap Transaction proceeds transferred to Mason Capital Ltd. were subsequently transferred, directly or indirectly, to Mason Capital Management LLC in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
49. RBS Holdings USA, Inc. f/k/a Greenwich Capital Holdings, Inc. wholly owned and/or controlled Greenwich International, Ltd. at the time of the Leveraged Recap Transaction, and on information and belief, some or all of the Leveraged Recap Transaction proceeds transferred to Greenwich International, Ltd. were subsequently transferred, directly or indirectly, to RBS Holdings USA, Inc. f/k/a Greenwich Capital Holdings, Inc. in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
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50. Latigo Partners, L.P. managed and/or controlled Latigo Master Fund, Ltd. at the time of the Leveraged Recap Transaction and was responsible for the decision of Latigo Master
Fund, Ltd. to participate in the Leveraged Recap Transaction. On information and belief, some of the Leveraged Recap Transaction proceeds transferred to Latigo Master Fund, Ltd. were subsequently transferred, directly or indirectly, to Latigo Partners, L.P. in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
51. Cedarview Capital Management LP managed and/or controlled Cedarview EBG
Holdings, Ltd. at the time of the Leveraged Recap Transaction and was responsible for the decision of Cedarview EBG Holdings, Ltd. to participate in the Leveraged Recap Transaction. On information and belief, some of the Leveraged Recap Transaction proceeds transferred to
Cedarview EBG Holdings, Ltd. were subsequently transferred, directly or indirectly, to Cedarview
Capital Management LP in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
52. Citigroup Alternative Investments LLC as successor in interest to Epic Asset
Management, LLC managed and/or controlled Epic Distressed Debt Holdings, Inc. and Epic
Distressed Debt Opportunity Fund, L.P. at the time of the Leveraged Recap Transaction and was responsible for the decisions of Epic Distressed Debt Holdings, Inc. and Epic Distressed Debt
Opportunity Fund, L.P. to participate in the Leveraged Recap Transaction. On information and belief, some of the Leveraged Recap Transaction proceeds transferred to Epic Distressed Debt
Holdings, Inc. and Epic Distressed Debt Opportunity Fund, L.P. were subsequently transferred, directly or indirectly, to Citigroup Alternative Investments LLC as successor in interest to Epic
Asset Management, LLC in the form of payment of compensation, investment repayment, commissions, fees or otherwise.
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53. Satellite Overseas Fund, Ltd., The Apogee Fund, Ltd., Satellite Fund IV, L.P.,
Satellite Overseas Fund V, Ltd., Satellite Overseas Fund VI, Ltd., Satellite Overseas Fund VII,
Ltd., Satellite Overseas Fund VIII, Ltd. and Satellite Overseas Fund IX, Ltd. were each investment
funds that held an interest in Ex Orbit Group, Ltd. On information and belief, Leveraged Recap
Transaction proceeds transferred to Ex Orbit Group, Ltd. were subsequently transferred, directly
or indirectly, to each of Satellite Overseas Fund, Ltd., The Apogee Fund, Ltd., Satellite Fund IV,
L.P., Satellite Overseas Fund V, Ltd., Satellite Overseas Fund VI, Ltd., Satellite Overseas Fund
VII, Ltd., Satellite Overseas Fund VIII, Ltd. and Satellite Overseas Fund IX, Ltd. in the form of
investment repayment and/or on account of their interest in Ex Orbit Group, Ltd.
54. Satellite Senior Income Fund, LLC was a subsidiary of investment funds Satellite
Fund I, L.P. and Satellite Fund II, L.P. at or about the time of the Leveraged Recap Transaction.
Satellite Fund I, L.P. and Satellite Fund II, L.P. were beneficial owners of EBG units held by
Satellite Senior Income Fund, LLC. On information and belief, Leveraged Recap Transaction
proceeds received by Satellite Senior Income Fund, LLC were subsequently transferred, directly
or indirectly, to Satellite Fund I, L.P. and Satellite Fund II, L.P. in the form of investment
repayment and/or on account of their interest in Satellite Senior Income Fund, LLC.
55. On or about December 28, 2006, K Road BG LLC transferred $49,490,000.00 of
its proceeds from the Leveraged Recap Transaction to or for the benefit of Boston Harbor Power
LLC f/k/a Boston Harbor Power Corporation.
56. On or about December 28, 2006, K Road BG LLC transferred $43,657,084.00 of its proceeds from the Leveraged Recap Transaction to or for the benefit of Power Management
Financing LLC f/k/a Power Management Financing Corporation.
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57. Boston Harbor Power LLC and Power Management Financing LLC were indirect,
wholly owned subsidiaries of Harbert Distressed Investment Master Fund, Ltd or Harbinger
Capital Partners Master Fund I, Ltd., and were managed and controlled by Harbinger Capital
Partners, LLC. On information and belief, Leveraged Recap Transaction proceeds received by
Boston Harbor Power LLC and Power Management Financing LLC were subsequently
transferred, directly or indirectly, to Harbinger Capital Partners Master Fund I, Ltd., Harbert
Distressed Investment Master Fund, Ltd., or Harbinger Capital Partners, LLC in the form of
investment repayment and/or on account of its interest in Boston Harbor Power LLC and Power
Management Financing LLC.
58. On information and belief, Willow Bend Capital Management LLC entered into a
consulting and/or services agreement with Satellite Asset Management L.P. and/or its affiliates, to
advise Satellite Asset Management L.P. and/or its affiliates on investments in the energy sector,
including the investment of Ex Orbit Group, Ltd. and Satellite Senior Income Fund LLC in EBG.
On further information and belief, this agreement entitled Willow Bend Capital Management LLC
to a portion of the Leveraged Recap Transaction, and on information and belief, some of the
Leveraged Recap Transaction proceeds transferred to Ex Orbit Group, Ltd., Satellite Senior
Income Fund, LLC and/or Satellite Asset Management L.P. were subsequently transferred, directly
or indirectly, to Willow Bend Capital Management LLC in the form of payment of compensation,
investment repayment, commissions, fees or otherwise.
VI. BACKGROUND AND STANDING
A. Liquidating Trustee
59. On August 18, 2010 (the “Petition Date”), each of the Debtors filed a Voluntary
Petition for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.
(the “Bankruptcy Code”), in the Bankruptcy Court, thereby initiating the Chapter 11 Cases. On
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November 24, 2010, the Bankruptcy Court entered an order authorizing the sale of substantially all of the Debtors’ operating assets to Constellation Holdings, Inc. or its nominee. On July 20,
2011, the Debtors filed the Plan, and on August 29, 2011, the Debtors filed the Notice of
Designation of Liquidating Trustee Pursuant to Section 7.02.1 of the Second Amended Joint Plan of Liquidation of Boston Generating, LLC, in which the Debtors identified Craig R. Jalbert as the
Liquidating Trustee. On August 31, 2011, the Bankruptcy Court entered its order confirming the
Plan (the “Confirmation Order”). On September 14, 2011, the Liquidating Trustee and each of the Debtors executed the LT Agreement, which created the Liquidating Trust and which became effective on September 15, 2011 (the “Effective Date”). Pursuant to the Plan and the LT
Agreement, the Liquidating Trust was established and Craig R. Jalbert was appointed as the
Liquidating Trustee. On April 9, 2013, Mark Holliday was appointed successor Liquidating
Trustee.
60. Pursuant to the Plan and the LT Agreement, the Liquidating Trust succeeded to all of the Debtors’ rights, title and interests in the Liquidating Trust Assets, including but not limited to “the rights, Claims, Causes of Action and defenses arising from, relating to or in connection with the [Leveraged] Recap Transaction of all of the holders of Allowed Claims in Class 4B who
[did] not make the Non-Contribution Election” when voting in favor of the Plan. Pursuant to the
LT Agreement, the Liquidating Trustee’s duties and responsibilities include the investigation and enforcement of Causes of Action relating to the Leveraged Recap Transaction, and the taking of
“all appropriate action with respect to the Trust Estate, including without limitation, the investigation, analysis, filing, pursuit and prosecution of Causes of Action.”
61. In addition, pursuant to the Plan, all creditors in Class 4B assigned various of their individual causes of action to the Liquidating Trust to be prosecuted by the Liquidating Trustee,
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with any proceeds thereof or recoveries therefrom to be distributed to creditors generally pursuant
to the Plan. In this regard, the Plan provides that “[i]n consideration of the rights under the Plan
and the prosecution of the Causes of Action by the Liquidating Trustee, on the Effective Date,
each of the holders of General Unsecured Claims in Class 4B against the Debtors shall be deemed
to transfer and assign all rights, Claims, causes of action and defenses arising from, relating to, or
in connection with the [Leveraged] Recap Transaction to the Liquidating Trust, except those
holders who make the Non-Contribution Election.” No creditor made the Non-Contribution
Election. The claims and causes of action of such creditors are Liquidating Trust Assets pursuant
to the Plan, Confirmation Order and LT Agreement. The Liquidating Trustee is asserting the rights of creditors that were assigned to him pursuant to the Plan, and is prosecuting this adversary proceeding for the benefit of such creditors pursuant to the Plan and the LT Agreement.
62. In this Complaint, the Liquidating Trustee is not prosecuting any causes of action
that formerly belonged to the Debtors or that otherwise vested pursuant to Chapter 5 of the
Bankruptcy Code. Rather, the Liquidating Trustee brings only state-law creditor-claims as the
assignee of certain creditors pursuant to the Plan, the Confirmation Order, and the LT Agreement.
63. By this allegation, the Liquidating Trustee is abandoning avoidance claims
belonging to the Debtors to the extent they might otherwise be asserted under Section 544(b) of
the Bankruptcy Code against various Defendants who or that received or benefited from
distributions or transfers made in connection with the Leveraged Recap Transaction. Instead, the
Liquidating Trustee is asserting the claims of individual creditors that were assigned to the
Liquidating Trust pursuant to the Plan, as the same are described in Paragraph 4 above. Such
creditors include (a) the holders of the First Lien Debt and Second Lien Debt (as that term is
defined below), (b) the holders of the Mezzanine Debt (as that term is defined below), and (c) all
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other general unsecured creditors of the Debtors (except for those who or that elected to be
included in the Convenience Class created under the Plan). This Paragraph shall constitute the
notice required by Section 8.02.2 of the Plan.
B. EBG / BostonGen
64. BostonGen was founded in 2000 and was managed by Kriegel and the K Road
Insiders for its then-owners, Sithe Energies, Inc. BostonGen was then sold to Exelon New England
Holdings, LLC (“Exelon”), and the K Road Insiders temporarily exited the scene. BostonGen had financial difficulties. On February 23, 2004, Exelon entered into a settlement in lieu of foreclosure which resulted in a transfer of the ownership of BostonGen and its properties to EBG, a special purpose entity owned by BostonGen’s former lenders.
65. By late 2004, EBG and BostonGen experienced further financial distress, including events of default under their credit agreement, and sought another restructuring. With EBG and
BostonGen in distress, the hedge funds who owned most of the units of EBG sought help from
BostonGen’s former management: the K Road Insiders.
66. On information and belief, the equity holders of EBG concluded that Kriegel and his team, as former management, were in the best position to revamp BostonGen’s business and, more importantly, get the unit holders out of the business of owning a power company. EBG required K Road to put skin in the game by contributing new equity in exchange for EBG equity
interests and long-term warrants. Unbeknownst to the EBG unit holders, however, the K Road
Insiders contributed relatively little of their own money and instead secretly funded over 90% of their investment in EBG through their joint venture or partnership with Harbinger Capital Partners,
LLC (acting through its alter egos Boston Harbor Power LLC and Power Management Financing
LLC (with Harbert Distressed Investment Master Fund, Ltd. and Harbinger Capital Partners
Master Fund I, Ltd., collectively “Harbinger”)—a predatory hedge fund that carefully concealed
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its role in K Road from the rest of EBG’s ownership.4 Boston Harbor Power LLC and Power
Management Financing LLC were special purpose vehicles for the Harbinger joint venture with K
Road and were openly disparaged as “shell entities” by Harbinger. The names of these special
purpose entities were deliberately bland so as not to reveal their Harbinger ownership in FERC
disclosures. Boston Harbor Power LLC and Power Management Financing LLC had no offices,
employees, physical assets, or other separate existence but acted solely through officers of
Harbinger Capital Partners, with Howard Kagan and Philip Falcone signing contracts and receiving correspondence at the New York offices of Harbinger Capital Partners or via their
@harbert.net or @harbingercap.net domains. Internal audit papers consolidated Harbinger and K
Road’s ownership per IRC Section 382, and K Road and Harbinger treated and referred to the
relationship as a joint venture or “partnership” in internal memoranda allocating the proceeds of
their investment in the Debtors.
67. In connection with the K Road joint venture in the Debtors, Harbinger acted
through former investment officer Howard Kagan (“Kagan”). Kagan and the K Road Insiders
created a web of special purpose entities to structure their investment in EBG, the purpose of which
was to conceal Harbinger’s involvement with K Road from EBG’s equity owners. These entities
had no existence or purpose except to secretly funnel cash from EBG to the K Road Insiders and
Harbinger. These entities never held assets but simply passed transfers from the Debtors through
to higher level K Road entities and Harbinger per agreed formulas.
68. On or about December 15, 2006, Harbinger and K Road entered into a “Written
Consent and Amendment,” in which K Road and Harbinger acknowledged that the Leveraged
4 Harbinger made its reputation by predicting the subprime market collapse and betting against securitized subprime mortgages. Here too, it predicted EBG’s poor prospects in the wholesale energy market and quickly acted to protect its position with regard to this investment.
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Recap Transaction required Harbinger’s approval, and which is attached hereto as Exhibit D. In this agreement, they agreed to the terms on which K Road would tender its units, that K Road would cause the EBG Board of Directors to approve the Leveraged Recap Transaction on the terms dictated by Harbinger, and that K Road would be permitted to cause EBG to amend K Road’s warrants so as to make them immediately exercisable. Philip Falcone signed on behalf of
Harbinger.
69. Harbinger’s control of the Debtors was material to potential lenders in the
Leveraged Recap Transaction, who would have, at the least, wanted to investigate whether the transaction was proposed to favor the Debtors’ interests, or those of Harbinger. However, the lenders did not know of Harbinger’s involvement; all press releases and industry reports prior to the Leveraged Recap Transaction stated that “Kriegel’s K Road Power” owned 10% of the
Debtors—without any mention of Harbinger.
70. The agreements between K Road and Harbinger gave Harbinger total control over
K Road’s actions with respect to EBG and BostonGen. Among its other powers, Harbinger’s approval was required for K Road to exercise its board vote at EBG. K Road provided Harbinger with copies of all Debtor board presentations, unaudited financial statements, internal budgets, monthly operations reports (which disclosed breakage, heat rate, forced outages, and other internal data which contradicted the Projections), unitholder materials, and ratings agency presentations, as well as secret access to the data rooms for lenders, prospective purchasers, and unitholders.
71. The joint venture between K Road and Harbinger (“K Road/Harbinger”) invested
$65 million and obtained a 10% equity interest in EBG as well as warrants to purchase 722,222 additional equity units at an exercise price of $118.78 per unit. $61 million came from Harbinger, and only $4 million from K Road. The propriety of the Leveraged Recap Transaction (involving
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borrowings of nearly $2 billion with a redemption at $340 per unit) is contradicted by this implied
$650 million valuation of EBG only a year prior.
72. In connection with the October 2005 BostonGen restructuring, BostonGen, Mystic
I, Mystic Development, Fore River and K Road entered into a Management and Operation
Agreement effective as of October 11, 2005 (the “Management Agreement”).
73. Upon the execution of the Management Agreement and the Amended and Restated
Limited Liability Agreement of EBG Holdings LLC (the “LLC Agreement”)—which K Road
executed—K Road/Harbinger became an “insider” of the Debtors within the meaning of Section
101(31) of the Bankruptcy Code, a controlling person under applicable state corporate and
securities laws, and a manager of the Debtors’ businesses. It remained so throughout the period of
the Leveraged Recap Transaction and until mid-2007.
C. K Road Dominates EBG and BostonGen
74. K Road/Harbinger assumed operating control and management of EBG and
BostonGen in October 2005. Pursuant to the Management Agreement and the LLC Agreement, K
Road had operating and management control over virtually all aspects of the Debtors’ businesses.
Among other things, K Road was to provide “comprehensive management, administration, operation and maintenance services” for the Debtors’ businesses and affairs, and was authorized
“to act on behalf of Owner as its authorized agent in the conduct of Owner’s day-to-day business.”
In short, the K Road/Harbinger joint venture ran the businesses.
75. Under the LLC Agreement, EBG was to be governed by seven board members, including two designated by K Road, one of whom was required to be the Chief Executive Officer of EBG (Kriegel). All other directors were required to be independent directors.
76. Directors whom K Road designated could only be removed for cause or by K
Road. A number of actions, including those involving interested directors, could be approved by
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holders of Class A units, and K Road held all of the Class A units. In addition, K Road was to nominate all senior officers, and it was contemplated that the Board of Directors would be required to appoint members, officers and employees of K Road who were nominated by K Road to serve as officers or as managerial employees of EBG. These provisions thus gave K Road pervasive control over the Debtors’ business matters. They were especially significant because although the Management Agreement purported to place limits on the authority of K Road as manager and required the consent of BostonGen and its subsidiaries in respect to certain matters, as a practical matter, directors, officers, and managers of K Road comprised those entities who were responsible for giving such consents. Thus, the consent restriction was no restriction at all.
77. As soon as K Road was in control of EBG, it began pursuing a “liquidity event.”
Harbinger, as part of the K Road/Harbinger joint venture, demanded a high and rapid return on its investment, and the Nominating Committee was equally eager to cash out.
78. The EBG Board of Directors retained Lehman to get money out of the company.
Initially, Lehman pursued bidders for the company outright. One prospective buyer considered by the EBG Board in June 2006 was Dynegy, Inc. (“Dynegy”), an electric utility company that owned several natural gas-fired plants like those operated by BostonGen. Unbeknownst to Lehman or the independent members of the Board of Directors, Harbinger had initiated the Dynegy bid. Dynegy offered $265 a unit for EBG, with 20% of the offer in cash and 80% in Dynegy stock. The
Nominating Committee was dissatisfied with both the price per unit and the amount of cash that would flow immediately to the unit holders. They knew that they needed to get cash out immediately; there were no future gains to be made by holding interests in an entity containing
BostonGen. EBG rejected the Dynegy offer and asked for $300 a unit. Dynegy cut off negotiations without a counteroffer
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79. On June 29, 2006, Harbinger, as part of the K Road/Harbinger joint venture,
dictated that instead of a sale to Dynegy, K Road pursue a “recap on the debt, adding 2 turns of
leverage (another $750mm) and doing a buyback or dutch auction tender . . .” This is indeed what
transpired. Although Harbinger’s role in the Leveraged Recap Transaction was concealed, the
transaction was structured just as Harbinger directed.
80. Both Harbinger and K Road knew that a transaction had to happen soon. As a
merchant seller, BostonGen was at the mercy of market forces—both natural gas and electricity.
Moreover, its critical Reliability Must Run (“RMR”) contracts—which had provided a reliable
revenue stream—were terminating due to the planned transition to a forward capacity market
(“FCM”) system in the ISO-NE grid where BostonGen sold its capacity.5 The outlook for
BostonGen was dismal. BostonGen sold into the ISO-NE grid. The ISO-NE’s switch to FCM
auctions meant more competing capacity and lower prices for merchant electricity providers.
Although K Road knew that the FCM transition was being implemented to encourage new market
entrants and minimize capacity payments to merchant providers, in the Projections, K Road
represented that it anticipated revenues of $9/kW-Month (possibly rising to as much as $15/kW-
Month) under the FCM market—but neglected to mention that in an open auction system,
payments could approach zero if new capacity were connected to the ISO-NE system. In fact, such capacity was planned, and was anticipated by K Road based upon numerous industry reports
(which were in K Road’s actual possession) prior to the Leveraged Recap Transaction.
81. In response to Harbinger’s prodding, K Road determined to offload BostonGen’s
problems into someone else’s hands after extracting any possible liquidity. Of course, it could do
5 Unlike RMR contracts, by which the ISO-NE paid merchant generators like BostonGen to keep specific plants running to keep capacity available, FCM auctions are open and transparent. In an FCM auction, any generator can bid its capacity three years out. FCM auctions are therefore more competitive than RMR contracts.
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so only by concealing the Debtors’ true prospects from any potential counterparty—whether that
included new lenders, a potential acquirer, or the IPO market. Tohir acknowledged to Kriegel and
Sullivan that K Road had no choice but to enter into a transaction per Kagan’s demands because the Debtors had “lost the Fore River RMR and are now in litigation on the Mystic RMR since we failed to settle during settlement talks, neither of which are good news.”
82. Nonetheless, Harbinger demanded more money out of the Leveraged Recap
Transaction for itself over its present agreements with K Road:
“lastly, you may feel that harbinger should just accept the terms as you have presented them, and not adjust the harbinger/kroad deal to reflect what you have crafted with shareholders on the recap structure. but just as you conditioned your working on the recap with the major shareholders on resetting your economic deal so it made sense for you given a dramatically restructured deal, I need to do the same.”
The shareholders to whom Harbinger was referring were the Nominating Committee; as the
Nominating Committee controlled more than 50% of the votes necessary to conduct the Leveraged
Recap Transaction, Kriegel had been tasked with negotiating with the Nominating Committee the proportions of the Debtors’ cash which would be allocated among the unitholders, and through what kind of transactions.
83. K Road ultimately conceived of a combination of warrant redemptions, which benefitted only K Road, a dividend, which was limited by the LLC Agreement to existing profit, and unit redemptions, which were conceived of by the joint counsel for the Debtors and K Road as a method of providing liquidity (cash) to unitholders without the tax or legal consequences of making a distribution. Kriegel called each of the Nominating Committee members to secure their consent (and later vote) to the Leveraged Recap Transaction before presenting Harbinger’s proposed board resolutions to the EBG board of directors for their rubber stamp.
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84. K Road and its officers and employees arranged, negotiated, documented,
supported, and closed the Leveraged Recap Transaction. In so doing, K Road and its officers and
employees prepared or caused the preparation of transaction documents, including the Confidential
Information Memorandum (the “CIM”) and other documents discussed herein, prepared or caused
the preparation of the Projections, negotiated and documented or caused the documentation of the
Hedges, supervised and directed transaction diligence, provided information and advice to the
Board of Directors, and negotiated and documented or caused the documentation of the Credit
Facilities (defined below).
VII. K ROAD’S MISREPRESENTATIONS AND OMISSIONS
A. The Projections
85. The centerpiece of K Road’s efforts to promote the Leveraged Recap Transaction
was the set of fundamentally misleading and unreasonable Projections for the financial
performance of BostonGen following the Leveraged Recap Transaction. These Projections
included projected EBITDA6 of close to $1 billion during the four-year projection period of 2007 through 2010, inclusive. Thereafter, the EBITDA projections that K Road developed continued to ascend into the stratosphere, growing from a projected $199 million for 2007 (which, in fact, the
Debtors missed by $69 million) to a projected $426 million in 2012, with even higher projections for the following years. In fact, EBITDA did not rise—it decreased.
86. As a merchant seller of electricity into the wholesale market, BostonGen’s profitability from operations was subject to market risks intrinsic to that industry—risks posed by the short and long-term fluctuation of the market price for electricity due to changes in supply and demand, risks posed by exposure to volatile commodities markets, regulatory and related risks
6 Earnings Before Interest, Taxes, Depreciation and Amortization or “EBITDA” is often relied upon as an indicator of a business entity’s intrinsic earning capacity and value.
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posed by the functioning of the highly complex energy markets and operational risks, such as equipment failures and forced outages.
87. To market BostonGen as an entity possessing the stable cash flow necessary to service the major new debt load required for the Leveraged Recap Transaction, K Road needed to portray BostonGen as a “contract” generator, not the “merchant” generator that it actually was. It also needed to conceal the impact that the termination of its RMR agreements, as ISO-NE moved to the FCM system, would have on its revenue.
88. As a merchant generator, BostonGen typically entered into hedge contracts, which theoretically protect it from fluctuations in its input and output markets. Pursuant to each set of the contracts implementing the hedging transactions BostonGen entered into near the time of the
Leveraged Recap Transaction (the “Hedges”), Credit Suisse Energy, LLC (“CSE”) agreed to make monthly fixed payments (the “Fixed Payments”) to BostonGen over a period of four years.
Such Fixed Payments showed up in the Projections as a guaranteed, contractual “net energy margin” that was reflected in the EBITDA projections year after year. Supposedly, according to the Projections, these alleged Fixed Payments would result in the receipt by BostonGen, like clockwork, of $163 million of “Net Hedged Margin.” The Fixed Payments to BostonGen, however, came at a hefty cost to BostonGen that, unlike the Fixed Payments, did not appear in the
Projections. The cost of the Fixed Payments was variable payments (the “Floating Payments”) from BostonGen to CSE. This was a material hidden liability with a significant negative impact on cash flow, the disastrous consequences of which were concealed from and not disclosed to potential lenders, the independent members of the Board of Directors, and other parties involved in the Leveraged Recap Transaction. In short, K Road committed fraud—it failed to disclose the way the Hedges actually worked. Contrary to the representations made to lenders, $163 million
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represented the theoretical ceiling for net payments to be made to BostonGen, not the Hedges’ projected performance.
89. K Road sold BostonGen as having “contracted EBITDA” via the Hedges, but in truth, BostonGen had not contracted away the variability in its costs. BostonGen may have had a small fixed revenue source, but it still had variable costs which it had not contracted to cover via its variable revenues from spot electricity sales. This was a fundamental lie to lenders.
90. The amount of Floating Payments was to be calculated pursuant to a formula
negotiated between K Road and CSE. CSE’s role in the Leveraged Recap Transaction was solely
as the designated hedge counterparty. Moreover, in its sole role as hedge counterparty, CSE
conducted no due diligence on the operating characteristics of the Debtors’ plants, let alone the
business as a whole, which might have allowed CSE to generate a truthful set of Projections.
Indeed, CSE was never even provided with the Projections.
91. As pitched to lenders, the contractual formula for the Floating Payments in each set
of Hedges would result in a dollar amount closely approximating the gross margins that would be
achieved from actual real-life sales of electrical generation by the particular BostonGen power
plant to which the Hedge was “tied” or “referenced.” Thus, in theory, if, during a given month, the
synthetic Floating Payment formula would result in the amount of $1 million due to the Hedge
counterparty as a Floating Payment, the actual operations of the BostonGen plant to which that
Hedge was “referenced” would generate real life energy margins of $1 million on its sales of
electricity. This margin from actual operations would then be available to fund the Floating
Payment. Upon payment of the Floating Payment to CSE, the exchange would be complete: the
operating energy margin from the sale of electricity would fund the Floating Payment; BostonGen
would get the Fixed Payment in return.
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92. However, K Road was using two sets of books. K Road, by concealing the details
of the Hedges from its consultants and potential lenders, also concealed the reality that the Floating
Payment formula did not, in fact, approximate the actual operating performance (in the past and foreseeable future) of the BostonGen plants and thus would not produce the money needed to fund the Floating Payment obligations. K Road had never been able to operate BostonGen in a way that would optimize the Floating Payments—and it had no plan to do so in the future. For instance, under the Navigant model, if K Road’s internal projected heat rates and gas prices are used, the
Net Hedged Margin does not even approach $163 million. These internal rates were shared with
Harbinger, but not CSE, the consultants, or the lenders.
93. The Floating Payments were tied to the efficiency with which BostonGen’s power plants operated. Under a true swap, the Floating Payments could have gone either way—if
BostonGen’s performance was high enough, CSE would have paid BostonGen, rather than vice versa. However, there was a “swaption” feature of the Hedges, which was misrepresented by not being included in the projected EBITDA. Under the “swaption,” CSE could turn off the Hedges if they became unprofitable to CSE—and CSE of course did exercise that option whenever it was economic to do so. Therefore, BostonGen either made Floating Payments to CSE, or CSE turned the Hedges off. The result of the Hedges was that they did not “hedge” at all because BostonGen was completely exposed to downside market risk without any upside. The Projections did not include the impact of the swaption on EBITDA.
B. Additional Specific Hedge-Related Misrepresentations and Omissions
94. The details of why the Hedges failed to replicate BostonGen’s actual performance
are set forth below. However, briefly, they include, inter alia:
(a) there was a mismatch between the gas and power prices referenced in the Hedges, and the gas and power prices BostonGen was subject to in its actual operations, and the prices would diverge;
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(b) for the Hedges to be effective, they required BostonGen to attain a historically unachievable level of volume. The formula used to calculate the Floating Payment was fundamentally negative to BostonGen because it gambled that BostonGen could sell at a level it never had and the market never wanted;
(c) the projected Hedge revenues did not adequately reflect a “take or pay” contract BostonGen had with Distrigas, which resulted in payments for gas for which there were no revenues;
(d) the Hedges assumed the plants would operate at a significantly lower heat rate than BostonGen’s plants had historically operated, which meant actual operating costs were higher and the actual operating margin lower than assumed in the Hedges; this also meant that the Floating Payment under the Hedge would be higher than the gross margins BostonGen could actually generate from operations;
(e) despite the K Road Insiders’ historical experience with the BostonGen plant operations, which included numerous forced outages and breakdowns, the Hedges did not make allowances for forced outages for breakdowns and repairs (apart from one annual shutdown), during which the Floating Payments continued;
(f) BostonGen had not yet hedged Fore River, and did not even have terms for a hedge for Fore River, but built in assumed stable Hedge revenue for the Fore River plant as a component of the $163 million of Net Hedged Margin throughout 2007; and
(g) the Hedges assumed that the BostonGen plants, which were originally designed as “base load” plants, had almost perfect flexibility when cycling on and off (i.e. that they could go from zero to full generating capacity when it was profitable to generate electricity and from full capacity to zero when it was unprofitable), but this was simply not the operating reality for the BostonGen facilities.
95. K Road’s non-disclosure of these “Hedge Imperfections” was materially omitted from lender materials, and was a default of the Debtors’ covenant that if “any of the representations
. . . would be incorrect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement the Information and Projections so that such representations will be correct under those circumstances,” and its covenant that the Projections “were prepared in good faith on the basis of assumptions stated
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therein, which assumptions were reasonable at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s reasonable best estimate of its future financial performance.” Following the Leveraged Recap Transaction, the gross mismatch between the
Floating Payment obligations and BostonGen’s ability to generate the revenue needed to pay them became evident immediately. As was entirely foreseeable by those intimately familiar with the operations of BostonGen (that is to say, K Road, the K Road Insiders, and the Nominating
Committee), BostonGen could not achieve a contracted EBITDA and its revenues remained subject to market risks.
C. K Road’s Baseless Assumptions
96. K Road recognized that the Leveraged Recap Transaction was a high-risk transaction because of the amount of debt proposed to be incurred, and because of the use of the debt to make payments of more than $1 billion to equity unit holders. To justify the transaction and the risks, K Road made a number of factual assumptions about the future which, taken together, purported to establish that the risks were tolerable and should be assumed. These factual assumptions were (a) reflected in the Projections that Ehrenzeller certified, (b) contained in various documents disseminated to prospective lenders and financiers, including those described herein,
(c) contained in documents delivered to Duff & Phelps, Navigant and Black & Veatch in connection with opinions requested from those firms, (d) conveyed to the “independent” members of the Board of Directors in connection with their review and approval of the Leveraged Recap
Transaction, and (e) provided to S&P and Moody’s (both defined below) in connection with ratings that those firms publicly disseminated. The assumptions underlying the Projections were used to make determinations as to the Debtors’ solvency, capital adequacy and ability to pay their debts as they became due after the closing of the Leveraged Recap Transaction.
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97. The consultants in turn washed their hands of responsibility by proclaiming their unquestioning reliance on management’s Projections as the sole basis for blessing the transactions.
K Road withheld from the consultants the documents necessary for an assessment of the
Projections, including the Hedge contracts, so Duff & Phelps simply conjured a 20% sensitivity level for management’s figures. K Road carefully controlled the dissemination of the Hedge contracts so that anyone who would have been able to point out the errors in the Projections was not privy to the Hedge terms. The K Road Vice President of Asset Optimization, the officer in charge of daily strike price decisions and hedge operations, noted that he had been
“compartmentalized” away from knowledge of the “features and nature of the hedge.” But he was growing concerned that there was something odd about what K Road was telling the lenders. He had not been made a part of the Leveraged Recap Transaction, and did not know about Harbinger’s joint venture, but when he was first given access to the Hedges, he was concerned that nobody knew how to make the Hedges work to match the Projections:
I know the term is 4 years, and I know that the sum of the fees that the hedges for Mystics, 8 & 9 and Fore River will pay to us is expected to total approximately $165 million per year [give or take]. . . . I became aware of these facts during a presentation we made to the lenders at the W hotel[.]
But there are some important things that I still have not been informed of.
While I know that the TOTAL of the hedges on the THREE plants [Mystic 8, Mystic 9, and Fore River] is expected to yield $165 million, I have not been told what the hedge we executed on just Mystic 8 and 9 will yield to us, (and since we have yet to execute the Fore River hedge, I really have no idea how much of the $165 million is coming in right now).
98. The Projections were inaccurate in further material ways apart from the failure to disclose the true nature and inherent risks of the hedging strategy. The critical factual assumptions that were false and misleading are discussed herein. However, there was an overarching misrepresentation, which was an attempt to present the Debtors’ business as something that it was
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not, and to mischaracterize the nature of that business. There are two types of power generators:
“contract generators” that sell electricity through long-term contracts, which lead to a stable and
predictable revenue stream and the ability to virtually lock in a profit so long as operating costs
are controlled, and “wholesale generators” that sell electricity and purchase fuel at spot prices, which create an unstable revenue stream with less predictability, which in turn result in an unstable cash flow, more expensive debt, a higher-risk business model and generally lower valuations.
These differences result in a valuation premium for contract generators. K Road falsely portrayed the Debtors as a contract generator by implying that, even though they were wholesale generators, the Hedges made their risk profile similar to the risk profile of contract generators. Thus, in numerous documents, K Road and the Debtors represented that there was a “fixed energy margin” or “contracted margin” which sought to portray an absence of market pricing risks. For example, a K Road Preliminary Financial Model dated December 1, 2006 used such terms as “fixed energy margin,” “contracted EBITDA” and “contracted cash available for debt service.” K Road and the
K Road Insiders’ fraudulent conduct was gross and wanton, and involved high moral culpability.
99. The misstatements that drove the Leveraged Recap Transaction and that were set forth in the Projections were the following:
(a) At the time of the Leveraged Recap Transaction or shortly thereafter, the prospective energy revenues and fuel costs were completely or almost entirely hedged, and there were minimal operating and market risks.
(b) There would be a fixed, predictable and stable net energy margin of $163 million through 2010, as a result of the Hedges, that would not be exposed to market dynamics and pricing risks.
(c) There would be an initially fixed but increasing FCM payment of $3.05/kW-month for 2007, $3.46/kW-month for 2008 and $3.95/kW-month for 2009, which would skyrocket to $6.96/kW-month in 2010 and thereafter, would increase to $9.00/kW-month for the period 2011 to 2017 because of a market shortage of generated power. As a consequence, capacity payments would increase from $101 million in 2007 to $268
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million for the period 2011 to 2017, and this gain was built into the valuation calculations.
(d) Operating and maintenance expenses would decline from $138 million in each of 2005 and 2006 to $101 million in 2007, with only slight increases thereafter.
(e) Capital expenditures would be limited to $5 million per year in 2007 and each year thereafter.
(f) As a result of the foregoing, there would be significant excess cash flow. Pursuant to the provisions in the documents evidencing the Credit Facilities, which required that virtually all excess cash flow be applied to pay debt, there would be an immediate and consistent reduction in the First Lien Debt (defined below) and overall leverage. More specifically, the First Lien Debt would be reduced from $1.13 billion in December 2006 by almost $400 million to $731 million by the end of 2010, and to $74 million by the maturity date in 2013.
(g) There was short supply of available generating capacity in the relevant capacity market for the New England region that would impact the likely price of power in the energy market after the Hedges expired. The result would be that after the Hedges expired, the FCM payments, the energy margin and the overall value of the Debtors would increase dramatically.
(h) There would be no unexpected events such as breakdowns, repairs and other contingencies.
100. Each of these critical assumptions was false, misleading, unjustified and inaccurate based on information known and available to K Road/Harbinger prior to and at the closing of the
Leveraged Recap Transaction in December 2006, and based on the actual operating results in the period from 2007 to 2010.
101. The projected reduction of debt by almost $400 million by 2010 through a cash flow sweep feature contained in the credit documents (the “Cash Sweep”), the projected expense reduction from $138 million to $101 million, the projected level of capital expenditures of $5 million per year, the projections that forward capacity market prices (which were wholly or largely fixed until 2010) would increase to $9.00/kW-month thereafter, the predictions of a power generating shortage that would increase prices and values, and the absence of any mention of the
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need for contingent expenses, were all materially wrong, and known to K Road/Harbinger prior to
consummation of the Leveraged Recap Transaction to be materially wrong.
102. A budget prepared contemporaneously by K Road and the K Road Insiders showed expense reductions that were significantly less than those included in the Projections. A capital expense budget prepared at the same time as the Projections showed projected expenses for 2007 of over $20 million, as compared to only $5 million in the Projections. These budgets were provided to Harbinger in the course of K Road’s monthly reports, but not to the lenders or consultants. A document prepared more than one month before the Projections showed material additional market capacity becoming available in 2008 and thereafter, in contrast to the supposed generating capacity shortage discussed in the Projections.
103. In the Leveraged Recap Transaction, the Debtors, under the domination and control of K Road/Harbinger, actually intended to defraud their creditors by distributing their cash to
equity and insiders. They knew that this cash would not be available to pay either the
contemporaneous new debt to the lenders or subsequent unsecured creditors. The Leveraged
Recap Transaction was timed so as to maximize the cash that would be available to distribute to
equity because of K Road/Harbinger’s knowledge of the Debtors’ insolvency and illiquidity in the
future.
104. An additional and critical material omission related to the role of Harbinger. K
Road carefully concealed its hedge fund joint venture partner from the the EBG Board of Directors,
the lenders, the Federal Energy Regulatory Commission (“FERC”), and the public. While the CIM stated that “K Road purchased 10% of the equity in EBG,” the truth was that Harbinger owned nearly 90% of the beneficial interest in those EBG units, when its interests in K Road BG Holdings
LLC and K Road Power BG LLC were considered. The CIM touted K Road’s “strong track record
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for purchasing, improving and operating generation assets” and assured lenders that “K Road
performs comprehensive management, strategy and administration services for the business and
affairs of EBG's unit holders (the “Owners”) and the Generating Facilities, and acts on behalf of the Owners as their authorized agent in the conduct of the respective day-to-day businesses.” But the CIM materially omitted that K Road did not have the discretion to make decisions with regards to EBG/BostonGen; instead, it had agreed with Harbinger to “cause the directors of EBG appointed by K Road BG LLC not to vote on (a) Asset Transfers, (b) Dividends, (c) Adverse Actions, (d)
Capitalization Matters or (e) matters that, to the knowledge of the directors, could reasonably be expected to have an adverse tax impact on a Member or have an adverse impact on the regulatory status of a Member without the consent” of Harbinger. K Road continued to conceal its partnership with Harbinger even after the Leveraged Recap Transaction; it got confidential treatment for its application to FERC, and did not disclose even the two Harbinger shell entities as equity owners until they could be slipped into a longer list of new equity owners in March 2007.
D. Financial Misrepresentations and Omissions
105. On or about December 18, 2006, Ehrenzeller, Director of Finance of EBG and
Senior Vice President and CFO of K Road Power, transmitted the Projections to Duff & Phelps in
support of the Leveraged Recap Transaction. Ehrenzeller wrote that “the financial projections provided to Duff & Phelps...are the most current financial projections available by the Company.
With respect to such projections, I have made such investigation and inquiries as I deemed necessary and prudent therefor.” Ehrenzeller also wrote that he had relied on various assumptions supplied by unnamed “outside consultants” and “[h]ad no reason to believe that these assumptions are unreasonable.” Instead, he stated that he believed the Projections “provide reasonable estimations of future performance, subject to the uncertainty and approximation inherent in any projections.” He did not, however, state the assumptions on which he relied and who provided
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them, and he stated that he did not hold himself “out as an expert on...the value of assets.” As
described above, the statements in the Projections were false, misleading, unjustified and
inaccurate based on information available and known at the time.
106. As manager and operator, K Road was involved in the planning, negotiating, and
implementation of the Leveraged Recap Transaction. K Road had access to and control of all financial and other information that was necessary to plan, negotiate and implement the Leveraged
Recap Transaction, to advise and support the Leveraged Recap Transaction to the Board of
Directors, to provide diligence on the Leveraged Recap Transaction, and to solicit interest from prospective financiers and close the transaction. The Projections showed that BostonGen’s 2007
EBITDA would reflect a dramatic “hockey stick” increase of over 45% from 2006. As K Road
knew would be the case, BostonGen failed to attain its “hockey stick” growth and, in fact,
experienced a decline in EBITDA in 2007.
107. Significantly, in the spring of 2007, K Road prepared an annual budget that was at
variance with the Projections. In particular, that budget showed revenues, fuel, and purchased
power would be “variable.” This was in direct contradiction to the representations made in the
Projections, the CIM and other documents, and representations made to Duff & Phelps and to the
Rating Agencies (as defined herein), that there was a fixed energy margin. Similarly, both a
proposed 2007 budget issued in December 2006 and a projected cash flow statement forecast for
April 2007 through December 2007 showed, contrary to the Projections, that revenue and fuel
expenses would be “variable.”
108. A February 2007 budget showed that (a) revenues and fuel and purchased power
would be “variable” items, (b) the net energy margin would not be fixed as projected but instead
would be approximately $45 million less than predicted, and (c) operating expenses would be
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almost $130 million, or almost $30 million more than projected and, not surprisingly, much closer
to historical results. In short, the Projections were materially inaccurate based on information that
was known and available at the time and that was actually used in a virtually contemporaneous
internal budget.
109. Demonstrating the falsity of the Projections, the Debtors’ fortunes declined from the moment the Leveraged Recap Transaction closed. In the first quarter of 2007, which began a
little more than a week after the closing of the Leveraged Recap Transaction, the energy margin
was $22 million less and EBITDA was $20 million less than represented in the Projections.
E. Documents Provided to Prospective Participants in the First Lien Debt, the Second Lien Debt and the Mezzanine Debt Containing Material Misrepresentations and Omissions
110. K Road actively solicited parties to participate in the Leveraged Recap Transaction.
To this end, it prepared and disseminated certain documents to prospective participants in the First
Lien Debt, the Second Lien Debt, and the Mezzanine Debt (all defined below). These documents
included the CIM, a Private Supplement to the CIM dated December 2006 (the “CIM-PS”), a
Private Investors Supplement to the CIM dated December 4, 2006 (the “CIM-PIS”), and a lender’s
presentation (the “LP”) (collectively, the “Lender Materials”). The Lender Materials were
provided to potential purchasers of the First Lien Debt, the Second Lien Debt and the Mezzanine
Debt, and more generally in the marketplace. All Lender Materials were received and relied upon
by the initial lenders prior to the Leveraged Recap Transaction.
111. A letter signed by Kriegel, as Chairman and CEO of EBG, and as Chairman,
President and CEO of K Road, affirmed that the information in the CIM was “complete and correct
in all material respects and [did] not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements contained therein not materially
misleading in light of the circumstances under which they were made,” and that management
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projections and forward looking statements were “prepared in good faith based upon assumptions
that were reasonable as of the date of the” CIM. These statements were not true and/or omitted to
state material facts for the reasons set forth herein. Each of the K Road Insiders was identified as
a K Road representative in the CIM and was a party to such misrepresentations.
112. Although the CIM referred to K Road as an equity investor with a 10% stake and
warrants, the CIM failed to disclose that K Road/Harbinger were interested parties who would
receive more than $100 million as a result of the Leveraged Recap Transaction. The CIM did not
disclose that, in an act of incredible chutzpah, K Road was seeking to modify its long-term warrants to make them exercisable immediately. It also did not disclose that K Road “financed” its original investment through its joint venture with Harbinger and that a significant portion of the proceeds of the Leveraged Recap Transaction would be paid to Harbinger.
113. The CIM stated that the Debtors had entered into hedging transactions, and proposed to enter into additional hedging transactions “so as to provide comfort to prospective lenders . . . that the Company’s revenue stream is stable. The company believes the Hedge
Transactions will both enhance the Company’s borrowing capacity and lessen the Company’s risk of default on its indebtedness due to volatile fuel and energy prices.” In the same vein, because of the Hedges, the Debtors would have a “stable energy margin” (i.e. the difference between power prices and fuel costs). As discussed herein, these statements were not true.
114. The CIM-PS, which upon information and belief was prepared by the same persons who prepared the CIM, and was accompanied by a cover letter signed by Kriegel, projected that as a result of the Cash Sweep, the First Lien Debt would decrease from $1.13 billion upon the closing of the Leveraged Recap Transaction to $711 million at the end of 2010. This statement was not based on reasonable assumptions, omitted material facts and was false and misleading
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based on information available at the time it was made and as actual events proved. For instance,
in order to project large paydowns of the loan principal starting in 2010, K Road misstated Hedge
revenues (which were not, in any event, even negotiated more than three years out) and projected
hockey-stick style jumps in FCM payments in 2010. In reality, once the floor for FCM payments
was removed in 2010, there was no reason to assume any revenues on FCM payments, let alone
growth.
115. The CIM-PS included projections that assumed the Hedges would assure a
“contracted EBITDA” of $163 million despite the limited hedge coverage and known variability
of FCM payments.
116. The LP was prepared almost exclusively by K Road as Asset Manager, and stated
that its professionals had been “intimately involved” with BostonGen, having “acquired and
developed the assets, led last year’s recapitalization and managed the assets since then.” The LP
assured investors that long-term Hedges in combination with FCM payments “will provide stable
cash flow to support increased leverage.” This statement was utterly misleading because FCM payments were known to be variable based on competitive market forces, and the Hedges were incomplete. Similarly, the LP cited a stable “net energy margin based on fully-approved FCM payments and long-term commodity hedges,” and projected significant deleveraging as a result of the Cash Sweep. Allegedly, these devices would result in approximately $163 million of “pro forma contracted net energy margin.” The LP assured prospective lenders that “[w]ith hedge and
FCM revenues BostonGen will have substantially all of its net energy margin contracted during the term of the hedges.” Because of the way the Hedges actually functioned, these statements were untrue. In addition, the LP suggested that the market was constrained by “import transmission constraints,” that a tightening supply and demand balance in the service area would produce
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“higher spark spreads over time,” and that “high barriers to entry defer new entrants into the Boston
load pocket.” These statements were not true. As K Road knew and internally acknowledged, there was in fact a potential “oversupply” from new generators being connected to the New England
Power Pool (“NEPOOL”) market. Finally, the attempt by K Road to characterize the Debtors as
contract generators with a lower risk profile, and to use words like “stable” margin and “contract”
margins, were themselves false and misleading by implying a risk profile for the transaction that
bore no resemblance to the actual situation presented by the market risks and incomplete Hedge
coverage.
VIII. THE LEVERAGED RECAP TRANSACTION
A. The Approval Process
117. The Leveraged Recap Transaction was approved by the EBG Board of Directors
based upon the recommendation of K Road, per the terms to which K Road/Harbinger had
previously agreed, and the Debtors’ loans were rated for syndication. The K Road Director of
Finance, Ehrenzeller, certified the solvency of EBG and BostonGen to the lenders following the
Leveraged Recap Transaction with specific reference to the various statutory definitions of insolvency—but in the next statement, while aware of the falsity of his statements, purported to
disclaim responsibility: “I do not hold myself out as an expert on, and have not in connection with this Certificate...engaged the services of any expert on asset valuation or appraisal, and any statements made herein as to the value of assets are made to best of my knowledge without having made any special investigation with respect thereto.” However, Ehrenzeller, a K Road officer, actually prepared the Projections.
118. As part of the process of pushing the Leveraged Recap Transaction through, it was necessary to have the debt to be issued be rated by both Moody’s Investors Service (“Moody’s”) and Standard & Poor’s Rating Services (“S&P” and together with Moody’s, the “Rating
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Agencies”). Significantly, as was known to K Road, both of the Rating Agencies were provided
materially misleading financial information reflected in the Projections, and thus indirectly and
unwittingly contributed to the public dissemination of fraudulent, false and misleading
information.
119. The K Road Rating Agency presentation dated November 9, 2006 contained similar
misrepresentations and omissions to those disseminated in the CIM, CIM-PS, and LP regarding
“highly stable net energy margin,” “contracted net energy margin,” and a purported “congested
Boston load pocket.” The debt ratings were therefore fraudulent as well.
B. K Road and the K Road Insiders Conceal Their Fraud
120. As described elsewhere in this Complaint, K Road and the K Road Insiders took
affirmative steps to, or knew that others were taking affirmative steps to, conceal their fraudulent
activities. These affirmative steps include, without limitation: (a) preparing and disseminating
Projections that differed materially from contemporaneously prepared internal projections, and not
disclosing this fact to prospective lenders; (b) describing the Hedges as assuring a net Hedge
energy margin and a contracted spread; (c) concealing internal models from the lenders based on
purported Hedge confidentiality concerns; (d) informing employees working on the Leveraged
Recap Transaction that it was not necessary for them to see the Hedge documents; and (e) failing to inform Duff & Phelps, Navigant, Black & Veatch, S&P and Moody’s about each of the above while at the same time knowing that such entities were publicly disseminating materially incorrect information.
121. CSE, the Hedge counterparty, was not a participant in the Leveraged Recap
Transaction, and was never provided with the Lender Materials or Projections, and could therefore not have alerted any Lender, including its presumed affiliate Credit Suisse AG (Cayman Islands
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Branch)7 to the fraud. CSE and Credit Suisse AG (Cayman Islands Branch) had separate employees, offices, and informational walls. Even if CSE had received the Lender Materials, however, K Road was careful to conceal the internal data that contradicted the Projections from
CSE. Shortly after the Leveraged Recap Transaction closed, on January 12, CSE requested a tour of the Mystic 8/9 facility, launching a flurry of nervous e-mails amongst the K Road Insiders.
Mark Friedland eventually decided to send Tony Corso, the only K Road officer not involved in negotiating the Hedges or drafting materials for the Leveraged Recap Transaction, to supervise the tour, but warned “I share Paul [Hamilton’s] concerns regarding the desire to see the plants when the Hedge is financial. However, they may simply be exercising friendly customer relations. The visit is fine, but we should be careful not to discuss specific operating characteristics, such as ramp time, day ahead operations, or real time operations – especially in light of today’s discussions.”
C. The Leveraged Recap Transaction Is Consummated
122. On December 21, 2006, BostonGen entered into two credit facility agreements (the
“First Lien Credit Facility” and the “Second Lien Credit Facility”) (attached hereto as Exhibits
E and F, respectively) with Credit Suisse AG, Cayman Islands Branch and Goldman Sachs Credit
Partners L.P. (the Initial Lenders”): a first lien credit facility in the amount of $1.45 billion (the
“First Lien Debt”) and a second lien credit facility in the amount of $350 million (the “Second
Lien Debt”). The remaining Debtors other than EBG (the “Guarantors”) issued guarantees of the
First Lien Debt and the Second Lien Debt, and the obligations of BostonGen and its subsidiaries
were secured by first and second liens on substantially all of their assets.
123. Also on December 21, 2006, EBG borrowed $300 million of so-called mezzanine
debt on an unsecured basis (the “Mezzanine Credit Facility” (attached hereto as Exhibit G) and,
7 Then called Credit Suisse, Cayman Islands Branch.
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together with the First Lien Credit Facility and the Second Lien Credit Facility, the “Credit
Facilities”), which provided for payment-in-kind (“PIK”) interest (the “Mezzanine Debt”). The debt in the Credit Facilities was immediately syndicated, and the list of initial participants in the syndication (the “Lenders”) is attached hereto as Exhibit B (the First Lien Credit Facility Lenders and Second Lien Credit Facility Lender) and Exhibit C (the Mezzanine Credit Facility Lenders).
124. The proceeds of the First Lien Credit Facility and Second Lien Credit Facility were disbursed as follows: (a) BostonGen transferred approximately $708 million to EBG (the “BG
Transfer”); (b) approximately $800 million was used to refinance existing debt; and (c) approximately $50 million was used to pay fees and expenses incurred in connection with the closing of the Credit Facilities. See Funds Flow Memorandum attached hereto as Exhibit H.
125. On December 26, 2006 and December 28, 2006, EBG disbursed more than $1 billion, consisting of the $708 million that BostonGen had transferred to it, the $300 million of
Mezzanine Debt, and certain of its own cash (the “$1 Billion Redemption”), as follows: (a)
$34,996,291.24 in payment of dividends on EBG’s members’ equity interests (the “Dividends”);
(b) $925,017,940 to redeem EBG’s members’ equity units pursuant to a tender offer (the “Unit
Redemptions”); and (c) $50,359,127.13 in payment for the redemption of warrants held by K
Road and certain individuals, including the K Road Insiders and other principals of K Road (the
“Warrant Redemptions” and, together with the Dividends and the Unit Redemptions, the “EBG
Transfers”). A non-exclusive list of the Transferee Defendants who or that received the EBG
Transfers, or who or that benefited from the EBG Transfers, as well as the amounts of the EBG
Transfers made to or for the benefit of each such Transferee Defendant, is set forth in Exhibit A, which is specifically made a part of this Complaint.
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126. Pursuant to the Dutch auction form of tender offer that Harbinger had required,
each unit holder was offered the option to redeem as many of its units as it desired at a range of
predetermined values between $310 and $350. These values bore no relationship to the market value of the units; there were no independent offers in that range. The ultimate $340/unit cost to
EBG was always intended to be a windfall to the unit holders. The goal of the Leveraged Recap
Transaction was always to “provide liquidity to unit holders,” i.e., to loot the company for the benefit of its owners.
127. The $1 Billion Redemption provided no benefit whatsoever to any of the Debtors or their respective creditors, and instead caused substantial damage.
128. Upon consummation of the Leveraged Recap Transaction, K Road and Harbinger
received the following: (a) $90,886,080 in redemption of 267,312 equity units; (b) $50,359,127.13
in exchange for 222,759 warrants redeemed by EBG; and (c) a dividend payment of $3,438,500,
for a total of $144,683,707.13. Additionally, prior to the Leveraged Recap Transaction, Kriegel,
Sullivan and Tohir received a combined $24,375,060 in exchange for 180,556 warrants purchased
by Lehman directly from them, pursuant to a Warrant Purchase Agreement dated April 27, 2006.
IX. THE DEBTORS ARE INSOLVENT UPON THE CONSUMMATION OF THE LEVERAGED RECAP TRANSACTION
A. Balance Sheet Insolvency
129. The financial statements that KPMG prepared for the Debtors show the Debtors as
being balance sheet insolvent upon the completion of the Leveraged Recap Transaction.
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Specifically, after the Leveraged Recap Transaction, EBG’s liabilities exceeded its assets by
$825,949,000,8 and BostonGen’s liabilities exceeded its assets by $535,398,000.9
130. At the time of the Leveraged Recap Transaction, based upon the ownership structure of the organization, EBG’s primary asset was its ownership interests in BostonGen and its largest liability consisted of the $300 million Mezzanine Debt. But, from a balance sheet
perspective, BostonGen’s assets and liabilities rolled up to EBG. Thus, if BostonGen was
insolvent, EBG was also necessarily insolvent. Similarly, BostonGen’s assets stemmed primarily
from its ownership interests in the operating subsidiaries and its largest liabilities consisted of the
First Lien Debt and Second Lien Debt. From a balance sheet perspective, the assets and liabilities of the operating subsidiaries rolled up to BostonGen, and tallying the assets and liabilities of those subsidiaries with BostonGen’s First Lien Debt and Second Lien Debt left BostonGen hopelessly
insolvent upon the BG Transfer.
131. Upon completion of the Leveraged Recap Transaction, both EBG and BostonGen
were insolvent within the meaning of Section 101(32) of the Bankruptcy Code, and analogous
provisions of applicable fraudulent conveyance law, in that the sum of their debts exceeded the
going concern value of their property at fair valuation.
132. A report issued by S&P dated December 7, 2006, stated that in the event of a bankruptcy BostonGen and EBG would be able to pay only “a meaningful recovery”—somewhere
between 50% to 80%—on the Second Lien Debt. In such event, there would be little or no recovery
on the Mezzanine Debt.
8 The asset values were not depreciated or marked to market. If the Debtors’ assets were valued using K Road’s internal projections, the assets were worth even less. 9 The Leveraged Recap Transaction closed on or about December 21, 2006, and financial statements are as of December 31, 2006. The figures in the Projections were a negative $826.1 million for EBG and a negative $560 million for BostonGen.
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133. To determine whether EBG and BostonGen were insolvent on a discounted cash
flow basis, various adjustments were made to correct the errors in the Projections. Each of these
adjustments reflects information known and available to K Road in December 2006, and does not
adjust for subsequent developments. The equity value of both EBG and BostonGen were negative
by hundreds of millions of dollars. EBG had no earnings or profits in 2006.
134. EBG merged with Astoria Generating Company Holdings LLC (“Astoria”) on or
about February 28, 2007 in an all-stock deal. The merger was structured such that both EBG and
Astoria became wholly owned subsidiaries of a new parent company, US Power Generating
Company (“USPG”). No cash consideration was given to EBG or any of its members, nor did
Astoria Group or USPG subsequently invest any new capital in the Debtors. The $3 billion dollar valuation of USPG was simply generated by adding the value of the Debtors internally generated by K Road to the value of Astoria. In any event, USPG took a goodwill impairment of over $250 million less than a year after the merger closed, as it became obvious to the new management that their internal operational results could not be squared with K Road’s Projections. As events would show in bankruptcy, K Road’s valuation of EBG was as false as the Projections had been.
135. K Road and Harbinger planned to make their escape as soon as the merger was completed; in January 2007, Kagan asked Kriegel anxiously, “Would this transaction create a liquidity even [sic] for all our remainin [sic] collective units?” Kriegel responded “We request
that all our shares will have no restriction at IPO and after,” attaching a merger term sheet dictating
that an IPO be accomplished “as soon as possible.” They planned, therefore, to have no further
equity interest in the insolvent companies. Astoria similarly anticipated an IPO of the Debtors,
which would leave its ultimate parent, Madison Dearborn with control over USPG and access to
the capital markets through the combined larger entity. Although USPG registered for an IPO in
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2008, no IPO ever closed. After years of underperformance compared to K Road’s Projections,
USPG spun the Debtors off in the instant bankruptcy proceeding.
B. Unreasonably Small Capital
136. As a result of the Leveraged Recap Transaction, BostonGen and EBG had engaged in businesses and transactions for which the property remaining was an unreasonably small capital.
Indeed, EBG had no operations of its own, so the only way in which it could pay off the Mezzanine
Debt was to receive a distribution from BostonGen. But, BostonGen would have been unable to issue such a distribution to EBG because it had insufficient capital to pay its own debts, including the First Lien Debts and Second Lien Debts, among others, as they matured. Moreover, BostonGen also had inadequate capital to cover its exposure to hidden or concealed liabilities arising from the
Hedges. In other words, the Leveraged Recap Transaction doomed EBG and BostonGen to failure.
137. The level of the BostonGen’s capital was based largely on the Projections and the assumptions noted herein. But, in actuality, the assumptions were false and untrue, and the Hedges did not eliminate market risk. BostonGen made no provision for these undisclosed liabilities that resulted in much lower than projected cash flow, no payments of excess cash flow to reduce debt, the need to transfer reserves to satisfy covenants, and ultimately, the certainty that covenants would be breached, which led to bankruptcy.
138. At no time was BostonGen’s capital adequate to pay the principal on the First Lien
Debt, the Second Lien Debt and the Mezzanine Debt from cash on hand when each became due in
2013, 2014 and 2016, respectively. In fact, under the Credit Facilities, only minimal annual principal payments of $11 million were required on the First Lien Debt, no payments were required on the Second Lien Debt, and PIK interest accrued on the Mezzanine Debt. In addition, the First
Lien Credit Facility had the Cash Sweep, which required all surplus cash flow to be used to pay down the First Lien Debt. BostonGen and EBG showed an ostensible lack of concern regarding
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the inadequacy of their capital and their inability to pay their debts as they became due because (a) the Projections falsely showed that the business would generate a great deal of surplus cash, especially for a business that had relatively stable operating expenses, (b) the Hedges purportedly immunized them from market pricing risks, (c) the First Lien Debt was “covenant light” and
BostonGen was well above compliance levels for the only financial covenants, such that there was little danger of breaching covenants, (d) there was a projected reduction of the First Lien Debt by almost $1.06 billion by its due date in 2013, which fact, together with the unreasonable expectation of an increase in FCM pricing, would make it easy to refinance the debt, and (e) they anticipated an IPO or other transaction which would pass their problems into other hands. Indeed, K Road misled S&P and Moody’s that the major market pricing risks were hedged until 2010 and the FCM rates were fixed through 2009, and that the risks were manageable, even though there was an aggressive financial structure resulting in weak projected financial metrics and potentially large refinancing risks.
139. The financial covenants in the Credit Agreements contained extremely high leverage ratios. BostonGen’s debt-to-earnings ratio was initially allowed to be as high as 11:1, falling to only 9:1 by 2010. By contrast, at the time of the merger, Astoria’s debt-to-earnings ratio was only 4.5:1. The coverage ratios were also relaxed, and tied to interest payments, rather than principal reductions. The interest-to-earnings ratio rose from 1.05:1 to only 1.25:1, allowing
BostonGen to operate while paying down minimal principal. The Credit Agreements also allowed
BostonGen and EBG to cure covenant defaults with cash payments—something they were ultimately required to do, relaxed covenants notwithstanding.
140. In sum, EBG’s and BostonGen’s remaining capital after the Leveraged Recap
Transaction was far from adequate. EBG and BostonGen emerged from the Leveraged Recap
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Transaction with only enough cash to satisfy immediate operating expenses, but K Road and the
K Road Insiders knew that both EBG and BostonGen would be unable to satisfy obligations in the
future or pay long-term obligations, even though they were able to continue operations for an
interim period and would be able to take steps to postpone or delay an inevitable bankruptcy.
Results deteriorated as soon as the first quarter of 2007, when cash flows were seriously impacted by the Floating Payments, the projected cash flow and debt reduction never happened.
141. The below chart shows BostonGen’s actual cash flows compared to those in the
Projections:
2007 2008 2009 2010 Projections $197.7 mm $195.3 mm $187.5 mm $226.7 mm Actual $29.2 mm ($37.2 mm) $37.6 mm No statements Operational Cash Flow
142. By the third quarter of 2007, the BostonGen had to use cash from reserves—
borrowed proceeds of the Leveraged Recap Transaction—to satisfy debt and liquidity covenants.
In September 2008, EBG and BostonGen retained restructuring advisors, and by mid-2009, were
telling their lenders that they were close to a default and that the Second Lien Debt and the
Mezzanine Debt should be converted to equity.
C. Debt Incurrence
143. Upon the closing of the Leveraged Recap Transaction in December 2006, the EBG
and BostonGen intended to incur, or believed that they would incur, debts that would be beyond
their ability to pay as such debts matured.
144. The EBG and BostonGen knew or should have known that they would be unable
to pay the First Lien Debt, the Second Lien Debt and/or the Mezzanine Debt upon maturity. Acting
under K Road/Harbinger’s domination and control, EBG and BostonGen assumed, contrary to
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fact, that there would be a fixed energy margin that would permit them to pay down almost all of
the First Lien Debt by its maturity date. In fact, this assumption was untrue and known to be untrue
by K Road at the time. The assumption was based on the Projections, which for the reasons set
forth in this Complaint were false and misleading, and the failure to account for the material risks
and liabilities from the Hedges, which depleted cash that was supposed to be available and payable.
145. The documents evidencing the First Lien Debt and the Second Lien Debt required only minimal annual reductions in principal of $11 million on the First Lien Debt and no reductions in principal on the Second Lien Debt. The Projections, although false and misleading, nevertheless failed to evidence an ability to pay the First Lien Debt, the Second Lien Debt, and the Mezzanine
Debt upon maturity. Instead, the Projections were based on the premise that the EBG and
BostonGen should have been able to pay down almost all of the First Lien Debt by maturity and, with such reduced leverage, refinance their remaining debts. Their explanation was that there would be substantial payments on the principal of the First Lien Debt pursuant to the Cash Sweep, which would result in a reduction in First Lien Debt from $1.13 billion at closing, to $731 million by the end of 2010, and to $74 million by the end of 2013. In fact, by the Petition Date, there were no reductions in principal beyond the mandatory annual reductions of $11 million and the total of the First Lien Debt, the Second Lien Debt, and the Mezzanine Debt was greater than at the time of the closing of the Leveraged Recap Transaction.
X. CAUSES OF ACTION
A. Claims against The Transferee Defendants, Individually And As Class Representatives, And The Other Class Members
COUNT ONE: Avoidance Of The Dividends, The Unit Redemptions And The Warrant Redemptions As Actual Fraudulent Conveyances Under Debt. & Cred. Law §§ 276, 27810 on behalf of the creditors of EBG
10 Should the Court determine that the law of another jurisdiction applies to this Count or any other Count set forth in this Complaint, the Liquidating Trustee asserts such Count(s) pursuant to the applicable laws of such jurisdiction.
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146. The Liquidating Trustee repeats and incorporates by reference each and every
allegation contained in Paragraphs 1 through 145 above as if fully set forth at length herein.
147. This Count is asserted on behalf of all creditors of EBG within the definition of
“creditor” as that term is used in Section 270 of the New York Debtor & Creditor Law (“Debt. &
Cred. Law”) whose claims have been assigned to the Liquidating Trustee as described in
Paragraph 4 (the “EBG Creditors”), which claims include their own claims and those that had been assigned to them by prior creditors or their predecessors or successors, by operation of law, or otherwise.
148. There are both then-existing and future creditors as to whom the EBG Transfers were actually fraudulent.
149. K Road, at the direction of Harbinger and with the consent of the Nominating
Committee, caused BostonGen to transfer $708 million to EBG as a member distribution.
150. Using the $708 million it received from BostonGen, together with the proceeds from the Mezzanine Credit Facility, K Road, at the direction of Harbinger and with the consent of the Nominating Committee, then caused EBG to transfer the Dividends, the Unit Redemptions, and the Warrant Redemptions to or for the benefit of the Transferee Defendants and other Class
Members identified on Exhibit A.
151. From the K Road offices in New York, K Road conceived and carried out their scheme with actual intent to hinder, delay, or defraud present and future creditors of EBG. Such intent can be inferred from the traditional “badges of fraud” surrounding the Leveraged Recap
Transaction and the EBG Transfers.
152. Each of the Transfers involved numerous badges of fraud including, without limitation, the following:
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(a) the EBG Transfers occurred at the same time substantial new debts were incurred by EBG;
(b) the EBG Transfers removed more than $1 billion of liquidity from EBG, and such funds were employed for the benefit of holders of equity, thereby transferring financial risk from holders of equity to creditors;
(c) EBG was rendered insolvent by the EBG Transfers under the New York Debtor & Creditor Law, and it was left with inadequate capital for its future operations;
(d) EBG knew that it could not pay its debts as they became due as a result of the EBG Transfers;
(e) EBG was balance-sheet insolvent as a result of the EBG Transfers;
(f) EGB knew that, had it been placed in bankruptcy on the date of the EBG Transfers, it could not pay its creditors in full;
(g) K Road and its officers and directors, including the K Road Insiders and Harbinger, dominated and controlled EBG, comprised the senior management of EBG, and were significant beneficiaries of the EBG Transfers in an amount exceeding $150 million;
(h) EBG received no value or consideration in exchange for the EBG Transfers;
(i) the EBG Transfers were made on the basis of the Projections, which EBG knew were false and misleading;
(j) K Road and the K Road Insiders knowingly manipulated the Projections, obscuring the partial absence of the Hedges, and the impact of the Hedge Imperfections;
(k) K Road and the K Road Insiders knowingly concealed the market risks and contingent liabilities reflected in the Hedge Imperfections;
(l) the EBG Transfers were made on the basis of the Projections, which were inconsistent in material respects with contemporaneous budgets prepared by K Road and the K Road Insiders;
(m) the EBG Transfers were made on the entirely unrealistic assumption that, within a few years of the EBG Transfers, an IPO or other “take out” transaction would cure or lessen the financial risks of the Leveraged Recap Transaction and lessen the risks of liability;
(n) K Road and the K Road Insiders purposely failed to disclose the impact of the Hedges because they feared disclosure would show significant risks,
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would be inconsistent with Projections, and would jeopardize the closing of the Leveraged Recap Transaction;
(o) K Road and the K Road Insiders deliberately concealed the existence and influence of their joint-venture partner Harbinger;
(p) K Road and the K Road Insiders knowingly made false and misleading statements that the Hedges would result in an assured net energy margin, would result in a contracted energy margin, and would immunize EBG from market risks;
(q) K Road and the K Road Insiders maintained a separate financial model that was intentionally concealed from creditors, advisors and the Rating Agencies because it contained “confidential information, including details on the hedge program”;
(r) the Projections were based on an alleged future shortage of generating capacity, which was contradicted by contemporaneous industry reports known to K Road and the K Road Insiders;
(s) Harbinger and K Road immediately distributed the proceeds of the Leveraged Recap Transaction through shell LLCs, which they thereafter dissolved; and
(t) EBG failed to meet the Projections immediately after the Leveraged Recap Transaction up until the filing of the Chapter 11 Cases.
These badges of fraud are collectively defined as the “Badges of Fraud.”
153. As a direct and proximate result of the foregoing, each of the EBG Transfers set forth in Exhibit A attached hereto and made a part hereof is fraudulent as to each EBG Creditor.
As such, pursuant to Debt. & Cred. Law §278, the Liquidating Trustee may set aside or annul each of the EBG Transfers as against each of the Transferee Defendants in an amount necessary to satisfy the claims of the EBG Creditors.
154. Thus, the Liquidating Trustee requests a judgment in his favor and against the
Transferee Defendants, individually and as Class Representatives, and the other Class Members, setting aside the EBG Transfers as actually fraudulent conveyances, plus pre-judgment interest
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thereof at the applicable rate, post-judgment interest, and reasonable attorneys’ fees pursuant to
Debt. & Cred. Law § 276-a and costs.
COUNT TWO: Avoidance Of BostonGen’s Distribution to EBG As An Actual Fraudulent Conveyance Under Debt. & Cred. Law §§ 276, 278 on behalf of the creditors of BostonGen
155. The Liquidating Trustee repeats and incorporates by reference each and every
allegation contained in Paragraphs 1 through 154 above as if fully set forth at length herein.
156. This Count is asserted on behalf of all creditors of BostonGen within the definition
of “creditor” as that term is used in Section 270 of the New York Debtor & Creditor Law (“Debt.
& Cred. Law”) whose claims have been assigned to the Liquidating Trustee as described in
Paragraph 4 (the “BostonGen Creditors”), which claims include their own claims and those that had been assigned to them by prior creditors or their predecessors or successors, by operation of law, or otherwise.
157. Through this cause of action, the Liquidating Trustee is seeking to avoid the BG
Transfer and recover from each of the Transferee Defendants as subsequent transferees of the BG
Transfer.
158. There are both then-existing and future creditors as to whom the BG Transfer was actually fraudulent.
159. K Road, at the direction of Harbinger and with the consent of the Nominating
Committee, caused BostonGen to transfer $708 million to EBG as a member distribution.
160. Using that $708 million, together with the proceeds from the Mezzanine Credit
Facility, K Road, at the direction of Harbinger and with the consent of the Nominating Committee, then caused EBG to transfer the Dividends, the Unit Redemptions, and the Warrant Redemptions
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to or for the benefit of the Transferee Defendants and other Class Members identified on Exhibit
A.
161. From the K Road offices in New York, K Road conceived and carried out their
scheme with actual intent to hinder, delay, or defraud present and future creditors. Such intent can
be inferred from the traditional badges of fraud surrounding the Leveraged Recap Transaction and the BG Transfer.
162. The BG Transfer involved numerous Badges of Fraud including, without limitation,
the following:
(a) the BG Transfers occurred at the same time substantial new debts were incurred by BostonGen;
(b) The BG Transfer removed more than $700 million of liquidity from BostonGen, and such funds were employed for the benefit of EBG, thereby transferring financial risk from holders of equity to creditors;
(c) BostonGen was rendered insolvent by the BG Transfer under the New York Debtor & Creditor Law, and was left with inadequate capital for their future operations;
(d) BostonGen knew that it could not pay its debts as they became due as a result of the BG Transfer;
(e) BostonGen was balance sheet insolvent as a result of the BG Transfer;
(f) BostonGen knew that, had it been placed in bankruptcy on the date of the BG Transfer, it could not pay its creditors in full;
(g) BostonGen received no value or consideration in exchange for the BG Transfer;
(h) the BG Transfer was made on the basis of the Projections, which BostonGen knew were false and misleading;
(i) K Road and the K Road Insiders knowingly manipulated the Projections, obscuring the partial absence of the Hedges, and the impact of the Hedge Imperfections;
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(k) K Road and the K Road Insiders knowingly concealed the market risks and contingent liabilities reflected in the Hedge Imperfections;
(l) the BG Transfer was made on the basis of the Projections, which were inconsistent in material respects with contemporaneous budgets prepared by K Road and the K Road Insiders;
(m) the BG Transfer was made on the entirely unrealistic assumption that, within a few years of the BG Transfer, an IPO or other “take out” transaction would cure or lessen the financial risks of the Leveraged Recap Transaction and lessen the risks of liability;
(n) K Road and the K Road Insiders purposely failed to disclose the impact of the Hedges because they feared disclosure would show significant risks, would be inconsistent with Projections, and would jeopardize the closing of the Leveraged Recap Transaction;
(o) K Road and the K Road Insiders deliberately concealed the existence and influence of their joint-venture partner Harbinger;
(p) K Road and the K Road Insiders knowingly made false and misleading statements that the Hedges would result in an assured net energy margin, would result in a contracted energy margin, and would immunize BostonGen from market risks;
(q) K Road and the K Road Insiders maintained a separate financial model that was intentionally concealed from creditors, advisors and the Rating Agencies because it contained “confidential information, including details on the hedge program”;
(r) the Projections were based on an alleged future shortage of generating capacity, which was contradicted by contemporaneous industry reports known to K Road and the K Road Insiders;
(s) Harbinger and K Road immediately distributed the proceeds of the Leveraged Recap Transaction through shell LLCs, which they thereafter dissolved; and
(t) BostonGen failed to meet the Projections immediately after the Leveraged Recap Transaction up until the filing of the Chapter 11 Cases.
163. As a direct and proximate result of the foregoing, the BG Transfer is fraudulent as to each BostonGen Creditor. As such, pursuant to Debt. & Cred. Law § 278, the Liquidating
Trustee may set aside or annul the BG Transfer. In addition, pursuant to Debt. & Cred. Law § 278, the Liquidating Trustee may set aside or annul the transfer as against each of the Transferee
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Defendants, each of whom subsequently received the proceeds of the BG Transfer, in an amount necessary to satisfy the claims of the BostonGen Creditors.
164. Thus, the Liquidating Trustee requests a judgment in his favor and against the
Transferee Defendants, individually and as Class Representatives, and the other Class Members, setting aside the BG Transfer as an actually fraudulent conveyance, plus pre-judgment interest thereof at the applicable rate, post-judgment interest, and reasonable attorneys’ fees pursuant to
Debt. & Cred. Law § 276-a and costs.
COUNT THREE: Avoidance Of The Dividends, The Unit Redemptions And The Warrant Redemptions As Constructive Fraudulent Conveyances Under Debt. & Cred. Law §§ 273-275, 278 on behalf of the EBG Creditors.
165. The Liquidating Trustee repeats and incorporates by reference each and every allegation contained in Paragraphs 1 through 164 above as if fully set forth at length herein.
166. This Count is asserted on behalf of all EBG Creditors.
167. On or about December 26, 2006 and December 28, 2006, K Road directed EBG to transfer money or property to or for the benefit of each of the Transferee Defendants and other
Class Members. Such Transfers purported to be in payment of a dividend on the equity membership interest of relevant Transferee Defendants as described above and defined above as the Dividends in the amount of $34,996,291.24, to redeem warrants of relevant Transferee
Defendants as described above and defined above as the Warrant Redemptions in the amount of
$50,359,127.13, and to redeem the equity membership interests of relevant Transferee Defendants as described above and defined above as the Unit Redemptions in the amount of $925,017,940.
The total of the EBG Transfers was $1,010,373,358.37.
168. The EBG Transfers were the final step in a scheme developed by K Road, the K
Road Insiders, the Nominating Committee, and Harbinger. Harbinger owned significant debt and
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equity interests in several K Road entities, and stood to gain directly and indirectly from the
fraudulent scheme. The Nominating Committee owned the majority of the EBG units. At
Harbinger and the Nominating Committee’s urging, K Road embarked on a planned strategy to
extract equity from EBG, ultimately culminating in the Leveraged Recap Transaction that is the
basis of this lawsuit. The Nominating Committee consented to K Road’s plan, and each member
reaped the benefits of the Leveraged Recap Transaction through immediate or mediate
conveyances from EBG. The Leveraged Recap Transaction, however, was based on a fraudulent
scheme to raise money from lenders based on the strength of the falsified Projections, other
misrepresentations to lenders, and fraudulent concealment of the relationship between Harbinger
and K Road. The EBG Transfers were the end-goal of K Road/Harbinger’s fraudulent scheme, but
K Road’s fraud continued throughout the several steps required to complete the EBG Transfers.
169. As a result of the EBG Transfers, the fair salable value of EBG’s assets was less than the amount that would be required to pay its probable liability on its existing debts as they become absolute and matured. Consequently, EBG was insolvent or was rendered insolvent by the
EBG Transfers.
170. Furthermore, EBG did not receive fair consideration for the EBG Transfers, which were made at a time when it was insolvent, or would be made insolvent thereby. The EBG
Transfers furnished no value to EBG. No recipient of the EBG Transfers conveyed fairly equivalent property or discharged an equivalent antecedent debt based on the EBG Transfers.
Consequently, the EBG Transfers are fraudulent as to then-existing and future creditors, including those who became creditors in connection with the Leveraged Recap Transaction.
171. At the time of the EBG Transfers, EBG was engaged or was about to engage in business or transactions for which its remaining property was an unreasonably small capital, and
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each of the EBG Transfers was therefore fraudulent as to then-existing creditors, including those who became creditors in connection with the Leveraged Recap Transaction, as well as fraudulent
to creditors who became creditors during the continuation of EBG’s business. More specifically,
as further described above, as a result of EBG’s precarious financial condition, it was doomed to
fail. EBG’s projections were neither reasonable nor prudent when made; EBG was insolvent or at
a minimum it had an extremely high debt to equity ratio; and EBG did not have a reasonable capital
cushion.
172. At the time of the EBG Transfers, EBG intended or believed it would incur debts
beyond its ability to pay as they matured, and each of the EBG Transfers was therefore fraudulent
as to then-existing and future creditors, including those who became creditors in connection with the Leveraged Recap Transaction. More specifically, as described above, EBG knew that its
projections were fraudulent or, at the very least, neither reasonable nor prudent. Accordingly, EBG
knew that it would not be able to pay its debts as they matured.
173. There are both then-existing and future creditors as to whom the EBG Transfers
were constructively fraudulent.
174. As a direct and proximate result of the foregoing, each of the EBG Transfers set
forth in Exhibit A attached hereto and made a part hereof is fraudulent as to each EBG Creditor.
As such, pursuant to Debt. & Cred. Law § 278, the Liquidating Trustee may set aside or annul
each of the EBG Transfers as against each of the Transferee Defendants in an amount necessary
to satisfy the claims of the EBG Creditors.
175. Thus, the Liquidating Trustee requests a judgment in his favor and against the
Transferee Defendants, individually and as Class Representatives, and the other Class Members, setting aside the EBG Transfers as constructively fraudulent conveyances, plus pre-judgment
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interest thereof at the applicable rate, post-judgment interest, and reasonable attorneys’ fees and costs.
COUNT FOUR: Avoidance Of BostonGen’s Distribution to EBG As A Constructive Fraudulent Conveyance Under Debt. & Cred. Law §§ 273-275, 278 on behalf of the BostonGen Creditors.
176. The Liquidating Trustee repeats and incorporates by reference each and every allegation contained in Paragraphs 1 through 191 above as if fully set forth at length herein.
177. This Count is asserted on behalf of all BostonGen Creditors.
178. Through this cause of action, the Liquidating Trustee is seeking to avoid the BG
Transfer and recover from each of the Transferee Defendants as subsequent transferees of the BG
Transfer.
179. On or about December 26, 2006 and December 28, 2006, K Road directed
BostonGen to transfer approximately $708 million to EBG as an LLC membership distribution.
EBG subsequently transferred the proceeds of the BG Transfer to or for the benefit of the
Transferee Defendants and other Class Members in the form of: (1) a dividend on the equity membership interest of relevant Transferee Defendants as described above and defined above as the Dividends in the amount of $34,996,291.24: (2) warrant redemptions of relevant Transferee
Defendants as described above and defined above as the Warrant Redemptions in the amount of
$50,359,127.13; and (3) redemptions of the equity membership interests of relevant Transferee
Defendants as described above and defined above as the Unit Redemptions in the amount of
$925,017,940.
180. As a result of the BG Transfer, the fair salable value of BostonGen’s assets was less than the amount that would be required to pay its probable liability on its existing debts as they
62 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 66 of 510
become absolute and matured. Consequently, BostonGen was insolvent or was rendered insolvent by the BG Transfer.
181. Furthermore, BostonGen did not receive fair consideration for the BG Transfer, which was made at a time when BostonGen was insolvent, or would be made insolvent thereby.
Indeed, BostonGen received no value for the BG Transfer. Consequently, the BG Transfer is fraudulent as to then-existing and future creditors, including those who became creditors in connection with the Leveraged Recap Transaction.
182. At the time of the BG Transfer, BostonGen was engaged or was about to engage in business or transactions for which its remaining property was an unreasonably small capital, and the BG Transfer was therefore fraudulent as to then-existing creditors, including those who became creditors in connection with the Leveraged Recap Transaction, as well as fraudulent to creditors who became creditors during the continuation of BostonGen’s business. More specifically, as further described above, as a result of BostonGen’s precarious financial condition, it was doomed to fail. BostonGen’s projections were neither reasonable nor prudent when made; BostonGen was insolvent or at a minimum it had an extremely high debt to equity ratio; and BostonGEn did not have a reasonable capital cushion.
183. At the time of the BG Transfer, BostonGen intended or believed it would incur debts beyond its ability to pay as they matured, and the BG Transfer was therefore fraudulent as to then-existing and future creditors, including those who became creditors in connection with the
Leveraged Recap Transaction. More specifically, as described above, BostonGen knew that its projections were fraudulent or, at the very least, neither reasonable nor prudent. Accordingly,
BostonGen knew that it would not be able to pay its debts as they matured.
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184. There are both then-existing and future creditors as to whom the BG Transfer was
constructively fraudulent.
185. As a direct and proximate result of the foregoing, the BG Transfer is fraudulent as
to each BostonGen Creditor. As such, pursuant to Debt. & Cred. Law §278, the Liquidating Trustee
may set aside or annul the BG Transfer. In addition, pursuant to Debt. & Cred. Law § 278, the
Liquidating Trustee may set aside or annul the transfer as against each of the Transferee
Defendants, each of whom subsequently received the proceeds of the BG Transfer, in an amount
necessary to satisfy the claims of the BostonGen Creditors.
186. Thus, the Liquidating Trustee requests a judgment in his favor and against the
Transferee Defendants, individually and as Class Representatives, and the other Class Members,
setting aside the BG Transfer as a constructively fraudulent conveyance, plus pre-judgment interest
thereof at the applicable rate, post-judgment interest, and reasonable attorneys’ fees and costs.
COUNT FIVE: Unjust Enrichment
187. The Liquidating Trustee repeats and incorporates by reference each and every
allegation contained in Paragraphs 1 through 202 above as if fully set forth at length herein.
188. This Count is asserted on behalf of the EBG Creditors and the BostonGen Creditors.
Upon information and belief, the creditor claims described herein exceed $800 million.
189. Each of the Transferee Defendants and other Class Members was unjustly enriched because each received the Transfers set forth in Exhibit A attached hereto and made a part hereof
in exchange for no consideration or value.
190. As set forth above, K Road and the K Road Insiders engaged in self-dealing, prepared and disseminated the false Projections, made material misrepresentations and omissions, had actual conflicts of interests and took undue advantage of the Debtors by planning, soliciting
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funds for, approving and executing the Leveraged Recap Transaction, and requiring both
BostonGen and EBG to make the EBG and BG Transfers for no value to EBG, BostonGen or their
creditors.
191. The unjust enrichment was at the expense of the EBG Creditors and BostonGen
Creditors because it removed assets from the Debtors that should have been available to pay their
debts and for which the Transferee Defendants and other Class Members gave no value or
consideration. The unjust enrichment also transferred financial risk from holders of equity to creditors by removing value, causing the Debtors to become overleveraged and, ultimately, caused the Debtors’ bankruptcy.
192. Allowing the Transferee Defendants, including Class Members, to retain the funds would be unjust because it would reward them for engaging in a high-risk transaction that transferred risk from holders of equity to creditors, and created market and financial risks that ultimately have been borne by creditors instead of appropriately borne by holders of equity. In fact, after K Road and the K Road Insiders divested themselves of their interests in the Debtors, the Debtors new management acknowledged that the Leveraged Recap Transaction “relied on certain assumptions in key revenue categories that have not materialized,” and “[a]ctual and
projected performance have deteriorated significantly since [EBG] was recapitalized in December
2006.” The Transferee Defendants and other Class Members were unjustly enriched by imposing
equity level risks on creditors without accurate disclosure or compensation and retaining the upside
for themselves.
193. The transfer of risk was reflected in results immediately after the Leveraged Recap
Transaction, as is shown above, and the failure by a significant amount to meet the Projections in
the very first calendar quarter after the Leveraged Recap Transaction. It was also reflected in the
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facts that the amount of the projected reduction of debt, which never occurred, was virtually
identical to the overestimate of future EBITDA, and that the amount of debt that the Debtors
proposed to be converted to equity in 2009 was greater than the total of the Second Lien Debt and
the Mezzanine Debt.
194. There is no adequate remedy at law, as many limited liability company defendants
were purportedly cancelled soon after the Leveraged Recap Transaction without reserving assets
to pay claims of creditors.
195. The Debtors were under the domination and control of K Road and were unable to
assert their own legal rights.
196. As a direct and proximate result of the foregoing, this Court should find that the
Transferee Defendants, individually and as Class Representatives, and other Class Members have
been unjustly enriched, and that the EBG Creditors and BostonGen Creditors whose claims and
causes of action have been assigned to the Liquidating Trust as described in Paragraph 4, have
been damaged thereby in an amount to be determined at trial. Equity and good conscience demand
the return of the funds received by the Transferee Defendants to the Liquidating Trust, or an award
of damages equivalent to the amount by which the Transferee Defendants, individually and as
Class Representatives, and other Class Members, were unjustly enriched, plus pre-judgment
interest thereon at the applicable rate, post-judgment interest, reasonable attorneys’ fees and costs.
Discovery Rule
197. The Liquidating Trustee repeats and incorporates by reference each and every
allegation contained in Paragraphs 1 through 196 above as if fully set forth at length herein.
198. The creditors of the Debtors were unaware of the facts constituting the causes of action described above until the Debtors’ bankruptcy exposed their internal documents.
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Defendants are highly sophisticated, and deliberately used their expertise to manipulate the
bankruptcy system and state laws to their advantage. K Road actively structured the Leveraged
Recap Transaction to conceal discovery of their wrongdoing, and knowingly postponed the
Debtors’ collapse until K Road could try to avail itself of statutory limitations periods. Defendants
manufactured a situation calculated to frustrate the discovery of their fraudulent conduct.
199. Furthermore, K Road managed the Debtors from its office in New York, not the
BostonGen headquarters in Massachusetts. The K Road Insiders communicated with each other and their consultants, attorneys, and other advisors via their own kroadpower.com domain, which was not hosted on the BostonGen servers. The Debtors and their creditors had no access to those documents until 2012, when K Road made a limited document production in the Liquidating
Trustee’s Rule 2004 examination. Further discovery will doubtless expose more details of the fraud. The Liquidating Trustee pleads that the statute of limitations was tolled or that the claims asserted herein did not accrue until some point after the Petition Date.
Equitable Tolling
200. The Liquidating Trustee repeats and incorporates by reference each and every
allegation contained in Paragraphs 1 through 199 above as if fully set forth at length herein.
201. The creditors of the Debtors, and their assignee, the Liquidating Trustee, have
pursued their rights diligently, but had no access to the Debtors’ internal documents until after the
bankruptcy filing and bankruptcy discovery process. The creditors of The Debtors were unaware
of the facts constituting the causes of action described above due to K Road’s extraordinary efforts
to conceal those facts. Defendants are highly sophisticated, and deliberately used their expertise to
manipulate the bankruptcy system and state laws to their advantage. K Road actively structured
the Leveraged Recap Transaction to conceal discovery of their wrongdoing, and knowingly
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postponed the Debtors’ collapse until K Road could try to avail itself of statutory limitations
periods. Defendants manufactured a situation calculated to frustrate the discovery of their
fraudulent conduct. Further, the documents and information that would have put creditors of the
Debtors, and their assignee, the Liquidating Trustee on notice of K Road’s fraud were self- concealing, due to their confidential nature and K Road’s active concealment.
202. The Liquidating Trustee pleads equitable tolling of the applicable statutes of limitation until the discovery, after the Debtors’ bankruptcy, of the facts constituting these causes of action.
203. The statutes of limitations applicable to the claims alleged by the Liquidating
Trustee in Counts One through Five are also equitably tolled from the Petition Date to at least the date upon which the Trustee abandoned the creditors’ claims because during that time the creditors were prohibited from asserting their claims.
Choice of Law
204. New York law applies to each of the Liquidating Trustee’s claims.
205. At all times relevant to this Complaint, the Debtors’ principal place of business was
in New York, New York. K Road’s offices were located in New York, which is where they drafted
the CIM, CIM-PS, and LP. These materials were disseminated to the participants in the First Lien
Debt, Second Lien Debt, and Mezzanine Debt in New York. The Lender’s Presentation took place
in New York. The documents evidencing the First Lien Debt, Second Lien Debt, and Mezzanine
Debt all specify New York law.
206. The Transfers were made via checks drawn on EBG’s bank account in New York
and deposited in Defendants’ bank accounts, most or all of which were also located in New York.
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The two initial lenders, Credit Suisse AG (Cayman Islands Branch) and Goldman Sachs Credit
Partners, L.P. made the loans from their New York offices.
PRAYER FOR RELIEF
WHEREFORE, the Liquidating Trustee respectfully requests that this Court enter judgment in favor of the Liquidating Trustee as follows: a. on Counts One and Three, against the Transferee Defendants, individually and as Class Representatives, and the other Class Members, avoiding each of the EBG Transfers set forth in Exhibit A as fraudulent as to the EBG Creditors, recovering the same from the Transferee Defendants and other Class Members and preserving them for the benefit of the Liquidating Trust, and awarding pre-judgment interest at the applicable rate, post-judgment interest, reasonable attorneys’ fees and costs; b. on Count Two and Four, against the Transferee Defendants, individually and as Class Representatives, and the other Class Members, avoiding the BG Transfer as fraudulent as to the BostonGen Creditors, recovering the same from the Transferee Defendants and other Class Members and preserving them for the benefit of the Liquidating Trust, and awarding pre-judgment interest at the applicable rate, post-judgment interest, reasonable attorneys’ fees and costs c. on Count Five, against the Transferee Defendants, individually and as Class Representatives, and the other Class Members, determining that the Transferee Defendants and other Class members have been unjustly enriched at the expense of the EBG and BostonGen Creditors, and that EBG and BostonGen Creditors have been damaged in an amount to be determined at trial but believed to be in excess of $1 billion, and awarding such damages, together with pre-judgment interest at the applicable rate, post-judgment interest, reasonable attorneys’ fees and costs; d. as against the Transferee Defendants, individually and as Class Representatives, and the other Class Members, determining that the Transferee Defendants and other Class members have been unjustly enriched and impose a constructive trust over the amounts received by the Transferee Defendants, individually and as Class Representatives, and other Class Members in connection with the EBG and BG Transfers, for the benefit of the EBG and BostonGen Creditors, plus award prejudgment interest thereon at the applicable rate, post-judgment interest, reasonable attorneys’ fees and costs; e. certification of the Class pursuant to Civil Rule 23(a) and 23(b)(1)(B) and 23(b)(3), on behalf of the proposed defendant Class for Counts One through Five, and designation of the proposed Class Representatives as representatives of this Class, and appointing or designating Class Counsel to the defendant Class. f. finding that Harbinger Capital Partners, LLC is an alter-ego of Boston Harbor Power LLC and Power Management Financing LLC;
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g. awarding to the Liquidating Trustee the reasonable attorneys’ fees and costs incurred in prosecuting this adversary proceeding; h. granting to the Liquidating Trustee such other and further relief as the Court deems just and proper.
Dated: New York, New York April 3, 2019 Respectfully submitted,
/s/ William T. Reid, IV William T. Reid, IV Gregory S. Schwegmann Brandon V. Lewis (admitted pro hac vice) REID COLLINS & TSAI LLP 810 Seventh Avenue, Suite 410 New York, NY 10019 Tel: 212.344.5200 Fax: 212.344.5299 [email protected] [email protected] [email protected]
Joshua L. Hedrick (admitted pro hac vice) Laura M. Fontaine (admitted pro hac vice) HEDRICK KRING PLLC 1700 Pacific Avenue, Suite 4650 Dallas, TX 75201 Tel: 214.880.9600 Fax: 214.481.1844 [email protected] [email protected]
Attorneys for Plaintiff Mark Holliday, the Liquidating Trustee of the BosGen Liquidating Trust
70 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 74 of 510
EXHIBIT A 12-01879-mew Doc 272-1 FiledUnitholder 04/03/19 Transferees Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 75 of 510 TOTAL PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS UNIT REDEMPTIONS DIVIDENDS TRANSFERS
10 East 50th Street 21st Floor EX Orbit Group, Ltd. Cayman Islands New York, NY 10022 $311,088,100.00 $4,906,072.96 $315,994,172.96 1166 Avenue of the Americas Ninth Floor New York, NY 10036
or c/o its registered agent, The Corporation Trust Company Corporation Trust Center 1209 Orange Street D.E. Shaw Laminar Portfolios LLC Delaware Wilmington, DE 19801 $89,762,380.00 $1,415,614.58 $91,177,994.58
10 East 50th Street 21st Floor New York, NY 10022
or c/o its registered agent, Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, DE 19808 Satellite Senior Income Fund LLC Delaware $83,306,800.00 $1,313,803.24 $84,620,603.24 610 Broadway, 6th Floor Anchorage Capital Master Offshore II, Ltd. Cayman Islands New York NY 10012 $56,639,920.00 $1,781,211.77 $58,421,131.77 40 West 57th Street, 26th Floor CMI Holdings Investments Ltd. British Virgin Islands New York, NY 10019 $32,632,520.00 $3,430,908.85 $36,063,428.85 1275 King Street Greenwich, CT 06831
or The Raptor Global Portfolio Liquidating Trust c/o Wilmington Trust Company Rodney Square North The Raptor Global Portfolio Ltd. c/o Tudor Investment 1100 North Market Street Corporation Cayman Islands Wilmington, Delaware 19890 $26,652,260.00 $1,008,501.47 $27,660,761.47 450 Park Avenue, 8th Floor Taconic Capital Partners 1.5 LP Delaware New York NY 10022 $23,072,400.00 $485,156.48 $23,557,556.48 885 Third Avenue, 30th Floor New York, NY 10022
or c/o its registered agent, Walkers Corporate Service Limited PO Box Walker House 87 Mary Street Boston Generating Offshore Holdings Ltd. c/o George Town Stonehill Capital Management LLC Cayman Islands Grand Cayman KY1-9005 CAYMAN ISLANDS $22,884,040.00 $412,588.26 $23,296,628.26 1585 Broadway New York, NY 10036
or c/o its registered agent, The Corporation Trust Company Corporation Trust Center Morgan Stanley & Co., LLC f/k/a Morgan Stanley & 1209 Orange Street Co., Inc. Delaware Wilmington, DE 19801 $19,958,340.00 $1,523,049.19 $21,481,389.19 200 West Street Goldman Sachs & Co. New York, NY 10282 $18,176,400.00 $710,436.42 $18,886,836.42 885 Third Avenue, 30th Floor Stonehill Institutional Partners, LP Delaware New York, NY 10022 $17,387,940.00 $313,892.73 $17,701,832.73 120 West 45th Street 39th Floor Trade Claim Acquisition LLC Delaware New York, NY 10036 $16,771,520.00 $264,500.00 $17,036,020.00 338 Madison Avenue New York, NY 10179
or c/o its registered agent, The Corporation Trust Company Corporation Trust Center J.P. Morgan Securities LLC f/k/a J.P. Morgan 1209 Orange Street Securities Inc. Delaware Wilmington, DE 19801 $15,589,680.00 $616,158.04 $16,205,838.04 Eleven Madison Avenue New York, NY 10010
or c/o its registered agent, Corporation Service Company Credit Suisse Securities (USA) LLC & Credit Suisse 2711 Centerville Road, Suite 400 (USA), Inc Delaware Wilmington, DE 19808 $14,251,780.00 $876,113.93 $15,127,893.93 590 Madison Avenue, 28th Floor New York, NY 10022
or c/o its registered agent, Maples Corporate Services Limited PO Box 309 Ugland House, South Church Street George Town Grand Cayman KY1-1104 Seneca Capital International Ltd. Cayman Islands CAYMAN ISLANDS $14,602,320.00 $347,092.77 $14,949,412.77 600 Washington Boulevard Greenwich Intemational Ltd. Bermuda Stamford, CT 06901 $10,062,980.00 $418,968.00 $10,481,948.00 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A TOTAL PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS UNIT REDEMPTIONS DIVIDENDS Third Amended Complaint and Exhibits Pg 76 of 510 TRANSFERS
590 Madison Avenue, 28th Floor New York, NY 10022
or c/o its registered agent, The Prentice-Hall Corporation System, Inc. 2711 Centerville Road, Suite 400 Wilmington, DE 19808 Seneca Capital LP Delaware $7,526,240.00 $178,071.98 $7,704,311.98 60 Wall Street New York, NY 10005
or c/o its registered agent, CT Corporation System 111 Eighth Avenue DB Holdings (New York), Inc. New York New York, NY 10011 $6,811,900.00 $186,779.32 $6,998,679.32 810 Seventh Avenue, 22nd Floor New York, NY 10019
or c/o its registered agent, Admiral Administration Limited PO Box 32021 90 Fort Street George Town Grand Cayman Lonqacre Master Fund, Ltd. Cayman Islands CAYMAN ISLANDS $5,668,820.00 $757,834.82 $6,426,654.82 1275 King Street Greenwich, CT 06831
or c/o its registered agent, Maples Corporate Services Limited PO Box 309 Ugland House South Church Street The Tudor BVI Global Portfolio LP George Town f/k/a The Tudor BVI Global Portfolio Ltd. Go Tudor Grand Cayman KY1-1104 Investments Corporation Cayman Islands CAYMAN ISLANDS $5,571,240.00 $202,829.18 $5,774,069.18 c/o Citigroup Alternative Investments 399 Park Avenue, 7th Floor Epic Distressed Debt Holdings, Inc Delaware New York, NY 10022 $5,469,580.00 $86,258.74 $5,555,838.74 40 West 57th Street, 26th Floor Castlerigg Partners, LP Delaware New York, NY 10019 $4,629,100.00 $486,669.42 $5,115,769.42 1275 King Street Greenwich, CT 06831
or c/o its registered agent, Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, DE 19808 Tudor Proprietary Trading LLC Delaware $2,947,120.00 $108,804.72 $3,055,924.72 31 Victoria Street Hamilton HM10, Bermuda
Or 13455 Noel Road, Suite 800 Highland Crusader Offshore Partners, LP Bermuda Dallas, Texas 75240 $2,812,480.00 $66,521.75 $2,879,001.75 230 Park Avenue, 7th Floor New York, NY 10169
or c/o its registered agent, Ogler Fiduciary Services (CAYMAN) Limited PO Box 89 Nexus Way Camana Bay Scottwood Fund, Ltd. Grand Cayman KY1-9007 c/o Scottwood Capital Management LLC Cayman Islands CAYMAN ISLANDS $2,348,040.00 $211,600.00 $2,559,640.00 910 Sylvan Avenue Suite 100 GK Debt Opportunity Fund Ltd. Englewood Cliffs, New Jersey 07632 $2,180,420.00 $68,770.00 $2,249,190.00 110 East 59th Street, 30th Floor New York, NY 10022
or c/o its registered agent, Walkers Corporate Services Limited PO Box 87 Mary Street George Town Grand Cayman KY1-9005 Mason Capital Ltd. Cayman Islands CAYMAN ISLANDS $1,750,660.00 $416,883.74 $2,167,543.74 c/o Citigroup Alternative Investments 399 Park Avenue, 7th Floor Epic Distressed Debt Opportunity Fund LP Delaware New York, NY 10022 $1,715,018.45 $27,481.55 $1,742,500.00 590 Madison Avenue 9th Floor Latigo Master Fund, Ltd. c/o Latigo Partners, LP Cayman Islands New York, NY 10022 $1,677,220.00 $26,450.00 $1,703,670.00 One Penn Plaza, 45th Floor Cedarview EBG Holdings Ltd. Cayman Islands New York, NY 10119 $1,408,960.00 $65,849.92 $1,474,809.92 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A TOTAL PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS UNIT REDEMPTIONS DIVIDENDS Third Amended Complaint and Exhibits Pg 77 of 510 TRANSFERS
338 Madison Avenue New York, NY 10179
or c/o its registered agent, The Corporation Trust Company Corporation Trust J.P. Morgan Securities LLC Center f/k/a J.P. Morgan Securities Inc. as successor in interest 1209 Orange Street to Bear Stearns & Co. Inc. Delaware Wilmington, DE 19801 $1,351,684.93 $1,351,684.93 810 Seventh Avenue, 22nd Floor New York, NY 10019
or c/o its registered agent, Corporation Service Company 80 State Street Longacre Capital Partners (QP) LP Delaware Albany, NY 12207-2543 $1,039,720.00 $169,602.69 $1,209,322.69 135 East 57th Street, 9th Floor New York, NY 10022
or c/o its registered agent, LexisNexis Document Solutions, Inc. 2711 Centerville Road, Suite 400 Guggenheim Portfolio Co. XII, LLC Delaware Wilmington, DE 19808 $1,129,140.00 $26,772.69 $1,155,912.69 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 78 of 510
Other Transferees
PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS TOTAL TRANSFER RECIEVED
c/o Harbert Management Corporation Concord Center Power Management Financing, 2100 Third Avenue North, Suite 600 LLC Delaware Birmingham, AL 35203 $43,657,084.00
c/o Harbert Management Corporation Concord Center 2100 Third Avenue North, Suite 600 Birmingham, AL 35203
or c/o its registered agent, Corporation Service Company 2711 Centerville Road, Suite 400 Boston Harbor Power LLC Delaware Wilmington, DE 19808 $49,490,000.00
Business: K Road Power 295 Madison Avenue, 37th Floor New York, NY 10017
Home: 532 W 22nd Street William Kriegel New York, NY 10011 $4,463,843.00
Home: 35 Easton Road Westport, CT 06800
Business: Hecate NE Solar LLC c/o Corporate Agents, Inc. 2711 Centerville Road, Suite 400 Nicholas Donahue Wilmington, DE 19808 $3,400,739.14
Home: 7 Iden Avenue Larchmont, NY 10538-2711
Business: K Road Power 295 Madison Avenue, 37th Floor Mark Friedland New York, NY 10017 $3,059,954.55
Business: Hudson Capital Group One Penn Plaza, Suite 2505 Anthony Corso New York, NY 10119 $3,414,335.21 Home: 11 Plateau Cir. E Barry Sullivan Bronxville, NY 10708 $1,785,537.00 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 79 of 510
PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS TOTAL TRANSFER RECIEVED
Business: K Road Power 295 Madison Avenue, 37th Floor Daniel O'Shea New York, NY 10017 $1,510,825.81
Business: Footprint Power LLC 1200 Route 22 East, Suite 2000 Scott Silverstein Bridgewater, NJ 08807 $1,510,825.81
Home: 52 Reeder Lane David Tohir New Canaan, CT 06840-3009 $1,487,948.00
Business: Footprint Power LLC 1200 Route 22 East, Suite 2000 Paul Ehrenzeller Bridgewater, NJ 08807 $906,540.70
c/o its registered agent, Ogier Fiduciary Services (CAYMAN) Limited PO Box 89 Nexus Way Camana Bay Harbinger Capital Partners Grand Cayman, KY1-9007 Master Fund I, Ltd. Cayman Islands CAYMAN ISLANDS unknown
450 Park Avenue 30th Floor Harbinger Capital Partners, LLC Delaware New York, NY 10022 unknown
450 Park Avenue Harbert Distressed Investment 30th Floor Master Fund, Ltd. Cayman Islands New York, NY 10022 unknown
10 East 50th Street 21st Floor Satellite Asset Management LP Delaware New York, NY 10022 unknown
1166 Avenue of the Americas Ninth Floor D.E. Shaw & Co. LP Delaware New York, NY 10036 unknown
610 Broadway, 6th Floor New York, NY 10012
or c/o its registered agent, Walkers Corporate Service Delaware Ltd. Anchorage Capital Group, LLC 200 Bellevue Parkway, Suite 170 f/k/a Anchorage Advisors LLC Delaware Wilmington, DE 19809 unknown 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 80 of 510
PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS TOTAL TRANSFER RECIEVED
40 West 57th Street, 26th Floor New York, NY 10019
or c/o its registered agent, Walkers Corporate Service Limited PO Box Walker House 87 Mary Street George Town Sandell Asset Management Grand Cayman, KY1-9005 Corporation Cayman Islands CAYMAN ISLANDS unknown
1275 King Street Greenwich, CT 06831
or c/o its registered agent, Corporation Service Company 80 State Street Tudor Investment Corporation Delaware Albany, NY 12207-2543 unknown
885 Third Avenue, 30th Floor New York, NY 10022
or c/o its registered agent, United Corporate Services, Inc. Stonehill Capital Management 10 Bank Street, Suite 560 LLC Delaware White Plains, NY 10606 unknown
13455 Noel Road, Suite 800 Dallas, TX 75240
or c/o its registered agent, CT Corporation System Highland Capital Management 111 Eighth Avenue LP Delaware New York, NY 10011 unknown
1 Pickwick Plaza Greenwich, CT 06830
or c/o its registered agent, Corporation Service Company Scottwood Capital Management 2711 Centerville Road, Suite 400 LLC Delaware Wilmington, DE 19808 unknown 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 81 of 510
PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS TOTAL TRANSFER RECIEVED
910 Sylvan Avenue, Suite 100 Englewood Cliffs, NJ 07632
or c/o its registered agent, Corporation Service Company Onyx Credit Partners, LLC f/k/a 2711 Centerville Road, Suite 400 GK Capital LLC Delaware Wilmington, DE 19808 unknown
110 East 59th Street, 30th Floor New York, NY 10022
or c/o its registered agent, Corporation Service Company 2711 Centerville Road, Suite 400 Mason Capital Management LLC Delaware Wilmington, DE 19808 unknown
590 Madison Avenue New York, NY 10022
or c/o its registered agent, Corporation Service Company 2711 Centerville Road, Suite 400 Latigo Partners LP Delaware Wilmington, DE 19808 unknown
One Penn Plaza, 45th Floor New York, NY 10119
or c/o its registered agent, Corporation Service Company Cedarview Capital Management 2711 Centerville Road, Suite 400 LP Delaware Wilmington, DE 19808 unknown
399 Park Avenue, 7th Floor New York, NY 10022
Citigroup Alternative or c/o its registered agent, CT Corporation Investments as successor in System interest to Epic Asset 111 Eighth Avenue Management LLC Delaware New York, NY 10011 unknown 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 82 of 510
PARTY or TRANSFEREE JURISDICTION LAST KNOWN ADDRESS TOTAL TRANSFER RECIEVED
600 Washington Boulevard Stamford, CT 06901
or c/o its registered agent, Corporation Service Company RBS Holdings USA Inc. f/k/a 2711 Centerville Road, Suite 400 Greenwich Capital Holdings, Inc. Delaware Wilmington, DE 19808 unknown
10 East 50th Street 21st Floor Satellite Overseas Fund, Ltd. Cayman Islands New York, NY 10022 unknown
10 East 50th Street 21st Floor The Apogee Fund, Ltd. Cayman Islands New York, NY 10022 unknown
10 East 50th Street 21st Floor Satellite Fund IV, LP Delaware New York, NY 10022 unknown
10 East 50th Street 21st Floor Satellite Overseas Fund V Ltd. Cayman Islands New York, NY 10022 unknown
10 East 50th Street 21st Floor Satellite Overseas Fund VI, Ltd. Cayman Islands New York, NY 10022 unknown
10 East 50th Street Satellite Overseas Fund VIII, 21st Floor Ltd. Cayman Islands New York, NY 10022 unknown
10 East 50th Street 21st Floor Satellite Overseas Fund IX Ltd. Cayman Islands New York, NY 10022 unknown
10 East 50th Street 21st Floor Satellite Fund I LP Delaware New York, NY 10022 unknown
10 East 50th Street 21st Floor Satellite Fund II, LP Delaware New York, NY 10022 unknown 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 83 of 510
EXHIBIT B
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First Lien Lenders Lender Name Address1 ABCLO 2007-1, LTD. C/O Alliance Bernstein, LP 1345 Avenue of the Americas New York, NY 10105
ABN AMRO BANK, NV Gustav Mahlerlaan 10, 1082 PP Amsterdam, Netherlands
AIRLIE CLO 2006 II, LTD. C/O Airlie Opportunity Capital Management, LP 115 East Putnam Avenue Greenwich, CN 06830
AIRLIE CLO 2006-1, LTD. C/O Airlie Opportunity Capital Management, LP 115 East Putnam Avenue Greenwich, CN 06830
AIRLIE CLO 2007-1, LTD. C/O Airlie Opportunity Capital Management, LP 115 East Putnam Avenue Greenwich, CN 06830
ALASKA CBNA LOAN C/O Citigroup Alternative Investments, LLC FUNDING, LLC 731 Lexington Avenue New York, NY 10022-1331
AMHERST CLO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
APIDOS CDO II C/O CVC Credit Partners, LLC 399 Park Avenue New York, NY 10022
APIDOS CDO III LTD C/O CVC Credit Partners, LLC 399 Park Avenue New York, NY 10022
APIDOS CDO IV LTD C/O CVC Credit Partners, LLC 399 Park Avenue New York, NY 10022
1 The addresses listed herein were, based upon the best information available to the Trustee and a reasonable inquiry, the principle place of business of each of the lenders at the time of the loan. This information was determined through a review of public filings. The Trustee does not have personal knowledge of whether any of the addresses listed herein, in fact, constituted the principle place of business of any of the lenders during the relevant time period, and such information must be determined through discovery. As such, nothing herein constitutes an admission by the Trustee with respect to any lender’s actual principle place of business. 1
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APIDOS CDO V C/O CVC Credit Partners, LLC 399 Park Avenue New York, NY 10022
APIDOS CDO VI (now COA C/O FS COA Management, LLC Caerus CLO, Ltd.) 400 Madison Avenue 9th Floor New York, NY 10017-1909
APIDOS QUATTRO C/O CVC Credit Partners, LLC 399 Park Avenue New York, NY 10022
ATLAS LOAN FUNDING (CENT C/O Structured Asset Investors, LLC I), LLC 301 South College Street Charlotte, North Carolina United States 28202
ATLAS LOAN FUNDING C/O Structured Asset Investors, LLC (HARTFORD), LLC 301 South College Street Charlotte, North Carolina United States 28202
ATRIUM V C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
AUGUSTA TRADING, LLC C/O Bank of America Corporation 100 North Tryon Street Charlotte, NC 28202
AVENUE CLO IV, LTD. C/O ING Alternative Asset Management LLC 230 Park Avenue New York, NY 10169
AVENUE CLO V, LTD. C/O ING Alternative Asset Management LLC 230 Park Avenue New York, NY 10169
AVENUE CLO VI C/O ING Alternative Asset Management LLC 230 Park Avenue New York, NY 10169
AVERY POINT CLO, LTD. C/O Sankaty Advisors, LLC 200 Clarendon Street Boston, MA 02116
BALLYROCK CLO 2006-1, LTD. C/O FMR, LLC 245 Summer Street Boston, MA 02210
BALLYROCK CLO 2006-2, LTD. C/O FMR, LLC 245 Summer Street Boston, MA 02210
2
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BALLYROCK CLO II LIMITED C/O FMR, LLC 245 Summer Street Boston, MA 02210
BALLYROCK CLO III, LTD. C/O FMR, LLC 245 Summer Street Boston, MA 02210
BANK OF AMERICA, N.A. C/O Bank of America Corporation 100 North Tryon Street Charlotte, NC 28202
BANK OF MONTREAL C/O BMO Bank of Montreal 3 Times Square New York, NY 10036-6520
BANK OF TOKYO-MITSUBISHI C/O BTMU Securities, Inc. UFJ, LTD. 1251 Avenue of the Americas 12th Floor New York, NY
BATTERY PARK DISTRESSED C/O Nomura Corporate Research & Asset Ma OPPORTUNITY MASTER FUND Two World Financial Center Building B New York, NY 10281
BATTERY PARK HIGH YIELD C/O Nomura Corporate Research & Asset Ma LONG SHORT FUND, LTD. Two World Financial Center Building B New York, NY 10281
BATTERY PARK HIGH YIELD C/O Nomura Corporate Research & Asset Ma OPPORTUNITY FUND Two World Financial Center Building B New York, NY 10281
BEECHER CBNA LOAN C/O Babson Capital Management LLC FUNDING, LLC 470 Atlantic Avenue 10th Floor Boston, Massachusetts 02210
BISMARCK CBNA LOAN C/O Citigroup Funding, Inc. FUNDING, LLC 399 Park Avenue New York, NY 10022
BLACK DIAMOND C/O Black Diamond Capital Management, LLC INTERNATIONAL FUNDING, One Sound Shore Drive LTD. suite 200 Greenwich, CT 06830
BLT 7 LLC C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
3
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BLT V LLC C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
BLUE CROSS OF CALIFORNIA C/O Wellpoint Health Networks, Inc 1 Wellpoint Way Thousand Oaks, CA 91362
BLUE MOUNTAIN CLO III, LTD. C/O BlueMountain Capital Management LLC 280 Park Avenue 12th Floor New York, NY 10017
BLUE MOUNTAIN CLO IV, LTD. C/O BlueMountain Capital Management LLC 280 Park Avenue 12th Floor New York, NY 10017
BOWERY CBNA LOAN C/O Citigroup Funding, Inc. FUNDING, LLC 399 Park Avenue New York, NY 10022
BRIARCLIFF I CLO, LTD. C/O KCAP Financial, Inc, 295 Madison Avenue 6th Floor New York, NY 10017
CANADIAN IMPERIAL BANK C/O CIBC OF COMMERCE 199 Bay Street Toronto, Ontario Canada M5L 1A2
CARLYLE CAPITAL C/O Carlyle Investment Management LLC INVESTMENT, LTD. 1001 Pennsylvania Avenue, NW Washington, DC 20004
CARLYLE HIGH YIELD C/O Carlyle Investment Management LLC PARTNERS X, LTD. 1001 Pennsylvania Avenue, NW Washington, DC 20004
CARLYLE LOAN INVESTMENT, C/O Carlyle Investment Management LLC LTD. 1001 Pennsylvania Avenue, NW Washington, DC 20004
CASTLE HILL I-INGOTS, LTD. C/O Sankaty Advisors, LLC 200 Clarendon Street Boston, MA 02116
CENT CDO 12, LTD. C/O Columbia Management Investment Advisers, LLC 225 Franklin Street Boston, Massachusetts 02110
4
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CENT CDO 14, LTD. C/O Columbia Management Investment Advisers, LLC 225 Franklin Street Boston, Massachusetts 02110
CENTAURUS LOAN TRUST C/O Nomura Corporate Research & Asset Ma Two World Financial Center Building B New York, NY 10281
CHATHAM LIGHT III CLO, LTD. C/O Sankaty Advisors, LLC 200 Clarendon Street Boston, MA 02116
CLEAR LAKE CLO, LTD. C/O Jefferies Capital Management, Inc. 520 Madison Avenue New York, NY 10022
CLYDESDALE CLO 2003, LTD. C/O Nomura Corporate Research & Asset Ma Two World Financial Center Building B New York, NY 10281
CLYDESDALE CLO 2004, LTD. C/O Nomura Corporate Research & Asset Ma Two World Financial Center Building B New York, NY 10281
CLYDESDALE CLO 2005, LTD. C/O Nomura Corporate Research & Asset Ma Two World Financial Center Building B New York, NY 10281
CLYDESDALE CLO 2006, LTD. C/O Nomura Corporate Research & Asset Ma Two World Financial Center Building B New York, NY 10281
CLYDESDALE STRAT CLO I, C/O Nomura Corporate Research & Asset Ma LTD. Two World Financial Center Building B New York, NY 10281
COOKSMILL (now Whistler C/O Scotiabank (Ireland) Ltd. Funding) IFSC House Custom House Quay Dublin, Ireland
COOPERATIEVE CENTRALE Croeselaan 18 PO Box 17100 Utrecht, 3500 HG Netherlands
5
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CREDIT GENESIS CLO 2005-1, C/O Durham Asset Management L.L.C. LTD. 680 Fifth Avenue 22nd Floor New York, NY 10019
CREDIT SUISSE LOAN C/O Credit Suisse (USA), Inc. FUNDING LLC 11 Madison Avenue New York, NY 10010
CRP V C/O Oak Hill Advisors, L.P. 1114 Avenue of the Americas 27th Floor New York, NY 10036
CREDIT SUISSE, CAYMAN C/O Credit Suisse (USA), Inc. ISLANDS BRANCH 11 Madison Avenue New York, NY 10010
CS CAPITAL LLC (BDL) C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
DEERFIELD TRIARC TRS C/O Deerfield Capital Management, LLC HOLDINGS, INC 8700 W. Bryn Mawr Ave 12th Floor Chicago, IL
DEL MAR CLO I, LTD. C/O Caywood-Scholl Capital Management LLC 4350 Executive Drive Suite 125 San Diego, California 92121
DEL MAR CLO II, LTD. C/O Caywood-Scholl Capital Management LLC 4350 Executive Drive Suite 125 San Diego, California 92121
DIAMOND SPRINGS TRADING, C/O Bank of America Corporation LLC 100 North Tryon Street Charlotte, NC 28202
DUANE STREET CLO 1 , LTD. C/O DiMaio Ahmad Capital LLC 245 Park Avenue New York, NY 10167
DUANE STREET CLO II, LTD. C/O DiMaio Ahmad Capital LLC 245 Park Avenue New York, NY 10167
DUANE STREET CLO III, LTD. C/O DiMaio Ahmad Capital LLC 245 Park Avenue New York, NY 10167
6
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DURHAM ACQUISITION CO., C/O Cerberus Capital Management, L.P. LLC 299 Park Avenue Floors 21-23 New York, NY 10171
ECO MASTER FUND, LTD. C/O EOS Management, L.P. (LND) 320 Park Avenue, 9th Floor New York, NY 10022
ECR MASTER FUND, LTD. C/O EOS Management, L.P. 320 Park Avenue, 9th Floor New York, NY 10022
EMERSON PLACE CLO, LTD. C/O Feingold O'Keefee Capital, LLC 699 Boylston Street 3rd Floor Boston, MA 02116
ENDURANCE CLO I, LTD. C/O West Gate Horizons Advisors LLC 865 S. Figueroa Street Suite 1800 Los Angeles, CA 90017
FEINGOLD O'KEEFE CREDIT C/O Feingold O'Keefee Capital, LLC FUND, LLC 699 Boylston Street 3rd Floor Boston, MA 02116
FEINGOLD O'KEEFE CV I C/O Feingold O'Keefee Capital, LLC 699 Boylston Street 3rd Floor Boston, MA 02116
FEINGOLD O'KEEFFE SELECT C/O Feingold O'Keefee Capital, LLC OPPORTUNITIES MASTER 699 Boylston Street FUND, L.P. 3rd Floor Boston, MA 02116
FENWAY CAPITAL, LLC
FIDELITY ADV SERIES II: C/O FMR, LLC FAFRHI 245 Summer Street Boston, MA 02210
FIDELITY ADV SERIES II: FASIF C/O FMR, LLC 245 Summer Street Boston, MA 02210
7
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FIDELITY CENT INV PORT C/O FMR, LLC FRCIP 245 Summer Street Boston, MA 02210
FIDELITY PURITAN TR: FID C/O FMR, LLC PUR F 245 Summer Street Boston, MA 02210
FIDELITY SCHOOL STREET C/O FMR, LLC TRUST:F 245 Summer Street Boston, MA 02210
FIDELITY SUMMER ST TR C/O FMR, LLC FIDELITY 245 Summer Street Boston, MA 02210
FIRST 2004 I CLO, LTD. C/O TCW Advisors, Inc. 865 South Figueroa Street Los Angeles, California 90017
FIRST 2004 II CLO, LTD. C/O TCW Advisors, Inc. 865 South Figueroa Street Los Angeles, California 90017
FOOTHILL CLO I, LTD. C/O Carlyle Investment Management LLC 1001 Pennsylvania Avenue, NW Washington, DC 20004
FRASER SULLIVAN CLO I, LTD. C/O Fraser Sullivan Investment Management 400 Madison Avenue 9th Floor New York, NY 10017
FRASER SULLIVAN CLO II, C/O Fraser Sullivan Investment Management LTD. 400 Madison Avenue 9th Floor New York, NY 10017
GALE FORCE 3 CLO, LTD. C/O GSO Capital Partners LP 280 Park Ave. 11th Floor New York, NY 10017
GANNETT PEAK CLO I, LTD.
GLENEAGLES CLO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
8
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GLOBAL LEVERAGED C/O GLCA Securities, LLC CAPITAL CREDIT 805 Third Avenue OPPORTUNITY FUND I 20th Floor New York, NY 10022
GOLDMAN SACHS ASSET C/O Goldman Sachs Group, Inc. MGMT CLO, PLC 85 Broad Street 28th Floor New York, NY 10004
GOLDMAN SACHS CREDIT C/O Goldman Sachs Group, Inc. PARTNERS L.P. 85 Broad Street 28th Floor New York, NY 10004
GRAND CENTRAL ASSET TR C/O Grand Central Asset Trust 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, BDC SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, PNT SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, RCG SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, SOLA SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, ZEN SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
9
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GRANT GROVE CLO, LTD. C/O Tall Tree Investment Management, LLC 525 West Monroe Street Suite 1510 Chicago, Illinois 60661
GRAYSON CLO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
GSO DOMESTIC CAPITAL C/O GSO Capital Partners LP FUNDING, LLC 280 Park Ave. 11th Floor New York, NY 10017
HARBOURVIEW CLO 2006-1 C/O Oppenheimer Funds Inc. 6803 South Tuscan Way Englewood, CO 80112
HARTFORD FLOATING RATE C/O Wellington Management Company, LLP FUND 280 Congress Street Boston, Massachusetts 02210
HARTFORD INSTITUTIONAL TRUST
HFR DS RESTORATION MASTER TRUST
HIGHLAND FLOATING RATE C/O Highland Capital Mgmt LP ADVANTAGE FUND 300 Crescent Court Suite 700 Dallas, Texas 75201
HYPO PUBLIC FINANCE BANK C/O DEPFA Bank PLC 1 Commons Street Dublin 1 Ireland
ILLINOIS MUNICIPAL C/O IMRF RETIREMENT FUND 2211 York Road Suite 500 Oak Brook, IL 60523
ING INVESTMENT C/O ING Alternative Asset Management LLC MANAGEMENT CLO II, LTD. 230 Park Avenue New York, NY 10169
ING LEVERAGED INCOME C/O ING Alternative Asset Management LLC FUND I, LTD 230 Park Avenue New York, NY 10169
10
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ING PRIME RATE TRUST C/O ING Investment Management, Co. 230 Park Avenue New York, NY 10169
ING SENIOR INCOME FUND C/O ING Investment Management, Co. 230 Park Avenue New York, NY 10169
JASPER CLO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
JAY STREET MARKET VALUE C/O DiMaio Ahmad Capital LLC CLO I, LTD. 245 Park Avenue New York, NY 10167
KEYBANK, NA C/O KeyBank, NA 127 Public Square Cleveland, Ohio 44114
KINGSLAND IV, LTD. C/O Kingsland Capital Management 485 Madison Avenue 24th Floor New York, NY 10022
KNIGHT CBNA LOAN C/O Citigroup Alternative Investments, LLC FUNDING, LLC 731 Lexington Avenue New York, NY 10022-1331
LEHMAN COMMERCIAL C/O Lehman Commercial Paper, Inc. PAPER, INC. 3 World Financial Center New York, NY 10285
LIBERTY CLO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
LIBERTYVIEW LOAN FUND, C/O Libertyview Capital Management, LLC LLC 101 Hudson Street Suite 3700 Jersey City, NJ 07302
LIGHTPOINT CLO III, LTD.
LIGHTPOINT CLO V, LTD.
11
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LIGHTPOINT CLO VII, LTD.
LL SAHALEE FUNDING LLC C/O Wilmington Trust Company 1100 N. Market Street Wilmington, DE 19890
LOAN FUNDING IV, LLC C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
LOAN FUNDING VII, LLC C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201 LOAN STAR STATE TRUST C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
LONGEVITY FUNDING CLO I, LTD.
MAC CAPITAL, LTD. C/O TCW Advisors, Inc. 865 South Figueroa Street Los Angeles, California 90017
MACKAY SHORT DURATION C/O MacKay Shields LLC ALPHA FUND 1345 Avenue of the Americas 42nd Floor New York, NY 10105
MADISON PARK FUNDING IV, C/O Credit Suisse (USA), Inc. LTD. 11 Madison Avenue New York, NY 10010
MAINSTAY FLOATING RATE C/O New York Life Investment Management LLC FUND 51 Madison Avenue 16th Floor New York, NY 10010
MAINSTAY VP FLOATING C/O New York Life Investment Management LLC RATE PORTFOLIO 51 Madison Avenue 16th Floor New York, NY 10010
MCDONNELL LOAN C/O Mcdonnell Investment Management, LLC OPPORTUNITY 1515 W. 22nd St. 11th Floor Oak Brook, IL 60523-2007
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METLIFE BANK NATIONAL C/O Metlife, Inc. ASSOCIATION 1095 Avenue of the Americas New York, NY 10036
METLIFE INSURANCE C/O Metlife COMPANY OF CONNECTICUT 1300 Hall Boulevard Bloomfield, CT 06002
METROPOLITAN LIFE C/O Metropolitan Life Insurance Company INSURANCE COMPANY 200 Park Avenue 12th Floor New York, NY 1016
METROPOLITAN WEST HIGH C/O Metropolitan West Asset Mgmt, LLC YIELD BOND FUND 865 South Figueroa Street Los Angeles, CA 90017
METROPOLITAN WEST C/O Metropolitan West Asset Mgmt, LLC STRATEGIC INCOME FUND 865 South Figueroa Street Los Angeles, CA 90017
MOUNTAIN CAPITAL CLO IV, C/O Carlyle Investment Management LLC LTD. 1001 Pennsylvania Avenue, NW Washington, DC 20004
MOUNTAIN CAPITAL CLO V, C/O Carlyle Investment Management LLC LTD. 1001 Pennsylvania Avenue, NW Washington, DC 20004
MOUNTAIN VIEW CLO II, LTD. C/O Carlyle Investment Management LLC 1001 Pennsylvania Avenue, NW Washington, DC 20004
MOUNTAIN VIEW CLO III C/O Carlyle Investment Management LLC 1001 Pennsylvania Avenue, NW Washington, DC 20004
NATIONWIDE LIFE C/O Nationwide Headquarters INSURANCE COMPANY One Nationwide Plaza Columbus, OH 43215
NAVIGARE FUNDING II CLO, LTD.
NCRAM LOAN TRUST C/O Nomura Corporate Research & Asset Ma Two World Financial Center Building B New York, NY 10281
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NCRAM SENIOR LOAN TRUST C/O Nomura Corporate Research & Asset Ma 2005 Two World Financial Center Building B New York, NY 10281
NEW YORK LIFE INSURANCE & C/O New York Life Insurance Company ANNUITY CORPORATION 51 Madison Avenue Room 207 New York, NY 10010
NEW YORK LIFE INSURANCE C/O New York Life Investment Management LLC (GUARANTEED PRODUCTS) 51 Madison Avenue 16th Floor New York, NY 10010
NEW YORK LIFE INSURANCE C/O New York Life Investment Management LLC COMPANY 51 Madison Avenue 16th Floor New York, NY 10010
NEW YORK LIFE INSURANCE C/O New York Life Investment Management LLC COMPANY 51 Madison Avenue 16th Floor New York, NY 10010
NORTHWESTERN MUTUAL C/O Northwestern Mutual Life Insurance LIFE INSURANCE 720 E. Wisconsin Avenue Milwaukee, WI 53202
NORTHWOODS CAPITAL V, C/O Northwoods Capital Management, LLC LTD. 330 Madison Avenue 25th Floor New York, NY 10017
NORTHWOODS CAPITAL VI C/O Angelo, Gordon & Co. LIMITED 245 Park Avenue 26th Floor New York, NY 10167
NORTHWOODS CAPITAL VII C/O Angelo, Gordon & Co. 245 Park Avenue New York, NY 10167
NYLIM FLATIRON CLO 2003-1, C/O New York Life Investment Management LLC LTD. 51 Madison Avenue 16th Floor New York, NY 10010
NYLIM FLATIRON CLO 2004-1, C/O New York Life Investment Management LLC LTD. 51 Madison Avenue 16th Floor New York, NY 10010
14
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NYLIM FLATIRON CLO 2005-1, C/O New York Life Investment Management LLC LTD. 51 Madison Avenue 16th Floor New York, NY 10010
NYLIM FLATIRON CLO 2006-1, C/O New York Life Investment Management LLC LTD. 51 Madison Avenue 16th Floor New York, NY 10010
OCEAN TRAILS CLO I C/O West Gate Horizons Advisors LLC 865 S. Figueroa Street Suite 1800 Los Angeles, CA 90017
OCEAN TRAILS CLO II C/O West Gate Horizons Advisors LLC 865 S. Figueroa Street Suite 1800 Los Angeles, CA 90017
OCM HIGH YIELD PLUS FUND, C/O Oak Tree Capital Management, LP L.P. 333 South Grand Avenue 28th Floor Los Angeles, CA 90071
OPPENHEIMER SENIOR Two World Financial Center FLOATING RATE 225 Liberty Street, 11th Floor New York, NY 10281-1008
OREGON STATE TREASURY C/O Oregon State Treasury 350 Winter Street NE Suite 100 Salem, OR 97301
ORIX FINANCE CORP. C/O Orix USA Corp 1717 Main Street Suite 900 Dallas, Texas 75201-4687
PARK AVENUE LOAN TRUST C/O TCW Advisors, Inc. 865 South Figueroa Street Los Angeles, California 90017
PIONEER FLOATING RATE C/O Pioneer Investment Management Inc. TRUST 60 State Street 13th Floor Boston, MA 02109
PLAINFIELD SPECIAL C/O Plainfield Asset Management LLC SITUATIONS MASTER FUND, 333 Ludlow Street LTD. Stamford, CT 06902
15
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PREMIUM LOAN TRUST I, LTD. Neuberger Berman Fixed Income LLC 1290 Avenue of the Americas New York City, NY 10104 United States PRIMUS CLO I, LTD. C/O Primus Asset Management, Inc. 360 Madison Ave 23rd Floor New York, NY 10017
PTRS CBNA LOAN FUNDING, C/O Citigroup Funding, Inc. LLC 399 Park Avenue New York, NY 10022
RACE POINT IV CLO, LTD. C/O Sankaty Advisors, LLC 200 Clarendon Street Boston, MA 02116
RAVEN CREDIT C/O Raven Asset Management, LLC OPPORTUNITIES MASTER 110 Greene Street FUND, LTD. Suite 1102 New York, NY 10012
RED RIVER CLO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
REGATTA FUNDING, LTD. Napier Park Global Capital (U.S.) L.P. 280 Park Avenue, 3rd Floor New York, NY 10017
REGATTA II FUNDING, LTD. Napier Park Global Capital (U.S.) L.P. 280 Park Avenue, 3rd Floor New York, NY 10017
RESTORATION HOLDINGS, C/O Restoration Capital Management LLC LTD. One Dock Street Suite 304 Stamford, CT 06902
RIVERSOURCE BOND SERIES C/O Columbia Funds Series Trust II 225 Franklin Street Boston, Massachusetts 02110
ROCKWALL CDO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
ROSEDALE CLO II, LTD. C/O Princeton Capital Management, Inc. 17 Hulfish Street Suite 500 Princeton, NJ 08542
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SANKATY HIGH YIELD C/O Sankaty Advisors, LLC PARTNERS II, L.P. 200 Clarendon Street Boston, MA 02116
SATELLITE SENIOR INCOME Satellite Asset Management LP FUND II 623 Fifth Avenue 19th Floor New York, NY 10022 SATELLITE SENIOR INCOME Satellite Asset Management LP FUND, LLC 623 Fifth Avenue 19th Floor New York, NY 10022 SEI GLOBAL SERVICES, INC. C/O SEI Investments Management Corporation One Freedom Valley Drive Oaks, Pennsylvania 19456
SEI INSTITUTIONAL C/O SEI Investments Management Corporation INTERNATIONAL TRUST One Freedom Valley Drive Oaks, Pennsylvania 19456
SEI INSTITUTIONAL MANAGED C/O SEI Investments Management Corporation TRUST One Freedom Valley Drive Oaks, Pennsylvania 19456
SEI INSTITUTTIONAL C/O SEI Investments Management Corporation INVESTMENTS TRUST - HIGH One Freedom Valley Drive YIELD BOND FUND Oaks, Pennsylvania 19456
SIERRA CLO II, LTD.
SILVERADO CLO 2006-1, LTD.
SILVERADO CLO 2006-II, LTD.
SPIRET IV LOAN TRUST 2003-B
ST. JAMES RIVER CLO, LTD.
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STANFIELD ULTRA, LTD.
STI CLASSIC SEIX FLOATING C/O Seix Investment Advisors, LLC RATE HIGH INCOME FUND 10 Mountainview Road, C-200 Upper Saddle River, NJ 07458
STICHTING PENSIOENFONDS Oude Lindestraat 70 ABP Heerlen, Limburg Netherlands 6411 EJ
STONE TOWER CDO II, LTD. C/O Apollo St Debt Advisors LLC 9 West 57th Street 48th Floor New York, NY
STONE TOWER CDO, LTD. C/O Apollo St Debt Advisors LLC 9 West 57th Street 48th Floor New York, NY
STONE TOWER CLO VI, LTD. C/O Apollo St Debt Advisors LLC 9 West 57th Street 48th Floor New York, NY
STONE TOWER CLO VII, LTD. C/O Apollo St Debt Advisors LLC 9 West 57th Street 48th Floor New York, NY
STONE TOWER CREDIT C/O Apollo St Debt Advisors LLC FUNDING I, LTD. 9 West 57th Street 48th Floor New York, NY
SUMMIT LAKE CLO, LTD. C/O Jefferies Capital Management, Inc. 11100 Santa Monica Blvd. 11th Floor Los Angeles, CA 90025
SUNTRUST BANK, INC. C/O SunTrust Banks, Inc. 303 Peachtree Street NE Atlanta, GA 30308
TCW BASS LAKE PARTNERS LP C/O Crescent Capital Group LP (Now Crescent Alternative Credit 1100 Santa Monica Boulevard Partners, L.P.) Suite 2000 Los Angeles, California
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TCW SENIOR SECURED C/O Crescent Capital Group LP FLOATING RATE LOAN FUND, 1100 Santa Monica Boulevard L.P. (Now Crescent Senior Secured Suite 2000 Floating Rate Loan Fund, LLC) Los Angeles, California
TCW SENIOR SECURED LOAN C/O Crescent Capital Group LP FUND, L.P. (Now Cresent Senior 1100 Santa Monica Boulevard Secured Floating Rate Loan Fund, Suite 2000 LLC) Los Angeles, California
THRACIA, LLC C/O P. Schoenfeld Asset Management LP 1350 Avenue of the Americas 21st Floor New York, NY 10019
TRS FORE, LLC C/O Deutsche Bank Americas Holding Corp. 60 Wall Street New York, NY 10005
TRS1, LLC C/O Deutsche Bank Americas Holding Corp. 60 Wall Street New York, NY 10005
VARIABLE INSURANCE C/O FMR, LLC PRODUCTS FUND IV VALUE 245 Summer Street LEADERS PORTFOLIO Boston, MA 02210
VELOCITY CLO, LTD. C/O TCW Advisors, Inc. 865 South Figueroa Street Los Angeles, California 90017
VICTORIA FALLS CLO, LTD. C/O Jefferies Capital Management, Inc. 11100 Santa Monica Blvd. 11th Floor Los Angeles, CA 90025
VIRGINIA RETIREMENT C/O Virginia Retirement System SYSTEM 1200 E. Main Street P.O. Box 2500 Richmond, VA 23218
VITESSE CLO, LTD. C/O TCW Advisors, Inc. 865 South Figueroa Street Los Angeles, California 90017
VS CBNA LOAN FUNDING, LLC C/O Citigroup Alternative Investments, LLC 731 Lexington Avenue New York, NY 10022-1331
WATCHTOWER CLO I, PLC C/O Citadel Advisors Holdings, LP 131 South Dearborn Street 32nd Floor Chicago, Illinois 60603
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WATERFRONT CLO 2007-1, C/O Grandview Capital Management LLC LTD. 820 Manhattan Avenue Suite 200 Manhattan Beach, California 90266-5556
WAVE CBNA LOAN FUNDING, C/O Citigroup Alternative Investments, LLC LLC 731 Lexington Avenue New York, NY 10022-1331
WELLS CAPITAL C/O Wells Capital Management MANAGEMENT-18866500 420 Montgomery Street San Fransisco, CA 94163
WEST BEND MUTUAL C/O, West Bend Mutual INSURANCE CO. 1900 S. 18th Avenue West Bend, WI 53095
WG HORIZONS CLO I C/O West Gate Horizons Advisors LLC 865 S. Figueroa Street Suite 1800 Los Angeles, CA 90017
WHIPPOORWILL ASSOCIATES, C/O Whippoorwill Associates, Inc. INC. 11 Martine Ave Suite 1150 White Plains, NY 10606
WHIPPOORWILL DISTRESSED C/O Whippoorwill Associates, Inc. OPPORTUNITY FUND, L.P. 11 Martine Ave Suite 1150 White Plains, NY 10606
WHIPPOORWILL OFFSHORE C/O Whippoorwill Associates, Inc. DISTRESSED OPPORTUNITY 11 Martine Ave FUND, LTD. Suite 1150 White Plains, NY 10606
WIND RIVER CLO I, LTD. C/O THL Credit, Inc. 100 Federal Street 31st Floor Boston, MA 02110
WIND RIVER CLO II TATE C/O THL Credit, Inc. INVSTRS 100 Federal Street 31st Floor Boston, MA 02110
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Second Lien Lenders Lender Name Address2
ABN AMRO BANK, NV
AMHERST CLO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
BANK OF AMERICA, N.A. C/O Bank of America Corporation 100 North Tryon Street Charlotte, NC 28202
BATTERY PARK DISTRESSED C/O Nomura Corporate Research & Asset Ma OPPORTUNITY MASTER FUND Two World Financial Center Building B New York, NY 10281
BATTERY PARK HIGH YIELD C/O Nomura Corporate Research & Asset Ma LONG SHORT FUND, LTD. Two World Financial Center Building B New York, NY 10281
BATTERY PARK HIGH YIELD C/O Nomura Corporate Research & Asset Ma OPPORTUNITY FUND Two World Financial Center Building B New York, NY 10281
BHCO MASTER, LTD. C/O BHR Capital, LLC 545 Madison Avenue 10th Floor New York, NY 10022
BLACK DIAMOND OFFSHORE, C/O Carlson Capital, L.P. LTD. 2100 McKinney Avenue Suite 1600 Dallas, Texas 75201
2 The addresses listed herein were, based upon the best information available to the Trustee and a reasonable inquiry, the principle place of business of each of the lenders at the time of the loan. This information was determined through a review of public filings. The Trustee does not have personal knowledge of whether any of the addresses listed herein, in fact, constituted the principle place of business of any of the lenders during the relevant time period, and such information must be determined through discovery. As such, nothing herein constitutes an admission by the Trustee with respect to any lender’s actual principle place of business.
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BLT 7 LLC C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
BLUE SQUARE FUNDING C/O Deutsche Bank Trust Co. America, fka Bankers Trust Co SERIES 3, LTD. 60 Wall St, New York, NY 10005
BOWERY CBNA LOAN C/O Citigroup Funding, Inc. FUNDING, LLC 399 Park Avenue New York, NY 10022
CALIFORNIA PUBLIC C/O California Public Employees' Retirement System EMPLOYEES' RETIREMENT 400 Q Street SYSTEM ACCOUNT# SW7Y Suite 4800 Sacramento, CA 95811
CS CREDIT STRATEGIES C/O Credit Suisse (USA), Inc. MASTER FUND, LTD. 11 Madison Avenue New York, NY 10010
CREDIT SUISSE LOAN C/O Credit Suisse (USA), Inc. FUNDING LLC 11 Madison Avenue New York, NY 10010
CREDIT SUISSE, CAYMAN C/O Credit Suisse (USA), Inc. ISLANDS BRANCH 11 Madison Avenue New York, NY 10010
CS CAPITAL LLC (BDL) C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
DOUBLE BLACK DIAMOND C/O Carlson Capital, L.P. OFFSHORE, LTD. 2100 McKinney Avenue Suite 1600 Dallas, Texas 75201
ECO MASTER FUND, LTD. C/O EOS Management, L.P. 320 Park Avenue, 9th Floor New York, NY 10022
ECR MASTER FUND, LTD. C/O EOS Management, L.P. 320 Park Avenue, 9th Floor New York, NY 10022
FIDELITY ADV SERIES II: FASIF C/O FMR, LLC 245 Summer Street Boston, MA 02210
FIDELITY CENT INV PORT C/O FMR, LLC FRCIP 245 Summer Street Boston, MA 02210
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FIDELITY PURITAN TR: FID C/O FMR, LLC PUR F 245 Summer Street Boston, MA 02210
FIDELITY SCHOOL STREET C/O FMR, LLC TRUST:F 245 Summer Street Boston, MA 02210
FIDELITY SUMMER ST TR C/O FMR, LLC FIDELITY 245 Summer Street Boston, MA 02210
FREESTYLE SPECIAL C/O Freestyle Fund Mgmt Co, LLC OPPORTUNITIES FUND, L.P. 712 Fifth Avenue 11th Floor New York, NY 10019
GK DEBT OPPORTUNITY FUND C/O Onex Senior Credit GP, LLC 910 Sylvan Avenue Englewood Cliffs, New Jersey 07632
GMAM INVESTMENT FUNDS C/O General Motors Asset Management Corp. TRUST-7 1345 Avenue Of The Americas New York, NY 10105
GOLDMAN SACHS CREDIT C/O Goldman Sachs Group, Inc. PARTNERS L.P. 85 Broad Street 28th Floor New York, NY 10004
GRACIE CAPITAL, L.P. C/O P&S Capital Partners LLC 590 Madison Ave 28th Floor New York, NY 10022
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, BAS SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
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GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, CED SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, DES SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, PNT SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, STK SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GREENWICH INTERNATIONAL, LTD.
HIGHLAND FLOATING RATE C/O Highland Capital Mgmt LP ADVANTAGE FUND 300 Crescent Court Suite 700 Dallas, Texas 75201
ILLINOIS MUNICIPAL C/O IMRF RETIREMENT FUND 2211 York Road Suite 500 Oak Brook, IL 60523
ING INTERNATIONAL II C/O ING Investment Management, Co. SENIOR BANK LOANS EURO 230 Park Avenue New York, NY 10169
ING INVESTMENT C/O ING Alternative Asset Management LLC MANAGEMENT CLO II, LTD. 230 Park Avenue New York, NY 10169
ING INVESTMENT C/O ING Alternative Asset Management LLC MANAGEMENT CLO III, LTD. 230 Park Avenue New York, NY 10169
ING INVESTMENT C/O ING Alternative Asset Management LLC MANAGEMENT CLO I 230 Park Avenue New York, NY 10169 ING LEVERAGED INCOME C/O ING Alternative Asset Management LLC FUND I, LTD 230 Park Avenue New York, NY 10169
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ING PRIME RATE TRUST C/O ING Investment Management, Co. 230 Park Avenue New York, NY 10169
ING SENIOR INCOME FUND C/O ING Investment Management, Co. 230 Park Avenue New York, NY 10169
JAY STREET MARKET VALUE C/O DiMaio Ahmad Capital LLC CLO I, LTD. 245 Park Avenue New York, NY 10167
KNOX CDO, LTD. C/O Highland Capital Mgmt LP 300 Crescent Court Suite 700 Dallas, Texas 75201
LATIGO MASTER FUND, LTD. C/O Latigo Partners LP 590 Madison Avenue 9th Floor New York, NY 10022
LL SAHALEE FUNDING LLC
MCDONNELL LOAN C/O Mcdonnell Investment Management, LLC OPPORTUNITY 1515 W. 22nd St. 11th Floor Oak Brook, IL 60523-2007
MERCED PARTNERS LIMITED C/O Global Capital Management, Inc. PARTNERSHIP 601 Carlson Parkway Suite 200 Minnetonka, MN 55305
METROPOLITAN WEST HIGH C/O Metropolitan West Asset Mgmt, LLC YIELD BOND FUND 865 South Figueroa Street Los Angeles, CA 90017
MOUNTAIN VIEW CLO II, LTD. C/O Carlyle Investment Management LLC 1001 Pennsylvania Avenue, NW Washington, DC 20004
NOMURA US ATTRACTIVE C/O Nomura Corporate Research & Asset Ma YIELD CORP Two World Financial Center Building B New York, NY 10281
ORIX FINANCE CORP. C/O Orix USA Corp 1717 Main Street Suite 900 Dallas, Texas 75201-4687
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PLAINFIELD SPECIAL C/O Plainfield Asset Management LLC SITUATIONS MASTER FUND, 333 Ludlow Street LTD. Stamford, CT 06902
RAVEN CREDIT C/O Raven Asset Management, LLC OPPORTUNITIES MASTER 110 Greene Street FUND, LTD. Suite 1102 New York, NY 10012
SAGITTARIUS FUND C/O Nomura Corporate Research & Asset Ma Two World Financial Center Building B New York, NY 10281
SATELLITE SENIOR INCOME C/O Satellite Asset Management LP FUND II 623 Fifth Avenue 19th Floor New York, NY 10022 SATELLITE SENIOR INCOME C/O Satellite Asset Management LP FUND, LLC 623 Fifth Avenue 19th Floor New York, NY 10022 SEI GLOBAL MASTER FUND Styne House PLC Upper Hatch Street Dublin 2 Ireland
SEI GLOBAL MASTER FUND Styne House PLC-THE Upper Hatch Street Dublin 2 Ireland
SEI INSTITUTTIONAL C/O SEI Investments Management Corporation INVESTMENTS TRUST - HIGH One Freedom Valley Drive YIELD BOND FUND Oaks, Pennsylvania 19456
SEI INSTITUTIONAL MANAGED C/O SEI Investments Management Corporation TRUST One Freedom Valley Drive Oaks, Pennsylvania 19456
SPECIAL SITUATIONS C/O Goldman Sachs Group, Inc. INVESTING GROUP, INC. 85 Broad Street 28th Floor New York, NY 10004
STICHTING PENSIOENFONDS Wijckermolen 202, 1941 JA Beverwijk, Netherlands HOOGOVENS
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STONE TOWER CREDIT C/O Apollo St Debt Advisors LLC FUNDING I, LTD. 9 West 57th Street 48th Floor New York, NY
STONEHILL OFFSHORE C/O Stonehill Capital Management LLC PARTNERS, LTD. 885 Third Avenue 30th Floor New York, NY
TAMARACK INTERNATIONAL, C/O UBS Tamarack Management, LLC LTD. 51 West 52nd Street 23rd Floor New York, NY 10019
THE REGENTS OF THE C/O Office of the Secretary and Chief of Staff UNIVERSITY OF CALIFORNIA 1111 Franklin St. 12th Floor Oakland, CA 94607
VARDE INVESTMENT C/O Varde Management, L.P. PARTNERS, LP 8500 Normandale Lake Boulevard Suite 1500 Minneapolis, Minnesota 55437
VARIABLE INSURANCE C/O FMR, LLC PRODUCTS FUND IV VALUE 245 Summer Street LEADERS PORTFOLIO Boston, MA 02210
WATERFRONT CLO 2007-1, C/O Grandview Capital Management LLC LTD. 820 Manhattan Avenue Suite 200 Manhattan Beach, California 90266-5556
Other Creditors Name Last Known Mailing Address CYNTHIA JOHNSON C/O Commission Against Discrimination One Ashburton Place, Room 601 Boston, MA 02108-1524
ALGONQUIN GAS 5400 Westheimer Court TRANSMISSION LLC Houston, TX 77056 United States
ISO NEW ENGLAND INC. 1 Sullivan Rd. Holyoke MA 01040-2481
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SPRAGUE ENERGY CORP. 2 International Dr., Ste. 200 Portsmouth NH 03801
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EXHIBIT C
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PARTICIPATING LENDERS EBG MEZZANINE LENDERS
Lender Name Address1 AG ALPHA CREDIT C/O Angelo, Gordon & Co. MASTER, LTD. 245 Park Avenue 26th Floor New York, NY 10167
ANCHORAGE CAPITAL C/O Anchorage Capital Group LLC MASTER OFFSHORE, LTD. 610 Broadway 6th Floor New York, NY 10012
BANK OF AMERICA, N.A. C/O Bank of America Corporation 100 North Tryon Street Charlotte, NC 28202
BATTERY PARK C/O Nomura Corporate Research & Asset Ma DISTRESSED Two World Financial Center OPPORTUNITY MASTER Building B FUND New York, NY 10281
BATTERY PARK HIGH C/O Nomura Corporate Research & Asset Ma YIELD LONG SHORT Two World Financial Center FUND, LTD. Building B New York, NY 10281
BATTERY PARK HIGH C/O Nomura Corporate Research & Asset Ma YIELD OPPORTUNITY Two World Financial Center FUND Building B New York, NY 10281
BLT 7 LLC C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
BLUE CROSS OF C/O Wellpoint Health Networks, Inc CALIFORNIA 1 Wellpoint Way Thousand Oaks, CA 91362
1 The addresses listed herein were, based upon the best information available to the Trustee and a reasonable inquiry, the principle place of business of each of the lenders at the time of the loan. This information was determined through a review of public filings. The Trustee does not have personal knowledge of whether any of the addresses listed herein, in fact, constituted the principle place of business of any of the lenders during the relevant time period, and such information must be determined through discovery. As such, nothing herein constitutes an admission by the Trustee with respect to any lender’s actual principle place of business.
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Lender Name Address1 CREDIT SUISSE LOAN C/O Credit Suisse (USA), Inc. FUNDING LLC 11 Madison Avenue New York, NY 10010
CREDIT SUISSE, CAYMAN C/O Credit Suisse (USA), Inc. ISLANDS BRANCH 11 Madison Avenue New York, NY 10010
CS CAPITAL LLC (BDL) C/O Credit Suisse (USA), Inc. 11 Madison Avenue New York, NY 10010
CS CREDIT STRATEGIES C/O Credit Suisse (USA), Inc. MASTER FUND, LTD. 11 Madison Avenue New York, NY 10010
EPIC DISTRESSED DEBT C/O Epic GP LLC OPPORTUNITY FUND, One Bridge Plaza Ste 265 LTD. Fort Lee NJ 07024
GMAM INVESTMENT C/O General Motors Asset Management Corp. FUNDS TRUST-7 1345 Avenue Of The Americas New York, NY 10105
GOLDMAN SACHS C/O Goldman Sachs Group, Inc. CREDIT PARTNERS L.P. 85 Broad Street 28th Floor New York, NY 10004
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, BAS SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, CED SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, DES SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, MAS SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
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Lender Name Address1 GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, SOLA SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GRAND CENTRAL ASSET C/O Grand Central Asset Trust TRUST, STK SERIES 70 West Madison Street Suite 5710 Chicago, IL 60602
GREENWICH INTERNATIONAL, LTD.
HIGHLAND CREDIT OPP C/O Highland Capital Mgmt LLC CDO, LTD. 300 Crescent Court Suite 700 Dallas, Texas 75201
HIGHLAND FLOATING C/O Highland Capital Mgmt LLC RATE ADVANTAGE FUND 300 Crescent Court Suite 700 Dallas, Texas 75201
LATIGO MASTER FUND, C/O Latigo Partners LP LTD. 590 Madison Avenue 9th Floor New York, NY 10022
MCDONNELL LOAN C/O Mcdonnell Investment Management, LLC OPPORTUNITY 1515 W. 22nd St. 11th Floor Oak Brook, IL 60523-2007
NOMURA US C/O Nomura Corporate Research & Asset Ma ATTRACTIVE YIELD Two World Financial Center CORP Building B New York, NY 10281
PLAINFIELD SPECIAL C/O Plainfield Asset Management LLC SITUATIONS MASTER 333 Ludlow Street FUND, LTD. Stamford, CT 06902
PRESIDENT & FELLOWS C/O Harvard Corporation OF HARVARD 1350 Massachusetts Ave Cambridge, MA 02138
PRESIDENT & FELLOWS C/O Harvard Corporation (REF HARVARD) 1350 Massachusetts Ave Cambridge, MA 02138
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Lender Name Address1 RESTORATION C/O Restoration Capital Management LLC HOLDINGS, LTD. One Dock Street Suite 304 Stamford, CT 06902
SATELLITE SENIOR C/O Satellite Asset Management LP INCOME FUND II 623 Fifth Avenue 19th Floor New York, NY 10022 SATELLITE SENIOR C/O Satellite Asset Management LP INCOME FUND, LLC 623 Fifth Avenue 19th Floor New York, NY 10022 SEI GLOBAL MASTER Styne House FUND PLC-THE Upper Hatch Street Dublin 2 Ireland
SEI INSTITUTIONAL C/O SEI Investments Management Corporation MANAGED TRUST One Freedom Valley Drive Oaks, Pennsylvania 19456
SEI INSTITUTTIONAL C/O SEI Investments Management Corporation INVESTMENTS TRUST - One Freedom Valley Drive HIGH YIELD BOND FUND Oaks, Pennsylvania 19456
SPECIAL SITUATIONS C/O Goldman Sachs Group, Inc. INVESTING GROUP, INC. 85 Broad Street 28th Floor New York, NY 10004
STICHTING Wijckermolen 202, 1941 JA Beverwijk, PENSIOENFONDS Netherlands HOOGOVENS
STONEHILL OFFSHORE C/O Stonehill Capital Management LLC PARTNERS, LTD. 885 Third Avenue 30th Floor New York, NY
THE REGENTS OF THE C/O Office of the Secretary and Chief of Staff UNIVERSITY OF 1111 Franklin St. CALIFORNIA 12th Floor Oakland, CA 94607
VARDE INVESTMENT C/O Varde Management, L.P. PARTNERS, LP 8500 Normandale Lake Boulevard Suite 1500 Minneapolis, Minnesota 55437
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Lender Name Address1 WHIPPOORWILL C/O Whippoorwill Associates, Inc. ASSOCIATES, INC. 11 Martine Ave Suite 1150 White Plains, NY 10606
WHIPPOORWILL C/O Whippoorwill Associates, Inc. DISTRESSED 11 Martine Ave OPPORTUNITY FUND, L.P. Suite 1150 White Plains, NY 10606
WHIPPOORWILL C/O Whippoorwill Associates, Inc. OFFSHORE DISTRESSED 11 Martine Ave OPPORTUNITY FUND, Suite 1150 LTD. White Plains, NY 10606
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EXHIBIT D
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EXHIBIT D 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 120 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 121 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 122 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 123 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 124 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 125 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 126 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 127 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 128 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 129 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 130 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 131 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 132 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 133 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 134 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 135 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 136 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 137 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 138 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 139 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 140 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 141 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 142 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 143 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 144 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 145 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 146 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 147 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 148 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 149 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 150 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 151 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 152 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 153 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 154 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 155 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 156 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 157 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 158 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 159 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 160 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 161 of 510 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 162 of 510
EXHIBIT E
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EXECUTION COUNTER.PART
$1,450,000,000 FIRST LIEN CREDIT AND GUARANTY AGREEMENT
Dated as of December 21, 2006 Among BOSTON GENERATING, LLC as Borrower
and THE GUARANTORS as Guarantors
and THE INITIAL LENDERS, SYNTHETIC ISSUING BANKS AND FRONTING BANK NAMED HEREIN as Initial Lenders, Svnthetic Issuin Banks and Fronting Bank
and CREDIT SUISSE as First Lien Collateral A~ent
and CREDIT SUISSE as Administrative A~ent
and CREDIT SUISSE SECURITIES (USA) LLC AND GOLDMAN SACHS CREDIT PARTNERS L.P. as Co-Svndication A~ents and as Co-Documentation A e~nts
and CREDIT SUISSE SECURITIES (USA) LLC AND GOLDMAN SACHS CREDIT PARTNERS L.P. as Joint Lead Arrangers and as Joint Book Runnin~ Mana.gers
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EXHIBIT E 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 164 of 510
TABLE OF CONTENTS
Section Page ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ...... 2 SECTION 1.02. Computation of Time Periods; Other Definitional Provisions ...... 36 SECTION 1.03. Accounting Terms ...... 36
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS, SYNTHETIC DEPOSITS, REVOLVING CREDIT-LINKED DEPOSITS AND THE SYNTHETIC LETTERS OF CREDIT
SECTION 2.01. The Loans, Synthetic L/C Deposits, Revolving Credit-Linked Deposits and the Synthetic Letters of Credit ...... 36 SECTION 2.02. Making the Loans ...... 39 SECTION 2.03. Issuance of and Drawings and Reimbursement Under Synthetic Letters of Credit and Matters Relating to Synthetic L/C Deposits ...... 40 SECTION 2.04. Repayment of Loans ...... 48 SECTION 2.05. Ternunation or Reduction of the Commitments ...... 48 SECTION2.06. Prepayments ...... 50 SECTION 2.07. Interest ...... 52 SECTION 2.08. Fees ...... 53 SECTION 2.09. Conversion of Loans ...... 54 SECTION 2.10. Increased Costs, Etc ...... 55 SECTION 2.11. Payments and Computations ...... 56 SECTION2.12. Taxes ...... 58 SECTION 2.13. Sharing of Payments, Etc ...... 61 SECTION2.14. Use of Proceeds ...... 62 SECTION 2.15. Change of Control Prepayment ...... 62 SECTION 2.16. Evidence of Debt ...... 63 SECTION 2.17. Duty to Mitigate ...... 64 SECTION 2.18. Revolving Credit-Linked Deposit Accounts ......
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND OF LENDING AND ISSUANCES OF SYNTHETIC LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent ...... 69 SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance ...... 76 SECTION 3.03. Determinations Under Section 3.01 ...... 77
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties ...... 77
ARTICLE V COVENANTS
SECTION 5.01. Affirmative Covenants ...... 85 SECTION 5.02. Negative Covenants ...... 88 SECTION 5.03. Reporting Requirements ...... 96 SECTION 5.04. Financial Covenants ...... 99
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ...... ~~--~~---- 102 SECTION 6.02. Actions in Respect of the Synthetic Letters of Credit upon Default ...... 107
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action ...... 107 SECTION 7.02. Administrative Agent's Reliance, Etc ...... 108 SECTION 7.03. Initial Banks and Affiliates ...... 108 SECTION 7.04. Lender Pariy Credit Decision ...... 109 SECTION 7.05. Indemnification ...... 109 SECTION 7.06. Successor Administrative Agent ...... 111
ARTICLE VIII GUARANTY
SECTION 8.01. Guaranty; Limitation of Liability ...... 111 SECTION 8.02. Guaranty Absolute ...... 112 SECTION 8.03. Waivers and Aclrnowledgments ...... 113 SECTION 8.04. Subrogation ...... 114 SECTION 8.05. Subordination ...... 115 SECTION 8.06. Continuing Guaranty; Assignments ...... 115
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc ...... 115 SECTION9.02. Notices, Etc ...... 118 SECTION 9.03. No Waiver; Remedies ...... 120 SECTION 9.04. Costs and Expenses ...... 120 SECTION9.05. Right of Set-off ...... 122 SECTION 9.06. Binding Effect ...... 122 SECTION 9.07. Assignments and Participations ...... 122 SECTION 9.08. Execution in Counterparts ...... 127 SECTION 9.09. No Liability of the Synthetic Issuing Banks ...... 127 SECTION9.10. Confidentiality ...... 128 SECTION 9.11. Marshalling; Payments Set Aside ...... 128 SECTION 9.12. Patriot Act Notice ...... 129 SECTION9.13. Hedge Banks ...... 129 SECTION 9.14. Intercreditor Agreement ...... 129 SECTION 9.15. Jurisdiction, Etc ...... 129 SECTION 9.16. Governing Law ...... 130 SECTION 9.17. Waiver of Jury Trial ...... 130
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SCHEDULES Schedule I Commitments and Applicable Lending Offices Schedule 2.03(i) Existing Letters of Credit Schedule 4.01(b) Loan Parties Schedule 4.01(c) Subsidiaries Schedule 4.01(e) Governmental Approvals and Authorizations Schedule 4.01(g) Litigation Schedule 4.01(0) Environmental Disclosure Schedule 4.01(c~ Surviving Debt Schedule 4.01(r) Owned Real Property Schedule 4.01(s) Leased Real Property Schedule 4.01(t) Material Contracts Schedule 5.01(d) Insurance Schedule 5.02(a) Liens Schedule 5.02(m) 2006 Base Capex Amount
EXHIBITS Exhibit A-1 - Form of Revolving Credit Note Exhibit A-2 - Forxn of Synthetic L/C Note Exhibit A-3 - Form of Term B Note Exhibit B-1 - Form of Notice of Borrowing Eachibit B-2 - Form of Notice of Issuance Exhibit C - Form of Assignment and Acceptance E~ibit D - Form of First Lien Mortgage Exhibit E - Form of Solvency Certificate Exhibit F-1 - Form of Consent and Agreement for Permitted Commodity Hedge and Power Sale Agreements Exhibit F-2 - Form of Consent and Agreement for Other Material Contracts Eachibit F-3 - Form of Consent and Agreement for Other Material Contracts with Affiliates Exhibit G - Form of Intercreditor Agreement Exhibit H - Form of Security Deposit Agreement Exhibit I - Form of Annual Budget Exhibit J - Form of Joinder Agreement Exhibit K - Form of First Lien Security Agreement E~ibit L - Form of First Lien Pledge Agreement Exhibit M - Terms of Subordination Exhibit N - Form of Closing Date Summary Funds Flow Memo
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FIRST LIEN CREDIT AND GUARANTY AGREEMENT
BOSTON GENERATING, LLC FIRST LIEN CREDIT AND GUARANTY AGREEMENT dated as of December 21, 2006 among BOSTON GENERATING, LLC, a Delaware limited liability company (the "Borrower"), the Guarantors (as hereinafter defined), the Lenders (as hereinafter defined), the Fronting Bank (as hereinafter defined), the Synthetic Issuing Bank (as hereinafter defined), CREDIT SUISSE, CAYMAN ISLANDS BRANCH ("CS"), as first lien collateral agent (together with any successor collateral agent appointed pursuant to Section 7 of the Intercreditor Agreement, the "First Lien Collateral Agent") for the First Lien Secured Parties (as hereinafter defined), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as co-syndication agents (together with any successor co-syndication agents, the "Co-Syndication Agents"), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as co- documentation agents (together with any successor co-documentation agents, the "Co- Documentation Agents"), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as joint lead arrangers (together with any successor joint Lead arrangers, the "Joint Lead Arrangers") and as joint lead book running managers (together with any successor joint lead arrangers, the "Joint Book Running Managers"), and CS, as administrative agent (together with any successor administrative agent appointed pursuant to Article VII, the "Administrative Agent" and, together with the First Lien Collateral Agent, the "Agents") for the Lender Parties (as hereinafter defined). PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lender Parties lend to the Borrower up to $1,450,000,000 (comprised of (a) $1,130,000,000 term loan facility, (b) $250,000,000 synthetic letter of credit facility and (c) $70,000,000 synthetic working capital revolving credit facility) to repay all outstanding obligations under the Existing Credit Agreements, pay transaction fees and expenses in connection with the foregoing ("Transaction Costs"), provide security in the form of letters of credit to support the working capital needs and obligations of the Borrower and Guarantors and provide funds for ongoing warking capital requirements, to fund in part the Distribution and the Tender Offer (each as hereinafter defined) and provide funds for other general corporate purposes of the Borrower and the Guarantors.
(2) Prior to entering into this Agreement, the Borrower has entered into a certain Initial Commodity Hedge and Power Sale Agreement (as hereinafter defined) dated as of November 20, 2006, with Credit Suisse Energy LLC relating to a total of approximately 1600 MW of generating capacity.
(3) EBG Holdings has commenced the Tender Offer (as hereinafter defined) for up to $925,000,000 of its Units (as hereinafter defined) to be financed in part with the proceeds from the Facilities (as hereinafter defined).
(4) EBG Holdings intends to make a pro rata distribution to its unit holders, prior to the purchase of Units in the Tender Offer, in an amount of up to $40,000,000 to be financed in part with the proceeds from the Facilities (the "Distribution").
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(5) Simultaneously with the entering into of this Agreement, the Borrower and the Guarantors are entering into that certain Second Lien Credit and Guaranty Agreement, dated as of the date hereof (the "Second Lien Credit AgreemenP'), with each of the banks, financial institutions and other institutional lenders party thereto from time to time (the "Second Lien Lenders"), and CS, as Second Lien Collateral Agent and as administrative agent (the "Second Lien Administrative AgenC'), the proceeds of which shall be used in part to repay in full amounts outstanding under the Existing Credit Agreements.
(6) The Lender Parties have indicated their willingness to agree to make Loans (as hereinafter defined), issue Synthetic Letters of Credit (as hereinafter defined), make the Synthetic L/C Deposits (as hereinafter defined) and make Revolving Credit-Linked Deposits (as hereinafter defined) subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Accepting Lenders" has the meaning specified in Section 2.06(c).
"Accounts" has the meaning specified in the Security Deposit Agreement.
"Accumulated Emissions Credits" has the meaning specified in the Security Deposit Agreement.
"Adjusted Base CapexAllowance" means, for any Fiscal Year, $10,000,000 minus any amount that was, during the prior Fiscal Year, a Pullback Amount.
"Adjusted Capex Limit" means, for any Fiscal Year, the Adjusted Base Capex Allowance plus any Carryover Amount for such Fiscal Year plus any Pullback Amount for such Fiscal Year.
"Administrative Agent" has the meaning specified in the recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the Administrative Agent specified by the Administrative Agent in writing to the Lender Parties from time to time.
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or
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officer of such Person. Far purposes of this definition, the term "control" (including the terms "controlling," "controlled by" and "under common controd with") of a Person means the possession, direct or indirect, of the power to vote 15% or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this Agreement.
"Agreement" means this First Lien Credit and Guaranty Agreement, as amended.
"Agreement Value" means, for each Hedge Agreement or Commodity Hedge and Power Sale Agreement, on any date of determination, the amount, if any, that would be payable by any Loan Pariy to its counterparty to such Hedge Agreement or Commodity Hedge and Power Sale Agreement, as the case may be, in accordance with its terms as if an Early Termination Event has occurred on such date of determination.
"Applicable Lending Office" means, with respect to each Lender Party, such Lender Party's Domestic Lending Office in the case of a Base Rate Loan and such Lender Party's Eurodollar Lending Office in the case of a Eurodollar Rate Loan, Synthetic L/C Deposit or Revolving Credit-Linked Deposit.
"Applicable Margin" means 1.25% per annum for Base Rate Loans and 2.25% per annum for Eurodollar Rate Loans, Revolving Credit-Linked Deposit and the Synthetic L/C Deposits (including with respect to the calculation of the fees set forth in Section 2.08).
"Applicable Revolving Credit Percentage" means, with respect to any Revolving Credit Lender for purposes of Section 2.18 or the calculation of the Revolving Credit Exposure, the percentage of the Revolving Credit Commitments represented by such Revolving Credit Lender's Revolving Credit Commitments.
"Appropriate Lender" means, at any time, with respect to (a) any of the Term B Facility or the Revolving Credit Facility, a Lender (including the Fronting Bank) that has a Commitment with respect to such Facility at such time and (b) the Synthetic L/C Facility, the Synthetic L!C Lenders and the Synthetic Issuing Bank.
"Approved Fund" means any Fund that is administered or managed by (a) a Lender Party, (b) an Affiliate of a Lender Party or (c) an entity or an Affiliate of an entity that administers or manages a Lender Party.
"Asset Sale" has the meaning specified in the Security Deposit Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender Party and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.07 or by the definition of "Eligible Assignee"), and accepted by
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the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C hereto or any other form approved by the Administrative Agent.
"Auction Date" means the date of the consummation of the Tender Offer.
"Available Amount" of any Synthetic Letter of Credit means, at any time, the maximum amount (whether or not such maximum amount is then in effect under such Synthetic Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Synthetic Letter of Credit) available to be drawn under such Synthetic Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Code" means Title 11 of the United States Code entitled "Bankruptcy," as now and hereafter in effect, or any successor statute.
"Bankruptcy Law" means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
"Base Capex Amount" means, for each Fiscal Year, $10,000,000; provided that the Base Capex Amount for the 2006 Fiscal Year shall be $12,093,000 to be utilized for the Capital Expenditures set forth on Schedule 5.02(m) only.
"Base Case Projections" has the meaning specified in Section 3.01(al(xiiil.
"Base Rate" means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher o£
(a) the rate of interest announced by CS in New York, New York, from time to time, as the prime rate; and
(b) '/z of 1% per annum above the Federal Funds Rate.
"Base Rate Loan" means any Loan that bears interest as provided in Section 2.07(al(i).
"Borrower" has the meaning specified in the recital of parties to this Agreement.
"Borrowing" means a Term B Borrowing, a Revolving Credit Borrowing or a Synthetic L/C Borrowing, as the context may require.
"Budget" has the meaning specified in Section 5.03(d).
"Business Day" means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain
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closed; provided that, when used in connection with a Eurodollar Rate Loan, Synthetic Letter of Credit, Revolving Credit-Linked Deposit or a Synthetic L/C Deposit, the term "Business Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
"Cabot Guaranty" means the guaranty dated as of January 15, 2000, by Cabot LNG LLC, a Delaware limited liability company, in favor of Mystic Development and Exelon New England Power Marketing Limited Partnership, a limited partnership organized under the laws of Delaware.
"Call Premium" shall mean, with respect to any applicable commitment reduction under Section 2.05(a) or any applicable prepayment under Section 2.06(a), an amount equal to (a) 1.00% of the aggregate amount of such commitment reduction or the aggregate principal amount of such prepayment (as applicable) if such commitment reduction or such prepayment (as applicable) occurs within twelve (12) months of the Effective Date. Any commitment reduction or prepayment made more than twelve (12) months after the Effective Date will not be subject to the Call Premium.
"Capital Expenditures" means, for any Person for any period, the sum of, without duplication, (a) all expenditures made, directly or indirectly, by such Person or any of its Subsidiaries during such period for equipment, fixed assets, real property or improvements, or for replacements or substitutions therefor or additions thereto, that have been or should be, in accordance with GAA.P, reflected as additions to properiy, plant or equipment on a Consolidated balance sheet of such Person plus (b) the aggregate principal amount of all Debt (including obligations under Capitalized Leases) assumed or incurred in connection with any such expenditures. For purposes of this definition, "Capital Expenditures" shall not include: (i) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or with insurance proceeds, except to the extent that the gross amount of such purchase price exceeds the credit granted by the seller of such equipment for the equipment being traded in at such time or the amount of such proceeds, as the case may be and (ii) expenditures made as a part of a Permitted Development so long as such expenditure is included in the calculation of the aggregate amount of consideration payable for such Permitted Development and is permitted by the terms of this Agreement.
"Capitalized Leases" means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
"Carryover Amount" means, for any Fiscal Year, the amount (not to exceed $10,000,000, provided that the Carryover Amount for the 2007 and 2008 Fiscal Years shall also include that portion of the Base Capex Amount for the 2006 Fiscal Year not utilized in the prior year) by which the Adjusted Base Capex Allowance for the prior Fiscal Year plus any Carryover Amount as deternuned during such prior Fiscal Year exceeds Capital Expenditures made in such prior Fiscal Year.
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"Cash" means money, currency or a credit balance in any demand account or deposit account.
"Cash Equivalents" has the meaning specified in the Security Deposit Agreement.
"Casualty Event" has the meaning specified in the Security Deposit Agreement.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
"Change of ControP' means, at any time after the Auction Date, any "person" or "group" (within the meaning of Rules 13(d) of the Exchange Act and the rules of the Securities and Exchange Commission thereunder as in effect on the Effective Date) (other than any such "person" or "group" holding, directly or indirectly, beneficially or of record, any Equity Interests in EBG Holdings as of the Auction Date) (the "Proposed Acquiror") shall have acquired ownership, directly or indirectly, beneficially or of record, of more than 35% on a fully diluted basis of the aggregate voting power represented by the issued and outstanding Equity Interests in EBG Holdings unless (i) such Proposed Acquiror is a Qualified Owner and (ii) each of S&P and Moody's shall have provided written confirmation of their respective ratings of the Facilities (as in effect immediately prior to such acquisition) after giving effect to such acquisition. For the purposes of this definition, a"person" or "group" shall not include any of the unit holders of EBG Holdings solely by virtue of such unit holders being a party to the limited liability company agreement of EBG Holdings.
"Closing Date Summary Funds Flow Memo" has the meaning specified in Section 3.01(1).
"Co-Dacumentation Agent" has the meaning specified in the recital of parties to this Agreement.
"Co-Syndication Agents" has the meaning specified in the recital of parties to this Agreement.
"CollateraP' means all Property (including Equity Interests in any Guarantor) of the Loan Parties, now owned or hereafter acquired, other than Excluded Property.
"Collateral Agent's Office" means, with respect to the First Lien Collateral Agent or any successor First Lien Collateral Agent, the office of such Agent as such Agent may from time to time specify to the Borrower and the Administrative Agent.
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"Commitmenf' means a Term B Commitment, a Revolving Credit Commitment, a Synthetic L/C Deposit Commitment or a Synthetic L/C Issuing Commitment, as the context may require.
"Commodity Hedge and Power Sale Agreement" means, with respect to power, electricity, capacity, ancillary services, electric transmission, weather, fuel, fuel transmission, fuel transportation, fuel storage, heat rate options, emissions allowances and emissions credits and, in the case of each of the foregoing, products related thereto, any swap, cap, collar, floor, ceiling, option, future, forward, spot agreement, contract for differences, basis trade, purchase agreement, sale agreement, netting agreement, tolling agreement or any other similar agreement, whether physical or financial, entered into with respect to any commodity or commodity-related product.
"Commodity Hedge Counterparry" means any Person that (a) (i) is a commercial bank, insurance company, investment fund or other similar financial institution (including CS) or any Affiliate thereof which is engaged in the business of entering into Commodity Hedge and Power Sale Agreements, (ii) is a public utility or (iii) is in the business of selling, marketing, purchasing, transporting, distributing or storing electric energy, fuel, oil, natural gas or weather-related derivatives, as applicable, and (b) at the time the applicable Pernutted Commodity Hedge and Power Sale Agreement is entered into, has a Required Rating.
"Communications" has the meaning specified in Section 9.02(bl.
"Comparable Project" means one or more electric generating facilities that are of a size and scope substantially similar to or greater than the Projects taken as a whole.
"Confidentiallnformation" means information that any.~,oan Party furnishes to any Agent or any Lender Party designated as confidential, but does not include any such information that is or becomes generally available to the public other than as a result of a breach by such Agent or any Lender Party of its obligations hereunder or that is or becomes available to such Agent or such Lender Pariy from a source other than the Loan Parties that is not, to the best of such Agent's or such Lender Party's knowledge, acting in violation of a confidentiality agreement with a Loan Party.
"Consolidated' refers to the consolidation of accounts in accordance with GAAP.
"Consolidated Adjusted EBITDA" means, for any period (without duplication), an amount determined for the Borrower and its Subsidiaries on a Consolidated basis equal to (a) the sum, without duplication, of the amounts for such period of (i) Consolidated Net Income, (ii) Consolidated Cash Interest Expense, (iii) provisions for taxes based on income, (iv) Cash proceeds of any Permitted Emissions Sales Gains, (v) total depreciation expense, (vi) total amortization expense, (vii) other non-Cash items reducing Consolidated Net Income for such period, including unrealized losses attributable to the change in fair market value of all Commodity Hedge and Power Sale Agreements and Hedge Agreements and accruals for liquidated damages and related late
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fees associated with the Distrigas Litigation described in Schedule 4.01(~) (excluding any such non-Cash item to the extent that it represents an accrual or reserve for potential Cash items in any future period or amortization of a prepaid Cash item that was paid in a prior period), minus (b) to the extent included in determining Consolidated Net Income, other non-Cash items increasing Consolidated Net Income for such period, including unrealized gains attributable to the changes in fair market value of all Commodity Hedge and Power Sale Agreements and Hedge Agreements (excluding any such non-Cash item to the extent it represents the reversal of an accrual or reserve for potential Cash items in any prior period). For purposes of this definition, Consolidated Adjusted EBITDA for each of the periods ending the last day of each of June, September and December 2006 shall be deemed to be $57,250,000, $57,250,000 and $57,250,000, respectively.
"Consolidated Cash Interest Expense" means, for any period, total interest expense (including that portion attributable to Capitalized Leases in accordance with GAAP and capitalized interest) of the Borrower and its Subsidiaries on a Consolidated basis with respect to all outstanding Debt for Borrowed Money of the Borrower and its Subsidiaries for such period, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net obligations under Hedge Agreements, but excluding, however, (a) any amount for related late fees and interest associated with the Distrigas Litigation described in Schedule 4.01(~l, (b) interest payable under the Borrower's fuel oil inventory program permitted pursuant to Section 5.02(b)(v)(B) and (c) interest and fees associated with RMR Revenues subject to refund. For purposes of deternuning Consolidated Cash Interest Expense far any period ending prior to January 1, 2008, Consolidated Cash Interest Expense shall be deemed to be: (i) for the Fiscal Quarter ending March 31, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarter multiplied by (y) four (4), (ii) for the two Fiscal Quarters ending June 30, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarters multiplied by (y) two (2), (iii) for the three Fiscal Quarters ending September 30, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarters multiplied by (y) four-thirds (4/3), and (iv) for the four Fiscal Quarters ending December 31, 2007, actual Consolidated Cash Interest Expense for such Fiscal Quarters.
"Consolidated Net Income" means, for any period, (a) the net income (or loss) of the Borrower and its Subsidiaries on a Consolidated basis for such period determined in conformity with GAAP, minus (b) to the extent otherwise included in Consolidated Net Income, (i) the income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary, (ii) any after-tax gains or losses attributable to Asset Sales or returned surplus assets of any Plan, (iii) (to the extent not included in clauses i and ii above) any net extraordinary gains or net extraordinary losses and (iv) income attributable to the RMR Agreement (other than Permitted RMR Revenues) plus (c) without duplication, Permitted RMR Revenues. In addition, Consolidated Net Income for any period shall reflect expenses associated with long-term service agreements on the
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basis of equivalent operating hours incurred during such period (instead of on the basis of maintenance work performed during such period as required by GAAP).
"Consolidated Total Debt" means, as at any date of deternunation, the aggregate stated balance sheet amount of all Debt for Borrowed Money of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP.
"Contractual Obligations" means, as applied to any Person, any provision of any Equity Interests issued by such Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which such Person is a party or by which it or any of its Properties is bound.
"Control" means, with respect to any Person, the possession, directly ar indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ability to exercise voting power, contract or otherwise. "Controlling" and "Controlled' have meanings correlative thereto.
"Conversion," "Convert" and "Converted" each refer to a conversion of Loans of one Type into Loans of the other Type pursuant to Section 2.09 or 2.10.
"CS" has the meaning specified in the recital of parties to this Agreement.
"Cure Notice" has the meaning specified in Section 5.04(c)(ii).
"DebP' of any Person means, without duplication, (a) Debt for Borrowed Money of such Person, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue (unless being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made) by more than 90 days incurred in the ordinary course of such Person's business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under Capitalized Leases, (~ all obligations of such Person to purchase, redeem, retire, defease or otherwise inake any payment in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (g) all obligations of such Person in respect of Hedge Agreements and Commodity Hedge and Power Sale Agreements (valued at the Agreement Value thereo fl, in each case, pursuant to an International Swap Dealers Association agreement, form or other similar arrangement, (h) all Guaranteed Debt and Synthetic Debt of such Person and (i) all indebtedness and other payment obligations referred to in clauses a through ~ above of another Person secured by (or for which the holder of such Debt has an existing right,
9 Boston Generating, LLC Pirst Licn Crcdit Agrccment N Y 1:#3436966v I I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 177 of 510
contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment obligations.
"Debt for Borrowed Money" of any Person means, at any date of determination, the sum of (a) all items that, in accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of such Person at such date, and (b) all Synthetic Debt of such Person at such date; provided that with respect to each of clause (a) and (b) above, any amounts associated with unutilized and undrawn amounts under the Synthetic L/C Facility and the Revolving Credit Facility shall not be deemed Debt for Borrowed Money.
"Declining Lender" has the meaning set forth in Section 2.06(c).
"Default" means any Event of Default or any event that would constitute an Event of Default but for the passage of time or the requirement that notice be given or both.
"Default Interest" has the meaning set forth in Section 2.07(b).
"Depositary" has the meaning specified in the Security Deposit Agreement.
"Distribution" has the meaning set forth in the preliminary statements to this Agreement.
"Distrigas Guaranty" means the guaranty dated as of January 15, 2000, by Exelon New England Holdings, LLC, a Delaware limited liability company, in favor of Distrigas of Massachusetts Corporation and its successors.
"Distrigas Litigation" means that certain case pending in the Suffolk County, Massachusetts Superior Court (Civil Action No: OS-0764) entitled Distrigas of Massachusetts, LLC v. Mystic Development and Exelon New England, LLC, as described in Schedule 4.01(Q).
"Dollars" and the sign "$" mean the lawful currency of the United States of America.
"Domestic Lending Office" means, with respect to any Lender Party, the office of such Lender Party specified as its "Domestic Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender Party, as the case may be, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrower and the Administrative Agent.
"Early Termination Event" has the meaning specified in the Intercreditor Agreement.
10 Boston Generating, LLC Pirst Licn Credit Agreement NY 1:#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 178 of 510
"EBG Holdings" means EBG Holdings LLC, a Delaware limited liability company. "EBG Holdings O&M Costs" has the meaning specified in the Security Deposit Agreement.
"EBG Holdings Tax Liabilities" has the meaning specified in the Security Deposit Agreement.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender Party; (b) an Affiliate of a Lender Party; (c) an Approved Fund; and (d) any other Person (other than an individual) approved by (i) the Administrative Agent, (ii) in the case of an assignment of a Synthetic L/C Deposit Commitment, the Synthetic Issuing Bank and (iii) in the case of an assignment of a Revolving Credit-Linked Deposit, the Fronting Bank (each such approval not to be unreasonably withheld or delayed); provided, however, that (i) with respect to an assignment of a Synthetic LJC Issuing Commitment, such Eligible Assignee must also be an Eligible Bank and (ii) no Loan Party shall qualify as an Eligible Assignee under this definition.
"Eligible Bank" means any bank or financial institution established under the laws of the United States, any State thereof or any other country that is a member of the OECD which has a long term unsecured non-credit enhanced rating of A3 or higher from Moody's and A- or higher from S&P. "Eligible Permitted Commodity Hedge and Power Sale Agreement" means any Pernutted Commodity Hedge and Power Sale Agreement entered into by any Loan Party which, at the time such Permitted Commodity and Hedge and Power Sale Agreement is entered into, is structured such that the Commodity Hedge Counterparty's credit exposure and active or projected mark-to-market exposure to the Bonower or any other Loan Party is positively correlated with the price of the relevant commodity (including "spark spread"), including the Initial Commodity Hedge and Power Sale Agreement.
"Environmental Action" means any action, suit, demand, demand letter, claim, written notice of non compliance or violation, written notice of liability or potential liabiliry, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state or local statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction or decree relating to pollution or protection of the environment or, as such relates to exposure to Hazardous Materials, health or natural resources, including, without limitation, those relating to the use, 11 Boston Gencrating, LLC First Licn Crcdit Agrcement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 179 of 510
handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number, license or other authorization required under any Environmental Law.
"Equiry Cure" has the meaning specified in Section 5.04(cl.
"Equiry Interests" means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are autharized or otherwise existing on any date of determination.
"Equiry Issuance" has the meaning specified in the Security Deposit Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common contrvl with any Loan Party, within the meaning of Section 414(b) or (c) of the lnternal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; ( fl the conditions for imposition of a lien under Section 302( fl of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such
12 Boston Gencrating, LLC First Lien Credit Agrcement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 180 of 510
Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender Party, the office of such Lender Party specified as its "Eurodollar Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender Pariy (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) the rate per annum determined by the Administrative Agent by reference to the British Bankers' Association Interest Settlement Rates for deposits in Dollars (as set forth by the Bloomberg Information Service or any successar thereto or any other service selected by the Administrative Agent which had been nominated by the British Bankers' Association as a authorized information vendor for the purpose of displaying such rates) as the London interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period (provided that, if for any reason such rate is not available, the term "Eurodollar Rate" shall mean, for any Interest Period, the rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered to major banks in the London interbank market in London, England at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period) by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest as provided in Section 2.07(al(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all Eurodollar Rate Loans comprising part of the same Borrowing, any Interest Period for the Revolving Credit-Linked Deposits or any Investment Period for the Synthetic L/C Deposits means the reserve percentage applicable two Business Days before the first day of such Interest Period or Investment Period, as applicable, under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that
13 Boston Generating, LLC First Lien Credit Ageeme~t NYl:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 181 of 510
includes deposits by reference to which the interest rate on Eurodollar Rate Loans, Revolving Credit-Linked Deposits or Synthetic L/C Deposits is determined) having a term equal to such Interest Period.
"Event of Eminent Domain" has the meaning specified in the Security Deposit Agreement.
"Events of Default" has the meaning specified in Section 6.01.
"EWG" has the meaning specified in Section 4.01(v).
"Excess Duration Transaction" has the meaning specified in Section 5.02(1).
"Excluded Property" has the meaning specified in the Intercreditor Agreement.
"Existing Credit Agreements" means, collectively, (i) the Amended and Restated First Lien Credit and Reimbursement Agreement dated as of October 11, 2005 among the Borrower, the First Lien Term Lenders named therein, the Working Capital Lenders named therein, the LC Lenders named therein, the LC-DSR Lenders named therein, C5, as First Lien Administrative Agent and CS, as Collateral Agent and (ii) the Amended and Restated Second Lien Credit and Reimbursement Agreement dated as of October 11, 2005 among the Borrower, the Second Lien Lenders named therein, CS, as Second Lien Administrative Agent and CS, as Collateral Agent.
"Existing Debt" means Debt of each Loan Party outstanding immediately before the occurrence of the Effective Date.
"Ezisting Letters of CrediP' means each letter of credit set forth on Schedule 2.03(i).
"Facility" means the Term B Facility, the Synthetic L/C Deposit Facility, the Synthetic L/C Facility or the Revolving Credit Facility, as the context may require.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" means the fee letter dated November 20, 2006 between the Borrower and CS as Administrative Agent and First Lien Collateral Agent, as amended.
"FERC" means the Federal Energy Regulatory Commission and its successors.
14 Boston Generating, LLC First Lien Credit Agreement NY1:#3436966v] 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 182 of 510 i~ ~
"Financial Covenants" has the meaning specified in Section 5.04(c).
"First Lien Collateral Agent" has the meaning specified in the recital of parties to this Agreement.
"First Lien Collateral Documents" means the First Lien Pledge Agreement, First Lien Security Agreement, the Security Deposit Agreement, the First Lien Mortgages, each First Lien Consent and Agreement, each of the collateral documents, instruments and agreements delivered pursuant to Section 5.01(i), and each other agreement that creates or purports to create a Lien in favor of the First Lien Collateral Agent for the benefit of the First Lien Secured Parties.
"First Lien Consent and Agreement" means (a) with respect to the Initial Commodity Hedge and Power Sale Agreement, a consent and agreement in substantially the form attached hereto as Exhibit F-1, and (b) with respect to any Material Contract entered into after the Effective Date, (i) if such Material Contract is a Permitted Commodity Hedge and Power Sale Agreement, a consent and agreement in favor of the First Lien Collateral Agent (for the benefit of the First Lien Secured Parties) in substantially the form attached hereto as Exhibit F-1 and (ii) in the case of any other such Material Contract, a consent and agreement in favor of the First Lien Collateral Agent (for the benefit of the First Lien Secured Parties) in substantially the form attached hereto as Exhibit F-2 or, in either case, otherwise in form and substance reasonably satisfactory to the First Lien Collateral Agent and the Administrative Agent.
"First Lien Debt Service Reserve Requirement" means (a) on the Effective Date, $53,300,000 and (b) on any date of determination occurring after the Effective Date, an amount equal to 100% of the sum of the reasonably anticipated aggregate scheduled principal pursuant to Section 2.04(a) other than with respect to such principal payable on the Term B Maturity Date, interest and fees (including Participation Fees and other fees payable pursuant to Section 2.08) payable during the following six month period occurring after such date of determination in respect of the Facilities.
"First Lien Mortgage Policies" has the meaning specified in Section 3.01(a)(iv)(C~.
"First Lien Mortgages" has the meaning specified in Section 3.01(a)(iv~ and shall include any other deed of trust, trust deed, mortgage, leasehold mortgage or leasehold deed of trust delivered from time to time after the date hereof pursuant to Section 5.01(i), in each case as amended.
"First Lien Obligations" has the meaning specified in the Intercreditar Agreement.
"First Lien Pledge Agreement" means that certain First Lien Pledge Agreement substantially in the form attached hereto as Exhibit L and dated as of December 21, 2006 by EBG Holdings in favor of the First Lien Collateral Agent for the benefit of the First Lien Secured Parties, as amended.
15 Boston Gencrating, LLC First Lien Credit Agrecment NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 183 of 510
"First Lien Secured Parties" has the meaning specified in the Intercreditor Agreement.
"First Lien Security Agreement" means that certain First Lien Security Agreement substantially in the form attached hereto as Exhibit K and dated December 21, 2006 by the Borrower and the Guarantors in favor of the First Lien Collateral Agent for the benefit of the First Lien Secured Parties, as amended.
"First Offer" has the meaning specified in Section 2.06(c).
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means a fiscal year of the Borrower and its Subsidiaries ending on December 31 of each calendar year.
"Fore River" means Fore River Development, LLC, a Delaware limited liability company.
"Fore River Project" means a combined-cycle electric generating facility in Weymouth and Quincy, Massachusetts and owned by Fore River with a nominal capacity of 807 MW in operation.
"FPA" means the Federal Power Act, as amended.
"Fronting Bank" means CS, as the Lender of Revolving Credit Loans.
"Fund" means any Person (other than an individual) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
"Funded Revolving Credit Loan" has the meaning specified in Section 2.18(c).
"FundingAccount" has the meaning specified in the Security Deposit Agreement.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board, bureau or similar body, whether federal, state, provincial, territorial, local or foreign.
"Governmental Authorization" means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.
16 Boston Generating, LLC First Lien Crcdit Agrcemcnt NY 1; #3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 184 of 510
"Granting Lender" has the meaning specified in Section 9.07(1).
"Guaranteed Debt" means, with respect to any Person, any obligation or arrangement of such Person to guarantee or intended to guarantee any Debt ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement or (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Guaranteed Debt shall be deemed to be an amount equal to the stated or deterxninable amount of the primary obligation in respect of which such Guaranteed Debt is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instn~ment evidencing such Guaranteed Debt) or, if not stated ar determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith.
"Guaranteed Obligations" has the meaning specified in Section 8.01.
"Guarantars" means BG Boston Services, LLC, BG New England Power Services, Inc. and each of the Project Companies and each other Person becoming a party hereto pursuant to Section 5.01(k) by the execution and delivery of a Joinder Agreement substantially in the form attached hereto as Exhibit J.
"Guaranty" means the guaranty of the Guarantors set forth in Article VIII.
"Hazardous Materials" means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials and polychlorinated biphenyls and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other hedging agreements but excluding any Commodity Hedge and Power Sale Agreement.
17 Boston Generating, LLC First Lien Crcdit Agrcement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 185 of 510
"Hedge Bank" means any Person that is a commercial bank, insurance company or other similar financial institution, or any Affiliate thereof, that (a) is engaged in the business of entering into interest rate Hedge Agreements and (b) at the time the applicable Hedge Agreement is entered into, has a Required Rating.
"HonorDate" has the meaning specified in Section 2.03(d)(i).
"Indemnified Costs" has the meaning specified in Section 7.05.
"Indemnified Party" has the meaning specified in Section 9.04(bl.
"Independent Engineer" means any independent consulting engineer reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit of the Lender Parties from time to time, including, as of the date hereof, Black & Veatch Corporation.
"Independent Insurance Consultant" means any independent insurance consultant reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit of the Lender Parties from time to time, including, as of the date hereof, ARM Tech, a division of AON Risk Services, Inc.
"Independent Power Market Consultant" means any independent power market consultant reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit of the Lender Parties from time to time, including, as of the date hereof, Navigant Consulting, Inc.
"Initial Banks" means the Administrative Agent, the First Lien Collateral Agent, the Synthetic Issuing Bank, each Co-Syndication Agent, each Co-Documentation Agent, each Joint Book Running Manager and each Joint Lead Arranger.
"Initial Com»~odity Hedge and Power Sale Agreements" means, collectively:
(a) the ISDA Master Agreement dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC;
(b) the Schedule to the 1992 ISDA Master Agreement dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC;
(c) two Confirmations to Credit Suisse Energy LLC Re: Financial Put Swaption — Cash Settled dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC; and
(d) two Con6rmations to Credit 5uisse Energy LLC Re: Financial Swap — Cash Settled dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC;
18 Boston Generating, LLC First Lien Credit Agreement NYI:#3436966v1 l 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 186 of 510
in each case as amended.
"Initial Extension of Credit" means the earlier to occur of the initial Borrowing and the initial issuance of a Synthetic Letter of Credit hereunder.
"Initial Lender Parties" means the Initial Synthetic Issuing Banks and the Initial Lenders.
"Initial Lenders" means the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the Initial Lenders.
"Initial Operating Budget" has the meaning specified in Section 3.01(al(xiii~.
"Initial Synthetic Issuing Bank" means the bank listed on the signature pages hereof as the Initial Synthetic Issuing Bank.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Insurance Proceeds" has the meaning set forth in the Security Deposit Agreement.
"Intercreditor Agreement" means that certain Collateral Agency and Intercreditor Agreement substantially in the form attached hereto as E~ibit G, dated as of December 21, 2006, by and among the Borrower, the Guarantors, EBG Holdings, the First Lien Collateral Agent, the Second Lien Collateral Agent, First Lien Administrative Agent, CS, as Second Lien Administrative Agent, certain Commodity Hedge Counterparties and the other Persons party thereto from time to time, as amended.
"Interest Coverage Ratio" means the ratio as of the last day of any Fiscal Quarter of (a) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended to (b) Consolidated Cash Interest Expense for such four-Fiscal Quarter period.
"Interest Period" means, for each Eurodollar Rate Loan comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Loan or the date of the Conversion of any Base Rate Loan into such Eurodollar Rate Loan, and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, or, if available to each Appropriate Lender, nine ar twelve months or such other period acceptable to the Administrative Agent, as the Borrower may, upon notice received by the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:
19 Boston Generating, LLC First Licn Crcdit Agreement NY1:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 187 of 510
(a) the Borrower may not select any Interest Period with respect to any Eurodollar Rate Loan under a Facility that ends after any principal repayment installment date for such Facility unless, after giving effect to such selection, the aggregate principal amount of Base Rate Loans and of Eurodollar Rate Loans having Interest Periods that end on or prior to such principal repayment installment date for such Facility shall be at least equal to the aggregate principal amount of Loans under such Facility due and payable on or prior to such date;
(b) [Reserved]
(c) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;
(d) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the nuxnber of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and
(e) the Borrower shall not be pernutted to select Interest Periods to be in effect at any one time which have expiration dates occurring on more than twelve different dates (it being understood that there shall not be more than twelve contracts in respect of Eurodollar Rate Loans in effect at any one time).
"Interest Rate Determination Date" means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.
"Internal Revenue Code" means the Intemal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"Investment" in any Person means any loan or advance to such Person, any purchase or other acquisition of any Equity Interests ar Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause h or ~ of the definition of "Debt" in respect of such Person.
"Investment Period" means, relative to any Synthetic L/C Deposits earning a Participation Fee, the period beginning on (and including) the date on which such Synthetic L/C Deposit is deposited or on the last day of the preceding Investment Period and ending on (but excluding) the last Business Day of each March, June, September and 20 Boston Generating, LLC First Lien Credit Agreement NY l : #3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 188 of 510
December; provided, however, that (a) if any such Investment Period would otherwise end on a day which is not a Business Day, such Investment Period shall end on the preceding Business Day and (b) the first Investment Period after the Effective Date shall be comprised of the period beginning on (and including) the Effective Date and ending on March 30, 2007.
"Joinder Agreement" means a Joinder Agreement substantially in the form of E~ibit J.
"Joint Book Running Managers" has the meaning specified in the recital of parties to this Agreement.
"Joint Lead Arrangers" has the meaning specified in the recital of parties to this Agreement.
"K Road Manager" means K Road BG Management, LLC, a Delaware limited liability company.
"L/C Related Documents" has the meaning specified in Section 2.03(~)(i).
"Lender Party" means any Lender, any Fronting Bank or any Synthetic Issuing B ank.
"Lenders" means the Initial Lenders and each Person that shall become a Lender hereunder pursuant to Section 9.07 for so long as such Initial Lender or Person, as the case may be, shall be a party to this Agreement.
"Leverage Ratio" means the ratio as of the last day of any Fiscal Quarter of (a) Consolidated Total Debt as of such day to (b) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.
"Lien" means, with respect to any Property, (a) any mortgage, deed of trust, deed to secure debt, Lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge or security interest in, on or of such Property, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing), relating to such Property, and (c) in the case of Equity Interests or debt securities, any purchase option, call or similar right of a third party with respect to such Equity Interests or debt securities. For the avoidance of doubt, "Lien" shall not include any netting or set-off arrangements under any Contractual Obligation (other than Contractual Obligations constituting Debt far Borrowed Money or having the effect of Debt for Borrowed Money) otherwise permitted under the terms of the Loan Documents.
"Loan" means a Term B Loan, a Revolving Credit Loan or a Synthetic L/C Loan, as the context may require.
21 Boston Gcncrating, LLC First Licn Credit Agrcement NY 1:#13436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 189 of 510
"Loan Documents" means (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Intercreditor Agreement, (e) the First Lien Collateral Documents and ( fl the Fee Letter, in each case as amended.
"Loan Parties" means the Borrower and the Guarantors.
"Local Accounts" has the meaning specified in the Security Deposit Agreement.
"Management and Operation Agreements" means each of the Management and Operation Agreements each dated as of October 11, 2005 between K Road Manager and each of the Borrower and the Project Companies.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any change, occurrence or development (including, without limitation, as a result of regulatory changes applicable to the Borrower or any of its Subsidiaries) that has had or could reasonably be expected to have a Material Adverse Effect.
"Material Adverse Effect" means a material adverse effect on (a) the condition (financial or otherwise), business, results or operations of the Borrower and its Subsidiaries, taken as a whole, (b) the rights and remedies of any Agent or the Lender Parties, taken as a whole, under any Loan Document or (c) the ability of the Loan Parties to perform their respective Obligations under the Loan Documents.
"Material Contract" means (a) each of the agreements set forth on Schedule 4.01(t), (b) any Permitted Commodity Hedge and Power Sale Agreement with a term in excess of 14 months after the first delivery or settlement thereunder, and (c) any other Contractual Obligation (other than the Loan Documents or any Related Document) entered into after the date hereof by any Loan Party for which breach, nonperformance or cancellation could reasonably be expected to have a Material Adverse Effect.
"Mezzanine Documents" means the Credit Agreement dated as of December 21, 2006 among EBG Holdings, the financial institutions and lenders party thereto from time to time and CS, as administrative agent and each of the other Loan Documents referred to therein (other than the Fee Letter referred to therein).
"Moody's" means Moody's Investors Services, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA
22 Boston Gcnerating, LLC First Lien Credit Agrcement NY L #3436966v ll 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 190 of 510
Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Mystic 8&9 Project" means two (2) combined-cycle electric generating facilities with a combined nominal capacity of 1614 MW in operation in Everett, Massachusetts owned by Mystic Development.
"Mystic Development" means Mystic Development, LLC, f/k/a Exelon Mystic Development LLC, a Delaware limited liability company.
"Mystic P' means Mystic I, LLC, a Delaware limited liability company.
"Mystic Station Project" means an electric generating facility with a nominal capacity of 576 MW in operation in Everett, Massachusetts and owned by Mystic I.
"Net Cash Proceeds" has the meaning specified in the Security Deposit Agreement.
"Non-Consenting Lender" has the meaning specified in Section 9.01(cl.
"Note" means a Term Note, a Revolving Credit Note or a Synthetic L/C Note, as the context may require.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice ofRenewaP' has the meaning specified in Section 2.01(d)(iii).
"Notice of Termination" has the meaning specified in Section 2.01(dl(iii).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means all payment obligations of every nature of each Loan Party from time to time owed to any Agent (including former Agents) or any Lender Party from time to time under any Loan Document, whether for principal, interest (including interest which, but for the filing of a petition in bankniptcy with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Synthetic Letters of Credit, fees (including Participation Fees and other fees payable pursuant to Section 2.08), expenses, indemnification or otherwise.
"Offer Period" has the meaning specified in Section 2.15(a).
"Other Taaces" has the meaning specified in Section 2.12(b).
"Participation Fee" has the meaning specified in Section 2.08(b)(ii). 23 Boston Generating, LLC First Lien Gedit Agreement NY1:#3436966v] 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 191 of 510
"Patriot Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. ] 07-56, signed into law October 26, 2001.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Commodity Hedge and Pawer Sale Agreement" means (a) Pernutted Trading Activity entered into by any Loan Party and a Commodity Hedge Counterparty, including, without limitation, the Initial Commodity Hedge and Power Sale Agreements and (b) the transactions pursuant to each of the Material Contracts set forth on Part Il of Schedule 4A1(tl (as amended, modified or replaced).
"Permitted Development" means, after the Effective Date, the development or construction of any electric generating facility; provided that at the time any amount is invested (or committed to be invested) in respect of Permitted Developments that exceeds amounts permitted to be invested pursuant to Section 5.02( (ix) each of the following conditions are met:
(a) the Pernutted Development is financed with amounts permitted pursuant to Sections SA2(bl(iii) and 5.02(fl(viii~;
(b) the Independent Engineer shall have certified that any such development or construction would not reasonably be expected to materially and adversely impact the operation of the Projects or the efficient generation and distribution of electricity from the Projects (both during and after such development or construction) and shall have confirmed to the Lenders that amounts invested and committed to be invested by the Borrower and the Guarantors are sufficient to pay for all costs associated therewith; and
(c) each of S&P and Moody's shall have provided written confirmation of their respective ratings of the Facilities (as in effect immediately prior to giving effect to such Permitted Development).
"Permitted Development Subsidiary" means any Subsidiary of a Loan Party created in connection with any Permitted Development.
"Permitted Emissions Sales Gains" means gains (determined in accordance with GAAP) from the sales of Accumulated Emissions Credits to the extent such proceeds are deposited into the Revenue Account in accordance with the Security Deposit Agreement.
"Permitted Encumbrances" means the Liens and encumbrances of record identified in the First Lien Mortgage Policies as of the Effective Date.
"Permitted Liens" means (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(bl; (b) Liens imposed by law, such as materialmen's, mechanics', camers', workmen's and repairmen's Liens and other similar Liens arising in the ordinary course of business
24 Boston Gcnerating, LLC First Lien Credit Agreement NY i : #343 h966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 192 of 510
(i) for amounts that are not overdue or (ii) for amounts that are overdue that (A) do not materially adversely affect the use of, and which do not individually or in the aggregate materially affect the value of, the Property to which they relate or (B) are bonded or are being contested in good faith by appropriate proceedings for which reserve and other appropriate provisions, if any, required by GAAP shall have been made; (c) pledges or deposits in the ordinary course of business to secure obligations under workers' compensation, unemployment insurance, social security legislation or other similar legislation or to secure public or statutory obligations; (d) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business; (e) Liens arising from judgments (or the payment of money not constituting a Default under Section 6.01(hl) or securing appeal or other surety bonds related to such judgments; (fl Permitted Encumbrances; and (g) easements, rights-of-way, restrictions, encroachments and other minor defects or irregularities in title and any zoning (or other similar restrictions to, or vested in, any governmental office or agency to control or regulate the use of any Real Property), that individually or in the aggregate do not materially adversely affect the value of said Real Property or materially impair the ability of the Loan Parties to operate the Real Property to which they relate in the ordinary course of business.
"Permitted RMR Revertues" means, for any period, funds transferred to the Revenue Account pursuant to Section 3.15(a)(iv) of the Security Deposit Agreement; provided that for purposes of determining the applicable Fiscal Quarter to which such funds will be included in Consolidated Net Income, funds transferred within 45 days following any Fiscal Quarter shall be deemed, at the option of the Borrower, to be included (without duplication) in Consolidated Net Income for such Fiscal Quarter or the immediately preceding Fiscal Quarter.
"Permitted TradingActivity" means the entry into of any Commodity Hedge and Power Sale Agreement in a manner consistent with Prudent Industry Practice from time to time in support of the marketing and trading related to the Projects or any Permitted Development, whether physical or financial, in each case, to the extent such activity is conducted in the ordinary course of business of the Borrower and the other Loan Parties.
"Person" means an individual, partnership, corporation (including a business trust), limited liabiliry company, joint stock company, trust, unincorporated association, joint venture ar other entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Platform" has the meaning specified in Section 9.02(b).
"Pledged Debt" has the meaning specified in the First Lien Security Agreement.
25 Boston Gcnerating, LLC First Lien Credit Agreement NY1:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 193 of 510
"Preferred Interests" means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such Person upon any distribution of such Person's property and assets, whether by dividend or upon liquidation.
"Prepayment Account" has the meaning specified in the Security Deposit Agreement.
"Prepayment AmounP' has the meaning specified in Section 2.06(c).
"Pro Rata Share" of any amount means, (a) with respect to any Revolving Credit Lender at any time and with respect to the Revolving Credit Facility, the product of such amount times a fraction the numerator of which is the amount of such Lender's Revolving Credit Commitment at such time and the denominator of which is the aggregate amount of the Revolving Credit Facility at such time, (b) with respect to any Term B Lender at any time and with respect to the Term B Facility, the product of such amount times a fraction the numerator of which is the amount of Loans owed to such Term B Lender under the Term B Facility at such time and the denominator of which is the aggregate amount of the Loans then outstanding and owed to all Term B Lenders under the Term B Facility at such time and (c) with respect to any Synthetic L/C Lender at any time and with respect to the Synthetic L/C Facility, the product of such amount times a fraction the numerator of which is the amount of the sum of the Synthetic L/C Loans owed to such Synthetic L/C Lender under the Synthetic L/C Facility at such time plus the amount of such Synthetic L/C Lender's Synthetic L/C Deposit at such time and the denominator of which is the aggregate amount of the Synthetic L/C Loans then outstanding and owed to all Synthetic L/C Lenders under such Synthetic L/C Facility at such time plus the amount of all Synthetic L/C Deposits in respect of such Synthetic L/C Facility at such time.
"Project Company" means each of Mystic I, Mystic Development and Fore River (and collectively, the "Project Companies").
"Projects" means Mystic Station Project, Mystic 8&9 Project, Fore River Project and, if applicable, the Permitted Development.
"Property" means any right or interest in or to any asset or property of any kind whatsoever (including Equity Interests), whether real, personal or mixed and whether intangible or tangible.
"Prudent Industry Practice" means those practices, methods, equipment, specifications and standards of safety and performance, as are commonly used by electric generating stations in the United States utilizing comparable fuels as good, safe and prudent engineering practices would dictate in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating stations, with commensurate standards of safety, performance, dependability (including the implementation of procedures that shall
26 Boston Generating, LLC First Lien Credit Agreement NY 1:#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 194 of 510
not adversely affect the long term reliability of the Projects, in favor of short term performance), efficiency and economy, in each such case as the same may evolve from time to time, consistent with applicable law and considering the state in which a Project is located and the type and size of such Project. "Prudent Industry Practice" as defined herein does not necessarily mean one particular practice, method, equipment specification or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.
"PUHCA" has the meaning specified in Section 4.01(v).
"Pullback Amount" means, for any Fiscal Year, the amount (not to exceed $10,000,000) of the Base Capex Allowance for the following Fiscal Year which the Borrower, in its sole discretion, allocates to Capital Expenditures in the current Fiscal Year.
"Qualified Owner" means any Person (including any Person Controlled by such Person) that (a) is a past or present owner of a Comparable Project, (b) has substantial experience as an operator of a Comparable Project or (c) has contracted for the operation of the Projects by K Road Manager or by a Person meeting the requirements of clause (b) of this definition.
"Real Properties" means each item of Property listed on Schedules 4.01(r) and 4.01(s) hereto and any other real property subsequently acquired by any Loan Party covered by Section SA1(i) hereof.
"Redeemable" means, with respect to any Equity Interest, any such Equity Interest that (a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the option of the holder.
"Register" has the meaning specified in 5ection 9.07(e).
"Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Initial Commodity Hedge and Power Sale Agreements, the Second Lien Loan Documents, the Mezzanine Documents and the Secured Hedge Agreements.
"Related Fund' means, with respect to any Lender that is a Fund, any other Fund that is advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or an Affiliate of such entity) that administers, advises or manages such Lender.
"Repayment Event" means the satisfaction of the following conditions: (a) the repayment in full in Cash of all of the outstanding principal amount of the Loans and all other Obligations (other than contingent Obligations) due and payable under the Loan
27 Boston Gencrating, LLC First Lien Credit Agroement NYI:#3436966v1 I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 195 of 510
Documents, (b) the termination of all Commitments and (c) the termination and cancellation of all Synthetic Letters of Credit (unless such Synthetic Letters of Credit are cash collateralized on terms, conditions and amounts (but no more than 103.0% of the Available Amount of such Synthetic Letters of Credit) reasonably satisfactory to the " Administrative Agent and the Synthetic Issuing Bank).
"Replacement Commadity Hedge and Power Sale Agreement" means, with respect to any Initial Commodity Hedge and Power Sale Agreement and the Eligible Pernutted Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(sl, any Eligible Permitted Commodity Hedge and Power Sale Agreement entered into by any Loan Party after the date hereof: (a) with a termination date that is no earlier than the termination date of the relevant Eligible Permitted Commodity Hedge and Power Sale Agreement it replaces; (b) that is otherwise on terms substantially consistent with, or more favorable to the Loan Parties than, the relevant Eligible Permitted Commodity Hedge and Power Sale Agreement it replaces; and (c) with respect to which the Borrower has delivered to the Administrative Agent amended projections giving pro forma effect to such replacement Eligible Permitted Commodity Hedge and Power Sale Agreement prepared in good faith based on reasonable assumptions in light of the conditions existing at such time and showing to the reasonable satisfaction of the Administrative Agent compliance with Section 5.04 at all times until the earlier of (i) the Term B Maturity Date or (ii) the termination date applicable to such replacement Eligible Pernutted Commodity Hedge and Power Sale Agreement.
"Replacement Material Contract" shall mean any one or more contracts entered into in replacement of an existing Material Contract (i) with terms taken as a whole, as favorable to the Loan Parties as can be obtained based on market conditions prevailing at such time and (ii) with one or more counterparties (including any guarantor of, or letter of credit or other credit support providers to, such counterparty's obligations) having substantially similar creditworthiness on the date of such replacement as the counterparty to the Material Contract being replaced.
"Required Lenders" means, at any time, Lenders owed or holding more than 50% of the sum of (without duplication) (a) the aggregate principal amount of the Loans outstanding at such time plus (b) the aggregate Available Amount of all Synthetic Letters of Credit outstanding at such time plus (c) the aggregate amount of all Unused Working Capital Commitments at such time plus (d) the aggregate amount of the Synthetic L/C Deposits at such time.
"Required Rating" means with respect to (a) any Commodity Hedge Counterparty that is described in clause (a)(i) of the definition of "Commodity Hedge Counterparty" or any Hedge Bank either (i) the unsecured senior debt obligations of such Person axe rated at least A3 by Moody's and at least A- by S&P or (ii) such Person's obligations under any applicable Permitted Commodity Hedge and Power Sale Agreement or Secured Hedge Agreement, as the case may be, are guaranteed by (or supported by a letter of cr~dit provided by) a Person whose unsecured senior debt obligations are rated at least A3 by Moody's and at least A- by S&P and (b) any other
28 Boston Gcnerating, LLC First Lien Credit Agreement NY1:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 196 of 510
Commodity Hedge Counterparty either (i) the unsecured senior debt obligations of such Person are rated at least Baa3 by Moody's and at least BBB- by S&P, (ii) such Commodity Hedge Counterparty's obligations under any applicable Permitted Commodity Hedge and Power Sale Agreement are guaranteed by a Commodity Hedge Counterparty that is described in clause (a , (ii) of the definition of "Commodity Hedge Counterparty" whose unsecured senior debt obligations are rated at least Baa3 by Moody's and at least BBB- by S&P or (iii) such Commodity Hedge Counterparty's obligations under any applicable Permitted Commodity Hedge and Power Sale Agreement are supported by a letter of credit provided by a Person whose unsecured senior debt obligations are rated at least A3 by Moody's and at least A- by S&P.
"Responsible Officer" means, as to any Person, any individual holding the position of chairman of the board (if an officer), president, chief executive officer, senior vice president, treasurer, chief financial officer or director of finance.
"Revenue Account" has the meaning specified in the Security Deposit Agreement.
"Revolving Credit Availability Perind" means the period from and including the Effective Date to but excluding the earlier of the Revolving Credit Terxnination Date and the date of termination of the Revolving Credit Commitments.
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type made by the Revolving Credit Lenders.
"Revolving Credit CommitmenP' means, with respect to each Revolving Credit Lender, the amount that such Revolving Credit Lender is required hereby to maintain as its Revolving Credit-Linked Deposit, as such amount may be reduced or increased from time to time pursuant to Section 2.05 and Section 2.18(cl and through assignments by or to such Lender pursuant to Section 9.07. The initial amount of each Revolving Credit Lender's Revolving Credit Commitment is set forth in an Assignment Agreement pursuant to which such Lender shall have assumed its Revolving Credit Commitment, as applicable. The aggregate amount of the Revolving Credit Lenders' Revolving Credit Commitments is $70,000,000.
"Revolving Credit Exposure" means, with respect to any Revolving Credit Lender at any time, its Applicable Revolving Credit Percentage of the outstanding principal amount of the Revolving Credit Loans.
"Revolving Credit Facility" means, at any time, the aggregate amount of the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Lender" means any Lender that has a Revolving Credit Commitment.
"Revolving Credit-Linked Deposit" means, with respect to each Revolving Credit Lender at any time, amounts actually on deposit in the Revolving Credit-Linked Deposit 29 Boston Gcncrating, LLC First Lien Credit Agreement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 197 of 510
Account to the credit of such Lender's Revolving Credit-Linked Sub-Account at such time.
"Revolving Credit-Linked Deposit Account" means the "Revolving Credit Lenders (Boston Gen) Credit-Linked Deposit Account" established by the Administrative Agent pursuant to Section 2.18(a).
"Revolving Credit-Linked Sub Account" has the meaning set forth in Section 2.18(a).
"Revolving Credit Loan" has the meaning specified in 5ection 2A1(c).
"Revolving Credit Note" means a promissory note of the Borrower payable to the order of any Revolving Credit Lender, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Revolving Credit Loans made by such Lender, as amended.
"Revolving Credit Termination Date" means the earlier of (a) December 20, 2013 and (b) the date of termination in whole of the Revolving Credit Commitments pursuant to Section 2.05 or 6.01.
"RMR Agreement" means the Cost-of-Service Agreement, effective as of January 1, 2006, among Mystic Development, LLC, Sempra Energy Trading Corp. and ISO New England Inc.
"RMR Revenues" has the meaning specified in the Security Deposit Agreement.
"S&P°' means Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc.
"Second Lien Administrative Agent" has the meaning specified in the preliminary statements to this Agreement.
"Second Lien Collateral Agent" has the meaning specified in the Intercreditor Agreement.
"Second Lien Collateral Documents" has the meaning specified in the Intercreditor Agreement.
"Second Lien Credit Agreement" has the meaning specified in the preliminary statements to this Agreement.
"Second Lien Lenders" has the meaning specified in the preliminary statements to this Agreement.
"Second Lien Loan Documents" has the meaning specified in the Intercreditor Agreement.
30 Boston Gencrating, LLC First Lien Credit Agreement NY 1:#3436966v1 I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 198 of 510
"Second Lien Secured Parties" has the meaning specified in the Intercreditor Agreement.
"Second Offer" has the meaning specified in Section 2.06(c).
"Secured Hedge Agreement" means any Hedge Agreement required to be entered into by the Borrower with any Hedge Bank pursuant to Section 5.01(ml and any other Hedge Agreement entered into by the Borrower with any Hedge Bank in the ordinary course of business and consistent with prudent business practice and otherwise pernutted under Section 5.02(1), in each case, for purposes of hedging the interest rate exposure associated with the Loan Parties' Obligations under the Loan Documents.
"Secured Party" has the meaning specified in the Intercreditor Agreement.
"Security Deposit Agreement" means that certain Security Deposit Agreement substantially in the form attached hereto as Exhibit H dated December 21, 2006 by the Borrower, the Guarantors, the First Lien Collateral Agent, the Second Lien Collateral Agent and the Depositary, as amended.
"Semi-Annual Prepayment Date" has the meaning specified in the Security Deposit Agreement.
"Single Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Pariy or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be ternunated.
"SolvenP' and "Solvency" mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property and assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature (taking into account reasonably anticipated prepayments and refinancings) and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liabiliry.
"SPC" has the meaning specified in Section 9.07(1).
"Subordinated Obligations" has the meaning specified in Section 8.05. 31 Boston Generating, LLC First Lien Credit Agrcement NY 1:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 199 of 510
"Subsidiary" of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture or limited liability company or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Surviving Debt" means Debt of each Loan Party outstanding after giving effect to the Initial Extension of Credit on the Effective Date (other than Debt secured by the First Lien Collateral Documents and the Second Lien Collateral Documents).
"Synthetic Debt" means, with respect to any Person, without duplication of any clause within the definition of "Debt," the principal amount of all (a) obligations of such Person under any lease that is treated as an operating lease for financial accounting purposes and a financing lease for tax purposes (i.e., a"synthetic lease"), (b) obligations of such Person in respect of transactions entered into by such Person, the proceeds from which would be reflected on the financial statements of such Person in accordance with GAAP as cash flows from financings at the time such transaction was entered into (other than as a result of the issuance of Equity Interests) and (c) obligations of such Person in respect of other transactions entered into by such Person that are not otherwise addressed in the definition of "Debt" or in clause a or ~ above that are intended to function primarily as a borrowing of funds (including, without limitation, any minority interest transactions that function primarily as a borrowing).
"Synthetic Issuing Bank" means the Initial Synthetic Issuing Bank and any Eligible Assignee to which the Synthetic L/C Issuing Commitment hereunder has been assigned pursuant to Section 9.07 so long as such Eligible Assignee expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Synthetic Issuing Bank and notifies the Administrative Agent of its Applicable Lending Office and the amount of its Synthetic L/C Issuing Commitment (which information shall be recorded by the Administrative Agent in the Register), for so long as such Initial Synthetic Issuing Bank or Eligible Assignee, as the case may be, shall have a Synthetic L/C Issuing Commitment.
"Synthetic L/C Available Amount" means, as of any date, the sum (without duplication) of (a) the aggregate amount of the Synthetic L/C Deposit Commitments in effect on such date less (b) the Available Amount of Synthetic Letters of Credit issued and outstanding as of such date less (c) the Unreimbursed Amount of any Synthetic Letter of Credit as of such date less (d) the amount of any drawings under any Synthetic Letter of Credit reimbursed by the Borrower or any amounts deposited in the Synthetic L/C Deposit Accounting, in each case, pursuant to Section 2.03(d) during the 91-day period immediately preceding such date.
32 Boston Gencrating, LLC First Lien Crcdit Ag~eement NYl :#3436966v l 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 200 of 510
"Synthetic L/C Borrowing" means an extension of credit resulting from a drawing under any Synthetic Letter of Credit which has not been reimbursed on the applicable Honor Date and which amount is funded by reducing the Synthetic L/C Deposits by a like amount, consisting of simultaneous Synthetic L/C Loans having the same Interest Period made by each of the Synthetic L/C Lenders pursuant to Section 2.03(dl(iii).
"Synthetic L/C Cash Collateral Account" has the meaning specified in the Security Deposit Agreement.
"Synthetic L/CDeposit" has the meaning specified in Section 2A1(b).
"Synthetic L/C Deposit Commitment" means, with respect to any Synthetic L/C Lender at any time, the amount set forth opposite such Lender's name on Schedule I hereto under the caption "Synthetic L1C Deposit CommitmenP' or, if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(e) as such Lender's "Synthetic L/C Deposit Commitment," as such amount may be reduced at or prior to such time pursuant to Section 2.05 or increased at or prior to such time pursuant to Section 2.04(d)(v).
"Synthetic L/C Deposit Cost Amount" means, for any Investment Period with respect to the Synthetic L/C Deposits, 0.125%.
"Synthetic L/C Deposit Facility" means, at any time, an amount equal to the aggregate amount of the Synthetic L/C Lenders' Synthetic L/C Deposit Commitments at such time, as such amount may be reduced at or prior to such time pursuant to Section 2.05(a).
"Synthetic L/C Deposdt Sub Account" means an account established by the Administrative Agent or an Affiliate thereof at CS with the title "Synthetic L/C Lenders (Boston Gen) Credit-Linked DepositAccount" pursuant to Section 2.03(e).
"Synthetic L/C Expasure" means, as of any date, the sum of (without duplication) (a) the aggregate principal amount of outstanding Synthetic L/C Loans at such time plus (b) the Available Amount of all Synthetic Letters of Credit as of such date plus (c) the aggregate Unreimbursed Amounts under Synthetic Letters of Credit outstanding as of such date plus (d) unless a Repayment Event has occurred, the amount of any drawings under any Synthetic Letter of Credit reimbursed by the Borrower or any amounts deposited in the Synthetic L/C Deposit Account, in each case, pursuant to Section 2.03(d) during the 91-day period immediately preceding such date.
"Synthetic L/C Facility" means, at any time, an amount equal to the aggregate amount of the Synthetic Issuing Banks' Synthetic L/C Issuing Commitments at such time, as such amount may be reduced at or prior to such time pursuant to Section 2.05(a).
33 Boston Gcnerating, LLC First Licn Credit Agreement NY1:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 201 of 510
"Synthetic L/C Issuing Commitment" means, with respect to the Synthetic Issuing Bank at any time, the amount set forth opposite the Synthetic Issuing Bank's name on Schedule I hereto under the caption "Synthetic L/C Issuing Commitment" or, if the Synthetic Issuing Bank has entered into an Assignment and Acceptance, set forth for the Synthetic Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 9.07(a) as the Synthetic Issuing Bank's "Synthetic L/C Issuing Commitment," as such amount may be reduced at or prior to such time pursuant to Section 2.05(a).
"Synthetic L/C Lender" means any Lender that has a Synthetic L/C Deposit Commitment.
"Synthetic L/C Loans" means loans deemed made by the Synthetic L/C Lenders to the Borrower pursuant to Section 2.03 to reimburse drawings under a Synthetic Letter of Credit, which loans are funded by reducing the Synthetic L/C Deposits by a like amount.
"Synthetic L/C Maturity Date" means December 20, 2013.
"Synthetic L/C Note" means a promissory note of the Borrower payable to the order of any Synthetic L/C Lender, in substantially the form of Exhibit A-2 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Synthetic L/C Loans made by such Lender, as amended.
"Synthetic L/C Participation Obligations" has the meaning specified in Section 2.03(c)(ii).
"Synthetic Letter of Credit" has the meaning specified in Section 2.01(d)(ii).
"Taxes" has the meaning specified in Section 2.12(al.
"Tender Offer" shall mean, collectively, (a) the offer by EBG Holdings to purchase outstanding Units of limited liability company interest in EBG Holdings pursuant to the Offer to Purchase dated as of November 16, 2006 and the related letter of transmittal sent to holders of such Units, as each may be amended and supplemented from time to time and (b) the repurchase of warrants and the cashless exercise of warrants referred to in such Offer to Purchase.
"Term B Borrowing" means a borrowing consisting of simultaneous Term B Loans of the same Type made by the Term B Lenders.
"Term B Commitmen~' means, with respect to any Term B Lender at any time, the amount set forth opposite such Lender's name on Schedule I hereto under the caption "Term B Commitment" or, if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(e) as such Lender's "Term B Commitment," as such amount may be reduced at or prior to such time pursuant to Section 2.05.
34 Boston Generating, LLC First Lien Crcdit Agrecment NYL•#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 202 of 510
"Term B Facility" means, at any time, the aggregate amount of the Term B Lenders' Term B Commitments at such time.
"Term B Lender" means any Lender that has a Term B Commitment.
"Term B Loan" has the meaning specified in Section 2.01(al.
"Term B Maturity Date" means December 20, 2013.
"Term B Note" means a promissory note of the Borrower payable to the order of any Term B Lender, in substantially the form of Exhibit A-3 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Term B Loan made by such Lender, as amended.
"Terms ofSubordination" means the Terms of Subordination attached hereto as Exhibit M.
"Title Company" means Lawyers Title Insurance Corporation.
"Transaction" means (a) the entering into of the Initial Commodity Hedge and Power Sale Agreements, (b) the Distribution and the Tender Offer, (c) the entering into of the Loan Documents and the refinancing of amounts outstanding under the Existing Credit Agreements in part with the proceeds of amounts under this Agreement (d) the entering into of the Second Lien Loan Documents and the refinancing of amounts outstanding under the Existing Credit Agreements in part with the proceeds of amounts under the Second Lien Credit Agreement, (e) the entering into of the Mezzanine Documents and ( fl the other transactions contemplated by the Transaction Documents.
"Transaction Costs" has the meaning set forth in the preliminary statements hereto.
"Transaction Documents" means, collectively, the Loan Documents and the Related Documents.
"Type" refers to the distinction between Loans bearing interest at the Base Rate and Loans bearing interest at the Eurodollar Rate.
"UCC Fizture Filing" has the meaning specified in Section 3.01 a iv A.
"Unit.s" means units of limited liability company interests in EBG Holdings.
"Unreimbursed AmounP' has the meaning set forth in Section 2.03(d)(i).
"Unused Revolving Credit Commitment" means, with respect to any Revolving Credit Lender at any time, (a) such Lender's Revolving Credit Commitment at such time minus (b) the aggregate principal amount of all Revolving Credit Loans made (or
35 Boston Gcnerating, LLC First Licn Credit Agreement NY 1:#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 203 of 510
participated in) by such Lender (in its capacity as a Revolving Credit Lender) and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Com~utation of Time Periods; Other Definitional Provisions. In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word ` from" means "from and including" and the words "to" and "untiT' each mean "to but excluding." References in the Loan Documents to any agreement or contract "as amended" shall mean and be a reference to such agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.
SECTION 1.03. Accountin~ Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in effect in the United States from time to time ("GAAP"); provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accardance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS, SYNTHETIC DEPOSITS, REVOLVING CREDIT-LINKED DEPOSITS AND THE SYNTHETIC LETTERS OF CREDIT
SECTION 2.01. The Loans, 5ynthetic L/C Deposits, Revolving, Credit-Linked Deposits and the Svnthetic Letters of Credit.
(a) The Term B Loans. Each Terxn B Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single advance (a "Term B Loan") to the Borrower on the Effective Date in an amount not to exceed such Lender's Term B Commitment at such time. The Term B Borrowing shall consist of Term B Loans made simultaneously by the
36 Boston Gcnerating, LLC First Lien Crcdit Agreement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 204 of 510
Term B Lenders ratably according to their Term B Commitments. Amounts borrowed under this Section 2.01(al and repaid or prepaid may not be reborrowed.
(b) The Synthetic L/C Deposits. In consideration and furtherance of the undertaking of the Synthetic Issuing Bank, each Synthetic L/C Lender severally agrees, on the terms and conditions hereinafter set forth, to remit to the Administrative Agent on the Effective Date an amount in Dollars not to exceed such Synthetic L/C Lender's Synthetic L/C Deposit Commitment (each such amount, a"Synthetic L/C Deposit"). The Administrative Agent shall deposit all amounts received by it in the Synthetic L/C Deposit Account promptly upon receipt thereof. Each Synthetic L/C Lender irrevocably and unconditionally agrees that its Synthetic L/C Deposit shall be available (i) to pay to the Synthetic Issuing Bank such Synthetic L/C Lender's Pro Rata Share of any Unreimbursed Amount under any Synthetic Letter of Credit that is not reimbursed by the Borrower pursuant to Section 2.03(a) and (ii) to fund such Synthetic L/C Lender's Synthetic L/C Loans pursuant to Section 2.03(d)(ii). The failure of any Synthetic L/C Lender to fund its Synthetic L/C Deposit pursuant to this Section 2.01(b) shall not relieve any other Synthetic L/C Lender of its obligation, if any, hereunder to fund its Synthetic L/C Deposit, but no Synthetic L/C Lender shall be responsible for the failure of any other Synthetic L/C Lender to fund its Synthetic L/C Deposit in accordance with this Section 2.01(b).
(c) Revolving Credit Loans. (i) Subject to the terms and conditions of this Agreement, the Fronting Bank shall, from time to time, during the Revolving Credit Availability Period upon receipt of a Notice of Borrowing from the Borrower, make one or more revolving credit loans ("Revolving Credit Loans") to the Borrower in an aggregate principal amount that will not result in the total Revolving Credit Exposures exceeding the lesser of the aggregate balance of the Revolving Credit-Linked Deposit Account (excluding any portion of the Revolving Credit-Linked Deposit Account amibutable to interest) or the total Revolving Credit Commitments. Within the faregoing limits and subject to satisfaction of the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Credit Loans in accordance with the procedures set forth herein.
(ii) By the making of a Revolving Credit Loan, and without any further action on the part of the Fronting Bank or the Lenders, the Fronting Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Fronting Bank, a participation in such Loan equal to such Lender's Applicable Revolving Credit Percentage of the principal amount thereof. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section in respect of Revolving Credit Loans is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or, subject to Section 2.18(fl, reduction or ternunation of the Revolving Credit Commitments.
(iii) In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally autharizes and directs the Administrative Agent to withdraw from the Revolving Credit-Linked Deposit Account (and debit such Lender's Revolving Credit-Linked Sub-Account in the amount o fl such Lender's Applicable Revolving Credit Percentage of the principal amount of each
37 Boston Gcnerating, LLC First Licn Crcdit Agrccmcnt NY I :#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 205 of 510
Revolving Credit Loan not paid when due (whether at stated maturity, acceleration or otherwise), or of any payment of principal of any Revolving Credit Loan required to be refunded to the Borrower for any reason (it being understood and agreed that each Revolving Credit Lender's obligations in respect of participations in Revolving Credit Loans shall be payable solely from, and limited to, such Lender's Revolving Credit- Linked Deposit).
(d) Svnthetic Letters of Credit.
(i) [Reserved].
(ii) Svnthetic Letters of Credit. The Synthetic Issuing Bank agrees, on the terms and conditions hereinafter set forth and in reliance on the agreements of the Synthetic L/C Lenders set forth in Section 2.03 below, to issue (or cause its Affiliate that is a commercial bank that meets the criteria set forth in the definition of "Eligible Assignee" to issue on its behal fl letters of credit (the "Synthetic Letters of Credif') in U.S. Dollars for the account of the Borrower from time to time on any Business Day during the period from the Effective Date unti130 days before the Synthetic L/C Maturity Date in an aggregate Available Amount far all Synthetic Letters of Credit not to exceed at any time (A) the Synthetic L/C Facility at such time minus the sum of (1) the Unreimbursed Amount under all Synthetic Letters of Credit and (2) the Available Amount of any Synthetic Letters of Credit outstanding at such time and (B) the Synthetic L/C Available Amount at such time; provided that the aggregate face amount of Synthetic Letters of Credit issued to counterparties under the Initial Commodity Hedge and Power Sale Agreements and the Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(s) at any time shall not exceed $150,000,000.
(iii) Renewal and Termination of Svnthetic Letters of Credit. No Synthetic Letter of Credit shall have an expiration date (including all rights of the Borrower or the beneficiary to require renewal) later than the earlier of (A) twelve (12) months after such Letter of Credit's issuance (provided (a) that any Synthetic Letter of Credit issued to the counterparty to the Initial Commodity Hedge and Power Sale Agreement may have an initial expiration date no later than February 1, 2011 and (b) that any Synthetic Letter of Credit issued to the counterparty to an Eligible Pernutted Commodity Hedge and Power Sale Agreement may have an initial expiration date no later than 60 days after the term of such agreement) and (B) five (5) Business Days prior to the Synthetic L/C Maturity Date and may by its terms be renewable annually upon notice (a "Notice of RenewaP') given to the Synthetic Issuing Bank and the Administrative Agent on or prior to any date for notice of renewal set forth in such Synthetic Letter of Credit but in any event at least five (5) Business Days prior to the date of the proposed renewal of such Synthetic Letter of Credit and upon the fulfillment of the applicable conditions set forth in Article III unless the Synthetic Issuing Bank has notified the Borrower (with a copy to the Administrative Agent) on or prior to the date for notice of ternunation set forth in such Synthetic Letter of Credit but in any event at least sixty (60) Business Days prior to the date of automatic renewal of its election not to renew such Synthetic Letter of Credit (a "Notice of
38 Boston Generating, LLC First Lien Crcdit Agrcement NYI:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 206 of 510
Termination"); provided that the terms of each Synthetic Letter of Credit that is automatically renewable annually shall, (x) require the Synthetic Issuing Bank to give the beneficiary named in such Synthetic Letter of Credit notice of any Notice of Termination, (y) permit such beneficiary, upon receipt of such notice, to draw under such Synthetic Letter of Credit prior to the date such Synthetic Letter of Credit otherwise would have been automatically renewed and (z) not pernut the expiration date (after giving effect to any renewal) of such 5ynthetic Letter of Credit in any event to be extended to a date later than five (5) Business Days before the Synthetic L/C Maturity Date. If either a Notice of Renewal is not given by the Borrower or a Notice of Termination is given by any Synthetic Issuing Bank pursuant to the immediately preceding sentence, such Synthetic Letter of Credit shall expire on the expiry date. Within the limits of the Synthetic L/C Facility and subject to the limits referred to above, the Borrower may request the issuance of Synthetic Letters of Credit under this Section 2.01, repay any Unreimbursed Amounts resulting from drawings thereunder pursuant to Section 2.03(a) and request the issuance of additional Synthetic Letters of Credit under this Section 2.01.
SECTION 2.02. Makin~ the Loans. (a) Except as otherwise provided in Section 2.03, each Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing, in the case of a Bonowing consisting of Eurodollar Rate Loans, or the same Business Day of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Loans, by the Borrower to the Administrative Agent, which shall give to each Appropriate Lender prompt notice thereof by telecopier or electronic communication. Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately in writing, or by telecopier or electronic communication, in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date of such Borrowing, (ii) Facility under which such Bonowing is to be made, (iii) Types of Loans comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in the case of a Borrowing consisting of Eurodollar Rate Loans, the initial Interest Period for each such Loan. Each Appropriate Lender shall, before 11:00 A.M. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's Account, in same day funds, such Lender's ratable portion of such Borrowing in accordance with the respective Commitments under the applicable Facility of such Lender and the other Appropriate Lenders. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower by crediting (1) in the case of the Term B Borrowing, the Funding Account, and (2) in the case of a Revolving Credit Borrowing, the Revenue Account or, on the Effective Date only, the Funding Account.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Loans for any Borrowing if the obligation of the Appropriate Lenders to make Eurodollar Rate Loans shall then be suspended pursuant to Section 2.09 or 2.10 and (ii) the Revolving Credit Loans may not be outstanding as part of more than ten (10) separate Borrowings.
39 Boston Gcnerating, LLC First Licn Credit Agrcement NY l :#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 207 of 510
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Loans, the Borrower shall indemnify each Appropriate Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (but excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan to be made by such Lender as part of such Borrowing when such Loan, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from an Appropriate Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Bonowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at such time under Section 2.07 to Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender's Loan as part of such Borrowing for all purposes.
(e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Synthetic Letters of Credit and Matters Relating to Svnthetic L/C Deposits.
(a) Request for Issuance. Each Synthetic Letter of Credit shall be issued upon notice, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed issuance of such Synthetic Letter of Credit, by the Borrower to the Synthetic Issuing Bank with a copy to the Administrative Agent by telecopier or electronic communication. The notice of issuance of any Synthetic Letter of Credit shall be substantially in the form attached hereto as Exhibit B-2 (a "Notice of Issuance") shall be in writing or by telecopier or electronic communication (and confirmed by telephone), specifying therein the requested (i) date of such issuance (which shall be a Business Day), (ii) Available Amount of such Synthetic Letter of Credit, (iii) expiration date of such Synthetic Letter of Credit, (iv) name and address of the beneficiary of such Synthetic Letter of Credit, (v) supportable obligation and (vi) form of such Synthetic Letter of Credit. If the requested form of such Synthetic Letter of
40 Boston Gcnerating, LLC First Licn Credit Agreement NYI:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 208 of 510
Credit is acceptable to the Synthetic Issuing Bank in its sole discretion, the Synthetic Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article III, make such Synthetic Letter of Credit available to the Borrower at its office referred to in Section 9.02 or as otherwise agreed with the Borrower in connection with such issuance. Notwithstanding anything herein to the contrary, the Synthetic Issuing Bank shall not be under any obligation to issue any Synthetic Letter of Credit if any order, judgment ar decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Synthetic Issuing Bank from issuing such Synthetic Letter of Credit, or any law applicable to such Synthetic Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Synthetic Issuing Bank shall prohibit, or direct that such Synthetic Issuing Bank refrain from, the issuance of letters of credit generally or such Synthetic Letter of Credit in particular or shall impose upon such Synthetic Issuing Bank with respect to such Synthetic Letter of Credit any restriction, reserve or capital requirement (for which such Synthetic Issuing Bank is not otherwise compensated hereunder), or shall impose upon such Synthetic Issuing Bank any unreimbursed loss, cost or expense (for which such Synthetic Issuing Bank is not otherwise compensated hereunder).
(b) Letter of Credit Reports. Each Synthetic Issuing Bank shall furnish (i) to the Administrative Agent on the first Business Day of each week a written report summarizing issuance and expiration dates of Synthetic Letters of Credit issued by such Synthetic Issuing Bank during the previous week and drawings during such week under all Synthetic Letters of Credit issued by such Synthetic Issuing Bank, (ii) to the Administrative Agent on the first Business Day of each month a written report summarizing issuance and expiration dates of Synthetic Letters of Credit issued by it under the Synthetic Letter of Credit Facility, during the preceding month and drawings during such month under all such Synthetic Letters of Credit and (iii) to the Administrative Agent on the last Business Day of each calendar quarter a written report setting forth the average daily aggregate Available Amount during such calendar quarter of all Synthetic Letters of Credit issued by it under the Synthetic Letter of Credit Facility, in each case, with a copy to the Borrower.
(c) Participations in Svnthetic Letters of Credit.
(i) [Reserved].
(ii) Upon the issuance of each Synthetic Letter of Credit and without further action, each Synthetic L/C Lender shall be deemed to have irrevocably purchased to the extent of its Pro Rata Share, a participation interest in such Synthetic Letter of Credit including any Unreimbursed Amount in respect thereof (each a"Synthetic L/C Participation Obligation") and such Synthetic L/C Lender shall, to the extent of its Pro Rata Share, be responsible for reimbursing the Synthetic Issuing Bank in respect of any Unreimbursed Amount in accardance with Section 2.03(d) (with the terms of this Section surviving the termination of this Agreement)_ Each Synthetic L/C Lender's Synthetic L/C Participation Obligation shall be cash collateralized (as provided in Section 2.03(e)), in favor of the Synthetic Issuing Bank by such Synthetic L/C Lender's Synthetic UC Deposit. Each Synthetic L/C Lender's Synthetic L/C Deposit shall be available for withdrawal by the Synthetic Issuing Bank in accordance with Section 2.03(d) to
41 Boston Generating, LLC First Lien Credit Agreement NY 1:#3436966v 1 l 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 209 of 510
reimburse the Synthetic Issuing Bank for any Unreimbursed Amount in respect of any Synthetic Letter of Credit.
(d) Drawing and Reimbursement; Funding of Participations.
(i) Upon receipt from the beneficiary of any Synthetic Letter of Credit of any notice of drawing under such Synthetic Letter of Credit, the Synthetic Issuing Bank that issued such Synthetic Letter of Credit shall notify promptly the Borrower and the Administrative Agent thereo£ On the same Business Day on which any payment is made by any Synthetic Issuing Bank under a Synthetic Letter of Credit (each such date, an "Honor Date"), the Borrower shall reimburse such Synthetic Issuing Bank through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse any Synthetic Issuing Bank by such time (it being acknowledged and agreed that any such failure shall not be a Default hereunder), the Administrative Agent shall promptly notify each Synthetic L/C Lender of the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such Synthetic L/C Lender's Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Synthetic L/C Borrowing under the Synthetic L/C Facility of Eurodollar Rate Loans as described in subsection (iii) below, to be disbursed on the Business Day immediately following the Honor Date in an amount not to exceed the Unreimbursed Amount thereof subject to the amount of the Synthetic L/C Available Amount (without regard to the conditions set forth in Section 3.02). Any notice given by a Synthetic Issuing Bank or the Administrative Agent pursuant to this Section 2.03(d) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) If the Synthetic Issuing Bank shall not have received from the Borrower a reimbursement payment under Section 2.03(d) with respect to any Synthetic Letter of Credit within the time specified in such Section, the Synthetic Issuing Bank will promptly notify the Administrative Agent and the First Lien Collateral Agent of the Unreimbursed Amount in respect thereof. Promptly upon receipt of the foregoing notice in respect of any Unreimbursed Amount under any Synthetic Letter of Credit, the First Lien Collateral Agent shall cause any funds on deposit in, or credited to, the Synthetic L/C Cash Collateral Account to be applied to reimburse the Synthetic Issuing Bank in respect of any such Unreimbursed Amount and the Administrative Agent shall promptly notify each Synthetic L/C Lender of the portion of such Unreimbursed Amount remaining after such application of funds on deposit in, or credited to, the Synthetic L/C Cash Collateral Account and its Pro Rata Share of such portion. Each Synthetic L/C Lender irrevocably and unconditionally authorizes the Administrative Agent on behalf of the Synthetic Issuing Bank to withdraw from the Synthetic L/C Deposit Account the remaining amount of such Unreimbursed Amount (and debit the Synthetic L/C Deposit Sub-Account of each Synthetic L/C Lender in the amount of such Synthetic L/C Lender's Pro Rata Share of such remaining amount) to apply such funds as reimbursement of such Unreimbursed Amount (it being understood that such amount shall be deemed to constitute a Synthetic L/C Loan (which shall initially be a Eurodollar Rate Loan as set forth in clause iii
42 Boston Gencrating, LLC First Lien Crcdit Agreement NY 1:#3436966v ll 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 210 of 510
below) of such Synthetic L/C Lender). Promptly upon any such application of the Synthetic L/C Deposits pursuant to this Section 2.03(dl(ii), the Synthetic L/C Deposit Commitment of each Synthetic L/C Lender shall be reduced by the amount of its Synthetic L/C Deposit so applied.
(iii) On each date on which the Administrative Agent charges the Synthetic L/C Deposit Account to reimburse all or a portion of an Unreimbursed Amount in respect of a Synthetic Letter of Credit as provided in Section 2.03(dl(ii) above, such amount shall be deemed to be a Synthetic L/C Loan with an Interest Period coincident with the applicable Investment Period for the Synthetic L/C Deposits and the Eurodollar Rate therefor shall be the same as the applicable Eurodollar Rate for the Synthetic L/C Deposits.
(iv) If any payment received by the Synthetic Issuing Bank pursuant to Section 2.03(dl(il is required to be returned under any of the circumstances described in Section 9.12 (including pursuant to any settlement entered into by the Synthetic Issuing Bank in its discretion), each Synthetic L/C Lender hereby authorizes the Synthetic Issuing Bank to reimburse itself solely from such Lender's Synthetic L/C Deposit plus interest thereon from the date of such demand to the date such amount is returned by such Synthetic L/C Lender, at a rate per annum equal to the Eurodollar Rate then in effect.
(v) If payment is made from the Synthetic L/C Deposits, the Borrower shall have the right, within five (5) Business Days of the date on which such payment is made (provided that no Default or Event of Default shall have occurred and be continuing), to pay to the Administrative Agent (which shall remit to the Synthetic Issuing Bank for deposit in the Synthetic L/C Deposit Account) an amount equal to the full amount of such payment and such amount shall be added to the Synthetic L/C Deposits of the Synthetic L/C Lenders in accordance with each such Synthetic L/C Lender's Pro Rata Share of such amount (with a corresponding increase in such Synthetic L/C Lender's Synthetic L/C Deposit Commitments), and each such Synthetic L/C Lender's Synthetic L/C Loans shall be automatically reduced by a corresponding equal amount, The Borrower shall pay the Administrative Agent for the account of each Synthetic L/C Lender accrued and unpaid interest to the date of such reduction of Synthetic L/C Loans on the principal amount of such Synthetic L/C Loans so reduced pursuant to this subclause (v).
(e) Svnthetic L/C Deposit Account. (i) On or prior to the Effective Date, the Administrative Agent shall establish the Synthetic L/C Deposit Account. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each Synthetic L/C Lender in the Synthetic L/C Deposit Account (the interest of each Synthetic L/C Lender in the Synthetic L/C Deposit Account, as evidenced by such records, being referred to as such Synthetic L/C Lender's "Synthetic L/C Deposit Sub Account"). The Administrative Agent shall establish such additional Synthetic L/C Deposit Sub-Accounts for any assignee Lenders as shall be required pursuant to Section 9.07. No Person other than the Administrative Agent (or any of its sub-agents) shall have the right to make any withdrawal from the Synthetic L/C Deposit Account or to exercise any other right or power with respect thereto, except as expressly provided herein. Each Synthetic L/C Lender agrees that its right, title and interest in
43 Boston Generating, LLC First Licn Crcdit Agreement NY 1:#3436966v l 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 211 of 510
and to the Synthetic L/C Deposit Account shall be limited to the right to require its Synthetic L/C Deposit Sub-Account to be used as expressly set forth herein and that it will have no right to require the return of any Synthetic L/C Deposit other than as expressly provided herein. Each Synthetic UC Lender hereby acknowledges that (A) its Synthetic L/C Deposit constitutes payment for its Synthetic L/C Participation Obligation, (B) its Synthetic L/C Deposit and any investments made therewith shall secure its obligations to the Administrative Agent for the benefit of the Synthetic Issuing Bank hereunder (each Synthetic L/C Lender hereby granting to the Administrative Agent for the benefit of the Synthetic Issuing Bank, a security interest in its Synthetic L/C Deposit and agreeing that the Synthetic Issuing Bank, as holder of the Synthetic L/C Deposits on behalf of the Synthetic Issuing Bank and any investments made therewith, will be acting as collateral agent) and (C) the Synthetic Issuing Bank will be issuing, amending, renewing and extending Synthetic Letters of Credit in reliance on the availability of such Lender's Synthetic L/C Deposit to discharge such Lender's obligations in connection with any Unreimbursed Amount under the Synthetic Letters of Credit in accordance with Section 2.03(d)(ii). Each Synthetic L/C Lender hereby grants to the Administrative Agent for the benefit of the Synthetic Issuing Bank a security interest in its rights and interests in such Synthetic L/C Lender's Synthetic L/C Deposit to secure the obligations of such Synthetic L/C Lender hereunder.
(ii) Each of the Administrative Agent, the Synthetic Issuing Bank and each Synthetic L/C Lender hereby acknowledges and agrees that (A) each Synthetic L/C Lender is funding its Synthetic L/C Deposit to the Administrative Agent for application in the manner contemplated by Section 2.03(d)(ii) and (B) the Administrative Agent may invest the Synthetic L/C Deposits in Cash Equivalents. The Administrative Agent hereby agrees to pay each Synthetic L/C Lender, on the last day of each Investment Period applicable to the Synthetic L/C Deposits, interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on the amount of such Synthetic L/C Lender's Pro Rata Share of the aggregate amount of the Synthetic L/C Deposits during the Investment Period ending on such date at a rate per annum equal to the Eurodollar Rate for such Investment Period less the Synthetic L/C Deposit Cost Amount attributable thereto.
(iii) Each party hereto acknowledges and agrees that no Loan Party shall have any right, title or interest in or to the Synthetic L/C Deposits, the Synthetic L/C Deposit Account or any Synthetic L/C Deposit Sub-Account and no obligations with respect thereto, it being acknowledged and agreed by the parties hereto that the making of the Synthetic L!C Deposits by the Synthetic UC Lenders, the provisions of this Section 2.03(e) and the application of the Synthetic L/C Deposits in the manner contemplated by Section 2.03(d)(ii) constitute agreements among the Administrative Agent, the Synthetic Issuing Bank and each Synthetic L/C Lender with respect to the funding obligations of each Synthetic L/C Lender in respect of its participation in Synthetic Letters of Credit and do not constitute any loan or extension of credit to the Borrower. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that the Synthetic L/C Deposits are and at all times will continue to be property of the Synthetic L/C Lenders and that no amount on deposit at any time in the Synthetic L/C Deposit Account shall be the property of any Loan Pariy, 44 Boston Generating, LLC First Lien Crcdit Agreement NY 1:#3436966v 1 I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 212 of 510
constitute "Collateral" under the Loan Documents or otherwise be available in any manner to satisfy any Obligation of any Loan Party under the Loan Documents.
(iv) If, for any Interest Rate Determination Date, the Administrative Agent shall have deternuned (which determination shall be conclusive and binding on each Synthetic L/C Lender) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate, the Administrative Agent shall give notice thereof to the Synthetic L/C Lenders and until such notice has been withdrawn, the Synthetic L/C Deposits on deposit in the Synthetic L/C Deposit Account shall be invested so as to earn a return equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(v) The Administrative Agent shall return amounts on deposit in, or credited to, the Synthetic L/C Deposit Account to each Synthetic L/C Lender based on such Synthetic L/C Lender's Pro Rata Share of such amount (and the Administrative Agent shall make such payment to each Synthetic L/C Lender promptly upon receipt of such funds) on the earliest to occur of: (a) a Repayment Event (whether or not an Event of Default referred to in subclause (cl below has occurred), (b) on the first date on or after the Term B Maturity Date on which the Synthetic L/C Exposure has been reduced to zero, (c) following the occurrence of an Event of Default (other than an Event of Default of the type described in Section 6.01(~l), on the date occurring 91 days after the Borrower has cash collateralized all Synthetic Letters of Credit pursuant to Section 6.02 and (d) following the occurrence of an Event of Default of the type described in Section 6.01(~), after the temunation and cancellation of all Synthetic Letters of Credit.
( fl Reductions in Smthetic L/C Deposits. (i) The Borrower may, upon at least three (3) Business Days' irrevocable written notice to the Synthetic Issuing Bank stating the proposed date and aggregate principal amount of the reduction, direct the Synthetic Issuing Bank to reduce in whole or in part the Synthetic L/C Deposits; provided that (A) if any such notice is given (1) the amount specified in such notice shall be paid on such date by the Administrative Agent to each Synthetic L/C Lender in accordance with its Pro Rata Share of such reduction amount from the Synthetic L/C Deposit Account and (2) the Borrower shall pay to the Administrative Agent on the date of any such reduction for the ratable benefit of the Appropriate Lenders (x) an amount equal to the accrued Participation Fee through the date of such reduction on the amount of the Synthetic L/C Deposits being so reduced and (y) in the case of any such reduction on a date other than the last day of an Interest Period for such Synthetic L/C Deposits, the amount owing by the Borrower pursuant to Section 9.04(c) and (z) the Administrative Agent shall pay on the date of any such transfer for the ratable benefit of the Synthetic L/C Lenders interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on such amount at a rate per annum equal to the Eurodollar Rate for the then applicable Investment Period less the Synthetic L/C Deposit Cost Amount attributable thereto, (B) each partial reduction of any of the Synthetic L/C Deposits (1) shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess thereof and (2) shall be made ratably among the Synthetic L/C Lenders in accordance with their Synthetic L/C Deposit Commitments and (C) no such reduction shall be permitted if, after giving effect to such reduction, the Synthetic L/C
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Exposure would exceed the sum of (x) the Synthetic L/C Deposits remaining on deposit in the Synthetic L/C Deposit Account plus (y) the amounts on deposit in the Synthetic L/C Cash Collateral Account after giving effect to such reduction.
(ii) On any date on which any amounts are deposited into the Synthetic L/C Cash Collateral Account pursuant to Section 2.06(b), (A) the Administrative Agent shall reduce the Synthetic L/C Deposit Account for payment to each Synthetic L/C Lender an amount equal to such Synthetic L/C Lender's Pro Rata Share of the amount so deposited in the Synthetic L/C Cash Collateral Account from the Synthetic L/C Deposit Account, (B) the Administrative Agent shall pay on the date of any such transfer for the ratable benefit of the Synthetic L/C Lenders interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on such amount at a rate per annum equal to the Eurodollar Rate for the then applicable Investment Period less the Synthetic L/C Deposit Cost amount amibutable thereto, and (C) the Borrower shall pay to the Administrative Agent on the date of any such transfer for the ratable benefit of the Synthetic L/C Lenders (1) an amount equal to the accrued Participation Fee through the date of such reduction on the amount of the Synthetic L/C Deposits being so reduced and (2) in the case of any such reduction on a date other than the last day of an Investment Period for such Synthetic L/C Deposits, the amount owing by the Borrower pursuant to Section 9.04(c). Notwithstanding the foregoing, the Administrative Agent shall not be required to reduce the Synthetic L/C Deposits to the extent that after giving effect to such reduction, the Synthetic L/C Exposure would exceed the sum of (x) the Synthetic L/C Deposits remaining on deposit in the Synthetic L/C Deposit Account plus (y) the amounts on deposit in the Synthetic L/C Cash Collateral Account, after giving effect to such reduction.
(iii) On any date on which the Synthetic L/C Deposit Commitments are reduced pursuant to Section 2.05, (A) the Administrative Agent shall reduce the Synthetic L/C Deposit Account by the amount of such reduction and shall transfer such amount to each Synthetic L/C Lender based on such Synthetic L/C Lender's Pro Rata Share of the amount by which the Synthetic L/C Deposit Commitments are so reduced, (B) the Administrative Agent shall pay on the date of any such transfer for the ratable benefit of the Synthetic L/C Lenders interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on such amount at a rate per annum equal to the Eurodollar Rate for the then applicable Investment Period less the Synthetic L/C Deposit Cost Amount attributable thereto, and (C) the Borrower shall pay to the Administrative Agent on the date of any such transfer for the ratable benefit of the Synthetic L/C Lenders (1) an amount equal to the accrued Participation Fee through the date of such reduction on the amount of the Synthetic L/C Deposits being so reduced and (2) in the case of any such reduction on a date other than the last day of an Investment Period of such Synthetic L/C Deposits, the amount owing by the Borrower pursuant to Section 9.04(c).
(g) Obligations Absolute. The Obligations of the Borrower under this Agreement and any other agreement or instrument relating to any Synthetic Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
46 Boston Generating, LLC First Licn Credit Agreemcnt NY 1: #3436966v ll 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 214 of 510
Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Loan Document, any Synthetic Letter of Credit or any other agreement or instrument relating thereto (all of the foregoing being, collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of the Borrower in respect of any L/C Related Document or any other amendment or waiver of, or any consent to departure from, all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of a Synthetic Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Synthetic Issuing Bank or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Synthetic 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 any Synthetic Issuing Bank under a Synthetic Letter of Credit against presentation of a draft, certificate or other document that does not strictly comply with the terms of such Synthetic Letter of Credit;
(vi) any exchange, release or non-perfection of any Collateral or other collateral, or any release or amendment or waiver of or consent to departure from the Guarantees or any other guarantee, for all or any of the Obligations of the Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or a guarantor.
(h) Replacement of a Synthetic Issuin~nk. Any Synthetic Issuing Bank may be replaced at any time by written agreement among the Borrower, the new Synthetic Issuing Bank and the Administrative Agent (with notice to the Synthetic Issuing Bank being replaced); provided, however, that, if the Synthetic Issuing Bank being replaced so requests, any Synthetic Letter of Credit issued by such Synthetic Issuing Bank shall be replaced and cancelled priar to the removal of such Synthetic Issuing Bank and all fees and other amounts owed to such removed Synthetic Issuing Bank shall be paid to it.
(i) If at any time the unsecured senior debt of any Synthetic Issuing Bank is not rated at least A3 by Moody's and A- by S&P, then the Borrower may, upon 10 days' prior written notice to such Synthetic Issuing Bank and the Administrative Agent, elect to 47 Boston Gcnerating, LLC First Licn Credit Agreement NY 1:#t343 h966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 215 of 510
(A) replace such Synthetic Issuing Bank with a Person selected by the Borrower so long as such Person is an Eligible Assignee and is reasonably satisfactory to the Administrative Agent or (B) cause such Synthetic Issuing Bank to assign its Synthetic Letter of Credit Commitment to an additional Synthetic Issuing Bank selected by the Borrower so long as such Person is an Eligible Assignee and is reasonably satisfactory to the Administrative Agent. Each replacement or assignment pursuant to this Section 2.03(h) shall be done in accordance with Section 9.07.
(ii) From and after the effective date of any such replacement or addition, (A) the successor or additional Synthetic Issuing Bank shall have all the rights and obligations of a Synthetic Issuing Bank under this Agreement (and the Synthetic Letters of Credit to be issued by it on such effective date or thereafter) and (B) references herein to the term "Synthetic Issuing Bank" shall be deemed to refer to such successor, additional Synthetic Issuing Bank or to any previous Synthetic Issuing Bank, or to such successor, additional Synthetic Issuing Bank and all previous Synthetic Issuing Banks, as the context may require.
(i) Existin~Letters of Credit. The Borrower and the Guarantors hereby (A) designate each Existing Letter of Credit as a Synthetic Letter of Credit and (B) accept, acknowledge and assume all obligations with respect to such Existing Letters of Credit pursuant to the terms and conditions of this Agreement.
SECTION 2.04. Repavment of Loans.
(a) Term B Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Term B Lenders the aggregate outstanding principal amount of the Term B Loans on the last Business Day of each calendar quarter commencing on the last Business Day of March 2007 in an amount equal to $2,825,000 (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.06); provided, however, that the final principal installment shall be repaid on the Term B Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of the Term B Loans outstanding on such date.
(b) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent far the ratable account of the Revolving Credit Lenders on the Revolving Credit Ternvnation Date the aggregate principal amount of the Revolving Credit Loans then outstanding.
(c) Svnthetic L/C Loans. The Borrower shall repay to the Administrative Agent far the account of the Synthetic Issuing Bank and each Synthetic L/C Lender that has made Synthetic L/C Loans on the Synthetic L/C Maturity Date the outstanding principal amount of each Synthetic L/C Loan made by each of them.
SECTION 2.05. Termination or Reduction of the Commitments.
(a) Optional. The Borrower may, upon at least five Business Days' irrevocable notice to the Administrative Agent (provided that, if a notice is conditioned upon the 48 Boston Generating, LLC First Lien Credi[ Agreement NYI:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 216 of 510
effectiveness of other credit facilities or any incurrence or issuance of debt or equity, such notice may be revoked by the Borrower (by notice to the Administrative Agent) if such credit facilities do not become effective or such other transaction does not close, subject to the obligations of the Borrower under Section 9.04(c)), terminate in whole or reduce in part the unused portions of the Term B Commitments, the Unused Revolving Credit Commitments and the Synthetic L/C Deposit Commitments; provided, however, that each partial reduction of a Facility (i) shall be in an aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess thereof, (ii) shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Facility, (iii) after giving effect to any such reduction in respect of the Synthetic L/C Deposit Commitments, the remaining amount of the Synthetic L/C Deposit Cornmitments shall be equal to or greater than the Synthetic L/C Exposure at such time, (iv) the Borrower shall not terminate or reduce any Revolving Credit Commitments, if, after giving effect to such reduction and any concurrent prepayment of the Loans in accordance with Section 2.06, the aggregate Revolving Credit Exposure would exceed the aggregate Revolving Credit Commitments and (v) with respect to such termination or reduction consisting of a re- pricing or a refinancing of all or substantially all of any such unutilized Commitments, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Appropriate Lenders, the Call Premium, if any. The Borrower's notice to the Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction, the amount of any partial reduction and the Call Premium, if any, and such ternunation or reduction of the relevant Commitments shall be effective on the date specified in the Borrower's notice and shall reduce the relevant Commitxnents of the Appropriate Lenders proportionately in accordance with each such Appropriate Lender's Pro Rata Share thereof.
(b) Mandatorv. (i) Subject to any increases in Synthetic L/C Deposit Commitments of Synthetic L/C Lenders pursuant to Section 2.03(d)(v), the Synthetic L/C Deposit Commitment of each 5ynthetic L/C Lender shall be permanently and ratably reduced from time to time upon any reduction in the Synthetic L/C Deposits.
(ii) Any termination or reduction of the Revolving Credit Commitments or the aggregate Revolving Credit-Linked Deposits pursuant to Section 2.05 shall be permanent.
(iii) Unless previously terminated or reduced, the Revolving Credit Commitments shall terminate and be reduced to zero on the Revolving Credit Ternunation Date. Subject only to the Borrower's compliance with its obligations under the preceding sentence, any amount of the Revolving Credit-Linked Deposits held in the Revolving Credit-Linked Deposit Account will be returned to the Revolving Credit Lenders on the Revolving Credit Termination Date ratably in accordance with their Applicable Revolving Credit Percentages of the total Revolving Credit-Linked Deposits for all Revolving Credit Lenders.
(c) In the event the aggregate Revolving Credit Commitments shall be reduced as provided in clause a above, the Administrative Agent will return all amounts in the Revolving Credit-Linked Deposit Account in excess of the reduced aggregate Revolving Credit- Linked Deposits corresponding to the reduced Revolving Credit Commitments to the Revolving Credit Lenders, ratably in accordance with their Applicable Revolving Credit Percentages of the
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Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments and Revolving Credit-Linked Deposits shall be subject to the provisions of Section 9.04(cl.
SECTION 2.06. Prepavments.
(a) Ontional. The Borrower may, upon at least one Business Day's irrevocable notice in the case of Base Rate Loans and three Business Days' irrevocable notice in the case of Eurodollar Rate Loans, in each case to the Administrative Agent (provided that, if a notice is conditioned upon the effectiveness of other credit facilities or any incurrence or issuance of debt or equity, such notice may be revoked by the Borrower (by notice to the Administrative Agent) if such credit facilities do not become effective or such other transaction does not close, subject to the obligations of the Borrower under Section 9.04(c)) stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall prepay the outstanding aggregate principal amount of the Loans comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment unless such accrued interest is in respect of a prepayment that is a prepayment of Revolving Credit Loans consisting of Base Rate Loans which accrued and unpaid interest shall be in arrears on the last Business Day of December, March, June and September commencing on the last Business Day of March 2007 on the aggregate principal amount prepaid; provided, however, that (i) each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $500,000 in excess thereof, (ii) if any prepayment of a Eurodollar Rate Loan is made on a date other than the last day of an Interest Period for such Loan, the Borrower shall also pay any amounts owing pursuant to Section 9.04(c) and (iii) with respect to such prepayment consisting of a re-pricing or a refinancing of all or substantially all of any such Loans with the proceeds of Debt for Borrowed Money issued or incurred by any of the Loan Parties, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Appropriate Lenders, the Call Premium, if any. Each such prepayment of the Term B Loans shall be applied to the installments thereof pro rata.
(b) Mandatorv. (i) The Borrower shall on the date specified in the last sentence of clause c below (A) prepay an aggregate principal amount of the Loans plus accrued and unpaid interest thereon to the date of prepayment and any amounts owing pursuant to Section 9.04(cl and (B) deposit funds in the Synthetic L/C Cash Collateral Account, in either case, with funds then on deposit in the Prepayment Account on each Semi-Annual Prepayment Date (other than Net Cash Proceeds (if any) referred to in clause ii below) in accordance with the priorities f rst through fourth of Section 3.8 of the Security Deposit Agreement. Each such prepayment of the Term B Facility shall be applied to the installments of such Term B Facility pro rata.
(ii) Subject to the Security Deposit Agreement, following the receipt of any Net Cash Proceeds of any Casualty Event, Event of Eminent Domain, Asset Sale, Equity Issuance or the incurrence or issuance of any Debt (other than Debt permitted to be incurred pursuant to Section 5.02(b)), the Borrower shall on the date specified in the last sentence of clause c below (A) prepay an aggregate principal amount of the Loans plus accrued and unpaid interest thereon to the date of prepayment and any amounts owing pursuant to Section 9.04(c) and (B) deposit funds in the Synthetic L/C Cash Collateral
50 Boston Gcncrating, LLC First Lien Crcdit Agrocment NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 218 of 510
Account, in either case, with such Net Cash Proceeds then on deposit in the Prepayment Account in accordance with priorities first through fourth of Section 3.8 of the Security Deposit Agreement. Each such prepayment of the Term B Facility shall be applied to the installments of such Term B Facility pro rata.
(c) Procedures; Option to Decline. Not later than 11:00 a.m. (New York City time) on the Business Day following each Semi-Annual Prepayment Date, in the cause of clause (b)(i) above, or following the receipt of Net Cash Proceeds, in the case of clause (bl(ii) above, the Borrower shall notify the Administrative Agent of the amount that is available to prepay such Loans (the "Prepayment AmounP'). On the date of receipt of such notice, or, if such notice is received after 11:00 A.M. (New York City time), on the next succeeding Business Day, the Administrative Agent shall provide written notice (the "First Offer") to the Appropriate Lenders of the amount available to prepay the Loans. Any Appropriate Lender, at its option, may elect not to accept any prepayment of such Loans pursuant to Section 2.06(bl. Any Appropriate Lender declining such prepayment (a "Declining Lender") shall give written notice thereof to the Administrative Agent by 11:00 a.m. (New York City time) no later than two Business Days after the date of such notice from the Administrative Agent. On such date the Administrative Agent shall then provide written notice (the "Second Offer") to the Appropriate Lenders other than the Declining Lenders (such Appropriate Lenders being the "Accepting Lenders") of the additional amount available (due to such Declining Lenders' declining such prepayment) to prepay such Loans owing to such Accepting Lenders. Any Appropriate Lender declining prepayment pursuant to such Second Offer, shall give written notice thereof to the Administrative Agent by 11:00 a.m. (New York City time) no later than two Business Days after the date of such notice of a Second Offer. The Administrative Agent shall repeat the First Offer and Second Offer, if applicable, for any Facility entitled to a repayment of Loans under Section 2.06(b) until the date that the Administrative Agent shall have determined the amounts to be prepaid hereunder in connection with such mandatory prepayments, and, on such date, the Administrative Agent shall give written notice to the Borrower of the amount of the prepayments required to be made on the applicable prepayment date pursuant to Section 2.06(b), after giving effect to the First Offer and the Second Offer. The Borrower shall direct the prepayment of such Loans in accordance with the Security Deposit Agreement, in the aggregate amount specified in the notice from the Administrative Agent described in the immediately preceding sentence, within one Business Day after its receipt of notice from the Administrative Agent of the aggregate amount of such prepayment.
(d) Annlication of Prepavment by.Tvve of Term B Loans. In connection with any voluntary prepayments by the Borrower pursuant to clause a above, any voluntary prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 9.04(c).
(e) In connection with any mandatory prepayments by the Borrower of the Term B Loans pursuant to clause b above and Section 2.15, such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term B Loans are Base Rate Loans or Eurodollar Rate Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term B Loans
51 Boston Gcnerating, LLC First Lien Credit Agreement NY l :#3436966v l I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 219 of 510
pursuant to clause c above or Section 2.15 then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term B Loans that are Base Rate Loans to the full extent thereof before application to Tertn B Loans that are Eurodollar Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 9.04(c).
SECTION 2.07. Interest.
(a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each Loan owing to each Lender from the date of such Loan until such principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Loans. During such periods as such Loan is a Sase Rate Loan, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time plus (B) the Applicable Margin in effect from time to time, payable in arrears quarterly on the last Business Day of each December, March, June and September during such periods and on the date such Base Rate Loan shall be Converted or paid in full commencing on the last Business Day of March 2007.
(ii) Eurodollar Rate Loans. During such periods as such Loan is a Eurodollar Rate Loan, a rate per annum equal at all times during each Interest Period for such Loan to the sum of (A) the Eurodollar Rate for such Interest Period for such Loan plus (B) the Applicable Margin in effect, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Loan shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require that the Borrower pay interest ("Default Interest") on (i) the unpaid principal amount of each Loan owing to each Lender Party, payable in arrears on the dates referred to in clause i or ii of Section 2.07(a), as applicable, and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Loan pursuant to clause i or ii of Section 2.07(a), as applicable, and (ii) to the fullest extent permitted by applicable law, the amount of any interest, fee (including the Participation Fee) or other amount payable under this Agreement or any other Loan Document to any Agent or any Lender Party that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate Loans pursuant to clause i of Section 2.07(al; provided, however, that following the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Administrative Agent. Payment or acceptance of the increased rates of interest provided for in this Section 2.07(b) is not a permitted alternative to timely payment and shall not
52 Boston Gcnerating LLC First Licn Credit Agrcement NY 1:#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 220 of 510
constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender Party.
(c) Notice of Interest Period and Interest Rate. Promptly after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section 2.09 or a notice of selection of an Interest Period pursuant to the terms of the definition of "Interest Period," the Administrative Agent shall give notice to the Borrower and each Appropriate Lender of the applicable Interest Period and the applicable interest rate determined by the Administrative Agent for purposes of clause (a)(i) or a ii above.
SECTION 2.08. Fees.
(a) Revolver Fee. The Borrower agrees to pay to the Administrative Agent on behalf of the Revolving Credit Lenders on a quarterly basis on the last Business Day of each December, March, June and September (commencing on the last Business Day of March 2007) occurring after the Effective Date for the account of each Revolving Credit Lender a fee, accruing (subject to Section 2.07(b)) at a rate per annum equal to the Applicable Margin on the daily amount of the Revolving Credit-Linked Deposit of such Revolving Credit Lender (less the principal amount of the Revolving Credit Loans held by Revolving Credit Lenders during such period and not by the Fronting Bank in its capacity as such) during the period from and including the Effective Date to but excluding the date on which each of the Revolving Credit Commitments of all of the Revolving Credit Lenders has been reduced to zero. In addition, the Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender an additional amount, accruing at the rate of 0.125% per annum, on the daily amount of the Revolving Credit-Linked Deposit of such Revolving Credit Lender during the period from and including the Effective Date hereof to but excluding the date on which each of the Revolving Credit Commitments of all of the Revolving Credit Lenders has been reduced to zero (less the principal amount of the Revolving Credit Loans held by Revolving Credit Lenders during such period and not by the Fronting Bank in its capacity as such). All fees payable under this paragraph shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The foregoing fees shall be due and payable in arrears quarterly on the last Business Day of each December, March, June and September (commencing on the last Business Day of March 2007) occumng after the Effective Date, and on the date on which each of the Revolving Credit Commitments of all of the Revolving Credit Lenders has been reduced to zero.
(b) Letter of Credit Fees. (i) [Reserved].
(ii) The Borrower agrees to pay to the Administrative Agent for the account of each Synthetic L/C Lender a participation fee (a "Participation Fee") with respect to its agreement to participate in the Synthetic Letters of Credit, which Participation Fee shall accrue at a rate per annum equal to the Applicable Margin plus the Synthetic L/C Deposit Cost Amount attributable to such Synthetic L/C Lender's Synthetic L/C Deposit, on the average daily amount of such Synthetic L/C Lender's Synthetic L/C Deposit during the period from and including, the Effective Date and to but excluding the date on which such Synthetic L/C Lender's 5ynthetic LIC Deposit is returned to such Synthetic L/C
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Lender in accordance with Section 2.03(e)(v). Accrued Participation Fees shall be due and payable in arrears quarterly on the last Business Day of each December, March, June and September (commencing on the last Business Day of March 2007) occurring after the Effective Date; provided that all such Participation Fees shall be payable on the date on which any Synthetic L/C Deposits are returned to the Synthetic L/C Lenders pursuant to Section 2.03(el(v).
(iii) The Borrower shall pay the Synthetic Issuing Bank, for its own account, such commissions, issuance fees, fronting fees, transfer fees and other fees and charges in connection with the issuance, administration and amendment of each Synthetic Letter of Credit as the Borrower and such Synthetic Issuing Bank may agree.
(c) A~ents' Fees. The Borrower shall pay to each Agent for its own account such fees as may from time to time be agreed between the Borrower and such Agent.
SECTION 2.09. Conversion of Loans.
(a) Optional. The Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Section 2.10, Convert all or any portion of the Loans of one Type comprising the same Borrowing into Loans of the other Type; provided, however, that any Conversion of Eurodollar Rate Loans into Base Rate Loans shall be made only on the last day of an Interest Period for such Eurodollar Rate Loans or, if made on another date, shall be subject to the provisions of Section 9.04(c), any Conversion of Base Rate Loans into Eurodollar Rate Loans shall be in an amount not less than the minimum amount specified in Section 2.02(b), no Conversion of any Loans shall result in more separate Borrowings than pernutted under Section 2.02(b) and each Conversion of Loans comprising part of the same Borrowing under any Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments under such Facility. Each such notice of Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Loans to be Converted and (iii) if such Conversion is into Eurodollar Rate Loans, the duration of the initial Interest Period for such Loans. Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatorv. (i) If the Sorrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Loans in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01, the Administrative Agent will forthwith so notify the Borrower and the Appropriate Lenders, whereupon each such Eurodollar Rate Loan shall have an Interest Period of one month.
(ii) Upon the occurrence and during the continuance of any Event of Default, (x) each Eurodollar Rate Loan will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Loan and (y) the obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended.
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SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender Party of agreeing to make or of making, funding or maintaining Eurodollar Rate Loans, any Revolving Credit-Linked Deposit or any Synthetic L/C Deposit or of agreeing to issue or of issuing or maintaining or participating in Synthetic Letters of Credit or of agreeing to make or of making or maintaining Synthetic L/C Loans or Revolving Credit Loans (excluding, for purposes of this Section 2.10, any such increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (y) changes in the basis or rate of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under the laws of which such Lender Party is organized or has its Applicable Lending Office or any political subdivision thereo fl, then the Borrower shall from time to time, upon demand by such Lender Party (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender Party additional amounts sufficient to compensate such Lender Party for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower by such Lender Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party deternunes that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender Party or any corporation controlling such Lender Party and that the amount of such capital is increased by or based upon the existence of such Lender Party's commitment to make Loans, to maintain Synthetic L/C Deposits, Revolving Credit-Linked Deposits or to issue or participate in Synthetic Letters of Credit hereunder and other commitments of such type or the issuance or maintenance of or participation in the Synthetic Letters of Credit (or similar Guaranteed Debts), then, upon demand by such Lender Party or such corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender Party, from time to time as specified by such Lender Party, additional amounts sufficient to compensate such Lender Party in the light of such circumstances, to the extent that such Lender Party reasonably determines such increase in capital to be allocable to the existence of such Lender Party's commitment to make Loans, to maintain Synthetic L/C Deposits or Revolving Credit-Linked Deposits or to issue or participate in Synthetic Letters of Credit hereunder or to the issuance or maintenance of or participation in any Synthetic Letters of Credit. A certificate as to such amounts submitted to the Borrower by such Lender Party shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Loans under any Facility, Lenders owed at least 33'/3% of the then aggregate unpaid principal amount thereof notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Loans will not adequately reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Rate Loans for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate Loan under such Facility will automatically, on the last day of the then e~sting Interest Period therefor, Convert into a Base Rate Loan and (ii) the obligation of the Appropriate Lenders to make, or to
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Convert Loans into, Eurodollar Rate Loans shall be suspended and (iii) the Revolving Credit- Linked Deposit and the Synthetic L/C Deposits shall be invested so as to earn a return equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, in each case, until the Administrative Agent shall notify the Borrower that such Lenders have determined that the circumstances causing such suspension no longer exist, in which case (x) the obligation of the Appropriate Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be reinstated and (y) the Revolving Credit-Linked Deposit and the Synthetic L/C Deposits shall be invested as otherwise provided herein.
(d) Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans hereunder, then, on notice thereof and demand therefar by such Lender to the Borrower through the Administrative Agent, (i) each Eurodollar Rate Loan under each Facility under which such Lender has a Commitment will automatically, upon such demand, Convert into a Base Rate Loan, (ii) the obligation of the Appropriate Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended and (iii) the Revolving Credit-Linked Deposits and the Synthetic L/C Deposits shall be invested so as to earn a return equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, in each case, until the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension no longer exist, in which case (x) the obligation of the Appropriate Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be reinstated and (y) the Revolving Credit-Linked Deposits and the Synthetic L/C Deposits shall be invested as otherwise provided herein; provided, however, that, before making any such demand, such Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if the making of such a designation would allow such Lender or its Eurodollar Lending Office to continue to perform its obligations to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, Revolving Credit-Linked Deposits ar its Synthetic L/C Deposit and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make each payment hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off (except as otherwise provided in Section 2.13), not later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent's Account in same day funds, with payments being received by the Administrative Agent after such time being deemed to have been received on the next succeeding Business Day in the Administrative Agent's sole discretion. The Administrative Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of principal, interest, cominitment fees or any other Obligation then payable hereunder and under the other Loan Documents to more than one Lender Party, to such Lender Parties for the account of their respective Applicable Lending Offices ratably in 56 Boston Generating, LLC First Lien Crcdit Agreement NY 1:#3436966v I I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 224 of 510
accordance with the. amounts of such respective Obligations then payable to such Lender Parties and (ii) if such payment by the Borrower is in respect of any Obligation then payable hereunder to one Lender Party, to such Lender Party for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.
(b) The Borrower hereby authorizes each Lender Party and each of its Affiliates, if and to the extent payment owed to such Lender Party is not made when due hereunder or under the other Loan Documents to charge from time to time, to the fullest extent permitted by law, against any or all of the Borrower's accounts with such Lender Party or such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of fees (including the Participation Fees) and Synthetic Letter of Credit commissions shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d) Except as otherwise provided under the Loan Documents, whenever any payment hereunder or under the other Loan Documents shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment fee or commission, as the case may be; provided, however, that, if such extension would cause payment of interest or commitment fee or commission on or principal of Eurodollar Rate Loans, Revolving Credit-Linked Deposits or Synthetic L/C Deposits to be made in the next following calendar month, such payment shall be made on the preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any Lender Party hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender Party on such due date an amount equal to the amount then due such Lender Party. If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender Party shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender Party together with interest thereon, for each day from the date such amount is distributed to such Lender Party until the date such Lender Party repays such amount to the Administrative Agent, at the Federal Funds Rate.
(~ If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the Loans or the Facility to which, ar the manner in which, such funds are to be applied, the Administrative Agent may, if no instructions with
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respect thereto are received from the Lender Parties upon request, but shall not be obligated to, elect to distribute such funds to each of the Lender Parties in accordance with such Lender Party's Pro Rata Share of the sum of (without duplication) (i) the aggregate principal amount of all Loans outstanding at such time, (ii) the aggregate amount of the Synthetic L/C Deposits at such time, (iii) the aggregate Available Amount of all Synthetic Letters of Credit outstanding at such time and (iv) the aggregate amount of the Revolving Credit-Linked Deposits at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender Party, and, in the case of the Term B Facility, for application to such principal repayment installments thereof, as the Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by any Loan Pariy to or for the account of any Lender Party or any Agent hereunder or under any other Loan Document shall be made, in accordance with Section 2.11 or the applicable provisions of such other Loan Document, if any, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender Party and each Agent, (x) taxes that are imposed on its overall net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereo fl by the state or foreign jurisdiction under the laws of which such Lender Party or such Agent, as the case may be, is organized (or any political subdivision thereo~, has its Applicable Lending Office, has a permanent establishment or is engaged in business (other than the business that the Lender Party is engaged in solely by reason of the transactions contemplated by this Agreement), (y) any branch profits t~es imposed by the United States of America and (z) withholding taxes imposed under law in effect on the date hereof or at the time the Lender Party designates a new Applicable Lending Office, other than any new Applicable Lending Office designated at the written request of a Loan Party (in the case of a Lender Party that is not an Initial Lender, this clause z shall include taxes imposed under law in effect on the date such Lender Party becomes a Lender, except to the extent that the Lender's predecessor would have been entitled to receive additional amounts under this Section 2.12(a)) and, in the case of each Lender Party, taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereo~ by the state or foreign jurisdiction of such Lender Pariy's Applicable Lending Office or any political subdivision thereof (all such non- excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under any other Loan Document being hereinafter referred to as "Taxes"). If any Loan Party or the Administrative Agent shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender Party or any Agent, (i) the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 2.12) such Lender Party or such Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make all such deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(b) In addition, each Loan Party shall pay any present or future stamp, documentary, excise, property (including intangible property, but with regard to all property taxes, only to the extent relating to property of a Loan Party) mortgage recording or similar
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taxes, charges or levies that arise from any payment made by such Loan Party hereunder or under any other Loan Documents or from the execution, delivery or registration of, performance under this Agreement or the other Loan Documents (hereina~er referred to as "Other Tirxes").
(c) The Loan Parties shall indemnify each Lender Party and each Agent for and hold them harmless against the full amount of T~es and Other Taxes, and for the full amount of taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.12, imposed on or paid by such Lender Party or such Agent (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender Party or such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment, to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. In the case of any payment hereunder or under the other Loan Documents by or on behalf of a Loan Pariy through an account or branch outside the United States or by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party determines that no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of subsections (dl and ~ of this Section 2.12, the terms "United States" and "United States person" shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside the United States shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender Party and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as reasonably requested in writing by the Borrower (but only so long thereafter as such Lender Party remains lawfully able to do so), provide each of the Administrative Agent and the Borrower with two original Internal Revenue Service Forms W-8BEN or W-8ECI or (in the case of a Lender Party that has certified in writing to the Administrative Agent that it is not (i) a "bank" as defined in Section 881(c)(3)(A) of the Internal Revenue Code), (ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign corparation related to any Loan Party (within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal Revenue Service Form W-BBEN, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender Party is exempt from or entitled to a reduced rate of United 5tates withholding tax on payments pursuant to this Agreement or any other Loan Document or, in the case of a Lender Party that has certified that it is not a"bank" as described above, certifying that such Lender Party is a foreign corporation, partnership, estate or trust. As provided in Section 2.12(a), if the forms provided by a Lender Parly at the time such Lender Party first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender Party provides the appropriate forms certifying that a lesser rate applies,
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whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided, however, that if, at the effective date of the Assignment and Acceptance pursuant to which a Lender Party becomes a party to this Agreement, the Lender Party assignor was entitled to payments under subsection (a) of this Section 2.12 in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding taac, if any, applicable with respect to the Lender Party assignee on such date. If any form or document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form W-BBEN or W-8ECI or the related certificate described above, that the applicable Lender Party reasonably considers to be confidential, such Lender Party shall give notice thereof to the Borrower and shall not be obligated to include in such fvrm or document such confidential information.
( fl For any period with respect to which a Lender Party has failed to provide the Borrower with the appropriate form, certificate or other document described in subsection (el above (other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was required to be provided or if such form, certificate or other document otherwise is not required under subsection (e) above), such Lender Party shall not be entitled to indemnification under subsection (a) or ~ of this Section 2.12 with respect to Taxes imposed by the United States by reason of such failure; provided, however, that should a Lender Party become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Loan Parties shall take such steps as such Lender Party shall reasonably request, at the Lender Party's sole expense and as long as the Loan Parties determine that such steps will not, in the reasonable judgment of the Loan Parties, be disadvantageous to the Loan Parties, to assist such Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender Party, be otherwise disadvantageous to such Lender Party. In addition, if a Lender Party deternunes, in such Lender Party's sole discretion, that it has received a refund or credit in respect of any Taxes or Other Taxes as to which it has been indemnified pursuant to Section 2.12(c), or with respect to which additional amounts have been paid pursuant to Section 2.12(a), such Lender Party shall pay to the Borrower an amount equal to such refund (but such amount in no event to exceed the amount of any indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.12 with respect to the Taxes or Other Taxes giving rise to such refund) net of all out-of-pocket expenses of such Lender Party, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of such Lender Party, shall agree to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender Party in the event such Lender Party subsequently deternunes that
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such refund or credit is unavailable under applicable law or is otherwise required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require a Lender Party to rearrange its ta~c affairs or to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
(h) The Administrative Agent shall deliver to each Loan Party on the Effective Date (and shall keep effective thereafter) two duly completed copies of Internal Revenue Service Form W-8IMY, or any successor or other form prescribed by the Internal Revenue Service, certifying that it is a"U.S. branch" and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with each Loan Party to be treated as a U.S. person with respect to such payments (and each Loan Pariy and the Administrative Agent agree to so treat the Administrative Agent as a U.S. Person with respect to such payments), with the effect that each Loan Party can make payments to the Administrative Agent without deduction or withholding of any Taxes imposed by the United States.
SECTION 2.13. Sharing of Pavments, Etc. If any Lender Party shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set- off, or otherwise, other than as a result of an assignxnent pursuant to Section 9.07), (a) on account of Obligations due and payable to such Lender Party hereunder and under the other Loan Documents or on account of the Synthetic L/C Deposits or the Revolving Credit-Linked Deposits maintained by such Lender Party at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender Party or, to the extent applicable, the Synthetic L/C Deposits or the Revolving Credit-Linked Deposits maintained by such Lender Party at such time to (ii) the aggregate amount of the Obligations due and payable to all Lender Parties hereunder and under the other Loan Documents at such time or, to the extent applicable, the total 5ynthetic L/C Deposits and Revolving Credit-Linked Deposits maintained by all Lenders at such time) of payments on account of the Obligations due and payable to all Lender Parties hereunder and under the other Loan Documents, the Revolving Credit-Linked Deposits or the Synthetic L/C Deposits maintained by the Lenders, as applicable, at such time obtained by all the Lender Parties at such time or (b) on account of Obligations owing (but not due and payable) to such Lender Party hereunder and under the other Loan Documents, the Revolving Credit-Linked Deposits or the Synthetic L/C Deposits maintained by the Lenders, as applicable, at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing to such Lender Party at such time or the Synthetic L/C Deposits maintained by such Lender Party at such time, as applicable, to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lender Parties hereunder and under the other Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lender Parties hereunder and under the other Loan Documents or the total Synthetic UC Deposits or the Revolving Credit-Linked Deposits maintained by the Lenders, as applicable, at such time obtained by all of the Lender Parties at such time, such Lender Party shall forthwith purchase from the other Lender Parties such interests or participating interests in the Obligations, the Revolving Credit-Linked Deposits or Synthetic L/C Deposits due and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing Lender Party to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payxnent is thereafter recovered from such
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purchasing Lender Party, such purchase from each other Lender Party shall be rescinded and such other Lender Party shall repay to the purchasing Lender Party the purchase price to the extent of such Lender Party's ratable share (according to the proportion of (i) the purchase price paid to such Lender Party to (ii) the aggregate purchase price paid to all Lender Parties) of such recovery together with an amount equal to such Lender Party's ratable share (according to the proportion of (i) the amount of such other Lender Party's required repayment to (ii) the total amount so recovered from the purchasing Lender Party) of any interest or other amount paid or payable by the purchasing Lender Party in respect of the total amount so recovered. The Loan Parties agree that any Lender Party so purchasing an interest or participating interest from another Lender Party pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-offl with respect to such interest or participating interest, as the case may be, as fully as if such Lender Party were the direct creditor of the Loan Parties in the amount of such interest or participating interest, as the case may be.
SECTION 2.14. Use of Proceeds. (a) The proceeds of the Term B Loans shall be available (and the Borrower agrees that it shall use such proceeds) solely (i) to refinance all outstanding indebtedness under the Existing Credit Agreements, (ii) to provide working capital for the Loan Parties, (iii) to fund the Distribution and the Tender Offer of EBG Holdings, and (iv) pay transaction fees and expenses.
(b) The proceeds of the Revolving Credit Loans shall be available (and the Borrower agrees that it shall use such proceeds) solely (i) to provide working capital for the Loan Parties and (ii) for the Loan Parties' other general corporate purposes.
(c) The proceeds and issuances of Synthetic Letters of Credit shall be available (and the Borrower agrees that it shall use such proceeds and Synthetic Letters of Credit) solely (i) to provide credit support in respect of the Borrower's and the Guarantor's working capital needs including in respect of Permitted Commodity Hedge and Power Sale Agreements, (ii) to fulfill in whole or in part the First Lien Debt Service Reserve Requirement and the Second Lien Debt Service Reserve Requirement under (and as defined in) the Second Lien Credit Agreement and (iii) to provide support for other performance obligations of the Loan Parties. SECTION 2.15. Change of Control Prepa~ent. (a) No later than three (3) Business Days after the occurrence of a Change of Control, the Borrower shall through the Administrative Agent offer to each Lender (by delivery of a prepayment offer to the Administrative Agent) to prepay all (but not part) of its outstanding Loans and return all outstanding Synthetic L/C Deposits and all outstanding Revolving Credit-Linked Deposits in accordance with this Section 2.15. The prepayment offer may be conditioned on the occurrence of such Change of Control (if made prior to such occurrence) and otherwise shall be irrevocable and shall state: (i) the proposed date of such prepayxnent and/or return (which date shall be no earlier than (x) the end of the Offer Period and (y) the date of the applicable Change of Control and no later than ten (10) Business Days from the date of the applicable Change of Control) (or, if later, the end of the Offer Period); (ii) the prepayment price (which, with respect to each Lender, shall be calculated as the sum of (w) the aggregate principal amount of the outstanding Loans made by, and Synthetic L/C Deposits and Revolving Credit-Linked Deposits of, such
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Lender, (x) without duplication, an amount equal to 1.00% of the aggregate principal amount of such outstanding Loans made by, and Synthetic L/C Deposits and Revolving Credit-Linked Deposits of, such Lender, (y) all accrued and unpaid interest on such Loans and Synthetic L/C Deposits and Revolving Credit-Linked Deposits and (z) all accrued interest on the principal amount being repaid, prepaid or returned and any amounts owing pursuant to Section 9.04(c)); (iii) that each Lender that accepts such prepayment offer must accept such offer with respect to all (but not part) of its Loans, Revolving Credit-Linked Deposits and Synthetic L/C Deposits; (iv) that each Lender must accept such offer by delivering notice of such acceptance to the Administrative Agent within ten (10) days after the date the Borrower makes its offer to such Lender (the "Offer Period"); and (v) in reasonable detail, the nature of the applicable Change of Control and the projected impact of such Change of Control on the Projects, the operations thereof and the Borrower and the Guarantors.
(b) The Borrower shall comply with the terms of each such prepayment offer. Each Lender shall have the right to accept such offer prior to the expiration of the applicable Offer Period.
(c) Notwithstanding anything to the contrary herein, the Borrower shall not request, nor shall any Lender be obligated to make, any Loans under the Revolving Credit Facility or issue Synthetic Letters of Credit under the Synthetic L/C Facility from and after the date of a Change of Control until the date the Borrower prepays Loans of andlor returns Synthetic L/C Deposits and Revolving Credit-Linked Deposits to all of the Lenders who have accepted a prepayment offer in accordance with this Section 2.15.
(d) The Commitments of each Lender that accepts a prepayment offer in accordance with this Section 2.15 shall terminate in its entirety on the date such Lender's Loans are repaid or, if later, scheduled to be repaid ar returned. SECTION 2.16. Evidence of Debt. (a) Each Lender Party shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan owing to such Lender Party from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. The Borrower agrees that upon notice by any Lender Party to the Borrower (with a copy of such notice to the Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender Party to evidence (whether for purposes of pledge, enforcement or otherwise) the Loans owing to, or to be made by, such Lender Party, the Borrower shall promptly execute and deliver to such Lender Party, with a copy to the Administrative Agent, a Revolving Credit Note, a Synthetic L/C Note and a Term B Note, as applicable, in substantially the form of Exhibits A-1, A=2 and A=3 hereto, respectively, payable to the order of such Lender Party in a principal amount equal to the Revolving Credit Commitment, Synthetic L/C Loans and Term B Loans, respectively, of such Lender Party. All references to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to Section 9.07(e) shall include a control account and a subsidiary account for each Lender Party, in
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which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Loans comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender Party hereunder and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender Party in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender Party and, in the case of such account or accounts, such Lender Party, under this Agreement, absent manifest error; provided, however, that the failure of the Adxninistrative Agent or such Lender Party to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.
SECTION 2.17. Dutv to Miti gate. In the event that any Lender Party demands payment of costs or additional amounts pursuant to Section 2.10 or 2.12 or asserts, pursuant to Section 2.10(d), that it is unlawful for such Lender Party to make Eurodollar Rate Loans then (subject to such Lender Party's right to rescind such demand or assertion within 10 days after the notice from the Borrower referred to below) the Borrower may, upon 20 days' prior written notice to such Lender Party and the Administrative Agent, elect to cause such Lender Party to assign its Loans and Commitments in full to one or more Persons selected by the Borrower so long as (i) each such Person satisfies the criteria of an Eligible Assignee and is reasonably satisfactory to the Administrative Agent and any Synthetic Issuing Bank, (ii) such Lender Party receives payment in full in cash of the outstanding principal amount of all Loans made by it and all accrued and unpaid interest thereon and all other amounts due and payable to such Lender Party as of the date of such assignment (including, without limitation, amounts owing pursuant to Sections 2.10, 2.12 and 9.04) and (iii) each such assignee agrees to accept such assignment and to assume all obligations of such Lender Party hereunder in accordance with Section 9.07.
SECTION 2.18. Revolvin~ Credit-Linked Deposit Accounts.
(a) Establishment of Revolving Credit-Linked De~osit Account and Revolving Credit-Linked Sub-Accounts. On or priar to the Effective Date, the Administrative Agent shall establish a Revolving Credit-Linked Deposit Account with the title "Revolving Credit Lenders (Boston Gen) Credit-Linked Deposit AccounY'. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each Revolving Credit Lender in the Revolving Credit-Linked Deposit Account (the interest of each Revolving Credit Lender in the Revolving Credit-Linked Deposit Account, as evidenced by such records, being referred to as such Lender's "Revolving Credit-Linked Sub AccounP'). The Administrative Agent shall establish such additional Revolving Credit-Linked Sub-Accounts far assignee Lenders as shall be required pursuant to Section 9.07(b). No Person (other than the Administrative Agent) shall have the right to make any withdrawal from the Revolving Credit-
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Linked Deposit Account or to exercise any other right or power with respect thereto. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that the Revolving Credit-Linked Deposits are and (subject to the last paragraph of Article VI) will at all times be solely the property of the Revolving Credit Lenders, that the Revolving Credit-Linked Deposits shall be used solely in accordance with this Agreement and that no amount on deposit at any time in the Revolving Credit-Linked Deposit Account shall be the property of any of the Loan Parties, constitute collateral for any Obligations of the Loan Parties under the Loan Documents or otherwise be available in any manner to satisfy any Obligations of any of the Loan Parties under the Loan Documents. Each Revolving Credit Lender agrees that its right, title and interest in and to the Revolving Credit-Linked Deposit Account shall be limited to the right to require amounts in its Revolving Credit-Linked Sub-Account to be applied as provided in Section 2.18(cl below and that it will have no right to require the return of its Revolving Credit- Linked Deposit other than as expressly provided in such Section 2.18(cl (each Revolving Credit Lender hereby acknowledging that its Revolving Credit-Linked Deposit constitutes payment for its participations in Revolving Credit Loans made or to be made hereunder and that the Fronting Bank will be making Revolving Credit Loans in reliance on the availability of such Lender's Revolving Credit-Linked Deposit to discharge such Lender's obligarions in accordance with Section 2.18(il). The funding of the Revolving Credit-Linked Deposits and the agreements with respect thereto set forth in this Agreement constitute arrangements solely among the Administrative Agent, the Fronting Bank and the Revolving Credit Lenders with respect to the funding and reimbursement obligations of the Revolving Credit Lenders under this Agreement, and do not constitute loans, extensions of credit or other financial accommodations to any Loan Party. No Loan Party shall have any responsibility or liability to the Revolving Credit Lenders, the Administrative Agent or any other Person in respect of the establishment, maintenance, administration or misappropriation of the Revolving Credit-Linked Deposit Account (or any Revolving Credit-Linked Sub-Account) or with respect to the investment of amounts held therein, including pursuant to Section 2.18(d) below.
(b) Denosits in RevolvinQ Credit-Linked Deposit Account. The following amounts will be deposited in the Revolving Credit-Linked Deposit Account at the following times:
(i) On the Effective Date, each Revolving Credit Lender shall deposit in the Revolving Credit-Linked Deposit Account an amount in Dollars equal to such Lender's Revolving Credit Commitment. Thereafter, the Revolving Credit-Linked Deposits shall be available, on the terms and subject to the conditions set forth herein, for application pursuant to Section 2.18(i) to pay such Lender's Applicable Revolving Credit Percentage of the principal of Revolving Credit Loans that are not paid when due (at stated maturity, by acceleration or otherwise).
(ii) On any date prior to the Revolving Credit Termination Date on which the Administrative Agent or the Fronting Bank receives any payment of principal of Revolving Credit Loans, with respect to which amounts were withdrawn from the Revolving Credit-Linked Deposit Account to reimburse ar pay the Fronting Bank, subject to clause iii below, the Administrative Agent shall deposit in the Revolving Credit- Linked Deposit Account, and credit to the Revolving Credit-Linked Sub-Accounts of the
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Revolving Credit Lenders, the portion of such reimbursement or other payment to be deposited therein, in accordance with Sections 2.18(i).
(iii) If at any time when any amount is required to be deposited in the Revolving Credit-Linked Deposit Account under clause (ii) above the sum of such amount and the aggregate amount of the Revolving Credit-Linked Deposits at such time would exceed the higher of the total aggregate Revolving Credit Commitments and the Revolving Credit Exposure, then such excess shall not be deposited in the Revolving Credit-Linked Deposit Account and the Administrative Agent shall instead pay to each Revolving Credit Lender its Applicable Revolving Credit Percentage of such excess.
(iv) Concurrently with the effectiveness of any assignment by any Revolving Credit Lender of all ar any portion of its Revolving Credit Commitment, the Administrative Agent shall transfer into the Revolving Credit-Linked Sub-Account of the assignee the corresponding portion of the amount on deposit in the assignor's Revolving Credit-Linked Sub-Account in accordance with Section 9.7(bl.
(c) Withdrawals From and Closi~ of Revolvin~ Credit-Linked Deposit Account. Each Revolving Credit Lender irrevocably and unconditionally agrees that its deposit in the Revolving Credit-Linked Deposit Account shall be withdrawn and distributed (or transferred, in the case of clause v below) as follows:
(i) In the event the Borrower fails to pay when due (at stated maturity, by acceleration ar otherwise) any principal of any Revolving Credit Loan, the Administrative Agent shall withdraw from the Revolving Credit-Linked Deposit Account (and debit each Lender's Revolving Credit-Linked Deposit Sub-Account in the amount o~ such Lender's Applicable Revolving Credit Percentage of the amount of such principal not paid when due and the Revolving Credit Commitment shall be reduced by such amount.
(ii) At any time and from time to time, if the Fronting Banlc, in its sole discretion, directs the Administrative Agent to withdraw an amount from the Revolving Credit-Linked Deposit Account sufficient to repay all outstanding Revolving Credit Loans or any portion thereof, the Administrative Agent shall withdraw from the Revolving Credit-Linked Deposit Account (and debit each Lender's Revolving Credit- Linked Deposit Sub-Account in the amount o~ such Lender's Applicable Revolving Credit Percentage of such amount so directed and the Revolving Credit Commitment shall be reduced by such amount. Additionally, the Fronting Bank, in its sole discretion, may direct the Administrative Agent to fund a Revolving Credit Loan directly with amounts on deposit in the Revolving Credit-Linked Deposit Account (and such Revolving Credit Loan shall immediately become a Funded Revolving Credit Loan as set forth in clause iii ).
(iii) Upon the withdrawal of any amounts on deposit in the Revolving Credit- Linked Deposit Account pursuant to clause (c)(il ar ii , each Revolving Credit Lender shall be deemed to have made a loan (relative to each Revolving Credit Lender, its
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"Funded Revolving Credit Loan") to the Borrower in an amount equal to such Revolving Credit Lender's Applicable Revolving Credit Percentage of the amount withdrawn from the Revolving Credit-Linked Deposit Account. The Borrower may elect to have Funded Revolving Credit Loans accrue as Eurodollar Rate Loans or Base Rate Loans as further set forth in Section 2.09. The Borrower may repay Funded Revolving Credit Loans by making deposits into the Revolving Credit-Linked Deposit Account, which will not cause a reduction in the Revolving Credit Commitment.
(iv) Concurrently with the effectiveness of any assignment by any Revolving Credit Lender of all or any portion of its Revolving Credit Cominitment, the corresponding portion of the assignor's Revolving Credit-Linked Sub-Account shall be transferred from the assignor's Revolving Credit-Linked Sub-Account to the assignee's Revolving Credit-Linked Sub-Account in accordance with Section 9.07(bl and, if required by Section 9.07(b), the Administrative Agent shall close such assignor's Revolving Credit-Linked Sub-Account.
(v) Upon the reduction of each of the Revolving Credit Commitments to zero, the Administrative Agent shall withdraw from the Revolving Credit-Linked Deposit Account and pay to each Revolving Credit Lender the entire remaining amount of such Lender's Revolving Credit-Linked Deposit, and shall close the Revolving Credit-Linked Deposit Account. Each Revolving Credit Lender irrevocably and unconditionally agrees that its Revolving Credit-Linked Deposit may be applied or withdrawn from time to time as set forth in this Section 2.18(c).
(d) Deposit Earnin~. Each of the Administrative Agent, the Fronting Bank and each Revolving Credit Lender hereby acknowledges and agrees that (i) each Revolving Credit Lender is funding its Revolving Credit-Linked Deposit to the Administrative Agent for application in the manner contemplated by Section 2.18(il, (ii) the Administrative Agent has agreed to invest the Revolving Credit-Linked Deposits in Cash Equivalents and (iii) the Administrative Agent shall pay to the Revolving Credit Lenders a return on such Revolving Credit-Linked Deposit (except during periods when such Revolving Credit-Linked Deposits are used to cover Revolving Credit Loans that have not been repaid when due (at stated maturity, by acceleration or otherwise)) equal at any time to (x) the Eurodollar Rate for a three-month interest period (provided, however that the initial Interest Period shall be the period commencing on the Effective Date and ending on March 30, 2007) minus (y) 12.5 basis points. Such interest will be paid to the Revolving Credit Lenders by the Administrative Agent in arrears on each day on the last day of the interest period applicable to such Revolving Credit-Linked Deposit (which corresponds to the date on which fees are due and payable to the Revolving Credit Lenders under Section 2.08). Any amounts earned and received with respect to Revolving Credit-Linked Deposits during any applicable Interest Period in excess of the Eurodollar Rate for the Interest Period in effect shall be for the account of the Administrative Agent. No Person other than the Administrative Agent shall have any obligation under or in respect of this clause. Notwithstanding anything to the contrary in this Agreement, the Borrower shall not be liable for any losses due to (i) the misappropriation of any Revolving Credit-Linked Deposit or return
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thereon or (ii) the failure of the Administrative Agent to pay a return to any Revolving Credit Lender (it being understood and agreed for greater certainty that this clause shall not limit any obligation of the Borrower hereunder to pay any fees pursuant to Section 2.08, repay any Revolving Credit Loan or Funded Revolving Credit Loan). Neither the Administrative Agent, the Fronting Bank nor any other Person guarantees any rate of return on the investment of any Revolving Credit-Linked Deposit held in the Revolving Credit-Linked Deposit Account.
(e) Sufficiencv of Deposits to Provide for Revolving Credit Exposure. Notwithstanding any other provision of this Agreement, no Revolving Credit Loan shall be made, if after giving effect thereto the aggregate amount of the Revolving Credit Exposures would exceed the aggregate amount of the Revolving Credit-Linked Deposits.
( fl Satisfaction of Lender Fundin O~bl~ations. The Borrower and the Fronting Bank acknowledge and agree that, notwithstanding any other provision contained herein (but without limiting the obligations of any Revolving Credit Lender under Section 7.05), the deposit by each Revolving Credit Lender in the Revolving Credit-Linked Deposit Account on the Effective Date of funds equal to its Revolving Credit Commitment will fully discharge the obligation of such Lender to fund Loans by such Lender pursuant to Section 2.01, and that no other or further payments shall be required to be made by any Revolving Credit Lender in respect of any such funding or reimbursement obligations.
(g) Securi . Each Revolving Credit Lender hereby grants to the Fronting Bank a first priority security interest in such Revolving Credit Lender's Revolving Credit-Linked Deposit to secure the obligations of such Revolving Credit Lender under Section 2.18(i).
(h) Frontin~ Bank Insecure. If the Fronting Bank is enjoined from taking any action referred to in Section 2.18(cl, or if the Fronting Bank reasonably deternunes that, by operation of law, it may reasonably be precluded from taking any such action, or if any Loan Party or Revolving Credit Lender challenges in any legal proceeding any of its respective acknowledgements, agreements or characterizations set forth in Section 2.18(a), then, in any such case (and so long as such event or condition shall be continuing), and notwithstanding anything contained herein to the contrary, the Fronting Bank shall not be required to make any Revolving Credit Loan.
(i) Reimbursement of Fronting Bank. If the Borrower fails to pay when due (at stated maturity, by acceleration ar otherwise) any principal of any Revolving Credit Loan, the Fronting Bank shall direct the Administrative Agent to withdraw from the Revolving Credit- Linked Deposit Account (and debit each Revolving Credit Lender's Revolving Credit-Linked Sub-Account in the amount o fl such Lender's Applicable Revolving Credit Percentage of the amount of such principal not paid when due. Promptly following receipt by the Administrative Agent of any payment from the Borrower of principal of Revolving Credit Loans, the Administrative Agent shall distribute such payment to the Fronting Bank or, to the extent that amounts have been withdrawn from the Revolving Credit-Linked Deposit Account to make any payment pursuant to this paragraph to the Fronting Bank, then such payment shall be deposited in the Revolving Credit-Linked Deposit Account (and credited to each Revolving Credit Lender's Revolving Credit-Linked Sub-Account in the amount of such Lender's Applicable
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Revolving Credit Percentage of such deposit). Any payment made with amounts withdrawn from the Revolving Credit-Linked Deposit Account to pay the Fronting Bank for any defaulted principal payment shall constitute the funding by the respective Revolving Credit Lender of its participation in the related Revolving Credit Loan and shall not constitute a new Loan or relieve the Borrower of its obligation to pay such principal.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND OF LENDING AND ISSUANCES OF SYNTHETIC LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent. Section 2.01 of this Agreement shall become effective on and as of the first date on or before December 21, 2006 (the "Effective Date") on which the following conditions precedent have been satisfied (and the obligation of each Lender to make a Loan or any Synthetic Issuing Bank to issue a Synthetic Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Effective Date): (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated as of such date (unless otherwise specified) and in form and substance reasonably satisfactory to the Administrative Agent:
(i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16.
(ii) The First Lien Security Agreement substantially in the fortn of Exhibit K duly executed by the Borrower, each Guarantor and the First Lien Collateral Agent, together with:
(A) confirmation reasonably satisfactory to the Administrative Agent that (1) certificates (if any) representing the Initial Pledged Equity (as defined in the First Lien Security Agreement) accompanied by undated membership interest powers or stock powers, as applicable, executed in blank, and (2) instruments evidencing the Initial Pledged Debt (as defined in the First Lien Security Agreement), indorsed in blank, in each case, have been delivered to the First Lien Collateral Agent,
(B) appropriately completed financing statements in form appropriate for filing under the Uniform Commercial Code in the State of Delaware, covering the Collateral described in the First Lien Security Agreement,
(C) completed requests for information or similar search reports, dated on or not more than 14 days before the Effective Date, listing all effective financing statements filed in the jurisdictions referred to in clause B above that name any Loan Party as debtor, together with copies of such other financing statements, 69 Boston Gencrating, LLC First Licn Crcdit Agreement NY I :#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 237 of 510
(D) certified copies of each Material Contract,
(E) each First Lien Consent and Agreement in respect of each Initial Commodity Hedge and Power Sale Agreement and each other Material Contract then in effect (other than each of the Material Contracts set forth on Part III of Schedule 4.01(t)), duly executed by each party to such Initial Commodity Hedge and Power Sale Agreement or Material Contract, as applicable, and
(F) evidence that all other action that the Administrative Agent and the First Lien Collateral Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the First Lien Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements).
(iii) The First Lien Pledge Agreement substantially in the form of Exhibit L duly executed by EBG Holdings and the First Lien Collateral Agent, together with:
(A) Confirmation reasonably satisfactory to the Administrative Agent that certificates, if any, representing the Initial Pledged Equity (as defined in the First Lien Pledge Agreement) accompanied by undated membership interest powers or stock powers, as applicable, executed in blank have been delivered to the First Lien Collateral Agent,
(B) appropriately completed financing statements in form appropriate for filing under the Uniform Commercial Code in the State of Delaware, covering the Collateral described in the First Lien Pledge Agreement,
(C) completed requests for information or similar search reports, dated on or not more than 14 days before the Effective Date, listing all effective fmancing statements filed in the jurisdictions referred to in clause (B) above that name EBG Holdings as debtor, together with copies of such other financing statements, and
(D) evidence that all other action that the Administrative Agent and the First Lien Collateral Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the First Lien Pledge Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 tertnination statements).
(iv) Original counterparts of the mortgages, deeds of trust or security deeds encumbering each of the Real Properties and substantially in the form of
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Exhibit D(the "First Lien Mortgages") duly executed and delivered by the appropriate Loan Party in recordable form, together with:
(A) to the extent necessary under applicable law, Uniform Commercial Code Financing Statements covering fixtures ("UCCFi.xture Filings") appropriately completed for filing in the appropriate filing or recording offices,
(B) evidence that counterparts of the First Lien Mortgages and UCC Fixture Filings have been either (x) duly recorded on or before the Effective Date or (y) duly executed, acknowledged and delivered to the Title Company in form suitable for filing or recording, in all filing or recording offices necessary in order to create a valid first and subsisting Lien on the property described therein in favor of the First Lien Collateral Agent for the benefit of the First Lien Secured Parties and that all filing and recording taxes and fees have been paid to the Title Company,
(C) certified copies of the fully paid American Land Title Association Lender's Extended Coverage title insurance policies or an irrevocable written commitment to issue mortgage title policies or marked-up unconditional binders for such insurance (the "First Lien Mortgage Policies") in amounts and in form and substance, and with endorsements (including zoning endorsements) to the extent available, reasonably acceptable to the Administrative Agent and the First Lien Collateral Agent, issued by the Title Company, reinsured by title insurers reasonably acceptable to the Administrative Agent and the First Lien Collateral Agent, insuring the First Lien Mortgages to be valid first and subsisting Liens on the property described therein, free of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance, to the extent available (including endarsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens), in form acceptable to the Administrative Agent and the First Lien Collateral Agent,
(D) certified copies of American Land Title Association/ American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 60 days before the Effective Date, certified to the Administrative Agent and the First Lien Collateral Agent and the Title Company using a form of certification reasonably acceptable to the Administrative Agent and the First Lien Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located showing the matters required by such certification and the absence of material encroachments and any other material defects other than
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encroachments or other defects acceptable to the Administrative Agent and the First Lien Collateral Agent,
(E) Proof of payment to the Title Company of (A) all expenses and premiums of the Title Company in connection with the issuance of the First Lien Mortgage Policies and (B) an amount equal to any fees or taxes including, without limitation, the recording, mortgage, intangible, transfer and stamp taxes payable in connection with recording the First Lien Mortgages and UCC Fixture Filings, if applicable, in the appropriate government office(s),
(F) Certified copies of permanent and unconditional certificates of occupancy (or, if it is not the practice to issue certificates of occupancy in a jurisdiction in which the facilities to be covered by the Mortgages are located, then such other evidence reasonably satisfactory to the Administrative Agent and the First Lien Collateral Agent) pernutting the fully functioning operation and occupancy of each such facility and of such other permits necessary for the use and operation of each such facility issued by the respective governmental authorities having jurisdiction over each such facility, and
(G} evidence of the insurance required by the terms of the First Lien Mortgages.
(v) The Intercreditor Agreement substantially in the form of Exhibit G duly executed by the Borrower, the Guarantors, EBG Holdings, the First Lien Collateral Agent, the Second Lien Collateral Agent, the Administrative Agent, the Second Lien Administrative Agent, and Credit Suisse Energy LLC.
(vi) The Security Deposit Agreement substantially in the form of Exhibit H duly executed by the Bonower, each Guarantor, the First Lien Collateral Agent, the Second Lien Collateral Agent and the Depositary.
(vii) Certified copies of the resolutions of the sole members of the Bonower and the Board of Directors of EBG Holdings and authorizations of the sole member or Board of Directors, as applicable, of each other Guarantor approving the Transaction and each Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(viii) A copy of a certificate of the Secretary of State of Delaware, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the certificate of formation or certificate of incorporation, as the case may be, of each Loan Party and EBG Holdings and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to
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such Loan Party's and EBG Holding's certificate of formation or certificate of incorporation, as the case may be, on file in such Secretary's office, (2) to the extent applicable, each of such Loan Party and EBG Holdings has paid all franchise taxes to the date of such certificate and (3) to the extent applicable, each of such Loan Party and EBG Holdings is duly formed and in good standing or presently subsisting under the laws of the State of Delaware.
(ix) A certificate of each Loan Party and EBG Holdings signed on behalf of such Loan Party and EBG Holdings by a Responsible Officer thereof, dated the Effective Date (the statements made in such certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the certificate of formation or certificate of incorporation, as the case may be, of such Loan Party or EBG Holdings (as applicable) since the date of the Secretary of State's certificate referred to in Section 3.01(a)(viii~, (B) a true and correct copy of the limited liability company agreement or bylaws, as the case may be, of such Loan Party or EBG Holdings (as applicable) as in effect on the date on which the resolutions referred to in Section 3.01(a)(vii~ were adopted and on the Effective Date, (C) the due formation and good standing or valid existence of such Loan Party or EBG Holdings (as applicable) as a limited liability company or corporation, as the case may be, organized under the laws of the jurisdiction of its formation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party or EBG Holdings (as applicable) and (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date.
(x) Certificates of EBG Holdings and each of the Loan Parties executed by an authorized officer thereof in each case certifying the name and true signature of the officer of EBG Holdings ar such Loan Party authorized to sign each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xi) Certified copies of each of the Related Documents, duly executed by the parties.
(xii) Certificates in substantially the form of Exhibit E, attesting to (A) the Solvency of EBG Holdings and its Subsidiaries on a Consolidated basis after giving effect to the Transaction and the other transactions contemplated thereby, and (B) the Solvency of the Borrower and its Subsidiaries on a Consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby, in each case from the director of finance of EBG Holdings.
(xiii) (A) A certified hard copy of, and a computer disk containing, pro forma balance sheets, income statements and cash flow statements with respect to EBG Holdings consolidated with its Subsidiaries for the period through Fiscal Year 2014, on a quarterly basis for the period from January 1, 2007 through
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December 31, 2008 and on an annual basis for each year thereafter (the "Base Case Projections") and (B) a certified copy of the operating budget for the Borrower and its Subsidiaries for Fiscal Year 2007 (the "Initial Operating Budget").
(xiv) (A) Certified copies of audited financial statements of the Borrower and its Subsidiaries dated December 3l, 2005 and interim financial statements of the Borrower and its Subsidiaries dated the end of each Fiscal Quarter ending since December 31, 2005, and (B) the Consolidated pro forma balance sheet of the Borrower and its Subsidiaries as of September 30, 2006, and the related Consolidated pro forma statement of income of the Borrower and its Subsidiaries for the twelve-month period then ended.
(xv) Copies of final due diligence reports updated within 30 days of the Effective Date from the following consultants in form and substance reasonably satisfactory to the Administrative Agent: (A) the Independent Engineer; (B) the Independent Power Market Consultant; and (C) the Independent Insurance Consultant.
(xvi) Copies of all certificates representing the policies, endorsements and other documents required under Section 5.01(d) to be in effect as of the Effective Date, accompanied by (A) a certificate of the Borrower signed by a Responsible Officer certifying that the copies of each of the policies, endorsements and other documents delivered pursuant to this Section 3.01(aSxvi~ are true, correct and complete copies thereof, (B) letters from the Borrower's insurance brokers or insurers, dated not earlier than fifteen (15) days prior to the Effective Date, stating with respect to each such insurance policy that (1) such policy is in full force and effect, (2) all premiums theretofore due and payable thereon have been paid and (3) the underwriters of such insurance have agreed that the policies, when issued, will contain the provisions required under Section 5.01(dl and (C) a certificate from the Independent Insurance Consultant in form and substance reasonably satisfactory to the Lenders confirming that such required insurance is in full force and effect in accordance with the terms of this Agreement.
(xvii) A favorable opinion of Debevoise & Plimpton LLP, counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(xviii) Favorable opinions of Nutter, McClennen & Fish LLP, local counsel for the Loan Parties with respect to the enforceability and perfection of each First Lien Mortgage and any related fixture filings and with respect to local permitting, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
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(xix) A favorable opinion of White & Case LLP, special federal energy regulatory counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(xx) Account control agreements reasonably acceptable to the Administrative Agent and the First Lien Collateral Agent for the Local Accounts executed by the depositary financial institution holding such accounts and the applicable Loan Parties.
(xaci) Reasonable evidence that, concurrent with or promptly following the consummation of the transaction contemplated hereby, (A) the Accounts have been established in accordance with the requirements of the Security Deposit Agreement, and (B) after giving effect to the Borrowings to be made on the Effective Date, the First Lien Debt Service Reserve Requirement has been satisfied.
(b) [Reserved].
(c) The Lender Parties shall be reasonably satisfied that:
(i) all Existing Debt, other than Surviving Debt, has been (or is contemporaneously being) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated (or contemporaneously therewith terminated) and that all Surviving Debt is on terms and conditions reasonably satisfactory to the Lender Parties;
(ii) all Liens securing payment of any Existing Debt shall have been released; and
(iii) the Administrative Agent shall have received all Uniform Commercial Code Form UCC-3 termination statements, mortgage releases, pay- off letters and other instruments as may be necessary or desirable, in the reasonable judgment of the Administrative Agent, in connection therewith.
(d) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2005.
(e) Except as set forth on Schedule 4.01(~), there shall exist no action, suit, investigation, litigation or proceeding affecting EBG Holdings or any Loan Party pending or threatened in writing before any Governmental Authority that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transaction.
( fl Except for any Governmental Authorizations required in connection with the Lender Parties' exercise of remedies under the Loan Documents, all Governmental Authorizations and member, shareholder and third party consents and approvals necessary in connection with the Transaction ar for the ownership and operation of the
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Projects shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in full force and effect.
(g) The Borrower shall have paid (or shall be contemporaneously paying from the proceeds of the Loans) all accrued fees of the Agents and the Lender Parties and all accrued expenses of the Agents (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel to the Lender Parties).
(h) The Administrative Agent shall have received evidence reasonably satisfactory to it that prior to, or concurrently with, the making of the Initial Extension of Credit hereunder:
(i) the Borrower shall have received not less than $350,000,000 in gross cash proceeds from bonowings under the Second Lien Credit Agreement; and
(ii) EBG Holdings shall have received not less than $300,000,000 in gross cash proceeds from borrowings under the Mezzanine Documents.
(i) The Related Documents, including the Mezzanine Documents, Initial Commodity Hedge and Power Sale Agreements and the Second Lien Loan Documents, shall have been executed and delivered by all parties thereto and shall be effective, and all material obligations to be performed under any such documents on or before the Effective Date shall have been performed.
(j) The Facilities shall have been rated by each of S&P and Moody's.
(k) The Lenders shall have received, to the extent requested, on or before the date which is five (5) Business Days prior to the Effective Date, all documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations including the Patriot Act.
(1) The Administrative Agent shall have received the Closing Date Summary Funds Flow Memo substantially in the form attached hereto as Exhibit N(the "Closing Date Summary Funds Flow Memo").
SECTION 3.02. Conditions Precedent to Each Borrowin~ and Issuance. The obligation of each Appropriate Lender to make a Loan (other than a Synthetic L/C Loan made by a Synthetic Issuing Bank) on the occasion of each Borrowing (including the initial Borrowing), and the obligation of each Synthetic Issuing Bank to issue a Synthetic Letter of Credit (including the initial issuance) shall be subject to the further conditions precedent that on the date of such Borrowing or issuance the following statements shall be true and the Administrative Agent shall have received for the account of such Lender or such Synthetic Issuing Bank a certificate signed by a duly authorized officer of the Borrower, dated the date of such Borrowing or issuance, stating that (and each of the giving of the applicable Notice of Borrowing or Notice of Issuance and the acceptance by the Borrower of the proceeds of such Borrowing or of such Synthetic
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Letter of Credit shall constitute a representation and warranty by the Borrower that both on the date of such notice and on the date of such Borrowing or issuance such statements are true):
(a) the representations and warranties contained in each Loan Document are correct in all material respects on and as of such date, as though made on and as of such date, before and after giving effect to such Borrowing or issuance and to the application of the proceeds therefrom, except for representations and warranties that speak as of an earlier date or period which shall be true and correct as of such date or period; and
(b) (i) with respect to the Initial Extension of Credit on the Effective Date, no Default has occurred and is continuing, or would result from such Initial Extension of Credit or from the application of proceeds therefrom; and (ii) with respect to each such Borrowing or issuance after the Effective Date, no Event of Default has occurred and is continuing, or would result from such Borrowing or issuance or from the application of the proceeds therefrom.
SECTION 3.03. Determinations Under Section 3.01. For purposes of determining compliance with the conditions specified in Section 3.01, each Lender Party shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lender Parties unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender Party prior to the Effective Date specifying its objection thereto and, if the Initial Extension of Credit consists of a Borrowing, such Lender Party shall not have made available to the Administrative Agent such Lender Party's ratable portion of such Borrowing.
ARTICLE 1V
REPRESENTATIONS AND WARRAl~TTIES
SECTION 4.01. Representations and Warranties. Each Loan Party represents and warrants on behalf of itself as follows:
(a) Organization. It (i) is a limited liability company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) is duly qualified and in good standing as a limited liability company or corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite limited liability company or corporate (as applicable) power and authority (including, without limitation, all material Governmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) Location. Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Loan Parties and their Subsidiaries, showing as of the date hereof (as to each
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Loan Party and each such Subsidiary) the jurisdiction of its formation or incorporation (as applicable), the address of its principal place of business and its U.S. taxpayer identification number. The copy of the certificate of formation or certificate of incorporation, as applicable, of each Loan Party and each amendment thereto provided pursuant to Section 3.01(al(viii~ is a true and correct copy of each such document, each of which is valid and in full force and effect_
(c) Ownership Information. Set forth on Schedule 4A1(c) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares or membership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares or membership interests (as applicable) covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party's Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the First Lien Collateral Documents, the Second Lien Collateral Documents or Permitted Liens.
(d) Authorization; Non-Contravention. The execution, delivery and performance by each Loan Party of each Transaction Document to which it is or is to be a party, and the consummation of the Transaction, are within such Loan Party's limited liability company or corporate (as applicable) powers, have been duly authorized by all necessary limited liability company or corporate (as applicable) action, and do not (i) contravene such Loan Party's limited liability company agreement, certificate of incorporation, bylaws or other constituent documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award applicable to or binding on it, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, a Contractual Obligation of any Loan Party (except to the extent such conflict, breach, default or payment could not reasonably be expected to have a Material Adverse Effect) or (iv) except for the Liens created under the First Lien Collateral Documents and the Second Lien Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the Properties of any Loan Pariy or any of its Subsidiaries. As of the Effective Date, no Loan Party is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.
(e) Consents and Approvals. (i) No Governmental Authorization, and no notice to, filing with, or consent or approval of any other third party is required for (A) the due execution, delivery, recordation, filing or performance by any Loan Party of any Transaction Document to which it is or is to be a party, or for the consummation of
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the Transaction, (B) the grant by any Loan Party of the Liens granted by it pursuant to the First Lien Collateral Documents, (C) the perfection or maintenance of the Liens created under the First Lien Collateral Documents (including the first priority nature thereofl or (D) the exercise by any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the First Lien Collateral Documents, except for (1) those authorizations, approvals, actions, notices and filings set forth on Schedule 4.01(e), (I) all of which have been duly obtained, taken, given or made, (II) are in full force and effect, (III) are free from conditions or requirements that have not been met or complied with, (2) autharizations, approvals, actions, notices and filings required by securities, regulatory or applicable law in connection with an exercise of remedies or (3) those Governmental Authorizations, notices, filings with, or consents of, any other third party, the failure of which to obtain and maintain could not reasonably be expected to result in a Material Adverse Effect.
(ii) No Governmental Authorization, and no notice to, filing with, or consent or approval of any Governmental Authority or any other third party is required in connection with the operation of the Projects in accordance with applicable law and as otherwise contemplated by this Agreement, except for (A) the Governmental Authorizations, notices and filings set forth on Schedule 4.01(el, (1) all of which have been duly obtained, taken, given or made, (2) are in full force and effect and (3) are free from conditions or requirements that have not been met or complied with or (B) those Governmental Authorizations, notices, filings with or consents of any other third party, the failure of which to obtain and maintain could not reasonably be expected to result in a Material Adverse Effect.
( fl Bindin~Agreement. This Agreement has been, and each other Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party thereto. This Agreement is, and each other Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party thereto, enforceable against such Loan Party in accordance with its terms.
(g) Litig a tion. Except as set forth on Schedule 4.01(~), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environxnental Action, pending or threatened in writing before any Governmental Authority or arbitrator that (i) could reasonably be likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document ar the consummation of the Transaction.
(h) Financial Statements. (i) The Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2005, the related Consolidated statement of income and Consolidated statement of cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended and the Consolidated balance sheet of the Borrower and its Subsidiaries as at September 30, 2006, and the related Consolidated statement of income and Consolidated statement of cash flows of the Borrower and its Subsidiaries for the
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nine months then ended, duly certified by the senior financial officer of the Borrower, copies of which have been furnished to the Administrative Agent pursuant to Section 3.01, fairly present in all material respects, subject, in the case of said balance sheet as at September 30, 2006, and said statements of income and cash flows for the nine months then ended, to year end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP applied on a consistent basis.
(ii) The Consolidated pro forma balance sheet of the Borrower and its Subsidiaries as at September 30, 2006, and the related Consolidated pro forma statement of income of the Borrower and its Subsidiaries for the twelve-month period then ended, respectively, certified by the senior financial officer of the Borrower, copies of which have been furnished to the Administrative Agent pursuant to Section 3.01, fairly present in all material respects the Consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date giving effect to the Transaction, all in accordance with GAAP.
(iii) The Consolidated forecasted balance sheet, statement of income and statement of cash flows of EBG Holdings and its Subsidiaries delivered to the Administrative Agent, pursuant to Section 3.01(a)(xiii) and the Budget required by Section 5.03(d) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower's reasonable best estimate of its future financial performance.
(i) Accuracv of Information: Projections. All information (other than the information delivered pursuant to Section 3.01(a)(xiii), other financial projections and general economic information) heretofore or contemporaneously furnished to any Lender Pariy by or on behalf of EBG Holdings or any Loan Party in connection with any Loan Document or any transaction contemplated hereby (including the Transactions), taken together as a whole with all other information with which such Lender Party has previously been furnished, is complete and correct in all material respects, as of the date such information was furnished and as of the Effective Date, and did not contain any untrue statement of a material fact or omit to state any material fact necessary to make any information not misleading in light of the circumstances under which furnished.
(j) Margin Stock. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Loan or drawings under any Synthetic Letter of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
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(k) Investment Company Act. No Loan Party is an"investment company," as defined in or subject to regulations under the Investment Company Act of 1940, as amended.
(1) Securitv Interest. All filings and other actions necessary to perfect and protect the security interest in the Collateral created under the First Lien Collateral Documents have been duly made or taken and are in full force and effect, and the First Lien Collateral Documents create in favor of the First Lien Collateral Agent for the benefit of the First Lien Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the First Lien Obligations. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents.
(m) Solvencv. After giving affect to the Transaction, the Borrower and its Subsidiaries are, on a Consolidated basis, Solvent.
(n) ERISA Eta (i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has had or is reasonably expected to have a Material Adverse Effect.
(ii) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan except for Withdrawal Liability that could not reasonably be expected to have a Material Adverse Effect.
(iii) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a material Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(o) Environmental Matters. (i) Except as otherwise set forth on Part I of Schedule 4.01(0) hereto, the operations and properties of each Loan Pariy and each of its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except for any such non-compliance, obligation or cost that could not reasonably be likely to have a Material Adverse Effect and, to the best knowledge of each Loan Party, no circumstances exist that could (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that could reasonably be likely to have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership or transferability, or subject to any material Lien, under any Environmental Law.
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(ii) Except as otherwise set forth on Part II of Schedule 4.01(0l hereto, none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is currently listed or proposed for listing on the NPL or on the CERCLIS or any analogous state or local list; there are no and never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries except where such treatment, storage or disposal could not reasonably be likely to have a Material Adverse Effect; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries that requires abatement under any applicable Environxnental Law that could reasonably be likely to have a Material Adverse Effect; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries in a manner that would reasonably be expected to require any investigation, cleanup, remediation or remedial action by any Loan Party under any applicable Environmental Law that could reasonably be likely to have a Material Adverse Effect.
(iii) Except as otherwise set forth on Part III of 5chedule 4.01(0) hereto, neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in liability to any Loan Party or any of its 5ubsidiaries, except, in each case above, where any such investigation or assessment or remedial or response action or liability could not reasonably be likely to have a Material Adverse Effect.
(p) Tax Matters. (i) Neither any Loan Party nor any of its Subsidiaries is party to any tax sharing agreement.
(ii) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all tax returns (Federal, state, local and foreign) required to be filed, other than those tax returns where the failure to file such returns could not be reasonably expected to have a Material Adverse Effect, and has paid all taxes shown thereon to be due, together with applicable interest and penalties (other than taxes contested in good faith).
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(iii) No issues have been raised by the Internal Revenue Service in respect of federal income tax returns for years for which the expiration of the applicable statute of limitations has not occurred by reason of extension or otherwise that, in the aggregate, could be reasonably likely to have a Material Adverse Effect.
(iv) No issues have been raised by any state, local or foreign taxing authorities, in respect of the returns for years for which the expiration of the applicable statute of limitations has not occurred by reason of extension or otherwise, that, in the aggregate, could be reasonably likely to have a Material Adverse Effect.
(q) Survivin~. Set forth on Schedule 4.01(q) hereto is a complete and accurate list of all Surviving Debt, showing the obligor and the principal amount outstanding thereunder and the maturity date thereof.
(r) Owned Real Propertv. Set forth on Schedule 4.01(r) hereto is a complete and accurate list of all material real property owned by any Loan Party, showing as of the date hereof the street address, county or other relevant jurisdiction, state and record owner thereof. Each Loan Party has good and marketable fee simple title to such real property, free and clear ~f all Liens, other than Permitted Liens.
(s) Leased Real Propertv. Set forth on Schedule 4.01(s) hereto is a complete and accurate list of all material leases of real property under which any Loan Party is the lessee, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor and lessee thereof. Each such lease is the legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of rights of creditors generally and except to the extent that enforcement of rights and remedies set forth therein may be limited by equitable principles (regardless of whether enforcement is considered in a court of law or a proceeding in equity).
(t) Material Contracts. Except as set forth on Schedule 4.01(t), each Material Contract (i) has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified from the form previously delivered to the Administrative Agent, except in accordance with the tertns of this Agreement, (ii) is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of rights of creditors generally and except to the extent that enforcement of rights and remedies set forth therein may be limited by equitable principles (regardless of whether enforcement is considered in a court of law or a proceeding in equity), and (iii) to the best knowledge of the relevant Loan Party, there exists no material default under any Material Contract by any parly thereto.
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(u) Accounts. Neither the Borrower nor any of its Subsidiaries has any deposit or securities accounts other than the Accounts or Local Accounts otherwise permitted under the terms of this Agreement.
(v) ~ulatorv Status. Each Project Company: (i) meets the requirements for, and has made the necessary filing with, or has been determined by, FERC to be an exempt wholesale generator ("EWG") within the meaning of Section 1262(6) of the Public Utility Holding Company Act of 2005 ("PUHCA"); (ii) is authorized by FERC pursuant to Section 205 of the FPA to sell electric power, including energy and capacity, at market-based rates; and (iii) is authorized by FERC to issue securities and assume obligations or liabilities pursuant to Section 204 of the FPA.
(w) FERC Proceedin~s. There are no pending FERC proceedings in which the EWG status, market-based rate authority or the FPA Section 204 authority of a Project Company is subject to withdrawal, revocation or material modification other than FERC rulemakings of general applicability, including, but not limited to, Market-Based Rates for Wholesale Sales of Energy, Capacity and Ancillary Services by Public Utilities in Docket No. RM04-7-000.
(x) Regulatorv Approvals. Except for any FERC approvals required in connection with the Lender Parties' exercise of remedies under the Loan Documents, no approvals or authorizations from FERC are required to be obtained by any Project Company, the Loan Parties, the First Lien Collateral Agent or the Lender Parties with respect to the Transaction.
(y) Existing. ReQulatory Orders. The Borrower and each Project Company is in full compliance in all material respects with the terms and conditions of all orders issued by FERC under Section 203 of the FPA and obtained by the Borrower or any Project Company.
(z) PUHCA. The Borrower is a"holding company" within the meaning of Section 1262(8) of PUHCA solely with respect to its ownership of one or more EWGs, and is not subject to or is otherwise exempt from regulation under PUHCA except for regulation under Section 1265 of PUHCA.
(aa) Material Adverse Effect. Except as disclosed in writing to the Lender Parties, since the Effective Date, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(bb) Violation of Law. No Loan Party is in violation of any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award binding on it, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.
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ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. Until a Repayment Event has occurred, the Borrower and each Guarantor will:
(a) Compliance with Laws, Etc. Comply with all applicable laws, rules, regulations and orders binding on it, such compliance to include, without limitation, compliance with ERiSA and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, other than any such non- compliance which could not reasonably be expected to have a Material Adverse Effect.
(b) Pavment of Taxes, Etc. Pay and discharge before the same shall become delinquent, (i) all taxes, assessments and govemmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its properiy (unless, in the case of (i) and (ii), the failure to do so could not reasonably be expected to have a Material Adverse Effect); provided, however, that no Loan Party shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and only to the extent that adequate reserves are being maintained.
(c) Compliance with Environmental Laws. Comply and, if applicable, take commercially reasonable efforts to cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties (except where such failure to obtain or renew could not reasonably be expected to have a Material Adverse Effect); and conduct any investigation, study, sampling and testing, cleanup, removal, remedial or other action in response to any release, discharge or disposal of any Hazardous Materials from or at any of its properties, to the extent required by, and in compliance with, all Environmental Laws (other than any such failure to investigate, study, sample, test, cleanup, remove, remediate or take such other action as could not reasonably be expected to have a Material Adverse Effect); provided, however, that no Loan Party shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained in accordance with GAA_P.
(d) Maintenance of Insurance. Maintain insurance in accordance with Schedule 5.01(d).
(e) Preservation of Existence, Etc. Preserve and maintain its existence as a limited liability company or corporation, as applicable, and its good standing in the State of Delaware; provided, however, that any Loan Party may consummate any merger or consolidation permitted under Section 5.02(dl.
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( fl Visitation Ri~. Upon reasonable notice, at any reasonable time and from time to time, permit any of the Agents or any of the Lender Parties, ar any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, any Loan Party, and to discuss the affairs, finances and accounts of any Loan Party with any of their officers or directors and with their independent certified public accountants; provided that (i) so long as no Default shall have occurred and be continuing or (ii) the Borrower shall have consented thereto, neither the Agents nor the Lender Parties shall be entitled to more than one visit to any single Project in any Fiscal Year.
(g) Keeping of Books. Keep proper books of record and account in accordance with GAAP. (h) Maintenance of Properties, Etc. Maintain, preserve and protect (or cause to be maintained, preserved or protected) all of its properties and equipment necessary in the conduct of the business of the Projects in good working order and condition, ordinary wear and tear excepted, and in accordance with Prudent Industry Practices.
(i) [Reserved].
(j) Covenant to Give Securitv. Upon the acquisition or lease of any property by any Loan Party with a fair market value in excess of $25,000,000, and such property, in the reasonable judgment of the Administrative Agent or the First Lien Collateral Agent, shall not already be subject to a perfected first priority security interest in favor of the First Lien Collateral Agent for the benefit of the First Lien Secured Parties, then in each case at the Borrower's expense:
(i) no later than 10 Business Days after such acquisition, furnish to the Administrative Agent and the First Lien Collateral Agent a description of the real and personal properties so acquired, in each case in detail reasonably satisfactory to the Administrative Agent; and
(ii) promptly, but in any event within 90 days after such acquisition, take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, title insurance, surveys, certificates of occupancy, estoppel and consent agreements of lessors, documents, instruments, agreements, opinions and certificates with respect to such Property as the Administrative Agent shall reasonably request to create (and provide evidence thereo~ a valid and perfected first priority Lien on such Property in favor of the First Lien Collateral Agent (for the benefit of the First Lien Secured Parties), subject to Permitted Liens.
(k) Further Assurances. (i) Upon the formation of any Subsidiary permitted pursuant to Section 5.02(k) or (ii) promptly upon reasonable request by any Agent, or any Lender Party through the Administrative Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds,
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conveyances, pledge agreements, mortgages, estoppel and consent agreements of lessors, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments as any Agent, or any Lender Party through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party's or any such Subsidiary's properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the First Lien Collateral Documents, (iii) cause each such Subsidiary to become a Guarantor hereunder by executing a Joinder Agreement and to pledge all of its assets under the First Lien Security Agreement or a security agreement substantially similar thereto to the First Lien Collateral Agent for the benefit of the First Lien Secured Parties (together with any opinions of counsel reasonably requested by any Agent) and (iv) perfect and maintain the validity, effectiveness and priority of any of the First Lien Collateral Documents and any of the Liens intended to be created thereunder.
(1) Accounts. (i) Establish (unless already established) and maintain at all times in accordance with the Security Deposit Agreement, the Accounts, (ii) cause all Revenues (as defined in the 5ecurity Deposit Agreement) and other amounts payable to it (except for interest earned on deposits in the Local Accounts, if any, which shall be credited to such Local Account) to be deposited into, or credited to, the Accounts, in accordance with the terms of the Security Deposit Agreement and (iii) cause all funds (to the extent permitted by the Security Deposit Account) deposited in the Accounts to be applied and disbursed in accordance with the terms of the Security Deposit Agreement.
(m) Interest Rate Hed~in~. Enter into prior to the date that is 75 days following the Effective Date, and maintain for a period of no less than three and one-half years, interest rate Hedge Agreements with Hedge Banks covering a notional amount of not less than 50% of the sum of the outstanding principal amount of the Term B Loans and providing for such Persons to make payments thereunder for a period of no less than three and one-half years.
(n) Maintenance of Credit Ratin~s. Use all commercially reasonable efforts to maintain ratings on the Facilities from each of Moody's and S&P for so long as such rating agency is in the business of rating loans and securities of a type similar to the Facilities (it being acknowledged and agreed that the Borrower shall not be required to maintain any minimum credit rating).
(o) Consents. The Borrower will use commercially reasonable efforts to promptly obtain the consents referred to in Section 5.03(fl(ii)(Bl.
(p) Separateness. Comply with the following:
(i) Each of the Borrower and its Subsidiaries will act solely in its name and through its duly authorized officers, managers, representatives or agents in the conduct of its businesses;
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(ii) Each of the Borrower and its Subsidiaries will conduct in all material respects its business solely in its own name, in a manner not misleading to other Persons as to its identity (without limiting the generality of the foregoing, all oral and written communications (if any), including invoices, purchase orders, and contracts);
(iii) Each of the Borrower and its Subsidiaries will obtain proper authorization from member(s), shareholder(s), director(s) and manager(s), as required by its limited liability company agreement or bylaws for all of its limited liability company or corporate actions; and
(iv) Each of the Borrower and its Subsidiaries will comply in all material respects with the terms of its certificate of incorporation or formation and by-laws or limited liability company agreement (or similar constituent documents).
(q) Maintenance of Reg u latorv Status. The Project Companies shall maintain EWG status, market-based rate authority under FPA Section 205, FPA Section 204 blanket authorization and compliance with previously issued FPA Section 203 orders applicable to the Borrower or Project Company, except in the event that such authorizations become no longer available, or to the extent such authorizations are limited or restored as a result of FERC's rulemakings of general applicability including, but not limited to, Market-Based Rates for Wholesale Sales of Ener~v, Ca pacitv and Ancillarv Services bv Public Utilities in Docket No. RM04-7-000.
(r) Certain Collateral Matters. Use commercially reasonable efforts to obtain consents necessary for the granting of any Lien on Property constituting Excluded Property pursuant to clause (a) of the definition thereof.
(s) Commodity Hed ~i~ng. Enter into prior to the date that is twelve (12) months following the Effective Date, and maintain at all times for the term referred to below, Eligible Permitted Commodity Hedge and Power Sale Agreements covering capacity payments and/or premiums to be received by the Borrower for an additiona1600 to 800 megawatts of capacity for a term of three to five years in the form of a heat rate tolling option or of a similar product or set of products and otherwise reasonably acceptable to the Administrative Agent; provided that any Eligible Perniitted Commodity Hedge and Power Sale Agreement that is in form and substance substantially similar to the Initial Commodity Hedge and Power Sale Agreement (with such modifications thereto as are necessary or desirable to reflect the modified term and modified capacity requirements stated herein) shall be acceptable for purposes hereof.
SECTION 5.02. Negative Covenants. Until a Repayment Event has occurred, neither the Borrower nor any Guarantor will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist any Lien on or with respect to any of its properties of any character (including, without limitation, accounts)
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whether now owned or hereafter acquired or assign any accounts or other right to receive income, except:
(i) Liens created under the First Lien Collateral Documents; provided that (i) such Liens only secure (A) Debt permitted under Section 5.02(b)(i), (B) obligations under Eligible Permitted Commodity Hedge and Power Sale Agreements (including, without limitation, the Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(sl) and (C) obligations under Secured Hedge Agreements, (ii) such Liens are subject to the terms of the Intercreditor Agreement and (iii) any Commodity Hedge Counterparty pariy to any such Eligible Permitted Commodity Hedge and Power Sale Agreement or any Hedge Bank party to any such Secured Hedge Agreement shall have become a party to the Intercreditor Agreement as, and shall have the obligations of, a First Lien Secured Party thereunder;
(ii) Liens created under the Second Lien Collateral Documents; provided that (i) such Liens only secure Debt permitted under Section 5.02(b)(ii), (ii) such Liens are subject to the terms of the Intercreditor Agreement and (iii) any lender (or any agent or trustee thereo~ with respect to such Debt shall have become a party to the Intercreditor Agreement as, and shall have the obligations of a Second Lien Secured Party thereunder;
(iii) Permitted Liens;
(iv) Liens existing on the date hereof and described on 5chedule 5.02(a) hereto;
(v) purchase money Liens upon or in real property or equipment acquired or held by the Borrower or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such properiy or equipment ar to secure Debt incurred solely for the purpose of financing or refinancing the acquisition of any such property or equipment to be subject to such Liens, or Liens existing on any such property or equipment at the time of acquisition (other than any such Liens created in contemplation of such acquisition that do not secure the purchase price), or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, that no such Lien shall extend to or cover any property other than the property or equipment being acquired, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced; and provided further that the aggregate principal amount of the Debt secured by Liens permitted by this clause v shall not exceed the amount permitted under Section 5.02(bl(ivl at any time outstanding; (vi) Liens arising by virtue of any statutory or common law provision relating to banker's liens, rights of set-off or similar rights;
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(vii) Liens arising from precautionary Uniform Commercial Code financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, any operating lease;
(viii) pledges or deposits of Cash or Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the ordinary course of business;
(ix) Liens arising under Capitalized Leases permitted under Section 5.02(b (viii); provided that no such Lien shall extend to or cover any Collateral or assets other than the property subject to such Capitalized Leases;
(x) Liens securing Debt permitted under Section 5.02(bl(iii); and
(xi) any other Liens securing Debt in aggregate amount not to exceed at any time $5,000,000.
(b) Debt. Create, incur, assume or suffer to exist any Debt, except:
(i) Debt under the Loan Documents;
(ii) Debt under the Second Lien Loan Documents in an aggregate principal amount not to exceed $350,000,000;
(iii) Debt incurred solely to finance Permitted Developments not to exceed in the aggregate, when taken together with any equity proceeds referred to in Section 5.02(fl(viii)(Al, $140,000,000;
(iv) Debt secured by Liens permitted by Section 5.02(al(vl not to exceed in the aggregate $25,000,000 at any time outstanding;
(v) to the extent constituting Debt, (A) payment obligations under Secured Hedge Agreements and (B) obligations under the Borrower's fuel oil inventory financing program relating to (x) Mystic I, not to exceed in the aggregate at any time 750,000 bbls and (y) Fore River, not to exceed in the aggregate at any time 700,000 bbls;
(vi) to the extent permitted under Section 5.02(1) and constituting Debt, obligations under any (A) Pernutted Commodity Hedge and Power Sale Agreements and (B) other Commodity Hedge and Power Sale Agreements with net exposure thereunder not to exceed in the aggregate at any time $100,000,000;
(vii) Debt owed to any Loan Party, which Debt shall (x) constitute Pledged Debt, (y) be subordinated pursuant to the Terms of Subordination and (z) be otherwise pernutted under Section 5.02(fl;
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(viii) Capitalized Leases not to exceed in the aggregate $20,000,000 for Fore River, $40,000,000 for Mystic Development and $I5,000,000 for Mystic I, in each case, at any time outstanding;
(ix) to the extent constituting Debt, Debt in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or pay obligations and similar obligations incurred in the ordinary course of business and not in connection with Debt for Borrowed Money;
(x) other unsecured Debt of the Loan Parties issued in settlement of delinquent obligation of the Loan Parties or disputes between the Loan Parties and other Persons under Contractual Obligations of the Loan Parties (other than in respect of Debt);
(xi) Guaranteed Debt of any Loan Party in respect of any Debt otherwise permitted to be incurred under this Section 5.02(b);
(xii) endorsements of negotiable instruments for collection;
(xiii) (without duplication) Surviving Debt; and
(xiv) other unsecured Debt of the Loan Parties in an aggregate amount not to exceed $50,000,000 at any time outstanding.
(c) Change in Nature of Business. Make any material change in the nature of its business as carried on at the date hereof and activities reasonably incidental thereto or in connection with any Pernutted Development.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit any Person to merge into it; provided that any Subsidiary of the Borrower may merge into or consolidate with any other Subsidiary of the Borrower; provided that, in the case of any such merger or consolidation, the Person formed by such merger or consolidation shall be a wholly owned Subsidiary of the Borrower; provided that the Person formed by such merger or consolidation obtains prior approval under Section 204 of the FPA to the extent required; and provided further that, in the case of any such merger or consolidation to which a Guarantor is a party, the Person formed by such merger or consolidation shall be a Guarantor.
(e) Sales of Assets, Etc. Sell, lease, transfer or otherwise dispose of any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(i) sales of (or the granting of any option or other right to purchase, lease or otherwise acquire) power, natural gas, fuel, capacity, gas or fuel transportation, power transportation or ancillary services or other inventory in the
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ordinary course of such Person's business including, without limitation, Permitted Trading Activities;
(ii) sales, transfers or other dispositions in the ordinary course of its business of Property that is surplus (including, without limitation, surplus land and emission credits not required for the continued operation of any Project in any given year), obsolete, defective, worn-out, damaged, rendered unfit for normal use or property that is being exchanged for similar property, or that individually or in the aggregate is not essential for the continued operation of any Project;
(iii) the liquidation, sale or use of Cash and Cash Equivalents;
(iv) sales, transfers or other dispositions of assets among Loan Parties;
(v) sales or discounts without recourse of accounts receivable arising in the ordinary course of such Person's business in connection with the compromise or collection thereof;
(vi) dispositions required or contemplated by the Contractual Obligations in existence as of the date hereof with or relating to Governmental Authorities and relating to the Guarantors; and
(vii) sales of Property by the Borrower or any Guarantor so long as (A) the purchase price paid to the Borrower or such Guarantor for such Property shall be no less than the fair market value of such Property at the time of such sale, (B) at least 75% of the consideration to be received is paid in cash or Cash Equivalents and such remaining 25% is not a debt instrument of the Borrower or any of its Affiliates (provided that for purposes of this subclause (B), (I) any amounts deposited into an escrow or other type of holdback account and any consideration in the form of readily marketable securities shall be deemed to be cash, (II) customary purchase price adjustments may be settled on a non-cash basis and (III) the assumption of Debt relating to the asset being disposed shall be disregarded far the purposes of this provision); and (C) the aggregate purchase price paid to the Borrower and all of the Guarantors for such Property and all other Property sold by the Borrower and the Guarantors (1) during the same Fiscal Year pursuant to this clause (vii) shall not exceed $25,000,000 and (2) since the Effective Date shall not exceed $125,000,000.
Events of Eminent Domain or Casualty Events (as such terms are defined in the Security Deposit Agreement) do not qualify as sales, leases, transfers or other dispositions of Property for purposes of this Section 5.02(e).
(~ Investments in Other Persons. Make or hold any Investment in any Person, except:
(i) Investments by and among Loan Parties in other Loan Parties;
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(ii) Investments by the Loan Parties in Cash Equivalents;
(iii) to the extent constituting Investments, Investments in contracts and agreements (including, without limitation, (A) Permitted Commodity Hedge and Power Sale Agreements, (B) interest rate Hedge Agreements and (C) other Commodity Hedge and Power Sale Agreements with net exposure thereunder not to exceed in the aggregate $100,000,000 at any time, when taken together with any net exposure referred to in Section 5.02(b)(vi)(B)), including prepaid deposits and expenses thereunder, to the extent permitted under the Loan Documents;
(iv) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business;
(v) Investments in the Accounts and the Local Accounts and Investments of the funds on deposit therein, in each case, as otherwise permitted under the Loan Documents;
(vi) loans and advances to officers, directors and employees of any Loan Party for reasonable and customary business related travel expenses, moving expenses and similar expenses incurred in the ordinary course of business of such Loan Party in an aggregate principal amount at any time outstanding not exceeding $1,000,000;
(vii) to the extent constituting Investments, Debt which is permitted under Section 5.02(b);
(viii) Investments by the Borrower or any Guarantor in Permitted Developments made solely with the proceeds (not to exceed, in the aggregate, $140,000,000) of (A) of capital contributions (or sales of equity securities of EBG Holdings) received directly or indirectly from EBG Holdings and (B) any Debt permitted to be incurred pursuant to Sections 5.02(b)(ix); and
(ix) Investments in Permitted Developments by the Borrower ar any Guarantor after the Effective Date in an aggregate amount not to exceed $10,000,000; and
(x) any other Investments in an aggregate amount not to exceed $5,000,000 at any time.
(g) Restricted Pa.~. Declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, parmers or members (or the equivalent Persons thereo fl as such, make any distribution of assets, Equiry Interests, obligations or securities to its stockholders, partners or members (or the equivalent Persons thereo fl as such, or permit any of its Subsidiaries to do any of the foregoing, or permit any of its
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Subsidiaries to purchase, redeem, retire, defease or otherwise acquire f~r value any Equity Interests in the Borrower, except that any Subsidiary of the Borrower may (A) declare and pay cash dividends to the Borrower or to any Loan Party of which it is a Subsidiary and (B) accept capital contributions from its parent to the extent permitted under Section 5.02(fl; provided that the Borrower shall be able to pay EBG Holdings Tax Liabilities, EBG Holdings O&M Costs, the Distribution and the Tender Offer, in each case, in accordance with the Closing Date Flow of Funds Memo or the Security Deposit Agreement.
(h) Amendments of Constitutive Documents. Amend its limited liability company agreement, bylaws or other constitutive documents other than amendments that could not be reasonably expected to have a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in (i) accounting policies or reporting practices, except as permitted by GAAP, or (ii) Fiscal Year.
(j) Prepavments, Etc., of Debt. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt other than the intercompany Debt among the Loan Parties that is expressly subordinated to the Obligations hereunder, or that is secured and the Liens securing such Debt rank behind the Liens created by the First Lien Collateral Documents, or permit any of its Subsidiaries to do any of the foregoing, in each case, except to the extent permitted by the Loan Documents.
(k) Partnerships; Formation of Subsidiaries, Etc. (i) Become a general partner in any general or limited partnership or joint venture, or permit any of its Subsidiaries to do so or (ii) arganize any new Subsidiary (other than (x) a Permitted Development Subsidiary organized in connection with a Permitted Development or (y) a Subsidiary formed for the purpose of conducting Permitted Trading Activities, in each case, in compliance with Section 5.01(k)).
(1) Speculative Transactions and Permitted Commodit y Hedge and Power Sale Agreements. Engage, or permit any of its Subsidiaries to engage, in any Commodity Hedge and Power Sale Agreements or any similar transactions entered into solely for speculative purposes (it being acknowledged and agreed that the Initial Commodity Hedge and Power Sale Agreements, the Eligible Permitted Commodity Hedge and Power Sale Agreements required pursuant to Section 5.01(s) and any other Eligible Permitted Commodity Hedge and Power Sale Agreements or any other Permitted Trading Activity (other than an Excess Duration Transaction) shall be deemed to be in compliance with this Section SA2(1)).
For purposes of this Section 5.02(1), "Excess Duration Transaction" means any Commodity Hedge and Power Sale Agreements or any similar transactions (A) that, when taken together on a net basis with all other such agreements outstanding (other than the RMR Agreement) for any period, would cause the aggregate amount of contracted capacity to be provided (whether
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financially or physically) by the Loan Parties pursuant to such agreements for such period to exceed an amount equal to the projected available capacity of all of the Projects for such period; provided that, if the Permitted Development is not subject to the independent system operator to which the other Projects are subject, the projected available capacity related to the Permitted Development shall not be taken together with the projected available capacity of the other Projects but shall be treated as separate contracted capacity or (B) other than any Eligible Permitted Commodity Hedge and Power Sale Agreements, have a stated maturity in excess of 14 months from the date such agreement is entered into.
(m) Canital Expenditures. Make any Capital Expenditures that would cause the aggregate of all such Capital Expenditures made by the Loan Parties to exceed, in any Fiscal Year, the Adjusted Capex Limit. During any Fiscal Year, Capital Expenditures shall be deemed to be made first from Carryover Amounts for such Fiscal Year, second from the Base Capex Allowance for such Fiscal Year and third from any Pullback Amount for such Fiscal Year.
(n) Amendment, Etc., of Material Contracts. Cancel or terminate any Material Contract or consent to or accept any cancellation or termination thereof, amend or otherwise modify any Material Contract or give any consent, waiver or approval thereunder, waive any default under or breach of any Material Contract, or agree in any manner to any other amendment, modification or change of any term or condition of any Material Contract, except as could not reasonably be expected to have a Material Adverse Effect; provided that no such cancellation, termination, amendment, modification, change, agreement, waiver, approval or consent shall be a Default hereunder if such Loan Party enters into a Replacement Material Contract within 60 days thereafter; provided further that, if a Responsible Officer of the Bonower certifies to the satisfaction of the Administrative Agent that the Borrower or any Loan Party is diligently pursuing such Replacement Material Contract and that such Replacement Material Contract is reasonably likely to be entered into within the next 60 days, then such 60-day period shall be extended for an additional 60 days; provided further that notwithstanding the foregoing, the Borrower and Mystic Development shall be permitted to terminate and release the Distrigas Guaranty and/or the Cabot Guaranty in connection with the settlement of the Distrigas Litigation.
(o) Re ul~atory Matters. Make or pernut to be made any change in the upstream ownership of a Guarantor without first obtaining any necessary authorization under Section 203 of the FPA.
(p) Transactions with Affiliates. Enter into or cause or permit to exist any arrangement, transaction or contract (including for the purchase, lease or exchange of property or the rendering of services) with any of its other Affiliates, unless such arrangement, transaction or contract is:
(i) (A) on fair and reasonable terms no less favorable to such Loan Party than it could obtain in an arm's-length transaction with a Person that is not
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an Affiliate and (B) of the kind which would be entered into by a prudent Person in the position of such Loan Party with a Person that is not one of its Affiliates;
(ii) an arrangement, transaction or contract expressly permitted by the terms of this Agreement;
(iii) the payment of fees and indemnities to directors, officers, consultants and employees of the Loan Parties in the ordinary course of business;
(iv) pursuant to the Management and Operation Agreements, including the payment of fees, costs and expenses as required thereunder (as of the date hereo fl; (v) (A) any employment or severance agreements or arrangements entered into by the Loan Parties in the ordinary course of business, or (B) any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract or arrangement and transactions pursuant thereto; or
(vi) the payment of fees, expenses, bonuses and awards related to the Transactions contemplated by the Transaction Documents and Loan Documents to the extent, in the case of the Transaction Documents, written notice thereof has been provided to the Administrative Agent prior to the Effective Date.
(q) Maintenance of Accounts. Establish or maintain any account other than (i) the Accounts established and maintained pursuant to the Security Deposit Agreement, (ii) the Local Accounts and (iii) other accounts in existence on the Effective Date (provided that the Borrower causes each such account to be closed and the funds on deposit therein or credited thereto at the time of such closure to be transferred to the Revenue Account within 60 days after the Effective Date).
SECTION 5.03. Reporting Requirements. Until a Repayment Event has occurred, the Borrower will furnish to the Agents (who will then circulate to the Lenders):
(a) Default Notice. As soon as possible and in any event within five days after the Borrower obtains knowledge thereof, the occurrence of each Default or any event, development or occurrence reasonably likely to have a Material Adverse Effect continuing on the date of such statement, a statement of a Responsible Officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within 120 days after the end of each Fiscal Year (but, in the case of the 2006 Fiscal Year, 150 days after the end of such Fiscal Year), a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its 96 Boston Generating LLC First Lien Credit Agreement NY 1: #3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 264 of 510
Subsidiaries for such Fiscal Year, in each case accompanied by (i) an opinion as to such audit report of KPMG LLP or other independent public accountants of recognized standing acceptable to the Administrative Agent and (ii) a certificate of the senior financial officer of the Borrower (A) certifying such financial statements as having been prepared in accordance with GAAP, (B) stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (C) attaching a schedule in form reasonably satisfactory to the Administrative Agent of the computations used by the Borrower in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04; provided that, in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide a reconciliation of such financial statements to GAAP.
(c) Quarterlv Financials. As soon as available and in any event within 60 days after the end of each of the first three quarters of each Fiscal Year, a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Quarter and ending with the end of such Fiscal Quarter and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly certified (subject to norrnal year-end audit adjustments) by the senior financial officer of the Borrower as having been prepared in accordance with GAAP, together with (i) a certificate of said officer stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by the Borrower in deternuning compliance with the covenants contained in Section 5.04; provided that, in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide a reconciliation of such financial statements to GAAP.
(d) Annual Bud~et. As soon as available and in any event no later than 15 days before the start of each Fiscal Year, an annual budget, prepared on a quarterly basis for such Fiscal Year in substantially the form attached hereto as Exhibit 1 or in form otherwise acceptable to the Administrative Agent (with respect to each such Fiscal Year, the "Budge~'), which Budget shall be certified by the senior financial officer of the Borrower as having been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made. The Borrower and the Guarantors shall use their best efforts to comply in all material respects with each applicable Budget, subject to market conditions.
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(e) Litigation. Promptly after the commencement thereof, notice of all actions, suits, litigation and proceedings before any Governmental Authority of the type described in Section 4.01
(~ Agreement Notices; Etc. (i) Promptly upon execution thereof, copies of any Material Contract entered into by any Loan Party after the date hereof;
(ii) (A) Promptly (but in any event within 10 days) following any Loan Party's entering into of any Material Contract after the date hereof, a Consent and Agreement in respect of such Material Contract and (B) promptly following receipt by the Borrower after the Effective Date, a Consent and Agreement with respect of each Material Contract as of the Effective Date for which a Consent and Agreement was not delivered pursuant to Section 3.01(al(ii)(E); and
(iii) Promptly upon execution thereof, copies of any amendment, modification or waiver of any material provision of any Second Lien Loan Document or any Material Contracts.
(g) ERISA.
(i) ERISA Events and ERISA Reports. (A) Promptly and in any event within 10 Business Days after any Loan Party or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred that could reasonably be expected to result in liability in excess of $10,000,000, a statement of a Responsible Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information within 10 Business Days.
(ii) Plan Terminations. Promptly and in any event within ten Business Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan.
(iii) Multiemplover Plan Notices. Promptly and in any event within ten Business Days after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor of a Multiemployer.Plan, copies of each notice concerning (A) the imposition of Withdrawal Liability that could reasonably be expected to result in liability in excess of $10,000,000 by any such Multiemployer Plan, (B) the reorganization or ternunation, within the meaning of Title IV of ERISA, of any such Multiemployer Plan that could reasonably be expected to result in liability in excess of $10,000,000 or (C) the amount of liability incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause A or ~.
98 Boston Generating, LLC First Lien Crcdit Agreemcn[ NY 1:#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 266 of 510
(h) Environmental Conditions. Promptly after the assertion or occurrence thereof, notice of any Environmental Action against or of any noncompliance known to the Borrower by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the First Lien Mortgages to be subject to any material restrictions on ownership or transferability, or subject to any material Lien, under any Environmental Law.
(i) Real Propertv. As soon as available and in any event within 30 days after the end of each Fiscal Year, a report supplementing Schedules 4A1(r) and 4.01(s) hereto, including an identification of all material owned and leased real property disposed of by the Borrower or any of its Subsidiaries during such Fiscal Year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, and, in the case of leases of property, lessor and lessee thereo~ of all material real property acquired or leased during such Fiscal Yeax and a description of such other changes in the information included in such Schedules as may be reasonably necessary for such Schedules to be accurate and complete.
(j) Insurance. (i) Promptly after the Borrower gains knowledge of the occurrence thereof, a report summarizing any changes in the insurance coverage of the Bonower and its Subsidiaries resulting from a change in the insurance markets of the type described in Section 2 of Schedule 5.01(d).
(ii) Promptly after the occurrence thereof, notice of any Casualty Event or Event of Eminent Domain affecting any Loan Party, whether or not insured, through fire, theft, other hazard, casualty involving a probable loss of $10,000,000 or more.
(iii) Promptly after receipt thereof, copies of any cancellation or receipt of written notice of threatened cancellation of any property damage insurance required to be maintained under Section 5.01(d).
(k) Other Information. Such other information respecting the business, condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party or any of its Subsidiaries as any Agent, or any Lender Party through the Administrative Agent, may from time to time reasonably request.
SECTION 5.04. Financial Covenants. Until a Repayment Event has occurred, the Borrower will:
(a) Levera~e Ratio. The Borrower shall not pernut the Leverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31, 2007, to exceed the correlative ratio indicated:
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Levera e Ratio Fiscal uarter Ratio uarter 1 2007 ...... 11.Ox uarter 2 2007 ...... 11.Ox uarter 3 2007 ...... 11.Ox uarter 4 2007 ...... 11.Ox uarter 1 2008 ...... 11.Ox uarter 2 2008 ...... 11.Ox uarter 3 2008 ...... 11.Ox uarter 4 2008 ...... 11.Ox uarter 1 2009 ...... lO.Ox uarter 2 2009 ...... lO.Ox uarter 3 2009 ...... lO.Ox uarter 4 2009 ...... lO.Ox uarter 1 2010 ...... 9.Ox uarter 2 2010 ...... 9.Ox uarter 3 2010 ...... 9.Ox uarter 4 2010 ...... 9.Ox Quarter 1 2011 ...... 8.Ox uarter 2 20l 1...... ••• ...... B.Ox uarter 3 2011 ---~~ ...... 8.Ox uarter 4 2011 ...... 8.Ox Quarter 1 2012 ...... 7.Ox uarter 2 2012 ...... 7.Ox Quarter 3 2012 ...... 7.Ox Quarter 4 2012 ...... 7.Ox uarter 1 2013 ...... 6.Ox Quarter 2 2013 ...... 6.Ox uarter 3 2013 ...... 6.Ox Quarter 4 2013 ...... 6.Ox
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(b) Interest Covera~e Ratio. The Borrower shall not permit the Interest Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31, 2007, to be less than the correlative ratio indicated:
Interest Covera e Ratio Fiscal uarter Ratio Quarter 1 2007 ...... 1.OSx uarter 2 2007 ...... 1.OSx uarter 3 2007 ...... 1.OSx uarter 4 2007 ...... 1.OSx uarter 1 2008 ...... 1.OSx uarter 2 2008 ...... 1.OSx uarter 3 2008 ...... 1.lOx uarter 4 2008 ...... 1.lOx uarter 1 2009 ...... 1.lOx uarter 2 2009 ...... 1. l Ox uarter 3 2009 ...... 1.lOx uarter 4 2009 ...... 1. lOx uarter 1 2010 ...... 1.25x Quarter 2 2010 ...... 1.25x uarter 3 2010 ...... 1.25x uarter 4 2010 ...... 1.25x Quarter 1 2011 ...... 1.SOx uarter 2 2011 ...•• ...... 1.SOx uarter 3 2011 ...... 1.SOx Quarter 4 2011 ...... 1.SOx Quarter 1 2012 ...... 1.75x Quarter 2 2012 ...... 1.75x Quarter 3 2012 ...... 1.75x uarter 4 2012 ...... 1.75x uarter 1 2013 ...... 2.00x uarter 2 2013 ...... 2.00x
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Interest Covera e Ratio Fiscal uarter Ratio uarter 3 2013 ...... 2.00x uarter 4 2013 ...... 2.00x
(c) Ri~ht to Cure Financial Covenants. (i) Notwithstanding anything to the contrary contained in Section 5.04(a) or ~, if the Loan Parties fail to comply with the requirements of either covenant set forth in Section 5.04(a) or ~(the "Financial Covenants"), then until the 10`~' calendar day after delivery of the related certificate pursuant to Section 5.03(b) or ~c,~, the Borrower shall have the right to receive cash contributions from EBG Holdings in an aggregate amount equal to or greater than the amount that, if added to Consolidated Adjusted EBITDA for the relevant Fiscal Quarter, would have been sufficient to cause compliance with the Financial Covenants for such Fiscal Quarter (an "Equity Cure").
(ii) The Borrower shall give the Administrative Agent written notice (the "Cure Notice") of an Equity Cure on or before the day the Equity Cure is consummated. The Borrower shall not be entitled to exercise the Equity Cure any more than one time in any consecutive four Fiscal Quarters.
(iii) Upon the delivery by the Borrower of a Cure Notice, no Event of Default or Default shall be deemed to exist pursuant to the Financial Covenants (and any such Default or Event of Default shall be retroactively considered not to have existed or occurred). If the Equity Cure is not consummated within 10 days after delivery of the related certificate pursuant to Section 5.03(b) or ~, each such Default ar Event of Default shall be deemed reinstated.
(iv) The cash amount received by the Borrower pursuant to exercise of the Equity Cure shall be added to Consolidated Adjusted EBITDA for the immediately preceding Fiscal Quarter solely for purposes of recalculating compliance with the Financial Covenants for such Fiscal Quarter and of calculating the Financial Covenants for the periods that include such Fiscal Quarter.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of Default") shall occur and be continuing:
(a) Pavment Defaults. (i) the Borrower shall fail to pay any principal of any Loan when the same shall become due and payable, (ii) the Borrower shall fail to pay any interest on any Loan within three Business Days after the same shall become due and
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payable, or (iii) any Loan Party shall fail to make any other payment under any Loan Document, in each case under this clause a within ten Business Days after the same shall become due and payable;
(b) Misrepresentation. any representation or warranty made by any Loan Party (or any of its officers) under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; provided, however, that if (i) such Loan Party was not aware that such representation or warranty was false or incorrect at the time such representation or warranty was made, (ii) the fact, event or circumstance resulting in such false or incorrect representation or warranty is capable of being cured, corrected or otherwise remedied and (iii) such fact, event or circumstance resulting in such false or incorrect representation or wananty shall have been cured, corrected or otherwise remedied, within 30 days from the date on which the Borrower or any officer thereof first obtains knowledge thereof such that such incorrect or false representation or warranty (as cured, corrected or remedied) could not reasonably be expected to result in a Material Adverse Effect, then such incorrect or false representation or warranty shall not constitute a Default or Event of Default;
(c) Certain Covenants. the Borrower shall fail to perform or observe any term, covenant or agreement contained in (i) Sections 2.14, 5.01 e and ~,, 5.02 (other than clauses 1 and ~ thereo fl, 5.03 a or 5.04 or (ii) Sections 5.01 d,~, ~ and ~ and 5.02 1 and ~ and such default under this subclause (ii) shall continue unremedied for a period of ten (10) days after the earlier of the date on which (x) any Responsible Officer of a Loan Party becomes aware of such failure or (y) written notice thereof shall have been given to the Borrower by any Agent or any Lender Party;
(d) Other Covenants. any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for 30 days after the earlier of the date on which (i) any Responsible Officer of a Loan Party becomes aware of such failure or (ii) written notice thereof shall have been given to the Borrower by any Agent or any Lender Party; provided, however, that (A) if such failure is not susceptible to being remedied solely by the payment of money to any Person that is due after giving effect to any grace provisions, dispute resolution provisions or similar provisions and is not susceptible to cure within 30 days, (B) such Loan Party is proceeding with diligence and in good faith to cure such default and such default is susceptible to cure and (C) the existence of such failure could not reasonably be expected to have a Material Adverse Effect, such 30-day period shall be extended as may be necessary to cure such failure, such extended period not to exceed 90 days in the aggregate (inclusive of the original 30- day period);
(e) Cross Default. any Loan Party or any of its Subsidiaries shall fail to pay any principal of, premium or interest on ar any other amount payable in respect of any Debt of such Loan Party or such 5ubsidiary (as the case may be) that is outstanding in a principal amount of at least $25,000,000 either individually or in the aggregate for all such Loan Parties and Subsidiaries (but excluding Debt outstanding under this
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Agreement and obligations under Hedge Agreements, Commodity Hedge and Power Sale Agreements and Debt described in clause b of the definition of "Guaranteed Debl"), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof;
(~ Hed~,e Cross Default. any Loan Party shall default under any one or more Hedge Agreements or Commodity Hedge and Power Sale Agreements on any required payment obligation in excess of $25,000,000 individually or in the aggregate for all Loan Parties, after giving effect to any grace periods, dispute resolution provisions or similar provisions contained in such Hedge Agreement or Commodity Hedge and Power Sale Agreement (it being acknowledged and agreed that any such Default shall be deemed to be cured for all purposes under the Loan Documents if and when such Loan Party pays ar causes the payment of such defaulted amount);
(g) Insolvency Event. any Loan Party or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to banlcruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it) that is being diligently contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any Loan Party or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (g);
(h) Judgments. any final judgments or orders, either individually or in the aggregate, far the payment of money in excess of $25,000,000 shall be rendered against any Loan Party or any of its Subsidiaries by one or more Governmental Authorities, arbitral tribunals or other bodies having jurisdiction against such Loan Party which remains unsatisfied and either (i) enforcement proceedings shall have been commenced
104 Boston Generating, LLC First Licn Crcdit Agreement NY 1:#3436966v l 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 272 of 510
by any creditor upon such judgment or order or (ii) there shall be any period of 60 consecutive days during which a stay of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(i) Non-Monetarv Jud m~. any non-monetary judgment or order shall be rendered against any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect, and there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(j) Invaliditv. any provision of any Loan Document after delivery thereof pursuant to Section 3.01 or SA1 ~ shall for any reason (except as a result of acts or omissions of the First Lien Secured Parties) cease to be valid and binding on or enforceable against any Loan Party to it, or any such Loan Party shall so state in writing;
(k) Collateral. any First Lien Collateral Document or financing statement after delivery thereof pursuant to Section 3.01 or 5.01 ~ shall for any reason (other than pursuant to the terms thereo~ cease to create a valid and perfected first priority lien on and security interest in any material portion of the Collateral purported to be covered thereby;
(1) Eauit,y of Borrower. the failure of EBG Holdings to hold (directly or indirectly) 100% of the Equity Interests of the Borrower and its Subsidiaries;
(m) ERISA. (i) any ERISA Event shall have occuned with respect to a Plan and the sum (deternuned as of the date of occurrence of such ERISA Event) of the Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates related to such ERISA Event) could reasonably be expected to have a Material Adverse Effect;
(ii) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), could reasonably be expected to have a Material Adverse Effect;
(iii) any Laan Party or a~.iy ER1SA Affliate shall have been notified by the sponsar of n M:ultiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which
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such reorganization or termination occurs by an amount that could reasonably be expected to have a Material Adverse Effect;
(n) Commoditv Hedge and Power Sale Agreements. (i) any Commodity Hedge Counterparty to any Initial Commodity Hedge and Power Sale Agreement or any Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(s) shall fail to perform or observe any material term, covenant or agreement contained in such Initial Commodity Hedge and Power Sale Agreement or any Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(s) if after each case, such failure shall remain unremedied for 30 days or (ii) any Initial Commodity Hedge and Power Sale Agreement or any Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(s) shall terminate on or before its scheduled expiration date except upon fulfillment of each party's obligations thereunder, or shall be declared null and void or unenforceable by a Governmental Authority or a party thereto anticipatorily repudiates its obligations thereunder, and in each such case of (i) or (ii), the Loan Parties shall not have entered into a Replacement Commodity Hedge and Power Sale Agreement within 60 days of the occurrence of any such event; or
(o) Loss Proceeds. the occunence of (i) a Casualty Event with respect to (A) all or a material portion of the Property of any Project or (B) all or a material portion of the Collateral or (ii) an Event of Eminent Domain with respect to (A) all or a material portion of the Property of any Project or (B) all or a material portion of the Collateral, unless in the case of each of clause (i) and (ii) the Borrower shall have received, within 90 days after such occurrence, Insurance Proceeds or Eminent Domain Proceeds or cash equity contributions from EBG Holdings in an amount sufficient to repair or rebuild such Project or Collateral, as the case may be;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Commitments of each Lender Party and the obligation of each Lender Party to make Loans (other than Synthetic L/C Loans by the Synthetic Issuing Banks, Revolving Credit Lenders or Synthetic L/C Lenders pursuant to Section 2.03(cl) and of each Synthetic Issuing Bank to issue Synthetic Letters of Credit to be terminated, whereupon the same shall forthwith ternunate and (ii) shall at the request, ar may with the consent, of the Required Lenders, by notice to the Borrower, declare the Loans, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that, in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (x) the Cominitments of each Lender Party and the obligation of each Lender Party to make Loans (other than Synthetic L/C Loans by the Synthetic Issuing Banks, Revolving Credit Lenders or Synthetic L/C Lenders pursuant to Section 2.03(c)) and of each Synthetic Issuing Bank to issue Synthetic Letters of Credit shall automatically be terminated and (y) the Loans, all such interest and all such amounts
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shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Synthetic Letters of Credit upon Default. If any Event of Default shall have occurred and be continuing, the Administrative Agent may, or shall at the request of the Required Lenders, irrespective of whether it is taking any of the actions described in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such demand the Borrower will, pay to the First Lien Collateral Agent on behalf of the Lender Parties in same day funds at the Collateral Agent's Office, for deposit in the Synthetic L/C Cash Collateral Account, an amount equal to 103.0% of the aggregate Available Amount of all Synthetic Letters of Credit then outstanding; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, the Borrower shall be obligated to pay to the Collateral Agent on behalf of the Lender Parties in same day funds at the Collateral Agent's Office, for deposit in the Synthetic L/C Cash Collateral Account, an amount equal to 103.0% of the aggregate Available Amount of all Letters of Credit then outstanding, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. If at any time the Administrative Agent or the First Lien Collateral Agent determines that any funds held in the Synthetic L/C Cash Collateral Account are subject to any right or claim of any Person other than the Agents and the Lender Parties or that the total amount of such funds is less than 103.0% of the aggregate t3vailable Amount of all Synthetic Letters of Credit, the Borrower will, forthwith upon demand by the Administrative Agent or the First Lien Collateral Agent, pay to the Collateral Agent, as additional funds to be deposited and held in the Synthetic L/C Cash Collateral Account, an amount equal to the excess of (a) 103.0% of the aggregate Available Amount of all Synthetic Letters of Credit then outstanding over (b) the total amount of funds, if any, then held in the Synthetic L/C Cash Collateral Account that the Administrative Agent or the First Lien Collateral Agent, as the case may be, deterxnines to be free and clear of any such right and claim. Upon the drawing of any Synthetic Letter of Credit for which funds are on deposit in the Synthetic L/C Cash Collateral Account, such funds shall be applied to reimburse the Synthetic Issuing Bank or the Appropriate Lenders, as applicable, to the extent permitted by applicable law.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. (a) Each Lender Party (in its capacities as a Lender and a Synthetic Issuing Bank (if applicable)) hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Obligations of the Loan Parties), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such
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instructions shall be binding upon all Lender Parties and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or applicable law.
(b) The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereo fl granted under the First Lien Collateral Documents or of exercising any rights and remedies thereunder at the direction of the First Lien Collateral Agent) by or through agents, employees or attarneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects in accordance with the foregoing provisions of this Section 7.01(b) in the absence of the Administrative Agent's gross negligence or willful misconduct.
SECTION 7.02. Administrative Agent's Reliance. Etc. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (a) may consult with legal counsel (including counsel for any Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Lender Party and shall not be responsible to any Lender Party for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents; (c) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan Document on the part of any Loan Party or the existence at any time of any Default under the Loan Documents or to inspect the property (including the books and records) of any Loan Party; (d) shall not be responsible to any Lender Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (e) shall incur no liability under or in respect of any Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopy or electronic communication) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Initial Banks and Affiliates. With respect to its Commitments, the Loans made by it and any Notes issued to it, each Initial Bank shall have the same rights and powers under the Loan Documents as any other Lender Party and may exercise the same as though each were not an Agent; and the term "Lender Party" or "Lender Parties" shall, unless otherwise expressly indicated, include each Initial Bank in their respective individual capacities. Each Initial Bank and their respective affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Loan Party, any of its Subsidiaries and any Person that may do business with or own securities of any Loan Party or any such Subsidiary, all as if such Initial
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Bank was not an Agent and without any duty to account therefor to the Lender Parties. No Initial Bank shall have any duty to disclose any information obtained or received by it or any of its Affiliates relating to any Loan Party or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as such Initial Bank.
SECTION 7.04. Lender Partv Credit Decision. Each Lender Party acknowledges that it has, independently and without reliance upon any Agent or any other Lender Party and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Party also acknowledges that it will, independently and without reliance upon any Agent or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees to indemnify each Agent (to the extent not promptly reimbursed by the Borrower) from and against such Lender Party's ratable share (detertnined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Agent in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Agent under the Loan Documents (collectively, the "Indemnifred Costs"); provided, however, that no Lender Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender Party agrees to reimburse each Agent promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 9.04, to the extent that such Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by any Lender Party or any other Person.
(b) Each Synthetic L/C Lender severally agrees to indemnify the Synthetic Issuing Bank (to the extent not promptly reimbursed by the Borrower) from and against such Lender Party's ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Synthetic Issuing Bank in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Synthetic Issuing Bank under the Loan Documents; provided, however, that no Lender Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Synthetic Issuing Bank's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Synthetic L/C Lender agrees to reimburse the Synthetic Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including,
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without limitation, fees and expenses of counsel) payable by the Borrower under Section 9.04, to the extent that such Synthetic Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of Section 7.05(a), (i) each Lender Party's ratable share of any amount shall be determined, at any time, according to the sum of (A) the aggregate principal amount of the Loans outstanding at such time and owing to such Lender Party, (B) in the case of any Synthetic L/C Lender, such Synthetic L/C Lender's Pro Rata Shares of the aggregate Available Amount of all Synthetic Letters of Credit outstanding at such time, (C) in the case of any Term B Lender, the aggregate unused portions of such Term B Lender's Term B Commitments at such time and (D) in the case of any Revolving Credit Lender, such Revolving Credit Lender's Unused Revolving Credit Commitments at such time, (ii) each Revolving Credit Lender's ratable share of any amount shall be determined, at any time, according to the sum of (A) the aggregate principal amount of the Revolving Credit Loans outstanding at such time and owing to such Lender, and (B) such Lender's Unused Revolving Credit Commitments at such time, (iii) each Synthetic L/C Lender's ratable share of any amount shall be determined, at any time, according to the sum of (A) the aggregate principal amount of the Synthetic L/C Loans outstanding at such time and owing to such Lender and (B) the aggregate unused portion of such Lender's Synthetic L/C Deposit Commitment, if any, at such time. The failure of any Lender Party to reimburse any Agent or any Synthetic Issuing Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be paid by the Lender Parties to the such Agent or such Synthetic Issuing Bank, as the case may be, as provided herein shall not relieve any other Lender Party of its obligation hereunder to reimburse such Agent or Synthetic Issuing Bank, as the case may be, for its ratable share of such amount, but no Lender Party shall be responsible for the failure of any other Lender Party to reimburse such Agent or Synthetic Issuing Bank, as the case may be, for such other Lender Party's ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender Party hereunder, the agreement and obligations of each Lender Party contained in this Section 7.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents.
(d) Each Revolving Credit Lender severally agrees to indemnify the Fronting Bank (to the extent not promptly reimbursed by the Borrower) from and against such Lender Party's ratable share (determined as provided in clause d above) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Fronting Bank in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Fronting Bank under the Loan Documents; provided, however, that no Lender Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Fronting Bank's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Revolving Credit Lender agrees to reimburse the Fronting Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Bonower under Section 9.04, to the extent that such Fronting Bank is not promptly reimbursed for such costs and expenses by the Borrower. 110 Boston Generating, LLC First Lien Credit Agroement NY 1: #3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 278 of 510
SECTION 7.06. Successor Administrative Agent. The Administrative Agent may resign as to any or all of the Facilities at any time by giving 30 days' written notice thereof to the Lender Parties and the Borrower and may be removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Administrative Agent as to such of the Facilities as to which the Administrative Agent has resigned or been removed. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent's giving of notice of resignation or the Required Lenders' removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent as to less than all of the Facilities, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent as to such Facilities, other than with respect to funds transfers and other similar aspects of the administration of Borrowings under such Facilities, issuances of Synthetic Letters of Credit (notwithstanding any resignation as Administrative Agent with respect to the Synthetic L/C Facility) and payments by the Borrower in respect of such Facilities, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement as to such Facilities, other than as aforesaid. If within 45 days after written notice is given of the retiring Administrative Agent's resignation or removal under this Section 7.06 no successor Administrative Agent shall have been appointed and shall have accepted such appointment, then on such 45th day (a) the retiring Administrative Agent's resignation or removal shall become effective, (b) the retiring Administrative Agent shall thereupon be discharged from its duties and obligations under the Loan Documents and (c) the Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent as provided above. After any retiring Administrative Agent's resignation or removal hereunder as Administrative Agent as to any of the Facilities shall have become effective, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent as to such Facilities under this Agreement.
ARTICLE VIII
GUARANTY
SECTiON 8.01. Guaranty; Limitation of Liabilitv. (a) Each Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of each other Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without limitation, any 111 Hoston Generating, LLC First Licn Credit Agrecment NY l :#3436966v l t 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 279 of 510
extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the "Guaranteed Obligations"), and agrees to pay any and all expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the Administrative Agent or any other Lender Party in enforcing any rights under this Guaranty or any other Loan Document. Without limiting the generality of the foregoing, each Guarantor's liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Lender Party under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each other Lender Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer ar conveyance far purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other Lender Parties and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Lender Party under this Guaranty or any other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Lender Parties under or in respect of the Loan Documents.
5ECTION 8.02. Guarantv Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Lender Party with respect thereto. The Obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, ar in any other term of, all or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any ~f the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other Obligations of any Loan Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of any Loan Party or any of its Subsidiaries;
(~ any failure of any Lender Party to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to such Lender Party (each Guarantor waiving any duty on the part of the Lender Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this Agreement or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Lender Party that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party or otherwise, all as though such payment had not been made.
SECTION 8.03. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed ~bligations and this Guaranty and any requirement that any Lender Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other Person or any Collateral.
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(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Lender Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the First Lien Collateral Agent may, without notice to or demand upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to the recovery by the First Lien Collateral Agent and the other First Lien Secured Parties against such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Lender Party to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party or any of its Subsidiaries now or hereafter known by such Lender Party.
( fl Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in Section 8.02 and this Section 8.03 are knowingly made in contemplation of such benefits. SECTION 8.04. Subro~ation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, any other Loan Party that arise from the existence, payment, performance or enforcement of such Guarantor's Obligations under or in respect of this Guaranty or any other Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Lender Party against the Borrower, any other Loan Party or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other Loan Party directly or indirectly, in cash or other properly or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, all Synthetic Letters of Credit and all Secured Hedge Agreements shall have expired or been terminated and the Commitments shall have expired or been terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Term B Maturity Date, (c) the latest date of
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expiration or termination of all Synthetic Letters of Credit and all Secured Hedge Agreements and (d) the return of the Synthetic L/C Deposits and the Revolving Credit-Linked Deposits, such amount shall be received and held in trust for the benefit of the Lender Parties, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) any Guarantor shall make payment to any Lender Pariy of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, (iii) the Term B Maturity Date shall have occurred, (iv) all Synthetic Letters of Credit and all Secured Hedge Agreements shall have expired or been terminated and (v) the Synthetic L/C Deposits and the Revolving Credit-Linked Deposits shall have been returned to the Synthetic L/C Lenders, the Lender Parties will, at such Guarantor's request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.
SECTION 8.05. Subordination. Each Loan Party hereby subordinates any and all debts, liabilities and other Obligations owed to such Loan Party by each other Loan Party (the "Subordinated Obligations") to the First Lien Obligations of such Loan Party to the extent and in the manner provided in the Terms of Subordination.
SECTION 8.06. Continuin~ Guarantv; Assi~nments. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until a Repayment Event has occurred, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Lender Parties and their successors, transferees and assigns. Without limiting the generality of clause c of the immediately preceding sentence, any Lender Party may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to it, its Synthetic L/C Deposits, its Revolving Credit-Linked Deposits and any Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender Party herein or otherwise, in each case as and to the extent provided in Section 9.07. Except as expressly permitted under the Loan Documents, no Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lender Parties.
ARTICLE 1X MISCELLANEOUS
SECTION 9.01. Amendments, Etc. (a) Subject to Section 53(d) of the lntercreditor Agreement and clause b below, no amendment or waiver of any provision of this Agreement, the Notes or any other Loan Document (including the Intercreditor Agreement and
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the Security Deposit Agreement), nor consent to any deparlure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the Required Lenders (or the Administrative Agent on their behal fl, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that
(i) no amendment, waiver or consent shall, unless in writing and signed by the Borrower and all of the Lender Parties, do any of the following at any time:
(A) waive any of the conditions specified in Section 3.01 or, in the case of the Initial Extension of Credit, Section 3 A2;
(B) change (A) the definition of "Required Lenders" or (B) the number of Lenders or the percentage of (x) the Commitments, (y) the aggregate unpaid principal amount of the Loans or (z) the aggregate Available Amount of outstanding Synthetic Letters of Credit that, in each case, shall be required for the Lenders or any of them to take any action hereunder or under any other Loan Document;
(C) change any other definition in the Intercreditor Agreement or the Security Deposit Agreement in any manner materially and adversely affecting the Lender Parties;
(D) other than as expressly contemplated by Section 5.1 of the Intercreditor Agreement, release one or more Guarantors (or otherwise limit such Guarantors' liability with respect to the Obligations owing to the Agents and the Lender Parties under the Guaranties) if such release or limitation is in respect of a material portion of the value of the Guaranties to the Lender Parties;
(E) other than as expressly contemplated by Section 5.1 of the Intercreditor Agreement, release any material portion of the Collateral in any transaction or series of related transactions; or
(F) amend this Section 9.01, and
(ii) no amendment, waiver or consent shall, unless in writing and signed by the Borrower and the Required Lenders and each Lender Party specified below for such amendment, waiver or consent:
(A) increase the Commitments of a Lender Party without the consent of such Lender Party;
(B) reduce the principal of, or stated rate of interest on, the Loans owed to a Lender Party or the Synthetic L/C Deposit or the Revolving Credit-Linked Deposit of such Lender Party or any fees
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(including the Participation Fee and other fees payable pursuant to Section 2.08) or any other amounts stated to be payable hereunder or under the other Loan Documents to such Lender Party without the consent of such Lender Party;
(C) postpone any date scheduled for any payment of principal of, or interest on, the Loans pursuant to Section 2.04 or 2.07, any date on which the Synthetic L/C Deposits or the Revolving Credit-Linked Deposit are to be returned in full to the Synthetic L/C Lenders or any date fixed for any payment of fees hereunder in each case payable to a Lender Party without the consent of such Lender Party;
(D) impose any restrictions on the rights of such Lender Party under Section 9.07;
(E) change the order of application of any reduction in the Commitments or any prepayment of Loans among the Facilities from the application thereof set forth in the applicable provisions of Section 2.05(b) or 2.06 b, respectively, in any manner that materially adversely affects the Lenders under a Facility without the consent of holders of a majority of the Commitments or Loans outstanding under such Facility;
(F) change the order of application of proceeds of Collateral and other payments set forth in Section 4.1 of the Intercreditor Agreement or Article III of the Security Deposit Agreement in a manner that materially adversely affects any Lender Party without the consent of such Lender Party; or
(G) otherwise amend or modify any of the Intercreditor Agreement or any First Lien Collateral Document in a manner which disproportionately affects any Lender Party vis-a-vis any other Secured Party without the written consent of such Lender Party;
provided further that no amendment, waiver or consent shall, unless in writing and signed by each Synthetic Issuing Bank, as the case may be, in addition to the Borrower and the Lenders required above to take such action, affect the rights or obligations of the Synthetic Issuing Banks, as the case may be, under this Agreement; and provided further that no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Borrower and the Lenders required above to take such action, affect the rights or duties of such Agent under this Agreement or the other Loan Documents.
(b) Notwithstanding the other provisions of this Section 9.01, the Borrower, the Guarantors, the First Lien Collateral Agent and the Administrative Agent may (but shall have no obligation to) amend or supplement the Loan Documents without the consent of any Lender Party: (i) to cure any ambiguity, defect or inconsistency; (ii) to make any change that would provide any additional rights or benefits to the Lender Parties; (iii) to make, complete or confirm
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any grant of Collateral permitted or required by this Agreement or any of the First Lien Collateral Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the First Lien Collateral Documents or (iv) to facilitate the return of the Synthetic Deposits to the Synthetic L/C Lenders in a manner consistent with the intent of this Agreement.
(c) If, in connection with any proposed amendment, waiver or consent, the consent of all of the Lenders, or all of the Lenders directly affected thereby, is required pursuant to this Section 9.01, and any such Lender refuses to consent to such amendment, waiver or consent as to which the Required Lenders have consented (any such Lender whose consent is not obtained as described in this Section 9.01 being referred to as a"Non-Consenting Lender"), then, so long as the Administrative Agent is not a Non-Consenting Lender, at the Borrower's request and at the sole cost and expense of the Borrower, the Administrative Agent or an Eligible Assignee shall be entitled (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender (by its acceptance of the benefits of the applicable Loan Documents) agrees that it shall, upon the Administrative Agent's request, sell and assign to the Administrative Agent or such Eligible Assignee, all of the Loans and Commitments of such Non-Consenting Lender or Non-Consenting Lenders for an amount equal to the principal balance of all Loans held by the Non-Consenting Lender and all accrued interest and fees with respect thereto through the date of sale; provided that such Eligible Assignee consents to the proposed amendment, waiver or consent (it being understood and agreed that the Commitments of such Non-Consenting Lender shall include, if such Non-Consenting Lender is a Synthetic Issuing Bank, the Synthetic L/C Issuing Commitment of such Non-Consenting Lender). Each Lender (by its acceptance of the benefits of the Loan Documents) agrees that, if it becomes a Non- Consenting Lender, it shall execute and deliver to the Administrative Agent an Assignment and Acceptance to evidence such sale and purchase and shall deliver to the Administrative Agent any Note (if the assigning Lender's Loans are evidenced by Notes) subject to such Assignment and Acceptance; provided, however, that the failure of any Non-Consenting Lender to execute an Assignment and Acceptance shall not render such sale and purchase (and the corresponding assignment) ineffective.
SECTION 9.02. Notices. Etc. (a) All notices and other communications provided for hereunder shall be either (x) in writing (including telegraphic, telecopy or electronic (including portable document format (pd~) communication) and mailed, telegraphed, telecopied or delivered ar(y) as and to the extent set forth in Section 9.02(b) and in the proviso to this Section 9.02(a), in an electronic medium and delivered as set forth in Section 9.02(b), if to any Loan Party, to the Borrower at its address at The Schrafft Center, 529 Main Street, Suite 605, Charlestown, MA 02129, Attention: Executive Vice President, Fax: (617) 381-2211 (with a copy sent to Boston Generating LLC c/o K Road Power Management, LLC, 330 Madison Avenue, 25th Floor, New York, NY 10017, Attention: President, Fax: (212) 351-0515 and a copy sent to Robert F. Quaintance Jr. and Paul D. Brusiloff, Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022, Fax: (212) 521-7451 and (212) 521-7015, respectively); if to any Initial Lender Pariy, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender Party, at its Domestic Lending Office specified in the administrative questionnaire delivered in conjunction with the Assignment and Acceptance pursuant to which it became a Lender Party; if to the Administrative Agent or the
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First Lien Collateral Agent, at its address at 11 Madison Avenue, New York, NY 10010, Attention: Candace Sorina, Fax: (212) 325-8304, E-mail Address: candace.sorina(a~credit- suisse.com; or, as to the Bonower or the Administrative Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrower and the Administrative Agent; provided, however, that materials and information described in Section 9.02(b) shall be delivered to the Administrative Agent in accordance with the provisions thereof or as otherwise specified to the Borrower by the Administrative Agent. All such notices and other communications shall, when mailed, telegraphed, telecopied, or e-mailed, be effective when deposited in the mails, delivered to the telegraph company, transmitted by telecopier or sent by electronic communication, respectively, except that notices and communications to any Agent pursuant to Article II, III or VII shall not be effective until received by such Agent. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Agreement or the Notes shall be effective as delivery of an original executed counterpart thereof.
(b) The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to a request for a new, or a Conversion of an existing, Borrowing (including any election of an interest rate or interest period relating thereto}, (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other Extension of Credit thereunder (all such non-excluded communications being referred to herein collectively as "Communications"), by transmitting the Communications in an electronic/soft medium in a forxnat acceptable to the Administrative Agent to an electronic mail address specified by the Administrative Agent to the Borrower. In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on IntraLinks or a substantially similar electronic transmission system (the "Platform").
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE
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ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, "AGENT PARTIES") HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER 1N TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER'S OR THE ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT NRISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender Party agrees (i) that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender Party for purposes of the Loan Documents. Each Lender Party agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender Party's e-mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender Party to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender Party or any Agent to exercise, and no delay in exercising, any right hereunder or under any Note or any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) Other than with respect to Other Taxes which are governed solely by Section 2.12, the Borrower agrees to pay on demand (i) all costs and expenses of each Agent in connection with the preparation, execution, delivery, administration, modification and amendment of, or any consent or waiver under, the Loan Documents (including, without limitation, (A) all due diligence, collateral review, syndication, transportation, computer, duplication, appraisal, audit, insurance, consultant, search, filing and recording fees and expenses and (B) the reasonable fees and expenses of counsel for each Agent with respect thereto, with respect to advising such Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the Loan Documents, with respect to negotiations with any Loan Pariy or with other creditors of any Loan Party or any of its Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims in or otherwise participating in or monitoring any
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baiilnziptcy, insolvency or other similar proceeding involving creditors' rights generally and any proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and each Lender Party in connection with the enforcement of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors' rights generally (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold harmless each Agent, each Lender Party and each of their Affiliates (other than any Commodity Hedge Counterparty in such capacity) and their respective officers, directors, employees, agents, trustees and advisors (each, an "Indemnifzed Party") from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and related expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) the Facilities, the actual or proposed use of the proceeds of the Loans, the Revolving Credit-Linked Deposits, the Synthetic L/C Deposits or the Synthetic Letters of Credit, the Transaction Documents or any of the transactions contemplated thereby (including, without limitation, the Transaction) or (ii) the actual or alleged presence of Hazardous Materials on any property of any Loan Party or any of its Subsidiaries or any Environmental Action relating in any way to any Loan Pariy or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense (x) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such indemnified Party's gross negligence or willful misconduct or (y) in the case of clause i above, is a tax. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors, any Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the Transaction is consummated. The Borrower also agrees not to assert any claim against any Agent, any Lender Party or any of their Affiliates, or any of their respective officers, directors, employees, agents, trustees and advisars, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Facilities, the actual or proposed use of the proceeds of the Loans, the Revolving Credit-Linked Deposits, the Synthetic L/C Deposits or the Synthetic Letters of Credit, the Transaction Documents or any of the transactions contemplated by the Transaction Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Loan is made by the Borrower to or for the account of a Lender Party, any Revolving Credit- Linked Deposit is returned to any Revolving Credit Lender or any Synthetic L/C Deposit is returned to any Synthetic L/C Lender other than on the last day of the Interest Period for such Loan or 5ynthetic L/C Deposit, as applicable, as a result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10 d, acceleration of the maturity of the Loans pursuant to Section 6.01 or for any other reason, or if the Borrower fails to make any payment or prepayment of an Loan for which a notice of prepayment has been given or that is otherwise required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such Lender Pariy (with a copy of such demand to the Administrative Agent), pay to 121 Boston Gcncrating, LLC First Lien Credit Agreement NY 1:#3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 289 of 510
the Administrative Agent for the account of such Lender Party any amounts required to compensate such Lender Party for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion or such failure to pay or prepay, as the case may be, including, without limitation, any loss (but excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender Party to fund or maintain such Loan.
(d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it under any Loan Document, including, without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or under any other Loan Document, the agreements and obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. RiQht of Set-off. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request ar the granting of the consent specified by Section 6A1 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 6.01, each Agent and each Lender Party and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and otherwise apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Agent, such Lender Party or such Affiliate to or for the credit or the account of the Borrower against any and all of the Obligations of the Borrower now or hereafter existing under the Loan Documents, inespective of whether such Agent or such Lender Party shall have made any demand under this Agreement and although such Obligations may be unmatured. Each Agent and each Lender Party agrees promptly to notify the Bonower after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Agent and each Lender Party and their respective Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-offl that such Agent, such Lender Party and their respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrower and each Agent and the Administrative Agent shall have been notified by each Initial Lender Parly that such Initial Lender Party has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each Agent and each Lender Party and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of each Lender Party.
SECTION 9.07. Assignments and Participations. (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement
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(including, without limitation, all or a portion of its Commitment or Commitments, the Loans owing to it, its Synthetic L/C Deposit, its Revolving Credit-Linked Deposit and the Note or Notes held by it); provided, however, that (i) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to such assignment (deternuned as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower) for each Facility being assigned, provided that simultaneous assignments by two or more Related Funds shall be treated as one assignment for purposes of the minimum assignment requirement, (ii) each such assignment shall be to an Eligible Assignee, and (A) to the extent that such assignment is in respect of the Revolving Credit Facility, the Administrative Agent shall have consented to such assignment and, so long as no Event of Default shall have occurred and be continuing, the Borrower shall have consented to such assignment and (B) to the extent such assignment is to any Eligible Assignee that, immediately prior to such assignment, was not a Lender, an Affiliate of a Lender or an Approved Fund, the Administrative Agent shall have consented to such assignment (in each case such consent not to be unreasonably withheld or delayed), (iii) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.17 or Section 9.01 shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (iv) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to Section 2.17 or Section 9.01 unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (v) no such assignments shall be permitted without the consent of the Administrative Agent until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), together with (A) any Note or Notes (if any) subject to such assignment, (B) an administrative questionnaire and tax forms, if applicable and (C) a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided, however, that only one such fee shall be payable with respect to simultaneous assignments by or to one or more Related Funds; provided further that for each such assignment made as a result of a demand by the Bonower pursuant to Section 2.17 or Section 9.01, the Borrower shall pay to the Administrative Agent the applicable processing and recardation fee.
(b) (i) In connection with each assignment of a Synthetic L/C Deposit Commitment, the Synthetic L/C Deposit of the assignor Synthetic L/C Lender shall not be 123 Boston Gencrating, LLC First Licn Credit Agreement NY1:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 291 of 510
released, but shall instead be purchased by the relevant assignee and continue to be held for application (to the extent not already applied) in accordance with Article II to satisfy the relevant Eligible Assignee's obligations in respect of Synthetic Letters of Credit and
(ii) in connection with each assignment of Revolving Credit Commitments, the Revolving Credit-Linked Deposit of the assignor Revolving Credit Lender shall not be released, but shall instead be purchased by the relevant assignee and continue to be held for application (to the extent not already applied) in accordance with Article II to satisfy such assignee's obligations in respect of Revolving Credit Loans. Each Revolving Credit Lender agrees that immediately prior to each assignment by a Revolving Credit Lender (A) the Administrative Agent shall establish a new Revolving Credit-Linked Sub- Account in the name of the assignee, (B) unless otherwise consented to by the Administrative Agent, a corresponding portion of the Revolving Credit-Linked Deposit credited to the Revolving Credit-Linked Sub-Account of the assignor Revolving Credit Lender shall be purchased by the assignee and shall be transferred from the assignor's Revolving Credit-Linked Sub-Account to the assignee's Revolving Credit-Linked Sub- Account and (C) if after giving effect to such assignment the Revolving Credit Commitment of the assignor Revolving Credit Lender shall be zero, the Administrative Agent shall close the Revolving Credit-Linked Sub-Account of such assignor Revolving Credit Lender.
(c) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Synthetic Issuing Bank, as the case may be, hereunder and (ii) the Lender or Synthetic Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender's or Synthetic Issuing Bank's rights and obligations under this Agreement, such Lender or Synthetic Issuing Bank shall cease to be a party hereto).
(d) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, ar the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document ar any other instrument ar document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto;
124 Boston Generating, LLC First Lien Credit Agreement NY 1: #343696fiv 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 292 of 510
(iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender or Synthetic Issuing Bank, as the case may be.
(e) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent of the Borrower, shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the Commitment under each Facility of, and principal amount of the Loans owing under each Facility to, each Lender Party from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(~ Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. If requested, in the case of any assignment by a Lender, within 10 Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) an amended and restated Note (which shall be marked "Amended and Restatec~') to the account of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such assignment has retained a Commitment hereunder under such Facility, an amended and restated Note to the account of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such amended and restated Note or Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-1, A=2 or A=3 hereto, as the case may be.
125 Boston Gencrating, LLC First Licn Credit Agrcement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 293 of 510
(g) Each Synthetic Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Synthetic Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500.
(h) Each Lender Party may sell participations to one or more Persons (other than any Loan Party) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it, its Synthetic L/C Deposit, its Revolving Credit-Linked Deposits and the Note or Notes (if any) held by it); provided, however, that (i) such Lender Party's obligations under this Agreement (including, without limitation, its Coirui7itments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the Collateral or the value of the Guarantys.
(i) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender Party by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender Party.
(j) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it, its Synthetic L/C Deposit, its Revolving Credit-Linked Deposits and the Note or Notes (if any) held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(k) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it, its Synthetic L/C Deposit, its Revolving Credit-Linked Deposits and any Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that, unless and until such trustee actually becomes a Lender
126 Boston Gcnerating, LLC First Lien Credit Agreement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 294 of 510
in compliance with the other provisions of this Section 9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(1) Notwithstanding anything to the contrary contained herein, any Lender Party (a "Granting Lender") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an "SPC") the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each parly hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased costs protection provision) and (iii) the Granting Lender shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, the Borrower and the Administrative Agent and with the payment of a processing fee of $500, assign all or any portion of its interest in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (11 may not be amended without the prior written consent of each Granting Lender, all or any part of whose Loans are being funded by the SPC at the time of such amendment.
SECTION 9.08. Execution in Counter~arts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Electronic delivery (by telecopier or portable document format (pdfl) of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.
SECTION 9.09. No Liabilitv of the Svnthetic Issuing Banks. The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Synthetic Letter of Credit with respect to its use of such Synthetic Letter of Credit. Neither any Synthetic Issuing Bank nor any of its officers or directors shall be liable or responsible for: (a) the use that may be
127 Boston Gcneracing, LLC First Lien Credit Agreemcnt NYI:#3436966v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 295 of 510
made of any Synthetic Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Synthetic Issuing Bank against presentation of documents that do not comply with the terms of a Synthetic Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Synthetic Letter of Credit, except that the Borrower shall have a claim against such Synthetic Issuing Bank, and such Synthetic Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not consequential, damages suffered by the Borrower that the Borrower proves were caused by (i) such Synthetic Issuing Bank's willful misconduct or gross negligence as determined in a final, non-appealable judgment by a court of competent jurisdiction in determining whether documents presented under any Synthetic Letter of Credit comply with the terms of the Synthetic Letter of Credit or (ii) such Synthetic Issuing Bank's willful failure to make lawful payment under a Synthetic Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of the Synthetic Letter of Credit. In furtherance and not in limitation of the foregoing, such Synthetic Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary and, in connection therewith, shall adhere to Uniform Customs and Practice for pocumentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500.
SECTION 9.10. Confidentialitv. Neither any Agent nor any Lender Party shall disclose any Confidential Information to any Person without the consent of the Borrower, other than (a) to such Agent's or such Lender Party's Affiliates and their officers, directors, employees, agents, trustees and advisors and to actual or prospective Eligible Assignees and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation ar judicial process, (c) as requested or required by any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any similar organization or quasi-regulatory authority) regulating such Lender Party, (d) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to the Loan Parties received by it from such Lender Party, (e) in connection with any litigation or proceeding to which such Agent or such Lender Party or any of its Affiliates may be a party or (~ in connection with the exercise of any right or remedy under this Agreement or any other Loan Document.
SECTION 9.11. Marshalling; Payments Set Aside. Neither any Agent nor any Lender Party shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Loan Party makes a payment or payments to the Administrative Agent or the Lender Parties (or to the Administrative Agent, on behalf of the Lender Parties), or any Agent or Lender Party enforces any security interests or exercise its rights of set-off, and such payment or payments or the proceeds of such enforcement or set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common
128 Boston Gcnerating, LLC First Lien Credit Agreement NY 1:#3436966v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 296 of 510
law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or set-off had not occurred. SECTION 9.12. Patriot Act Notice. Each Lender Party and each Agent (for itself and not on behalf of any Lender Party) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender Party or such Agent, as applicable, to identify such Loan Pariy in accordance with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide such information and take such actions as are reasonably requested by any Agent or any Lender Party in order to assist the Agents and the Lender Parties in maintaining compliance with the Patriot Act. SECTION 9.13. Hedge Banks. Each Lender Party hereby agrees that in its capacity as a Hedge Bank it shall, and shall cause its Affiliates in their capacity as Hedge Banks to, comply with all obligations of such party as a Hedge Bank under the Intercreditor Agreement.
SECTION 9.14. Intercreditor A~ement. Each Lender hereby acknowledges and agrees on behalf of itself and each of its Affiliates in their capacity as Hedge Banks that their respective Lien priorities and other matters related to the Loan Documents and the Collateral are subject to and governed by the Intercreditor Agreement. Each Lender, by delivering its signature page hereto, funding its Loans on the Effective Date and/or executing an Assignment and Acceptance (as applicable) shall be deemed to have (a) acknowledged receipt of, consented to and approved of the Intercreditor Agreement both on its behalf (and on behalf of its Affiliates acting as Hedge Banks) and (b) authorized (on behalf of itself and any Affiliate acting as a Hedge Bank) the Administrative Agent and the First Lien Collateral Agent to perform their respective obligations thereunder. SECTION 9.15. Jurisdiction. Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, far itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and deternuned in any such New York State court or, to the fullest extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have
129 Boston Gcncrating, LLC First Lien Crcdit Agrccmcnt NY 1:#343 6966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 297 of 510
to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient fonzm to the maintenance of such action or proceeding in any such court.
SECTION 9.16. Governin ~Law.. This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 9.17. Waiver of Jur~rial. Each of the Loan Parties, the Agents and the Lender Parties irrevocably waives, to the fullest extent permitted by applicable law, all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to any of the Loan Documents, the Loans, the Synthetic Letters of Credit or the actions of any Agent or any Lender Pariy in the negotiation, administration, performance ar enforcement thereof.
130 Boston Gcncrati~g, LLC First Licn Crcdit Agrcement NY l :t~3436966v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 298 of 510
TN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto dnly authorized, as of the date first above written.
BOSTON GENERATING, LLC, as Borrower
gy; ~~ a~. .~.~ Name: pftvi~'► L•TGHiN~ Title: -Pre s .
MYSTIC I, LLC, as Guarantor
By: ~~ ,:~~ Name: /).~ ~~~~7C,TeH,~2 Title: IJrCS.
FORE RIVER DEVELOPMENT, LLC, as Guarantor
By: a~ '~~ Name: A1~i/t ►'~C. iClNll~t Title: ~~e s .
MYSTIC DEVELOPMENT, LLC, as Guarantor
By: J~~7.~.[ ~' ~~~'~'~ Name: p,q.~/t~l.?~t-rr~ Title: ~-eS •
BG BOSTON SERVICES, LLC, as Guarantor
By: j~ ~ ~~G"•(~+ Name: ~R ~i ,i~ G•Tc~H ► ~2 Title: ,~~,
[Signature Page - First I,ien Credit and Guaranty Agrccment] 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 299 of 510
BG NEW ENGLAND POWER SERVICES, INC., as Guarantor
By: / " - ~ O'~ ..~ e~ Name: '~~. y / D L• % O H! ~ Title: ~,~ 5 ,
(Signature Page - First Lien Credit and Guaranty Agreement] 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 300 of 510
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent, First Lien Collateral Agent, Initial Lender, Synthetic Issuing Bank and Fronting Sank
By: (' G Name: j,-~M.. ~ rb..,.,, Title: r,. ~ S D,.cc.t~
~ By: Name: ~.,,~ ((,t,t 1,yt Gv~ Title: ~ s~a~
Boston Generating, LLC First Lien Credit Agreement NYI:It3439953v2 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 301 of 510
GOLDMAN SACHS CREDIT PARTNERS, L.P., as Initial L
B Name: Title: BRUCE H. MENDEISun~~ AUTHORIZED SIGNATORY
Bosto~ Generating, LLC First Lien Credit Agreement NY ] :#3439953v2 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 302 of 510
EXHIBIT F
12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 303 of 510
EXECUTION COUNTERPART
$350,000,000 SECOND LIEN CREDIT AND GUARANTY AGREEMENT
Dated as of December 21, 2006 Among BOSTON GENERATING, LLC as Borrower
and THE GUARANTORS as Guarantors
and THE INITIAL LENDERS NAMED HEREIN as Initial Lenders
and CREDIT SUISSE as Second Lien Collateral A~ent
and CREDIT SUISSE as Administrative A~ent
and CREDIT SUISSE SECURITIES (USA) LLC AND GOLDMAN SACHS CREDIT PARTNERS L.P. as Co-SYndication A~e~ nts and as Co-Documentation A~ents
and CREDIT SUISSE SECURITIES (USA) LLC ANID GOLDMAN SACHS CREDIT PARTNERS L.P. as Joint Lead Arran~ers and as Joint Book Runnin~ Managers
Boston Generating, LLC Second Lien Credit Agreement NY1:#3439094v7
EXHIBIT F 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 304 of 510
TABLE OF CONTENTS
Section Page ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ...... 2 SECTION 1.02. Computation of Time Periods; Other Definitional Provisions ...... 31 SECTION 1.03. Accounting Terms ...... 31
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION2.01. The Loans ...... 31 SECTION2.02. Making the Loans ...... 31 SECTION2.03. [Reserved] ...... 33 SECTION 2.04. Repayment of Loans ...... 33 SECTION2.05. [Reserved] ...... 33 SECTION2.06. Prepayments ...... 33 SECTION2.07. Interest ...... 35 SECTION2.08. Fees ...... 36 SECTION 2.09. Conversion of Loans ...... 36 SECTION 2.10. Increased Costs, Etc ...... 36 SECTION 2.11. Payments and Computations ...... 38 SECTION2.12. Taxes ...... 39 SECTION 2.13. Sharing of Payments, Etc ...... 42 SECTION 2.14. Use of Proceeds ...... 43 SECTION 2.15. Change of Control Prepayment ...... 43 SECTION2.16. Evidence of Debt ...... 44 SECTION2.17. Duty to Mitigate ...... 45
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND OF LENDING
SECTION 3.01. Conditions Precedent ...... 45 SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance ...... 53 SECTION 3.03. Determinations Under Section 3.01 ...... 53
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties ...... 53
Boston Generating, LLC Second Lien Credit Agreement N Y 1: #3439094v7
12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 305 of 510
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants ...... 61 SECTION 5.02. Negative Covenants ...... 65 SECTION 5.03. Reporting Requirements ...... 72 SECTION 5.04. Financial Covenants ...... 76
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.o 1. Events of Default ...... 79
ARTICLE VII
THE AGENTS ~ SECTION 7.01. Authorization and Action ...... ...... ...... 83 '; SECTION 7.02. Administrative Agent's Reliance, Etc ...... 84 ~ SECTION 7.03. Initial Banks and Affiliates . 84 ~ SECTION 7.04. Lender Credit Decision ...... 85 i~ SECTION7.05. Indemnification ...... 85 SECTION 7.06. Successor Administrative Agent ...... ...... 85 ~!
ARTICLE VIII GUARANTY
SECTION 8A1. Guaranty; Limitation ofLiability ...... 86 SECTION 8.02. Guaranty Absolute ...... ...... 87 S~CTION 8.03. Waivers and Acknowledgments ...... 88 SECTION8.04. Subrogation ...... 89 SECTION8.05. Subordination ...... 90 SECTION 8.06. Continuing Guaranty; Assignments ...... 90
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc ...... 90 SECTION 9.02. Notices, Etc ...... 92 SECTION 9.03. No Waiver; Remedies ...... 94 SECTION 9.04. Costs and Expenses ...... 95 SECTION9.05. Right of Set-off ...... 96 SECTION 9.06. Binding Effect ...... 97
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SECTION 9.07. Assignments and Participations ...... 97 SECTION 9.08. Execution in Counterparts ...... 101 SECTION9.09. [Reserved] ...... 101 SECTION9.10. Confidentiality ...... 101 SECTION 9.11. Marshalling; Payments Set Aside ...... 101 SECTION 9.12. Patriot Act Notice ...... 101 SECTION9.13. Hedge Banks ...... 102 SECTION 9.14. Intercreditor Agreement ...... 102 SECTION 9.15. Jurisdiction, Etc ...... 102 SECTION9.16. Governing Law ...... 103 SECTION9.17. Waiver of Jury Trial ...... 103
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SCHEDULES Schedule I Commitments and Applicable Lending Offices Schedule 2.03(i) Existing Letters of Credit Schedule 4.01(b) Loan Parties Schedule 4.01(c) Subsidiaries Schedule 4.01(e) Governmental Approvals and Authorizations Schedule 4.01(g) Litigation Schedule 4.01(0) Environmental Disclosure Schedule 4.01(y) Surviving Debt Schedule 4A1(r) Owned Real Property Schedule 4A1(s) Leased Real Property Schedule 4.01(t) Material Contracts Schedule 5.01(d) Insurance Schedule 5.02(a) Liens 5chedule 5.02(m) 2006 Base Capex Amount
EXHIBITS E~chibit A - Form of Note Exhibit B - Form of Notice of Borrowing Exhibit C - Form of Assignment and Acceptance Exhibit D - Form of Second Lien Mortgage E~chibit E - Form of Solvency Certificate Eachibit F-1 - Form of Consent and Agreement for Permitted Commodity Hedge and Power Sale Agreements Exhibit F-2 - Form of Consent and Agreement for Other Material Contracts Exhibit F-3 - Form of Consent and Agreement for Other Material Contracts with Affiliates E~ibit G - Form of Intercreditor Agreement E~►ibit H - Form of Security Deposit Agreement Exhibit I - Form of Annual Budget E~ibit J - Form of Joinder Agreement E~ibit K - Form of Second Lien Security Agreement Exhibit L - Form of Second Lien Pledge Agreement E~ibit M - Terms of Subordination Exhibit N - Form of Closing Date Funds Flow Memo
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SECOND LIEN CREDIT AND GUARANTY AGREEMENT
BOSTON GENERATING, LLC SECOND LIEN CREDIT AND GUARANTY AGREEMENT dated as of December 21, 2006 among BOSTON GENERATING, LLC, a Delaware limited liability company (the "Borrower"), the Guarantors (as hereinafter defined), the Lenders (as hereinafter defined), CREDIT SUISSE, CAYMAN ISLANDS BRANCH ("CS"), as second lien collateral agent (together with any successor collateral agent appointed pursuant to Section 7 of the Intercreditor Agreement, the "Second Lien Collateral Agent") for the Second Lien Secured Parties (as hereinafter defined), and CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PART'NERS L.P., as co-syndication agents (together with any successor co-syndication agents, the "Co-Syndication Agents"), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as co- documentation agents (together with any successor co-documentation agents, the "Co- Documentation Agents"), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as joint lead arrangers (together with any successor joint lead arrangers, the "Joint Lead Arrangers") and as joint lead book running managers (together with any successor joint lead arrangers, the "Joint Book Running Managers"), and CS, as administrative agent (together with any successor administrative agent appointed pursuant to Article VII, the "Administrative Agent" and, together with the Second Lien Collateral Agent, the "Agents") for the Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lenders lend to the Borrower up to $350,000,000 to repay all outstanding obligations under the Existing Credit Agreements, pay transaction fees and expenses in connection with the foregoing ("Transaction Costs"), to support the working capital needs and obligations of the Borrower and Guarantors and provide funds for ongoing working capital requirements, to fund in part the Distribution and the Tender Offer (each as hereinafter defined) and provide funds for other general corporate purposes of the Borrower and the Guarantors.
(2) Prior to entering into this Agreement, the Borrower has entered into a certain Initial Commodity Hedge and Power Sale Agreement (as hereinafter defined) dated as of November 20, 2006, with Credit Suisse Energy LLC relating to a total of approximately 1600 MW of generating capacity.
(3) EBG Holdings has commenced the Tender Offer (as hereinafter defined) for up to $925,000,000 of its Units (as hereinafter defined) to be financed in part with the proceeds from the Facility (as hereinafter defined).
(4) EBG Holdings intends to make a pro rata distribution to its unit holders, prior to the purchase of Units in the Tender Offer, in an amount of up to $40,000,000 to be financed in part with the proceeds from the Facility (the "Distribution").
(5) Simultaneously with the entering into of this Agreement, the Borrower and the Guarantors are entering into that certain First Lien Credit and Guaranty Agreement, dated as of the date hereof (the "First Lien Credit Agreement"), with each of the banks, financial
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institutions and other institutional lenders party thereto from time to time (the "FirstLien Lenders"), and CS, as First Lien Collateral Agent and as administrative agent (the "FirstLien Administrative Agent"), the proceeds of which shall be used in part to repay in full amounts outstanding under the Existing Credit Agreements.
(6) The Lenders have indicated their willingness to agree to make Loans (as hereinafter defined) subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Accepting Lenders" has the meaning specified in Section 2.06(c).
"Accounts" has the meaning specified in the Security Deposit Agreement.
"Accumulated Emissions Credits" has the meaning specified in the SecuriTy Deposit Agreement.
"Adjusted Base Capex Allowance" means, for any Fiscal Year, $10,000,000 minus any amount that was, during the prior Fiscal Year, a Pullback Amount.
"Adjusted Capex Limit" means, for any Fiscal Year, the Adjusted Base Capex Allowance plus any Carryover Amount for such Fiscal Year plus any Pullback Amount for such Fiscal Year.
"Administrative Agent" has the meaning specified in the recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the Administrative Agent specified by the Administrative Agent in writing to the Lenders from time to time.
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term "control" (including the terms "controlling," "controlled by" and "under common control with") of a Person means the possession, direct or indirect, of the power to vote 15% or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies
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of such Person, whether through the ownership of Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this Agreement.
"Agreement" means this Second Lien Credit and Guaranty Agreement, as amended.
"Agreement Value" means, for each Hedge Agreement or Commodity Hedge and Power Sale Agreement, on any date of determination, the amount, if any, that would be payable by any Loan Party to its counterparty to such Hedge Agreement or Commodity Hedge and Power Sale Agreement, as the case may be, in accordance with its terms as if an Early Termination Event has occurred on such date of determination.
"Applicable Lending Office" means, with respect to each Lender, such Lender's Domestic Lending Office in the case of a Base Rate Loan and such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means 3.25% per annum for Base Rate Loans and 4.25% per annum for Eurodollar Rate Loans.
"Approved Fund' means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
"Asset Sale" has the meaning specified in the Security Deposit Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.07 or by the definition of "Eligible Assignee"), and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C hereto or any other form approved by the Administrative Agent.
"Auction Date" means the date of the consummation of the Tender Offer.
"Bankruptcy Code" means Title 11 of the United States Code entitled "Bankruptcy," as now and hereafter in effect, or any successor statute.
"Bankruptcy Law" means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
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"Base CapexAmount" means, for each Fiscal Year, $10,000,000; provided that the Base Capex Amount for the 2006 Fiscal Year shall be $12,093,000 to be utilized for the Capital Expenditures set forth on Schedule 5.02(m) only.
"Base Case Projections" has the meaning specified in Section 3A1(a (xiii).
"Base Rate" means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of
(a) the rate of interest announced by CS in New York, New York, from time to time, as the prime rate; and
(b) '/z of 1% per annum above the Federal Funds Rate.
`Base Rate Loan" means any Loan that bears interest as provided in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this Agreement.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same Type made by the Lenders.
"Budget" has the meaning specified in Section 5.03(dl.
"Business Day" means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Rate Loan, the term "Business Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
"Cabot Guaranty" means the guaranty dated as of January 15, 2000, by Cabot LNG LLC, a Delaware limited liability company, in favor of Mystic Development and Exelon New England Power Marketing Limited Partnership, a limited partnership organized under the laws of Delaware.
"Call Premium" shall mean, with respect to any applicable prepayment under Section 2.06(a), an amount equal to (a) 2% of the aggregate principal amount of such prepayment if such prepayment occurs within twelve (12) months of the Effective Date, (b) 1% of the aggregate amount of such prepayment if such prepayment occurs after twelve (12) months from the Effective Date but within twenty-four (24) months of the Effective Date. Any prepayment made more than twenty-four (24) months after the Effective Date will not be subject to the Call Premium.
"Capital Expenditures" means, for any Person for any period, the sum of, without duplication, (a) all expenditures made, directly or indirectly, by such Person or any of its Subsidiaries during such period for equipment, fixed assets, real property or
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improvements, or for replacements or substitutions therefor or additions thereto, that have been or should be, in accordance with GAAP, reflected as additions to property, plant or equipment on a Consolidated balance sheet of such Person plus (b) the aggregate principal amount of all Debt (including obligations under Capitalized Leases) assumed or incurred in connection with any such expenditures. For purposes of this definition, "Capital Expenditures" shall not include: (i) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or with insurance proceeds, except to the extent that the gross amount of such purchase price exceeds the credit granted by the seller of such equipment for the equipment being traded in at such time or the amount of such proceeds, as the case may be and (ii) expenditures made as a part of a Permitted Development so long as such expenditure is included in the calculation of the aggregate amount of consideration payable for such Permitted Development and is permitted by the terms of this Agreement.
"Capitalized Leases" means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
"Carryover Amount" means, for any Fiscal Year, the amount (not to exceed $10,000,000, provided that the Carryover Amount for the 2007 and 2008 Fiscal Years shall also include that portion of the Base Capex Amount for the 2006 Fiscal Year not utilized in the prior year) by which the Adjusted Base Capex Allowance for the prior Fiscal Year plus any Carryover Amount as determined during such prior Fiscal Year exceeds Capital Expenditures made in such prior Fiscal Year.
"Cash" means money, currency or a credit balance in any demand account or deposit account.
"Cash Equivalents" has the meaning specified in the Security Deposit Agreement.
"Casualty Event" has the meaning specified in the Security Deposit Agreement.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
"Change of ControP' means, at any time after the Auction Date, any "person" or "group" (within the meaning of Rules 13(d) of the Exchange Act and the rules of the Securities and Exchange Commission thereunder as in effect on the Effective Date) (other than any such "person" or "group" holding, directly or indirectly, beneficially or of record, any Equity Interests in EBG Holdings as of the Auction Date) (the "Proposed Acquiror") shall have acquired ownership, directly or indirectly, beneficially or of record, of more than 35% on a fully diluted basis of the aggregate voting power
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represented by the issued and outstanding Equity Interests in EBG Holdings unless (i) such Proposed Acquiror is a Qualified Owner and (ii) each of S&P and Moody's shall have provided written confirmation of their respective ratings of the Facility (as in effect immediately prior to such acquisition) after giving effect to such acquisition. For the purposes of this definition, a"person" or "group" shall not include any of the unit holders of EBG Holdings solely by virtue of such unit holders being a party to the limited liability company agreement of EBG Holdings.
"Closing Date Summary Funds Flow Memo" has the meaning specified in Section 3 A 1(1).
"Co-Documentation Agents" has the meaning specified in the recital of parties to this Agreement.
"Co-Syndication Agent" has the meaning specified in the recital of parties to this Agreement.
"Collateral" means all Property (including Equity Interests in any Guarantor) of the Loan Parties, now owned or hereafter acquired, other than Excluded Property.
"Commitment" means, with respect to any Lender at any time, the amount set forth opposite such Lender's name on Schedule I hereto under the caption "Commitment" or, if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(dl as such Lender's "Commitment."
"Commodity Hedge and Power Sale Agreement" means, with respect to power, electricity, capacity, ancillary services, electric transmission, weather, fuel, fuel transmission, fuel transportation, fuel storage, heat rate options, emissions allowances and emissions credits and, in the case of each of the foregoing, products related thereto, any swap, cap, collar, floor, ceiling, option, future, forward, spot agreement, contract for differences, basis trade, purchase agreement, sale agreement, netting agreement, tolling agreement or any other similar agreement, whether physical or financial, entered into with respect to any commodity or commodity-related product.
"Commodity Hedge Counterparry" means any Person that (a) (i) is a commercial bank, insurance company, investment fund or other similar financial institution (including CS) or any Affiliate thereof which is engaged in the business of entering into Commodity Hedge and Power Sale Agreements, (ii) is a public utility or (iii) is in the business of selling, marketing, purchasing, transporting, distributing or storing electric energy, fuel, oil, natural gas or weather-related derivatives, as applicable, and (b) at the time the applicable Permitted Commodity Hedge and Power Sale Agreement is entered into, has a Required Rating.
"Communications" has the meaning specified in Section 9.02(bl.
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"Comparable Project" means one or more electric generating facilities that are of a size and scope substantially similar to or greater than the Projects taken as a whole.
"Confidentiallnformation" means information that any Loan Party furnishes to any Agent or any Lender designated as confidential, but does not include any such information that is or becomes generally available to the public other than as a result of a breach by such Agent or any Lender of its obligations hereunder or that is or becomes available to such Agent or such Lender frorn a source other than the Loan Parties that is not, to the best of such Agent's or such Lender's knowledge, acting in violation of a confidentiality agreement with a Loan Party. "Consolidated" refers to the consolidation of accounts in accordance with GAAP. "Conso[idated Adjusted EBITDA" rneans, for any period (without duplication), an amount detertnined for the Borrower and its Subsidiaries on a Consolidated basis equal to (a) the sum, without duplication, of the amounts for such period of (i) Consolidated Net Income, (ii) Consolidated Cash Interest Expense, (iii) provisions for taxes based on income, (iv) Cash proceeds of any Permitted Emissions Sales Gains, (v) total depreciation expense, (vi) total amortization expense, (vii) other non-Cash items reducing Consolidated Net Income for such period, including unrealized losses attributable to the change in fair market value of all Commodity Hedge and Power Sale Agreements and Hedge Agreements and accruals for liquidated damages and related late fees associated with the Distrigas Litigation described in Schedule 4.01(~) (excluding any such non-Cash item to the extent that it represents an accrual or reserve for potential Cash items in any future period or amortization of a prepaid Cash item that was paid in a prior period), minus (b) to the extent included in determining Consolidated Net Income, other non-Cash items increasing Consolidated Net Income for such period, including unrealized gains attributable to the changes in fair market value of all Commodity Hedge and Power Sale Agreements and Hedge Agreements (excluding any such non-Cash item to the extent it represents the reversal of an accrual or reserve for potential Cash items in any prior period). For purposes of this definition, Consolidated Adjusted EBITDA for each of the periods ending the last day of each of June, September and December 2006 shall be deerned to be $57,250,000, $57,250,000 and $57,250,000, respectively. "Consolidated Cash Interest Expense" means, for any period, total interest expense (including that portion attributable to Capitalized Leases in accordance with GAAP and capitalized interest) of the Borrower and its Subsidiaries on a Consolidated basis with respect to all outstanding Debt for Borrowed Money of the Borrower and its Subsidiaries for such period, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net obligations under Hedge Agreements, but excluding, however, (a) any amount for related late fees and interest associated with the Distrigas Litigation described in Schedule 4.01(~), (b) interest payable under the Borrower's fuel oil inventory program permitted pursuant to Section 5.02(bl(v)(B~ and (c) interest and fees associated with RMR Revenues subject to refund. For purposes of determining Consolidated Cash Interest Expense for any period
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ending prior to January 1, 2008, Consolidated Cash lnterest Expense shall be deemed to be: (i) for the Fiscal Quarter ending March 31, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarter multiplied by (y) four (4), (ii) for the two Fiscal Quarters ending June 30, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarters multiplied by (y) two (2), (iii) for the three Fiscal Quarters ending September 30, 2007, an amount equal to (x) actual Consolidated Cash Interest Expense for such Fiscal Quarters multzplied by (y) four-thirds (4/3), and (iv) for the four Fiscal Quarters ending December 31, 2007, actual Consolidated Cash Interest Expense for such Fiscal Quarters.
"Consolidated Net Income" means, for any period, (a) the net income (or loss) of the Borrower and its Subsidiaries on a Consolidated basis for such period determined in conformity with GAAP, minus (b) to the extent otherwise included in Consolidated Net Income, (i) the income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule ar governmental regulation applicable to such Subsidiary, (ii) any after-tax gains or losses attributable to Asset Sales or returned surplus assets of any Plan, (iii) (to the extent not included in clauses i and ii above) any net extraordinary gains or net extraordinary losses and (iv) income attributable to the RMR Agreement (other than Permitted RMR Revenues) plus (c) without duplication, Permitted RMR Revenues. In addition, Consolidated Net Income for any period shall reflect expenses associated with long-term service agreements on the basis of equivalent operating hours incurred during such period (instead of on the basis of maintenance work performed during such period as required by GAAP).
"Consolidated Total Debt" means, as at any date of determination, the aggregate stated balance sheet amount of all Debt for Borrowed Money of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP.
"Contractual Obligations" means, as applied to any Person, any provision of any Equity Interests issued by such Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which such Person is a party or by which it or any of its Properties is bound.
"Control" means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ability to exercise voting power, contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Conversion," "ConverP' and "Converted' each refer to a conversion of Loans of one Type into Loans of the other Type pursuant to Section 2.09 or 2.10.
"CS" has the meaning specified in the recital of parties to this Agreement.
"Cure Notice" has the meaning specified in Section 5.04(c)(ii).
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"Debt" of any Person means, without duplication, (a) Debt for Borrowed Money of such Person, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue (unless being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made) by more than ninety (90) days incurred in the ordinary course of such Person's business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under Capitalized Leases, (fl all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (g) all obligations of such Person in respect of Hedge Agreements and Commodity Hedge and Power Sale Agreements (valued at the Agreement Value thereo fl, in each case, pursuant to an International Swap Dealers Association agreement, form or other similar arrangement, (h) all Guaranteed Debt and Synthetic Debt of such Person and (i) all indebtedness and other payment obligations referred to in clauses a through ~ above of another Person secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment obligations.
"Debt for Borrowed Money" of any Person means, at any date of determination, the sum of (a) all items that, in accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of such Person at such date, and (b) all Synthetic Debt of such Person at such date; provided that with respect to each of clauses a and ~ above, any amounts associated with unutilized and undrawn amounts under fhe Synthetic L/C Facility and the Revolving Credit Facility (each as defined in the First Lien Credit Agreement) shall not be deemed Debt for Borrowed Money.
"Declining Lender" has the meaning set forth in Section 2.06(c).
"DefaulP' means any Event of Default or any event that would constitute an Event of Default but for the passage of time or the requirement that notice be given or both.
"Default InteresP' has the meaning set forth in Section 2.07(b).
"Depositary" has the meaning specified in the Security Deposit Agreement.
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"Distribution" has the meanrng set forth in the preliminary statements to fhis Agreement.
"Distrigas Guaranty" means the guaranty dated as of January 15, 2000, by Exelon New England Holdings, LLC, a Delaware limited liability company, in favor of Distrigas of Massachusetts Corporation and its successors.
"Distrigas Litigation" means that certain case pending in the Suffolk County, Massachusetts Superior Court (Civil Action No: OS-0764) entitled Distrigas of Massachusetts, LLC v. Mystic Development and Exelon New England, LLC, as described in Schedule 4.01(~).
"Dollars" and the sign "$" mean the lawful currency of the United States of America.
"Domestic Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Domestic Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, as the case may be, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.
"Early Termination Event" has the meaning specified in the Intercreditor Agreement.
"EBG Holdings" means EBG Holdings LLC, a Delaware limited liability company. "EBG Holdings O&M Costs" has the meaning specit7ed in the Security Deposit Agreement. "EBG Holdings Tax Liabilities" has the meaning specified in the Security Deposit Agreement. "Effective Date" has the meaning specified in Section 3 A 1. "Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than an individual) approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed); provided, however, that no Loan Party shall qualify as an Eligible Assignee under this definition.
"Eligible Permitted Commodity Hedge and Power Sale Agreement" means any Permitted Commodity Hedge and Power Sale Agreement entered into by any Loan Party which, at the time such Permitted Commodity and Hedge and Power Sale Agreement is entered into, is structured such that the Commodity Hedge Counterparty's credit exposure and active or projected mark-to-market exposure to the Borrower or any other Loan Party
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is positively correlated with the price of the relevant commodity (including "spark spread"), including the Initial Commodity Hedge and Power Sale Agreement.
"Environmental Action" means any action, suit, demand, demand letter, claim, written notice of non compliance or violation, written notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state or local statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction or decree relating to pollution or protection of the environment or, as such relates to exposure to Hazardous Materials, health or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number, license or other authorization required under any Environmental Law.
"Equiry Cure" has the meaning specified in Section 5.04(c)(i).
"Equiry Interests" means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.
"Equity Issuance" has the meaning specified in the Security Deposit Agreement.
"ERISA" means the Employee Retirement Incorne Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414(b) or (c) of the Internal Revenue Code.
11 Boston Generating LLC Second Lien Credit Agreement NYl :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 319 of 510
"ERISA Event" means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirernents of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) ofERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; ( fl the conditions for imposition of a lien under Section 302( fl of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; ar(h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of EWSA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Eurodollar Lending Off ce" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) the rate per annum determined by the Administrative Agent by reference to the British Bankers' Association Interest Settlement Rates for deposits in Dollars (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Administrative Agent which had been nominated by the British Bankers' Association as a authorized information vendor for the purpose of displaying such rates) as the London interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period (provided that, if for any reason such rate is not available, the term "Eurodollar Rate" shall mean, for any lnterest Period, the rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered to major banks in the London
12 Boston Generating, LLC Second Lien Credit Agreement NY1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 320 of 510
interbank market in London, England at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such [nterest Period) by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all Eurodollar Rate Loans comprising part of the same Borrowing means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Loans) having a term equal to such Interest Period. "Event of Eminent Domain" has the meaning specified in the Security Deposit Agreement.
"Events ofDefault" has the meaning specified in Section 6.01.
"EWG" has the meaning specified in Section 4.01(v). "Excess Duration Transaction" has the meaning specified in Section 5.02(1).
"Excluded Property" has the meaning specified in the Intercreditor Agreement. "Existing Credit Agreements" means, collectively, (i) the Amended and Restated First Lien Credit and Reimbursement Agreement dated as of October 11, 2005 among the ~orrower, tlie First Lien Term Lerrciers nained therein, the Working Capital Lenders named therein, the LC Lenders named therein, the LC-DSR Lenders named therein, CS, as First Lien Administrative Agent and CS, as Collateral Agent and (ii) the Amended and Restated Second Lien Credit and Reimbursement Agreement dated as of October 11, 2005 among the Borrower, the Second Lien Lenders named therein, CS, as Second Lien Administrative Agent and CS, as Collateral Agent.
`Bxisting Debt" means Debt of each Loan Party outstanding immediately before the occurrence of the Effective Date.
"Existing Letters of Credit" means each letter of credit set forth on Schedule 2.03(i).
13 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 321 of 510
"Facility" means, at such time, the aggregate amount of Commitments at such time. "Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Fed~ral funds brokers of recognized standing selected by it.
"Fee Letter" means the fee letter dated November 20, 2006 between the Borrower and CS as Administrative Agent and Second Lien Collateral Agent, as amended.
"FER~' means the Federal Energy Regulatory Commission and its successors. "Financial Covenants" has the meaning specified in Section 5.04(c). "First Lien Administrative Agent" has the meaning specified in the preliminary statements to this Agreement. "First Lien Collateral Agent" has the meaning specified in the Intercreditor Agreement. "First Lien Collateral Documents" has the meaning specified in the Intercreditor Agreement. "First Lien Credit AgreemenP' has the meaning specified 'tn the preliminary statements to this Agreement.
"First Lien Lenders" has the meaning specified in the Intercreditor Agreement.
"First Lien Loans" has the meaning specified in the Intercreditor Agreement. "First Lien Loan Documents" has the meaning specified in the Intercreditor Agreement. "First Lien Obligations" has the meaning specified in the Intercreditor Agreement.
"First Lien Secured Parties" has the meaning specified in the Intercreditor Agreement.
"First Offer" has the meaning specified in Section 2.06(c). "Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
14 Boston Generating, LLC Second Lien Credit Agreement N Y 1: #3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 322 of 510
"Fiscal Year" rrieans a fiscal year of the Borrower and its Subsidi~ries ending on December 31 of each calendar year.
"Fore River" means Fore River Development, LLC, a Delaware limited liability company. "Fore River Project" means a combined-cycle electric generating facility in Weymouth and Quincy, Massachusetts and owned by Fore River with a nominal capacity of 807 MW in operation.
"FPA" means the Federal Power Act, as amended. "Fund" means any Person (other than an individual) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
"Funding Account" has the meaning specified in the Security Deposit Agreement.
"GAAP" has the meaning specified in Section 1.03. "Governmental Authority" means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board, bureau or similar body, whether federal, state, provincial, territorial, local or foreign. "Governmental Authorization" means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.
"GrantingLender" has the meaning specified in Section 9.07(i). "Guaranteed DebP' means, with respect to any Person, any obligation or arrangement of such Person to guarantee or intended to guarantee any Debt ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or sirnilar payments, if required, regardless of nonperformance by any other party or parties to an agreement or (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to
15 Boston Generating, LLC Second Lien Credit Agreement NY1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 323 of 510
maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Guaranteed Debt shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guaranteed Debt is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Guaranteed Debt) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith. "Guaranteed Obligations" has the meaning specified in Section 8.01.
"Guarantors" means BG Boston Services, LLC, BG New England Power Services, Inc. and each of the Project Companies and each other Person becoming a party hereto pursuant to Section 5.01(k) by the execution and delivery of a Joinder Agreement substantially in the form attached hereto as E~ibit J.
"Guaranry" means the guaranty of the Guarantors set forth in Article VIII.
"Hazardous Materials" means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials and polychlorinated biphenyls and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other hedging agreements but excluding any Commodity Hedge and Power Sale Agreement.
"Hedge Bank" means any Person that is a commercial bank, insurance company or other similar financial institution, or any Affiliate thereot; that (a) is engaged in the business of entering into interest rate Hedge Agreements and (b) at the time the applicable Hedge Agreement is entered into, has a Required Rating.
"Indemnified Costs" has the meaning specified in Section 7.05(a).
"Indemnified Party" has the meaning specified in Section 9.04(b). "Independent Engineer" means any independent consulting engineer reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit of the Lenders from time to time, including, as of the date hereof, Black & Veatch Corporation.
16 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 324 of 510
"Independent Insurance Consultant" means any independent insurance consultant reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit of the Lenders from time to time, including, as of the date hereof, ARM Tech, a division of AON Risk Services, Inc.
"Independent Power Market Consultant" means any independent power market consultant reasonably acceptable to the Administrative Agent retained on behalf of or for the benefit of the Lenders from time to time, including, as of the date hereof, Navigant Consulting, Inc.
"Initial Banks" means the Administrative Agent, the Second Lien Collateral Agent, each Co-Syndication Agent, each Co-Documentation Agent, each Joint Book Running Manager and each Joint Lead Arranger.
`'Initial Commodity Hedge and Power Sale Agreements" means, collectively:
(a) the ISDA Master Agreement dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC;
(b) the Schedule to the 1992 ISDA Master Agreement dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC;
(c) two Confirmations to Credit Suisse Energy LLC Re: Financial Put Swaption — Cash Settled dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC; and
(d) two Confirmations to Credit Suisse Energy LLC Re: Financial Swap — Cash Settled dated as of November 20, 2006 between Credit Suisse Energy LLC and Boston Generating, LLC;
in each case as amended.
"Initial Extension of Credit" means the initial Borrowing.
"Initial Lenders" means the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the Initial Lenders.
"Initial Operating Budget" has the meaning specified in Section 3 A 1(a)(xiii).
"Insufficiency" means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Insurance Proceeds" has the meaning set forth in the Security Deposit Agreement.
17 Boston Generating, LLC Second Lien Credit Agreement NYl :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 325 of 510
"Intercreditor AgreemenP' means that certain Collateral Agency and Intercreditor Agreement, substantially in the form attached hereto as Exhibit G, dated as of December 21, 2006, by and among the Borrower, the Guarantors, EBG Holdings, the First Lien Collateral Agent, the Second Lien Collateral Agent, First Lien Administrative Agent, the Administrative Agent, certain Commodity Hedge Counterparties and the other Persons party thereto from time to time, as amended.
"Interest Coverage Ratio" means the ratio as of the last day of any Fiscal Quarter of (a) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended to (b) Consolidated Cash Interest Expense for such four-Fiscal Quarter period.
"Interest Period" means, for each Eurodollar Rate Loan comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Loan or the date of the Conversion of any Base Rate Loan into such Eurodollar Rate Loan, and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, or, if available to each Lender, nine or twelve months or such other period acceptable to the Administrative Agent, as the Borrower may, upon notice received by the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any lnterest Period with respect to any Eurodollar Rate Loan under a Facility that ends after any principal repayment installment date for such Facility unless, after giving effect to such selection, the aggregate principal amount of Base Rate Loans and of Eurodollar Rate Loans having Interest Periods that end on or prior to such principal repayment installment date for such Facility shall be at least equal to the aggregate principal arnount of Loans under such Facility due and payable on or prior to such date;
(b) [Reserved];
(c) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;
(d) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and 18 Boston Generating, LLC Second Lien Credit Agreement NY l :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 326 of 510
(e) the Borrower shall not be permitted to select Interest Periods to be in effect at any one time which have expiration dates occurring on more than eight (8) different dates (it being understood that there shall not be more than eight (8) contracts in respect of Eurodollar Rate Loans in effect at any one time).
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"Investment" in any Person means any loan or advance to such Person, any purchase or other acquisition of any Equity Interests or Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause h or ~ of the definition of "Debt" in respect of such Person.
"Joinder Agreement" means a Joinder Agreement substantially in the form of E~chibit J.
"Joint Book Running Managers" has the meaning specified in the recital of parties to this Agreement.
"Joint Lead Arrangers" has the meaning specified in the recital of parties to this Agreement. "gRoad Manager" means K Road BG Management, LLC, a Delaware limited liability company. "Lenders" means the Initial Lenders and each Person that shall become a Lender hereunder pursuant to Section 9.07 for so long as such Initial Lender or Person, as the case may be, shall be a party to this Agreement.
"Leverage Ratio" means the ratio as of the last day of any Fiscal Quarter of (a) Consolidated Total Debt as of such day to (b) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.
"Lien" means, with respect to any Property, (a) any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge or security interest in, on or of such Property, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing), relating to such Property, and (c) in the case of Equity Interests or debt securities, any purchase option, call or similar right of a third party with respect to such Equity Interests or debt securities. For the avoidance of doubt, "Lien" shall not include any netting or set-off arrangements under any Contractual Obligation
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(other than Contractual Obligations constituting Debt for Borrowed Money or having the effect of Debt for Borrowed Money) otherwise permitted under the terms of the Loan Documents.
"Loan" has the meaning specified in Section 2.01.
"Loan Documents" means (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Intercreditor Agreement, (e) the Second Lien Collateral Documents and ( fl the Fee Letter, in each case as amended.
"Loan Parties" means the Borrower and the Guarantors.
"Local Accounts" has the meaning specified in the Security Deposit Agreement.
"Management and Operation Agreements" means each of the Management and Operation Agreements each dated as of October 11, 2005 between K Road Manager and each of the Borrower and the Project Companies.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any change, occurrence or development (including, without limitation, as a result of regulatory changes applicable to the Borrower or any of its Subsidiaries) that has had or could reasonably be expected to have a Material Adverse Effect.
"Material Adverse Effect" means a material adverse effect on (a) the condition (financial or otherwise), business, results or operations of the Borrower and its Subsidiaries, taken as a whole, (b) the rights and remedies of any Agent or the Lenders, taken as a whole, under any Loan Document or (c) the ability of the Loan Parties to perform their respective Obligations under the Loan Documents.
"Material Contract" means (a) each of the agreements set forth on Schedule 4.01(t), (b) any Permitted Commodity Hedge and Power Sale Agreement with a term in excess of fourteen (14) months after the first delivery or settlement thereunder, and (c) any other Contractual Obligation (other than the Loan Documents or any Related Document) entered into after the date hereof by any Loan Party for which breach, nonperformance or cancellation could reasonably be expected to have a Material Adverse Effect.
"Maturity Date" means June 20, 2014.
"Mezzanine Documents" means the Credit Agreement dated as of December 21, 2006 among EBG Holdings, the financial institutions and lenders party thereto from time to time and CS, as administrative agent and each of the other Loan Documents referred to therein (other than the Fee Letter referred to therein).
20 Boston Generating, LLC Second Lien Credit Agreement N Y 1: #3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 328 of 510
"Moody's" means Moody's Investors Services, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Mystic 8&9 Project" means two (2) combined-cycle electric generating facilities with a combined nominal capacity of 1614 MW in operation in Everett, Massachusetts owned by Mystic Development.
"Mystic Development" means Mystic Development, LLC, f/k/a Exelon Mystic Development LLC, a Delaware limited liability company.
"Mystic I" means Mystic I, LLC, a Delaware limited liability company. "Mystic Station Project" means an electric generating facility with a nominal capacity of 576 MW in operation in Everett, Massachusetts and owned by Mystic I.
"Net Cash Proceeds" has the meaning specified in the Security Deposit Agreement.
"Non-Cnnsenting Lender" has the meaning specified in Section 9.01(c).
"Note" means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Loan made by such Lender, as amended.
"Notice ofBorrowing" has the meaning specified in Section 2.02(al.
"NPL" means the National Priorities List under CERCLA.
"Obligation" means all payment obligations of every nature of each Loan Party from time to time owed to any Agent (including former Agents) or any Lender from time to time under any Loan Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such interest in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise.
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"Offer Period" has the meaning specified in Section 2.15(a).
"Other Tc~zes" has the meaning specified in Section 2.12(bl.
"PatriotAcP' means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Cnmmadity Hedge dnd Power Sale Agreement" means (a) Permitted Trading Activity entered into by any Loan Party and a Commodity Hedge Counterparty, including, without limitation, the Initial Commodity Hedge and Power Sale Agreements and (b) the transactions pursuant to each of the Material Contracts set forth on Part II of Schedule 4.01(t) (as amended, modified or replaced).
"Permitted Development" means, after the Effective Date, the development or construction of any electric generating facility; provided that at the time any amount is invested (or committed to be invested) in respect of Permitted Developments that exceeds amounts permitted to be invested pursuant to Section 5.02(fl(ix~ , each of the following conditions are met:
(a) the Permitted Development is financed with amounts permitted pursuant to Sections 5.02(b)(iii~ and 5.02(fl(viii);
(b) the Independent Engineer shall have certified that any such development or construction would not reasonably be expected to materially and adversely impact the operation of the Projects or the efficient generation and distribution of electricity from the Projects (both during and after such development or construction) and shall have confirmed to the Lenders that amounts invested and committed to be invested by the Borrower and the Guarantors are sufficient to pay for all costs associated therewith; and
(c) each of S&P and Moody's shall have provided written confirmation of their respective ratings of the Facility (as in effect immediately prior to giving effect to such Permitted Development).
"Permitted Development Subsidiary" means any Subsidiary of a Loan Party created in connection with any Permitted Development.
"Permitted Emissions Sales Gains" means gains (determined in accordance with GAAP) from the sales of Accumulated Emissions Credits to the extent such proceeds are deposited into the Revenue Account in accordance with the Security Deposit Agreement.
"Permitted Encumbrances" means the Liens and encumbrances of record identified in the Second Lien Mortgage Policies as of the Effective Date.
22 Boston Generating, LLC Second Lien Credit Agreement NY1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 330 of 510
"PermittedLiens" means (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b); (b) Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other similar Liens arising in the ordinary course of business (i) for amounts that are not overdue or (ii) for amounts that are overdue that (A) do not materially adversely affect the use of, and which do not individually or in the aggregate materially affect the value of, the Property to which they relate or (B) are bonded or are being contested in good faith by appropriate proceedings for which reserve and other appropriate provisions, if any, required by GAAP shall have been made; (c) pledges or deposits in the ordinary course of business to secure obligations under workers' compensation, unemployment insurance, social security legislation or other similar legislation or to secure public or statutory obiigations; (d) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business; (e) Liens arising from judgments (or the payment of money not constituting a Default under Section 6.01(hl) or securing appeal or other surery bonds related to such judgments; ( fl Permitted Encumbrances; and (g) easements, rights-of-way, restrictions, encroachments and other minor defects or irregularities in title and any zoning (or other similar restrictions tq or vested in, any governmental office or agency to control or regulate the use of any Real Property), that individually or in the aggregate do not materially adversely affect the value of said Real Property or materially impair the ability of the Loan Parties to operate the Real Property to which they relate in the ordinary course of business.
"Permitted RMR Revenues" means, for any period, funds transferred to the Revenue Account pursuant to Section 3.15(a)(iv) of the SecuriTy Deposit Agreement; provided that for purposes of determining the applicable Fiscal Quarter to which such funds will be included in Consolidated Net Income, funds transferred within 45 days following any Fiscal Quarter shall be deemed, at the option of the Borrower, to be included (without duplication) in Consolidated Net Income for such Fiscal Quarter or the immediately preceding Fiscal Quarler.
"Permitted Second Lien Payment Date" means each Funding Date (as defined in the Security Deposit Agreement) on which the foilowing conditions are met: (a) all First Lien Loans under, and First Lien Obligations then due and owing in respect of, the Facilities (as defined in the First Lien Credit Agreement) shall have been repaid in full and (b) amounts on deposit in, or credited to, the Synthetic L/C Cash Collateral Account (as defined in the SecuriTy Deposit Agreement) shall be equal to at least 103% of the unused Commitment of the Synthetic Issuing Bank (as defined in the First Lien Credit Agreement) under the Synthetic L/C Facility (as defined in the First Lien Credit Agreement) and the Available Amount (as defined in the First Lien Credit Agreement) of any issued and outstanding Synthetic Letters of Credit (as defined in the First Lien Credit Agreement).
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"Permitted Trading Activity" means the entry into of any Commodity Hedge and Power Sale Agreement in a manner consistent with Prudent Industry Practice from time to time in support of the marketing and trading related to the Projects or any Permitted Development, whether physical or financial, in each case, to the extent such activity is conducted in the ordinary course of business of the Borrower and the other Loan Parties.
"Person" means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Platform" has the meaning specified in Section 9.02(b).
"Pledged Debt" has the meaning specified in the Second Lien Security Agreement.
"Preferred Interests" means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such Person upon any distribution of such Person's property and assets, whether by dividend or upon liquidation.
"PrepaymentAccounP' has the meaning specified in the Security Deposit Agreement.
"Prepayment Amount" has the meaning specified in Section 2.06(c).
"Pro Rata Share" of any amount means, with respect to any Lender at any time and with respect to the Facility, the product of such amount times a fraction the numerator of which is the amount of Loans owed to such Lender under the Facility at such time and the denominator of which is the aggregate amount of the Loans then outstanding and owed to all Lenders under the Facility at such time.
"Project Company" means each of Mystic I, Mystic Development and Fore River (and collectively, the "Project Companies").
"Projects" means Mystic Station Project, Mystic 8&9 Project, Fore River Project and, if applicable, the Permitted Development.
"Property" means any right or interest in or to any asset or property of any kind whatsoever (including Equity Interests), whether real, personal or mixed and whether intangible or tangible.
"Prudent Industry Practice" means those practices, methods, equipment, specifications and standards of safety and performance, as are commonly used by electric
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generating stations in the United States utilizing comparable fuels as good, safe and prudent engineering practices would dictate in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating stations, with commensurate standards of safety, performance, dependability (including the implementation of procedures that shall not adversely affect the long term reliability of the Projects, in favor of short term performance), efficiency and economy, in each such case as the same may evolve from time to time, consistent with applicable law and considering the state in which a Project is located and the type and size of such Project. "Prudent Industry Practice" as defined herein does not necessarily mean one particular practice, method, equipment specification or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.
"PUHCA" has the meaning specified in Section 4.01(v).
"Pullback Amount" means, for any Fiscal Year, the amount (not to exceed $10,000,000) of the Base Capex Allowance for the following Fiscal Year which the Borrower, in its sole discretion, allocates to Capital Expenditures in the current Fiscal Year.
"Qualified Owner" means any Person (including any Person Controlled by such Person) that (a) is a past or present owner of a Comparable Project, (b) has substantial experience as an operator of a Comparable Project or (c) has contracted for the operation of the Projects by K Road Manager or by a Person meeting the requirements of clause (b) of this definition.
"Real Properties" means each item of Property listed on Schedules 4.01(r) and 4.01 s hereto and any other real property subsequently acquired by any Loan Party covered by Section 5.01(i) hereof.
"Redeemable" means, with respect to any Equity Interest, any such Equity Interest that (a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the option of the holder.
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Re[ated Documents" means the Initial Commodity Hedge and Power Sale Agreements, the First Lien Loan Documents, the Mezzanine Documents and the Secured Hedge Agreements.
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"Related Fund" means, with respect to any Lender that is a Fund, any other Fund that is advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or an Affiliate of such entity) that administers, advises or manages such Lender.
"Repayment EvenP' means the satisfaction of the following conditions: (a) the repayment in full in Cash of all of the outstanding principal amount of the Loans and all other Obligations (other than contingent Obligations) due and payable under the Loan Documents and (b) the termination of all Commitments.
"Replacement Commodity Hedge and Power Sale Agreement" means, with respect to any Initial Commodity Hedge and Power Sale Agreement and the Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section SA1(s), any Eligible Permitted Commodity Hedge and Power Sale Agreement entered into by any Loan Party after the date hereof: (a) with a termination date that is no earlier than the termination date of the relevant Eligible Permitted Commodity Hedge and Power Sale Agreement it replaces; (b) that is otherwise on terms substantially consistent with, or more favorable to the Loan Parties than, the relevant Eligible Permitted Commodity Hedge and Power Sale Agreement it replaces; and (c) with respect to which the Borrower has delivered to the Administrative Agent amended projections giving pro forrna effect to such replacement Eligible Permitted Commodity Hedge and Power Sale Agreement prepared in good faith based on reasonable assumptions in light of the conditions existing at such time and showing to the reasonable satisfaction of the Administrative Agent compliance with Section 5.04 at all times until the earlier of (i) the Maturity Date or (ii) the termination date applicable to such replacement Eligible Permitted Commodity Hedge and Power Sale Agreement.
"Replacement Material Contract" shall mean any one or more contracts entered into in replacement of an existing Material Contract (i) with terms taken as a whole, as favorable to the Loan Parties as can be obtained based on market conditions prevailing at such time and (ii) with one or more counterparties (including any guarantor of, or letter of credit or other credit support providers to, such counterparty's obligations) having substantially similar creditworthiness on the date of such replacement as the counterparty to the Material Contract being replaced.
"Required Lenders" means, at any time, Lenders owed or holding more than 50% of the aggregate principal amount of the Loans outstanding at such time.
"Required Rating" means with respect to (a) any Commodity Hedge Counterparty that is described in clause (a)(i) of the definition of "Commodity Hedge Counterparty" or any Hedge Bank either (i) the unsecured senior debt obligations of such Person are rated at least A3 by Moody's and at least A- by S&P or (ii) such Person's obligations under any applicable Permitted Commodity Hedge and Power Sale Agreement or Secured Hedge Agreement, as the case may be, are guaranteed by (or supported by a letter of credit provided by) a Person whose unsecured senior debt obligations are rated at least A3 by Moody's and at least A- by S&P and (b) any other Commodity Hedge Counterparty either (i) the unsecured senior debt obligations of such 26 Boston Generating, LLC Second Lien Credit Agreement NY1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 334 of 510
Person are rated at least Baa3 by Moody's and at least BBB- by S&P, (ii) such Commodity Hedge Counterparty's obligations under any applicable Permitted Commodity Hedge and Power Sale Agreement are guaranteed by a Commodity Hedge Counterparty that is described in clause (a)(ii) of the definition of "Commodity Hedge Counterparty" whose unsecured senior debt obligations are rated at least Baa3 by Moody's and at least BBB- by S&P or (iii) such Commodity Hedge Counterparty's obligations under any applicable Permitted Commodity Hedge and Power Sale Agreement are supported by a letter of credit provided by a Person whose unsecured senior debt obligations are rated at least A3 by Moody's and at least A- by S&P.
"Responsible Officer" means, as to any Person, any individual holding the position of chairman of the board (if an officer), president, chief executive officer, senior vice president, treasurer, chief financial officer or director of finance.
"Revenue Account" has the meaning specified in the Security Deposit Agreement.
"RMR Agreement" means the Cost-of-Service Agreement, effective as of January 1, 2006, among Mystic Development, LLC, Sempra Energy Trading Corp. and ISO New England Inc.
"RMR Revenues" has the rneaning specified in the Security Deposit Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc.
"Second Lien Collateral Agent" has the meaning specified in the recital of parties to this Agreement.
"Second Lien Collateral Documents" means the Second Lien Pledge Agreement, Second Lien Security Agreement, the Security Deposit Agreement, the Second Lien Mortgages, each Second Lien Consent and Agreement, each of the collateral documents, instruments and agreements delivered pursuant to Section 5.01(i), and each other agreement that creates or purports to create a Lien in favor of the Second Lien Collateral Agent for the benefit ofthe Second Lien Secured Parties.
"Second Lien Consent and Agreement" means (a) with respect to the Initial Commodity Hedge and Power Sale Agreement, a consent and agreement in substantially the form attached hereto as E~ibit F-1, and (b) with respect to any Material Contract entered into after the Effective Date, (i) if such Material Contract is a Permitted Commodity Hedge and Power Sale Agreement, a consent and agreement in favor of the Second Lien Collateral Agent (for the benefit of the Second Lien Secured Parties) in substantially the form attached hereto as Exhibit F-1 and (ii) in the case of any other such Material Contract, a consent and agreement in favor of the Second Lien Collateral Agent (for the benefit of the Second Lien Secured Parties) in substantially the form attached
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hereto as Exhibit F-2 or, in either case, otherwise in form and substance reasonably satisfactory to the Second Lien Collateral Agent and the Administrative Agent.
"Second Lien Debt Service Reserve Requirement" means (a) on the Effective Date, $16,700,000 and (b) on any date of determination occurring after the Effective Date, an amount eyual to 100% of the sum of the reasonably anticipated aggregate interest and fees payable during the following six (6) month period occurring after such date of determination in respect of the Facility.
"Second Lien Mortgage Policies" has the meaning specified in Section 3.01(a1iv~.
"Second Lien Mortgages" has the meaning specified in Section 3.01(a (iv) and shall include any other deed of trust, trust deed, mortgage, leasehold mortgage or leasehold deed of trust delivered from time to time after the date hereof pursuant to Section 5.01(il, in each case as amended.
"Second Lien Obligations" has the meaning specified in the Intercreditor Agreement.
"Second Lien Pledge Agreement" means that certain Second Lien Pledge Agreement substantially in the form of E~ ►ibit L and dated as of December 21, 2006 by EBG Holdings in favor of the Second Lien Collateral Agent far the benefit of the Second Lien Secured Parties, as amended.
"Second Lien Secured Parties" has the meaning specified in the Intercreditor Agreement. "Secortd Lien Security Agreement" means that certain Second Lien Security Agreement substantially in the form of Exhibit K and dated December 21, 2006 by the Borrower and the Guarantors in favor of the Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties, as amended. "Second Offer" has the meaning specified in Section 2.06(c). "Secured Hedge Agreement" has the meaning specified in the First Lien Credit Agreement.
"Secured Party" has the meaning specified in the Intercreditor Agreement.
"Securiry Deposit Agreement" means that certain Security Deposit Agreement substantially in the form of Eachibit H dated December 21, 2006 by the Borrower, the Guarantors, the First Lien Collateral Agent, the Second Lien Collateral Agent and the Depositary, as amended.
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"Semi Annual Prepayment Date" has the meaning specified in the Security Deposit Agreement.
"Single Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ER1SA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property and assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature (taking into account reasonably anticipated prepayments and refinancings) and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 9.07(i).
"Subordinated Obligations" has the meaning specified in Section 8.05.
"Subsidiary" of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture or limited liability company or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Surviving Debt" means Debt of each Loan Party outstanding after giving effect to the Initial Extension of Credit on the Effective Date (other than Debt secured by the First Lien Collateral Documents and the Second Lien Collateral Documents).
"Synthetic DebP' means, with respect to any Person, without duplication of any clause within the definition of "Debt," the principal amount of all (a) obligations of such 29 Boston Generating, LLC Second Lien Credit Agreement NY I :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 337 of 510
Person under any lease that is treated as an operating lease for financial accounting purposes and a financing lease for tax purposes (i.e., a"synthetic lease"), (b) obligations of such Person in respect of transactions entered into by such Person, the proceeds from which would be reflected on the financial statements of such Person in accordance with GAAP as cash flows from financings at the time such transaction was entered into (other than as a result of the issuance of Equity Interests) and (c) obligations of such Person in respect of other transactions entered into by such Person that are not otherwise addressed in the definition of "Debt" or in clause a or ~ above that are intended to function primarily as a borrowing of funds (including, without limitation, any minority interest transactions that function primarily as a borrowing).
"Taxes" has the meaning specified in Section 2.12(a).
"Tender Offer" shall mean, collectively, (a) the offer by EBG Holdings to purchase outstanding units of limited liability company interest in EBG Holdings pursuant to the Offer to Purchase dated as ofNovember 16, 2006 and the related letter of transmittal sent to holders of such units, as each may be amended and supplemented from time to time and (b) the repurchase of warrants and the cashless exercise of warrants referred to in such Offer to Purchase.
"Terms of Subordination" means the Terms of Subordination attached hereto as E~ibit M.
"Title Company" means Lawyers Title Insurance Corporation.
"Transaction" means (a) the entering into of the Initial Commodiry Hedge and Power Sale Agreements, (b) the Distribution and the Tender Offer, (c) the entering into of the First Lien Loan Documents and the refinancing of amounts outstanding under the Existing Credit Agreements in part with the proceeds of amounts under the First Lien Credit Agreement, (d) the entering into of the Loan Documents and the refinancing of amounts outstanding under the Existing Credit Agreements in part with the proceeds of amounts under this Agreement, (e) the entering into of the Mezzanine Documents and ( fl the other transactions contemplated by the Transaction Documents.
"Transaction Costs" has the meaning set forth in the preliminary statements hereto.
"Transaction Documents" means, collectively, the Loan Documents and the Related Documents.
"Type" refers to the distinction between Loans bearing interest at the Base Rate and Loans bearing interest at the Eurodollar Rate.
"UCC Fixture Filing" has the meaning specified in Section 3.01(a)(iv)(A).
"Units" means units of limited liability company interests in EBG Holdings.
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"Voting Interests" means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part 1 of Subtitle E of Title 1V of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions. In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word `from" means "from and including" and the words "to" and "until" each mean "to but excluding:' References in the Loan Documents to any agreement or contract "as amended" shall mean and be a reference to such agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.
SECTION 1.03. Accountin~Terms. All accounting terms not specifically defned herein shall be construed in accordance with generally accepted accounting principles in effect in the United States from time to time ("GAAP"); provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Loans. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single advance (a "Loan") to the Borrower on the Effective Date in an amount not to exceed such Lender's Commitment at such time. The Borrowing shall consist of Loans made simultaneously by the Lenders ratably according to their Commitments. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed.
SECTION 2.02. Makin the Loans. (a) The Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing, in the case of a Borrowing consisting of Eurodollar Rate Loans, or the same Business Day of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Loans, by the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier or electronic communication. Each such notice
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of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately in writing, or by telecopier or electronic communication, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Types of Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) in the case of a Borrowing consisting of Eurodollar Rate Loans, the initial Interest Period for each such Loan. Each Lender shall, before ll:00 A.M. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's Account, in same day funds, such Lender's ratable portion of such Borrowing in accordance with its respective Commitment. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower by crediting the Funding Account.
(b) Anything in subsection (a) above to the contrary notwithstanding, the Borrower may not select Eurodollar Rate Loans for any Borrowing if the obligation of the Lenders to make Eurodollar Rate Loans shall then be suspended pursuant to Section 2.09 or 2.10.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Loans, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (but excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan to be made by such Lender as part of such Borrowing when such Loan, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from an Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at such time under Section 2.07 to Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender's Loan as part of such Borrowing for all purposes.
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(e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Reserved .
SECTION 2.04. Repavment of Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders on the Maturity Date the aggregate principal amount of the Loans then outstanding.
SECTION 2.05. [Reserved].
SECTION 2.06. Prepavments.
(a) OptionaL From and after the Permitted Second Lien Payment Date (unless otherwise permitted by the First Lien Loan Documents or consented to by the First Lien Lenders), the Borrower may, upon at least one (1) Business Day's irrevocable notice in the case of Base Rate Loans and three (3) Business Days' irrevocable notice in the case of Eurodollar Rate Loans, in each case to the Administrative Agent (provided that, if a notice is conditioned upon the effectiveness of other credit facilities or any incurrence or issuance of debt or equity, such notice may be revoked by the Borrower (by notice to the Administrative Agent) if such credit facilities do not become effective or such other transaction does not close, subject to the obligations of the Borrower under Section 9.04(c)) stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall prepay the outstanding aggregate principal amount of the Loans comprising part of the same Borrowing in whole or ratably in part, together with accrued and unpaid interest to the date of such prepayment; provided, however, that (i) each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $500,000 in excess thereof, (ii) if any prepayment of a Eurodollar Rate Loan is made on a date other than the last day of an Interest Period for such Loan, the Borrower shall also pay any amounts owing pursuant to Section 9.04(cl and (iii) the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, the Call Premium, if any.
(b) Mandatorv. (i) Subject to the terms ofthe Security Deposit Agreement, the Borrower shall on the date specified in the last sentence of clause c below prepay an aggregate principal amount of the Loans plus accrued and unpaid interest thereon to the date of prepayment and any amounts owing pursuant to Section 9.04(c) comprising part of the same Borrowings with funds then on deposit in the Prepayment Account on each Semi- Annual Prepayment Date (other than Net Cash Proceeds (if any) referred to in clause ii below) in accordance with the provisions of priority fifth of Section 3.8 of the Security Deposit Agreement.
(ii) Subject to the Security Deposit Agreement, following the receipt of any Net Cash Proceeds of any Casualty Event, Event of Erninent Domain, Asset Sale, Equity Issuance or the incurrence or issuance of any Debt (other than Debt permitted to be 33 Boston Generating, LLC Second Lien Credit Agreement NY I :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 341 of 510
incurred pursuant to Section 5.02(b)), the Borrower shall on the date specified in the last sentence of clause c below prepay an aggregate principal amount of the Loans plus accrued and unpaid interest thereon to the date of prepayment and any amounts owing pursuant to Section 9.04(c) in accordance with the provisions of priority fifth of Section 3.8 of the Security Deposit Agreement.
(c) Procedures; Option to Decline. Not later than 11:00 am. (New York City time) on the Business Day following each Semi-Annual Prepayment Date, in the cause of clause (b)(i) above, or following the receipt ofNet Cash Proceeds, in the case ofclause (b)(ii) above, the Borrower shall notify the Administrative Agent of the amount that is available to prepay such Loans (the "Prepayment Amount"). On the date of receipt of such notice, or, if such notice is received after 1 I:00 A.M. (New York City time), on the next succeeding Business Day, the Administrative Agent shall provide written notice (the "First Offer") to the Lenders of the amount available to prepay the Loans. Any Lender, at its option, may elect not to accept any prepayment of such Loans pursuant to Section 2.06(bl. Any Lender declining such prepayment (a "Declining Lender") shall give written notice thereof to the Administrative Agent by 11:00 a.m. (New York City time) no later than two Business Days after the date of such notice from the Administrative Agent. On such date the Administrative Agent shall then provide written notice (the "Second Offer") to the Lenders other than the Declining Lenders (such Lenders being the "Accepting Lenders") of the additional amount available (due to such Declining Lenders' declining such prepayment) to prepay such Loans owing to such Accepting Lenders. Any Lender declining prepayment pursuant to such Second Offer, shall give written notice thereof to the Administrative Agent by 11:00 a.m. (New York City time) no later than two Business Days after the date of such notice of a Second Offer, and, on such date, the Administrative Agent shall give written notice to the Borrower of the amount of the prepayments required to be made on the applicable prepayment date pursuant to Section 2.06(b), after giving effect to the First Offer and the Second Offer. The Borrower shall direct the prepayment of such Loans in accordance with the Security Deposit Agreement, in the aggregate amount specified in fhe notice from the Administrative Agent described in the immediately preceding sentence, within one Business Day after its receipt of notice from the Administrative Agent of the aggregate amount of such prepayment.
(d) A~plication of Prepavment b~pe of Loans. In connection with any voluntary prepayments by the Borrower pursuant to clause a above, any voluntary prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 9.04(c).
(e) In connection with any mandatory prepayments by the Borrower of the Loans pursuant to clause b and Section 2.15, such prepayments shall be applied on a pro rata basis to the then outstanding Loans being prepaid irrespective of whether such outstanding Loans are Base Rate Loans or Eurodollar Rate Loans; provided, that if no Lenders exercise the right to waive a given mandatory prepayment of the Loans pursuant to clause c above or Section 2.15 then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Loans that are Base Rate Loans to the full extent thereof before
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application to Loans that are Eurodollar Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 9.04(cl.
SECTION 2.07. Interest.
(a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each Loan owing to each Lender from the date of such Loan until such principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Loans. During such periods as such Loan is a Base Rate Loan, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time plus (B) the Applicable Margin in effect from time to time, payable in arrears quarterly on the last Business Day of each December, March, June and September during such periods and on the date such Base Rate Loan shall be Converted or paid in full commencing on the last Business Day of March 2007.
(ii) Eurodollar Rate Loans. During such periods as such Loan is a Eurodollar Rate Loan, a rate per annum equal at all times during each Interest Period for such Loan to the sum of (A) the Eurodollar Rate for such Interest Period for such Loan plus (B) the Applicable Margin in effect, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three (3) months, on each day that occurs during such Interest Period every three (3) months from the first day of such Interest Period and on the date such Eurodollar Rate Loan shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require that the Borrower pay interest ("Default Interest") on (i) the unpaid principal amount of each Loan owing to each Lender, payable in arrears on the dates referred to in clause i or ii of Section 2.07(a), as applicable, and on demand, at a rate per annum equal at all times to 2°/a per annum above the rate per annum required to be paid on such Loan pursuant to clause i or ii of Section 2.07(a), as applicable, and (ii) to the fullest extent permitted by applicable law, the amount of any interest, fee or other amount payable under this Agreement or any other Loan Document to any Agent or any Lender that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2%per annum above the rate per annum required to be paid on Base Rate Loans pursuant to clause i of Section 2.07(a); provided, however, that following the making of the request or the granting of the consent specified by Section 6.01 to autharize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Administrative Agent. Payment or acceptance of the increased rates of interest provided for in this Section 2.07(b) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.
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(c) Notice of Interest Period and lnterest Rate. Promptly after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section 2.09 or a notice of selection of an Interest Period pursuant to the terms of the definition of "Interest Period," the Administrative Agent shall give notice to the Borrower and each Lender of the applicable Interest Period and the applicable interest rate determined by the Administrative Agent for purposes of clause (al(il or a ii above.
SECTION 2.08. Fees. The Borrower shall pay to each Agent for its own account such fees as may from time to time be agreed between the Borrower and such Agent.
SECTION 2.09. Conversion of Loans.
(a) O~tional. The Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Section 2.10, Convert all or any portion of the Loans of one Type comprising the same Borrowing into Loans of the other Type; provided, however, that any Conversion of Eurodollar Rate Loans into Base Rate Loans shall be made only on the last day of an Interest Period for such Eurodollar Rate Loans or, if made on another date, shall be subject to the provisions of Section 9.04(c), any Conversion of Base Rate Loans into Eurodollar Rate Loans shall be in an amount not less than the minimum amount specified in Section 2.02(b), no Conversion of any Loans shall result in more separate Borrowings than permitted under Section 2.02(b) and each Conversion of Loans comprising part of the same Borrowing shall be made ratably among the Lenders in accordance with their Commitments. Each such notice of Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Loans to be Converted and (iii) if such Conversion is into Eurodollar Rate Loans, the duration of the initial Interest Period for such Loans. Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatorv. (i) If the Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Loans in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01, the Administrative Agent will forthwith so notify the Borrower and the Lenders, whereupon each such Eurodollar Rate Loan shall have an Interest Period of one month.
(ii) Upon the occurrence and during the continuance of any Event of Default, (x) each Eurodollar Rate Loan will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Loan and (y) the obligation ofthe Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or of making, funding or maintaining Eurodollar Rate Loans (excluding, for purposes of this Section 2.10, any such increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (y) changes in the basis or rate of 36 Boston Generating, LLC Second Lien Credit Agreement NY1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 344 of 510
taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereo~, then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower by such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender's commitment to make Loans and other commitments of such type, then, upon demand by such Lender or such corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional arnounts sufficient to compensate such Lender in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender's commitment to make Loans. A certificate as to such amounts submitted to the Borrower by such Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Loans, Lenders owed at least 33'/3% of the then aggregate unpaid principal amount thereof notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Loans will not adequately reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Rate Loans for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Loan under such Facility will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Loan and (ii) the obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended, in each case, until the Ad~inistrative Agent shall notify the l3orrowcr that such Lenders have determined that the circumstances causing such suspension no longer exist, in which case the obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be reinstated.
(d) Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each Eurodollar Rate Loan under which such Lender has a Commitment will automatically, upon such demand, Convert into a Base Rate Loan and (ii) the obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be suspended, in each case, until the
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Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension no longer exist, in which case the obligation of the Lenders to make, or to Convert Loans into, Eurodollar Rate Loans shall be reinstated; provided, however, that, before making any such demand, such Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if the making of such a designation would allow such Lender or its Eurodollar Lending Office to continue to perform its obligations to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.11. Payrrients and Computations. (a) The Borrower shall make each payment hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off (except as otherwise provided in Section 2.13), not later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative AgenYs Account in same day funds, with payments being received by the Administrative Agent after such time being deemed to have been received on the next succeeding Business Day in the Administrative Agent's sole discretion. The Administrative Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of principal, interest, commitment fees or any other Obligation then payable hereunder and under the other Loan Documents to more than one Lender, to such Lenders for the account of their respective Applicable Lending Offices ratably in accordance with the amounts of such respective Obligations then payable to such Lenders and (ii) if such payment by the Borrower is in respect of any Obligation then payable hereunder to one Lender, to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.
(b) The Borrower hereby authorizes each Lender and each of its Affiliates, if and to the extent payment owed to such Lender is not made when due hereunder or under the other Loan Documents to charge from time to time, to the fullest extent permitted by law, against any or all of the Borrower's accounts with such Lender or such Affiliate any amount so due.
(c) All coinputalions of int~r~~t based on the Ba~e Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d) Except as otherwise provided under the Loan Documents, whenever any payment hereunder or under the other Loan Documents shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment fee or commission, as the case may be; provided, however, that, if such extension
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would cause payment of interest on or principal of Eurodollar Rate Loans to be made in the next following calendar month, such payment shall be made on the preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any Lender hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender on such due date an amount equal to the amount then due such Lender. [f and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate.
( fl If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the Loans to which, or the manner in which, such funds are to be applied, the Administrative Agent may, if no instructions with respect thereto are received from the Lenders upon request, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender's Pro Rata Share of the aggregate principal amount of all Loans outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
SECTION 2.12. Taxes. (a) Any and all payments by any Loan Party to or for the account of any Lender or any Agent hereunder or under any other Loan Document shall be made, in accordance with Section 2.11 or the applicable provisions of such other Loan Document, if any, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and each Agent, (x) taxes that are imposed on its overall net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereo fl by the state or foreign jurisdiction under the laws of which such Lender or such Agent, as the case may be, is organized (or any political subdivision thereo fl, has its Applicable Lending Office, has a permanent establishment or is engaged in business (other than the business that the Lender is engaged in solely by reason of the transactions contemplated by this Agreement), (y) any branch profits taxes imposed by the United States of America and (z) withholding t~es imposed under law in effect on the date hereof or at the time the Lender designates a new Applicable Lending Office, other than any new Applicable Lending Office designated at the written request of a Loan Party (in the case of a Lender that is not an lnitial Lender, this clause z shall include taxes imposed under law in effect on the date such Lender becomes a Lender, except to the extent that the Lender's predecessor would have been entitled to receive additional amounts under this Section 2.12(a)) and, in the case of each Lender, taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereo~ by the state or foreign jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts,
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deductions, charges, withholdings and liabilities in respect of payments hereunder or under any other Loan Document being hereinafter referred to as "Taxes"). If any Loan Party or the Administrative Agent shall be reyuired by law to deduct any Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender or any Agent, (i) the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 2.12) such Lender or such Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make all such deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(b) In addition, each Loan Party shall pay any present or future stamp, documentary, excise, property (including intangible property, but with regard to all properiy taxes, only to the extent relating to property of a Loan Party) mortgage recording or similar taxes, charges or levies that arise from any payment made by such Loan Party hereunder or under any other Loan Documents or from the execution, delivery or registration of, performance under this Agreement or the other Loan Documents (hereinafter referred to as "Other Taxes").
(c) The Loan Parties shall indemnify each Lender and each Agent for and hold them harmless against the full amount of Taxes and Other Taxes, and for the full amount of taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.12, imposed on or paid by such Lender or such Agent (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within thirty (30) days from the date such Lender or such Agent (as the case may be) makes written demand therefor.
(d) Within thirty (30) days after the date of any payment of Taxes, the appropriate Loan Party shall furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment, to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. In the case of any payment hereunder or under the other Loan Documents by or on behalf of a Loan Party through an account or branch outside the United States or by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party determines that no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of subsections (d) and ~ of this Section 2.12, the terms "United States" and "United States person" shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the United States shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as
40 [3oston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 348 of 510
reasonably requested in writing by the Borrower (but only so long thereafter as such Lender remains lawfully able to do so), provide each of the Administrative Agent and the Borrower with two original Internal Revenue Service Forms W-8BEN or W-8ECI or (in the case of a Lender that has certified in writing to the Administrative Agent that it is not (i) a"bank" as defined in Section 881(c)(3)(A) ofthe Internal Revenue Code), (ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign corporation related to any Loan Party (within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal Revenue Service Form W-8BEN, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or any other Loan Document or, in the case of a Lender that has certified that it is not a"bank" as described above, certifying that such Lender is a foreign corporation, partnership, estate or trust. As provided in Section 2.12(a), if the forms provided by a Lender at the time such Lender first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided, however, that if, at the effective date of the Assignment and Acceptance pursuant to which a Lender becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) of this Section 2.12 in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date. If any form or document referred to in this subsection (el requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form W-8BEN or W-8ECI or the related certificate described above, that the applicable Lender reasonably considers to be confidential, such Lender shall give notice thereofto the Borrower and shall not be obligated to include in such form or document such confidential information.
(t) For any period with respect to which a Lander has £aii_~d to provide tk~e Borrower with the appropriate form, certificate or other document described in subsection (e) above (other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was required to be provided or if such form, certificate or other document otherwise is not required under subsection (el above), such Lender shall not be entitled to indemnification under subsection (a) or ~ of this Section 2.12 with respect to Taxes imposed by the United States by reason of such failure; provided, however, that should a Lender become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Loan Parties shall take such steps as such Lender shall reasonably request, at the Lender's sole expense and as long as the Loan Parties determine that such steps will not, in the reasonable judgment of the Loan Parties, be disadvantageous to the Loan Parties, to assist such Lender to recover such Taxes.
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(g) Any Lender claiming any additional amounts payable pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. In addition, if a Lender determines, in such Lender's sole discretion, that it has received a refund or credit in respect of any Taxes or Other Taxes as to which it has been indemnified pursuant to Section 2.12(c), or with respect to which additional amounts have been paid pursuant to Section 2.12(a), such Lender shall pay to the Borrower an amount equal to such refund (but such amount in no event to exceed the amount of any indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.12 with respect to the T~es or Other Taxes giving rise to such refund) net of all out-of-pocket expenses of such Lender, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of such Lender, shall agree to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender in the event such Lender subsequently determines that such refund or credit is unavailable under applicable law or is otherwise required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require a Lender to rearrange its tax affairs or to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
(h) The Administrative Agent shall deliver to each Loan Party on the Effective Date (and shall keep effective thereafter) two duly completed copies of Internal Revenue Service Farm W-8IMY, or any successor or other form prescribed by the lnternal Revenue Service, certifying that it is a"U.S. branch" and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with each Loan Party to be treated as a U.S. person with respect to such payments (and each Loan Party and the Administrative Agent agree to so treat the Administrative Agent as a U.S. Person with respect to such payments), with the effect that each Loan Party can make payments to the Administrative Agent without deduction or withholding of any Taxes imposcd by the United States,
SECTION 2.13. Sharing o~yments, Etc. If any Lender shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set- off, or otherwise, other than as a result of an assignment pursuant to Section 9.07), (a) on account of Obligations due and payable to such Lender hereunder and under the other Loan Docurnents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) on account of Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing to such Lender at such time to (ii) the aggregate amount of
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the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, such Lender shall forthwith purchase from the other Lenders such interests or participating interests in the Obligations as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price to the extent of such Lender's ratable share (according to the proportion of (i) the purchase price paid to such Lender to (ii) the aggregate purchase price paid to all Lenders) of such recovery together with an amount equal to such Lender's ratable share (according to the proportion of (i) the amount of such other Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Loan Parties agree that any Lender so purchasing an interest or participating interest from another Lender pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise ali its rights of payment (including the right of set-offl with respect to such interest or participating interest, as the case may be, as fully as if such Lender were the direct creditor of the Loan Parties in the amount of such interest or participating interest, as the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Loans shall be available (and the Borrower agrees that it shall use such proceeds) solely (i) to refinance all outstanding indebtedness under the Existing Credit Agreements, (ii) to provide working capital for the Loan Parties, (iii) to fund the Distribution and the Tender Offer of EBG Holdings, (iv) pay transaction fees and expenses and (v) provide funds for other general corporate and working capital purposes.
SECTION 2.15. Change of Control Prepavment. (a) No later than three (3) Business Days after the occurrence of a Change of Control, the Borrower shall through the Administrative Agent offer to each Lender (by delivery of a prepayment offer to the Administrative Agent) to prepay all (but not part) of its outstanding Loans in accordance with this Section 2.15. The prepayment offer may be conditioned on the occurrence of such Change of Control (if made prior to such occurrence) and otherwise shall be irrevocable and shall state: (i) the proposed date of such prepayment and/or return (which date shall be no earlier than (x) the end of the Offer Period and (y) the date of the applicable Change of Control and no later than ten (10) Business Days from the date of the applicable Change of Control) (or, if later, the end ofthe Offer Period); (ii) the prepayment price (which, with respect to each Lender, shall be calculated as the sum of (A) the aggregate principal amount of the outstanding Loans made by such Lender, (B) the greater of (x) an amount equal to 1.00% of the aggregate principal amount of such outstanding Loans made by such Lender and (y) the Call Premium (if any), (C) all accrued and unpaid interest on such Loans and (D) all accrued interest on the principal amount being repaid, prepaid or returned and any amounts owing pursuant to Section 9.04(c)); (iii) that each Lender that accepts such prepayment offer must accept such offer with respect to all (but not part) of its Loans; (iv) that each Lender must accept such offer by delivering notice of such acceptance to the Administrative Agent within ten (10) days after the date the Borrower makes
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its offer to such Lender (the "Offer Period'); and (v) in reasonable detail, the nature of the applicable Change of Control and the projected impact of such Change of Control on the Projects, the operations thereof and the Borrower and the Guarantors.
(b) The Borrower shall comply with the terms of each such prepayment offer. Each Lender shall have the right to accept such offer prior to the expiration ofthe applicable Offer Period.
(c) [Reserved].
(d) The Commitments of each Lender that accepts a prepayment offer in accordance with this Section 2.15 shall terminate in its entirety on the date such Lender's Loans are repaid or, if later, scheduled to be repaid or returned.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the Administrative Agent} to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Loans owing to, or to be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender, with a copy to the Administrative Agent, a Note, as applicable, in substantially the form of Exhibit A hereto, respectively, payable to the order of such Lender in a principal amount equal to the Loans, respectively, of such Lender. All references to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Loans comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement. 44 Boston Generating, LLC Secand Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 352 of 510
SECTION 2.17. Duty to Miti~,ate. In the event that any Lender demands payment of costs or additional amounts pursuant to Section 2.10 or 2.12 or asserts, pursuant to Section 2.10(dl, that it is unlawful for such Lender to make Eurodollar Rate Loans then (subject to such Lender's right to rescind such demand or assertion within ten (10) days after the notice from the Borrower referred to below) the Borrower may, upon twenty (20) days' prior written notice to such Lender and the Administrative Agent, elect to cause such Lender to assign its Loans and Commitments in full to one or more Persons selected by the Borrower so long as (i) each such Person satisfies the criteria of an Eligible Assignee and is reasonably satisfactory to the Administrative Agent, (ii) such Lender receives payment in full in cash of the outstanding principal amount of all Loans made by it and all accrued and unpaid interest thereon and all other amounts due and payable to such Lender as of the date of such assignment (including, without limitation, amounts owing pursuant to Sections 2.10, 2.12 and 9.04) and (iii) each such assignee agrees to accept such assignment and to assume all obligations of such Lender hereunder in accordance with Section 9.07.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND OF LENDING
SECTION 3.01. Conditions Precedent. Section 2.01 of this Agreement shall become effective on and as of the first date on or before December 21, 2006 (the "Effective Date") on which the following conditions precedent have been satisfied (and the obligation of each Lender to make a Loan on the occasion of the initial Borrowing hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Effective Date):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated as of such date (unless otherwise specified) and in form and substance reasonably satisfactory to the Administrative Agent:
(i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16.
(ii) The Second Lien Security Agreement substantially in the form of E~ibit K duly executed by the Borrower, each Guarantor and the Second Lien Collateral Agent, together with:
(A) confirmation reasonably satisfactory to the Administrative Agent that (1) certificates (if any) representing the Initial Pledged Equity (as defined in the Second Lien Security Agreement) accompanied by undated membership interest powers or stock powers, as applicable, executed in blank, and (2) instruments evidencing the Initial Pledged Debt (as defined in the Second Lien Security Agreement), indorsed in blank, in each case, have been delivered to the Second Lien Collateral Agent,
(B) appropriately completed financing statements in form appropriate for filing under the Uniform Commercial Code in the State of
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Delaware, covering the Collateral described in the Second Lien Security Agreement,
(C) completed requests for information ar similar search reports, dated on or not more than fourteen (14) days before the Effective Date, listing all effective financing statements filed in the jurisdictions referred to in clause B above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) certified copies of each Material Contract,
(E) each Second Lien Consent and Agreement in respect of each Initial Commodity Hedge and Power Sale Agreement and each other Material Contract then in effect (other than each of the Material Contracts set forth on Part III of Schedule 4.01(t)), duly executed by each party to such Initial Commodity Hedge and Power Sale Agreement or Material Contract, as applicable, and
(F) evidence that all other action that the Administrative Agent and the Second Lien Collateral Agent may deem reasonably necessary in order to perfect and protect the second priority liens and security interests created under the Second Lien Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements).
(iii) The Second Lien Pledge Agreement substantially in the form of Exhibit L duly executed by EBG Holdings and the Second Lien Collateral Agent, together with:
(A) Confirmation reasonably satisfactory to the Adrninistrative Agent that certificates, if any, representing the Initial Pledged Equity (as defined in the Second Lien Pledge Agreement) accompanied by undated membership interest powers or stock powers, as applicable, executed in blank have been delivered to the Second Lien Collateral Agent,
(B) appropriately completed financing statements in form appropriate for filing under the Uniform Commercial Code in the State of Delaware, covering the Collateral described in the Second Lien Pledge Agreement,
(C) completed requests for information or similar search reports, dated on or not more than fourteen (14) days before the Effective Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name EBG Holdings as debtor, together with copies of such other financing statements, and
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(D) evidence that all other action that the Adm.inistrative Agent and the Second Lien Collateral Agent may deem reasonably necessary in order to perfect and protect the second priority liens and security interests created under the Second Lien Pledge Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements).
(iv) Original counterparts of the mortgages, deeds of trust or security deeds encumbering each of the Real Properties and substantially in the form of Exhibit D(the "Second Lien Mortgages") duly executed and delivered by the appropriate Loan Party in recordable form, together with:
(A) to the extent necessary under applicable law, Uniform Commercial Code Financing Statements covering fixtures ("UCCFixture Filings") appropriately completed for filing in the appropriate filing or recording offices,
(B) evidence that counterparts of the Second Lien Mortgages and UCC Fixture Filings have been either (x) duly recorded on or before the Effective Date or (y) duly executed, acknowledged and delivered to the Title Company in form suitable for filing or recording, in all filing or recording offices necessary in order to create a valid second and subsisting Lien on the property described therein in favor of the Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties and that all filing and recording taxes and fees have been paid to the Title Company,
(C) certified copies ofthe fully paid American Land Title Association Lender's Extended Coverage title insurance policies or an irrevocable written commitment to issue mortgage title policies or marked-up unconditional binders for such insurance (the "Second Lien Mortgage Policies") in amounts and in form and substance, and with endorsements (including zoning endorsements) to the extent available, reasonably acceptable to the Administrative Agent and the Second Lien Collateral Agent, issued by the Title Company, reinsured by title insurers reasonably acceptable to the Administrative Agent and the Second Lien Collateral Agent, insuring the Second Lien Mortgages to be valid second and subsisting Liens on the property described therein, free of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance, to the extent available (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens), in form acceptable to the Administrative Agent and the Second Lien Collateral Agent,
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(D) certified copies of American Land Title Association/ American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than sixty (60) days before the Effective Date, certified to the Administrative Agent and the Second Lien Collateral Agent and the Title Company using a form of certification reasonably acceptable to the Administrative Agent and the Second Lien Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located showing the matters required by such certification and the absence of material encroachments and any other material defects other than encroachments or other defects acceptable to the Administrative Agent and the Second Lien Collateral Agent, and
(E) Proof of payment to the Title Company of (A) all expenses and premiums of the Title Company in connection with the issuance of the Second Lien Nlortgage Policies and (B) an amount equal to any fees or taxes including, without limitation, the recording, mortgage, intangible, transfer and stamp taxes payable in connection with recording the Second Lien Mortgages and UCC Fixture Filings, if applicable, in the appropriate government office(s),
(F) Certified copies of permanent and unconditional certificates of occupancy (or, if it is not the practice to issue certificates of occupancy in a jurisdiction in which the facilities to be covered by the Mortgages are located, then such other evidence reasonably satisfactory to the Administrative Agent and the Second Lien Collateral Agent) permitting the fully functioning operation and occupancy of each such facility and of such other permits necessary for the use and operation of each such facility issued by the respective governmental authorities having jurisdiction over each such facility, and
(G) evidence of the insurance required by the terms of the Second Lien Mortgages.
(v) The Intercreditor Agreement substantially in the form of Exhibit G duly executed by the Borrower, the Guarantors, EBG Holdings, the First Lien Collateral Agent, the Second Lien Collateral Agent, the Administrative Agent, the First Lien Administrative Agent and Credit Suisse Energy LLC.
(vi) The Security Deposit Agreement substantially in the form of Exhibit H duly executed by the Borrower, each Guarantor, the First Lien Collateral Agent, the Second Lien Collateral Agent and the Depositary.
(vii) Certified copies of the resolutions of the sole members of the Borrower and the Board of Directors of EBG Holdings and authorizations of the sole member ar Board of Directors, as applicable, of each other Guarantor 48 Boston Generating, LLC Second Lien Credit Agreement NY 1: #3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 356 of 510
approving the Transaction and each Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(viii) A copy of a certificate of the Secretary of State of Delaware, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the certificate of farmation or certificate of incorporation, as the case may be, of each Loan Pariy and EBG Holdings and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Loan Party's and EBG Holding's certificate of formation or certificate of incorporation, as the case may be, on file in such Secretary's office, (2) to the extent applicable, each of such Loan Party and EBG Holdings has paid all franchise taxes to the date of such certificate and (3) to the extent applicable, each of such Loan Party and EBG Holdings is duly formed and in good standing or presently subsisting under the laws of the State of Delaware.
(ix) A certificate of each Loan Party and EBG Holdings signed on behalf of such Loan Party and EBG Holdings by a Responsible Officer thereof, dated the Effective Date (the statements made in such certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the certificate of formation or certificate of incorporation, as the case may be, of such Loan Party or EBG Holdings (as applicable) since the date of the Secretary of State's certificate referred to in Section 3.01(aLviii2, (B) a true and correct copy of the limited liability company agreement or bylaws, as the case may be, of such Loan Party or EBG Holdings (as applicable) as in effect on the date on which the resolutions referred to in Section 3.01(a)(vii) were adopted and on the Effective Date, (C) the due formation and good standing or valid existence of such Loan Party or EBG Holdings (as applicable) as a limited liability company or corporation, as the case may be, organized under the laws of the jurisdiction of its formation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party or EBG Holdings (as applicable) and (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date.
(x) Certificates of EBG Holdings and each of the Loan Parties executed by an authorized officer thereof in each case certifying the name and true signature of the officer of EBG Holdings or such Loan Party authorized to sign each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xi) Certified copies of each of the Related Documents, duly executed by the parties.
(xii) Certificates in substantially the form of E~chibit E, attesting to (A) the Solvency of EBG Holdings and its Subsidiaries on a Consolidated basis 49 E3oston Generating, LLC Second Lien Credit Agreement NY I :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 357 of 510
after giving effect to the Transaction and the other transactions contemplated thereby, and (B) the Solvency of the Borrower and its Subsidiaries on a Consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby, in each case from the director of finance of EBG Holdings.
(xiii) (A) A certified hard copy of, and a computer disk containing, pro forma balance sheets, income statements and cash flow statements with respect to EBG Holdings consolidated with its Subsidiaries for the period through Fiscal Year 2014, on a quarterly basis for the period from January 1, 2007 through December 31, 2008 and on an annual basis for each year thereafter (the "Base Case Projections"); and (B) a certified copy of the operating budget far the Borrower and its Subsidiaries for Fiscal Year 2007 (the "Initial Operating Budget").
(xiv) (A) Certified copies of audited financial statements of the Borrower and its Subsidiaries dated December 31, 2005 and interim financial statements of the Borrower and its Subsidiaries dated the end of each Fiscal Quarter ending since December 31, 2005, and (B) the Consolidated pro forma balance sheet of the Borrower and its Subsidiaries as of September 30, 2006, and the related Consolidated pro forma statement of income of the Borrower and its Subsidiaries for the twelve (12) month period then ended.
(xv) Copies of final due diligence reports updated within thirty (30) days of the Effective Date from the following consultants in form and substance reasonably satisfactory to the Administrative Agent: (A) the Independent Engineer; (B) the Independent Power Market Consultant; and (C) the Independent Insurance Consultant.
(xvi) Copies of all certificates representing the policies, endorsements and other documents required under Section 5.01(d) to be in effect as of the Effective Date, accompanied by (A) a certificate of the Borrower signed by a Responsible Officer certifying that the copies of each of the policies, endorsements and other documents delivered pursuant to this Section 3.01(a)(xvi) are true, correct and complete copies thereof, (B) letters from the Borrower's insurance brokers or insurers, dated not earlier than fifteen (15) days prior to the Effective Date, stating with respect to each such insurance policy that (1) such policy is in full force and effect, (2) all premiums theretofore due and payable thereon have been paid and (3) the underwriters of such insurance have agreed that the policies, when issued, will contain the provisions required under Section SAl(d) and (C) a certificate from the Independent Insurance Consultant in form and substance reasonably satisfactory to the Lenders confirming that such required insurance is in full force and effect in accardance with the terms of this Agreement.
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(xvii) A favorable opinion of Debevoise & Plimpton LLP, counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(xviii) Favorable opinions of Nutter, McClennen & Fish LLP, local counsel for the Loan Parties with respect to the enforceability and perfection of each Second Lien Mortgage and any related fixture filings and with respect to local permitting, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
(xix) A favorable opinion of White & Case LLP, special federal energy regulatory counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(a~) Account control agreements reasonably acceptable to the Administrative Agent and the Second Lien Collateral Agent for the Local Accounts executed by the depositary financial institution holding such accounts and the applicable Loan Parties.
(xxi) Reasonable evidence that, concurrent with ar promptly following the consummation of the transaction contemplated hereby, (A) the Accounts have been established in accordance with the requirements of the Security Deposit Agreement, and (B) after giving effect to the Borrowings to be made on the Effective Date, the Second Lien Debt Service Reserve Requirement has been satisfied.
(b) [Reserved].
(c) The Lenders shall be reasonably satisfied that:
(i) all Existing Debt, other than Surviving Debt, has been (or is contemporaneously being) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated (or contemporaneously therewith terminated) and that all Surviving Debt is on terms and conditions reasonably satisfactory to the Lenders;
(ii) all Liens securing payment of any Existing Debt shall have been released; and
(iii) the Administrative Agent shall have received all Uniform Commercial Code Form UCC-3 termination statements, mortgage releases, pay- off letters and other instruments as may be necessary or desirable, in the reasonable judgment of the Administrative Agent, in connection therewith.
(d) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2005.
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(e) Except as set forth on Schedule 4.01(~), there shall exist no action, suit, investigation, litigation or proceeding affecting EBG Holdings or any Loan Party pending or threatened in writing before any Governmental Authority that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transaction.
( fl Except for any Governmental Authorizations required in connection with the Lenders' exercise of remedies under the Loan Documents, all Governmental Authorizations and member, shareholder and third party consents and approvals necessary in connection with the Transaction or for the ownership and operation of the Projects shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in full force and effect.
(g) The Borrower shall have paid (or shall be contemporaneously paying from the proceeds of the Loans) all accrued fees of the Agents and the Lenders and all accrued expenses of the Agents (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel to the Lenders).
(h) The Administrative Agent shall have received evidence reasonably satisfactory to it that prior to, or concurrently with, the making of the Initial Extension of Credit hereunder:
(i) the Borrower shall have received not less than $1,130,000,000 in gross cash proceeds from borrowings $250,000,000 in letter of credit commitments and $70,000,000 in revolving credit commitments, in each case, under the First Lien Credit Agreement; and
(ii) EBG Holdings shall have received not less than $300,000,000 in gross cash proceeds from borrowings under the Mezzanine Documents.
(i) The Related Documents, including the Mezzanine Documents, Initial Commodity Hedge and Power Sale Agreements and the First Lien Loan Documents, shall have been executed and delivered by all parties thereto and shall be effective, and all material obligations to be performed under any such documents on or before the Effective Date shall have been performed.
(j) The Facility shall have been rated by each of S&P and Moody's.
(k) The Lenders shall have received, to the extent reyuested, on or before the date which is five (5) Business Days prior to the Effective Date, all documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations including the Patriot Act.
(1) The Administrative Agent shall have received the Closing Date Funds Flow Memo substantially in the form attached hereto as E~ibit N(the "Closing Date Summary Funds Flow Memo").
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SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The obligation of each Lender to make a Loan on the occasion of the initial Borrowing shall be subject to the further conditions precedent that on the date of such Borrowing the following statements shall be true and the Administrative Agent shall have received for the account of such Lender a certificate signed by a duly authorized officer of the Borrower, dated fhe date of such Borrowing, stating that (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that both on the date of such notice and on the date of such Borrowing such statements are true):
(a) the representations and warranties contained in each Loan Document are correct in all material respects on and as of such date, as though made on and as of such date, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, except for representations and warranties that speak as of an earlier date or period which shall be true and correct as of such date or period; and
(b) with respect to the Initial Extension of Credit on the Effective Date, no Default has occurred and is continuing, ar would result from such Initial Extension of Credit or from the application of proceeds therefrom.
SECTION 3.03. Determinations Under Section 3.01. For purposes of determining compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Effective Date specifying its objection thereto and, if the Initial Extension of Credit consists of a Borrowing, such Lender shall not have made available to fhe Administrative Agent such Lender's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. Each Loan Party represents and warrants on behalf of itself as follows:
(a) Organization. It (i) is a limited liability company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) is duly qualified and in good standing as a limited liability company or corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite limited liability company or corporate (as applicable) power and authority (including, without limitation, all material Governmental Authorizations) to
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own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) Location. Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Loan Parties and their Subsidiaries, showing as of the date hereof (as to each Loan Party and each such Subsidiary) the jurisdiction of its formation or incorporation (as applicable), the address of its principal place of business and its U.S. taxpayer identification number. The copy of the certificate of formation or certificate of incorporation, as applicable, of each Loan Party and each amendment thereto provided pursuant to Section 3.01(a)(viii) is a true and correct copy of each such docurnent, each of which is valid and in full force and effect.
(c) Ownersh~ Information. Set forth on Schedule 4.01(cl hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares or membership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares or membership interests (as applicable) covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party's Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the First Lien Collateral Documents, the Second Lien Collateral Documents or Permitted Liens.
(d) Authorization: Non-Contravention. The execution, delivery and performance by each Loan Party of each Transaction Document to which it is or is to be a party, and the consummation of the Transaction, are within such Loan Party's limited liability company or corporate (as applicable) powers, have been duly authorized by all necessary limited liability company or corporate (as applicable) action, and do not (i) contravene such Loan Party's limited liability company agreement, certificate of incorporation, bylaws or other constituent docurr~ents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award applicable to or binding on it, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, a Contractual Obligation of any Loan Party (except to the extent such conflict, breach, default or payment could not reasonably be expected to have a Material Adverse Effect) or (iv) except for the Liens created under the First Lien Collateral Documents and the Second Lien Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the Properties of any Loan Party or any of its Subsidiaries. As of the Effective Date, no Loan Party is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the
54 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 362 of 510
violation or breach of which could be reasonably likely to have a Material Adverse Effect.
(e) Consents and Approvals. (i) No Governmental Authorization, and no notice to, filing with, or consent or approval of any other third party is required for (A) the due execution, delivery, recordation, filing or performance by any Loan Party of any Transaction Document to which it is or is to be a party, or for the consummation of the Transaction, (B) the grant by any Loan Party of the Liens granted by it pursuant to the Second Lien Collateral Documents, (C) the perfection or maintenance of the Liens created under the Second Lien Collateral Documents (including the second priority nature thereo fl ar(D) the exercise by any Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Second Lien Collateral Documents, except for (1) those authorizations, approvals, actions, notices and filings set forth on Schedule 4.01(e), (I) all ofwhich have been duly obtained, taken, given or made, (II) are in full force and effect, (IlI) are free from conditions or requirements that have not been met or complied with, (2) authorizations, approvals, actions, notices and filings required by securities, regulatory or applicable law in connection with an exercise of remedies or (3) those Governmental Authorizations, notices, filings with, or consents of, any other third party, the failure of which to obtain and maintain could not reasonably be expected to result in a Material Adverse Effect.
(ii) No Governmental Authorization, and no notice to, filing with, or consent or approval of any Governmental Authority or any other third party is required in connection with the operation of the Projects in accordance with applicable law and as otherwise contemplated by this Agreement, except for (A) the Governmental Authorizations, notices and filings set forth on Schedule 4.01(e), (1) all of which have been duly obtained, taken, given or made, (2) are in full force and effect and (3) are free from conditions or requirements that have not been met or complied with or (B) those Governmental Authorizations, notices, filings with or consents of any other third party, the failure of which to obtain and maintain could not reasonably be expected to result in a Material Adverse Effect.
( fl Bindin~A~reement. This Agreement has been, and each other Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party thereto. This Agreement is, and each other Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party thereto, enforceable against such Loan Party in accordance with its terms.
(g) Liti~ a tion. Except as set forth on Schedule 4.01(~), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or threatened in writing before any Governmental Authority or arbitrator that (i) could reasonably be likely to have a
55 Boston Generating, LLC Second Lien Credit Agreement NY I :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 363 of 510
Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transaction.
(h) Financial Statements. (i) The Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2005, the related Consolidated statement of income and Consolidated statement of cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended and the Consolidated balance sheet of the Borrower and its Subsidiaries as at September 30, 2006, and the related Consolidated statement of income and Consolidated statement of cash flows of the Borrower and its Subsidiaries for fhe nine (9) months then ended, duly certified by the senior financial officer of the Borrower, copies of which have been furnished to the Administrative Agent pursuant to Section 3.01, fairly present in all material respects, subject, in the case of said balance sheet as at September 30, 2006, and said statements of income and cash flows for the nine (9) months then ended, to year end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP applied on a consistent basis.
(ii) The Consolidated pro forma balance sheet of the Borrower and its Subsidiaries as at September 30, 2006, and the related Consolidated pro forma statement of income of the Borrower and its Subsidiaries for the twelve-month period then ended, respectively, certified by the senior financial officer of the Borrower, copies of which have been furnished to the Administrative Agent pursuant to Section 3.01, fairly present in all material respects the Consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date giving effect to the Transaction, all in accordance with GAAP.
(iii) The Consolidated forecasted balance sheet, statement of income and statement of cash flows ~f EBG Holdings and its Subsidiaries delivered to the Administrative Agent, pursuant to Section 3.41(a)(xiii) and the Budget required by Section 5.03(d) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower's reasonable best estimate of its future financial performance.
(i) Accuracv of Information; Projections. All information (other than the information delivered pursuant to Section 3.01(a)(xiii~, other financial projections and general economic information) heretofore or contemporaneously furnished to any Lender by or on behalf of EBG Holdings or any Loan Party in connection with any Loan Document or any transaction contemplated hereby (including the Transactions), taken together as a whole with all other information with which such Lender has previously been furnished, is complete and correct in all material respects, as of the date such information was furnished and as of the Effective Date, and did not contain any untrue
56 Bosron Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 364 of 510
statement of a material fact or omit to state any material fact necessary to make any information not misleading in light of the circumstances under which furnished. .
(j) Mar~in Stock. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Loan will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(k) Investment Compan ~~. No Loan Party is an "investment company," as defined in or subject to regulations under the Investment Company Act of 1940, as amended.
(I) Security Interest. All filings and other actions necessary to perfect and protect the security interest in the Collateral created under the Second Lien Collateral Documents have been duly made or taken and are in full force and effect, and the Second Lien Collateral Documents create in favor of the Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties a valid and, together with such filings and other actions, perfected second priority security interest in the Collateral, securing the payment of the Second Lien Obligations. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents.
(m) Solvencv. After giving affect to the Transaction, the Borrower and its Subsidiaries are, on a Consolidated basis, Solvent.
(n) ERISA Etc. (i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has had or is reasonably expected to have a Material Adverse Effect.
(ii) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan except for Withdrawal Liability that could not reasonably be expected to have a Material Adverse Effect.
(iii) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a material Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title N of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(o) Environmental Matters. (i) Except as otherwise set forth on Part I of Schedule 4.01(0) hereto, the operations and properties of each Loan Party and each of its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except for any such noncompliance, obligation or cost that could not reasonably be likely to have a Material Adverse Effect
57 Boston Generating, LLC Second Lien Credit Agreement NY ] :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 365 of 510
and, to the best knowledge of each Loan Party, no circumstances exist that could (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that could reasonably be likely to have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership or transferability, or subject to any material Lien, under any Environmental Law.
(ii) Except as otherwise set forth on Part II of Schedule 4.01(0) hereto, none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is currently listed or proposed for listing on the NPL or on the CERCLIS or any analogous state or local list; there are no and never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries except where such treatment, storage or disposal could not reasonably be likely to have a Material Adverse Effect; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries that requires abatement under any applicable Environmental Law that could reasonably be likely to have a Material Adverse Effect; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries in a manner that would reasonably be expected to require any investigation, cleanup, remediation or remedial action by any Loan Party under any applicable Environmental Law that could reasonably be likely to have a Material Adverse Effect.
(iii) Except as otherwise set forth on Part III of Schedule 4.01(0l hereto, neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in liability to any Loan Party or any of its Subsidiaries, except, in each case above, where any such investigation or assessment or remedial or response action or liability could not reasonably be likely to have a Material Adverse Effect.
58 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 366 of 510
(p) Tax Matters. (i) Neither any Loan Parly nor any of its Subsidiaries is party to any tax sharing agreement.
(i) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all tax returns (Federal, state, local and foreign) required to be filed, other than those tax returns where the failure to file such returns could not be reasonably expected to have a Material Adverse Effect, and has paid all taxes shown thereon to be due, together with applicable interest and penalties (other than taxes contested in good faith).
(ii) No issues have been raised by the Internal Revenue Service in respect of federal income tax returns for years for which the expiration of the applicable statute of limitations has not occurred by reason of extension or otherwise that, in the aggregate, could be reasonably likely to have a Material Adverse Effect.
(iii) No issues have been raised by any state, local or foreign taxing authorities, in respect of the returns for years for which the expiration of the applicable statute of limitations has not occurred by reason of extension or otherwise, that, in the aggregate, could be reasonably likely to have a Material Adverse Effect.
(q) Survivin D~ebt. Set forth on Schedule 4.01(al hereto is a complete and accurate list of all Surviving Debt, showing the obligor and the principal amount outstanding thereunder and the maturity date thereof.
(r) Owned Real Propertv. Set forth on Schedule 4A1(r) hereto is a complete and accurate list of all material real property owned by any Loan Party, showing as of the date hereof the street address, county or other relevant jurisdiction, state and record owner thereof. Each Loan Party has good and marketable fee simple title to such real property, free and clear of all Liens, other than Permitted Liens.
(s) Leased Real Propertv. Set forth on Schedule 4.01(s) hereto is a compleCe and accurate list of all material leases of real property under which any Loan Party is the lessee, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor and lessee thereof. Each such lease is the legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of rights of creditors generally and except to the extent that enforcement of rights and remedies set forth therein may be limited by equitable principles (regardless of whether enfarcement is considered in a court of law or a proceeding in equity).
(t) Material Contracts. Except as set forth on Schedule 4.01(t), each Material Contract (i) has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified from the form previously delivered to the
59 Boston Generating, LLC Second Lien Credit Agreement NY l :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 367 of 510
Administrative Agent, except in accordance wifh the terms of this Agreement, (ii) is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of rights of creditors generally and except to the extent that enforcement of rights and remedies set forth therein may be limited by equitable principles (regardless of whether enforcement is considered in a court of law or a proceeding in equity), and (iii) to the best knowledge of the relevant Loan Party, there exists no material default under any Material Contract by any party thereto.
(u) Accounts. Neither the Borrower nor any of its Subsidiaries has any deposit or securities accounts other than the Accounts or Local Accounts otherwise permitted under the terms of this Agreement.
(v) Re~ u lator S~us. Each Project Company: (i) meets the requirements for, and has made the necessary filing with, or has been determined by, FERC to be an exempt wholesale generator ("EWG") within the meaning of Section 1262(6) of the Public Utility Holding Company Act of 2005 ("PUHCA"); (ii) is authorized by FERC pursuant to Section 205 of the FPA to sell electric power, including energy and capacity, at market-based rates; and (iii) is authorized by FERC to issue securities and assume obligations or liabilities pursuant to Section 204 of the FPA.
(w) FERC Proceedin~s. There are no pending FERC proceedings in which the EWG status, market-based rate authority or the FPA Section 204 authority of a Project Company is subject to withdrawal, revocation or material modification other than FERC rulemakings of general applicability, including, but not limited to, Market-Based Rates for Wholesale Sales of Energy, Capacity and Ancillary Services by Public Utilities in Docket No. RIvI04-7-000.
(x) Re~ u latorv Approvals. Except for any FERC approvals required in connection with the Lenders' exercise of remedies under the Loan Documents, no approvals or authorizations from FERC are required to be obtained by any Project Company, the Loan Parties, the Second Lien Collateral Agent or the Lenders with respect to the Transaction.
(y) Existing Re~ u 1~rv Orders. The Borrower and each Project Company is in full compliance in all material respects with the terms and conditions of all orders issued by FERC under Section 203 of the FPA and obtained by the Borrower or any Project Company.
(z) PUHCA. The Borrower is a"holding company" within the meaning of Section 1262(8) of PUHCA solely with respect to its ownership of one or more EWGs, and is not subject to or is otherwise exempt from regulation under PUHCA except for regulation under Section 1265 of PUHCA.
60 Boston Generating, LLC Sewnd Lien Credit Agreement NYl :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 368 of 510
(aa) Material Adverse Effect. Except as disclosed in writing to the Lenders, since the Effective Date, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(bb) Violation of Law. No Loan Party is in violation of any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award binding on it, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. Until a Repayment Event has occurred, the Borrower and each Guarantor will:
(a) Compliance with Laws, Etc. Comply with all applicable laws, rules, regulations and orders binding on it, such compliance to include, without limitation, compliance with ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, other than any such non- compliance which could not reasonably be expected to have a Material Adverse Effect.
(b) Pavment of Taxes, Etc. Pay and discharge before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property (unless, in the case of (i) and (ii), the failure to do so could not reasonably be expected to have a Material Adverse Effect); provided, however, that no Loan Party shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and only to the extent that adequate reserves are being maintained.
(c) Compliance with Environmental Laws. Comply and, if applicable, take commercially reasonable efforts to cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties (except where such failure to obtain or renew could not reasonably be expected to have a Material Adverse Effect); and conduct any investigation, study, sampling and testing, cleanup, removal, remedial or other action in response to any release, discharge or disposal of any Hazardous 1Vlaterials from or at any of its properties, to the extent required by, and in compliance with, all Environmental Laws (other than any such failure to investigate study, sample, test, cleanup, remove, remediate or take such other action as could not reasonably be expected to have a Material Adverse Effect); provided, however, that no Loan Party shall be required to undertake any such cleanup, removal, rernedial or other action to the extent that its
61 Boston Ge~erating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 369 of 510
obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained in accordance with GAAP.
(d) Maintenance of Insurance. Maintain insurance in accordance with Schedule 5.0 ] (d).
(e) Preservation of Existence. Etc. Preserve and maintain its existence as a limited liability company or corporation, as applicable, and its good standing in the State of Delaware; provided, however, that any Loan Pariy may consummate any merger or consolidation permitted under Section SA2(d).
( fl V isitation Ri~hts. Upon reasonable notice, at any reasonable time and from time to time, permit any of the Agents or any of the Lenders, or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, any Loan Party, and to discuss the affairs, finances and accounts of any Loan Party with any of their officers or directors and with their independent certified public accountants; provided that (i) so long as no Default shall have occurred and be continuing or (ii) the Borrower shall have consented thereto, neither the Agents nor the Lenders shall be entitled to more than one (1) visit to any single Project in any Fiscal Year.
(g) Keepin~ of Books. Keep proper books of record and account in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain, preserve and protect (or cause to be maintained, preserved or protected) all of its properties and equipment necessary in the conduct of the business of the Projects in good working order and condition, ordinary wear and tear excepted, and in accordance with Prudent Industry Practices.
(i) [Reserved].
(j) Covenant to Give Securit y. Upon the acquisition or lease of any property by any Loan Party with a fair market value in excess of $25,000,000, and such property, in the reasonable judgment of the Administrative Agent or the Second Lien Collateral Agent, shall not already be subject to a perfected second priority security interest in favor of the Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties, then in each case at the Borrower's expense:
(i) no later than ten (10) Business Days after such acquisition, furnish to the Administrative Agent and the Second Lien Collateral Agent a description of the real and personal properties so acquired, in each case in detail reasonably satisfactory to the Administrative Agent; and
(ii) promptly, but in any event within ninety (90) days after such acquisition, take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, title insurance, surveys, certificates of
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occupancy, estoppel and consent agreements of lessors, documents, instruments, agreements, opinions and certificates with respect to such Property as the Administrative Agent shall reasonably request to create (and provide evidence thereofl a valid and perfected second priority Lien on such Property in favor of the Second Lien Collateral Agent (for the benefit of the Second Lien Secured Parties), subject to Permitted Liens.
(k) Further Assurances. (i) Upon the formation of any Subsidiary permitted pursuant to Section 5.02(k) or (ii) promptly upon reasonable reyuest by any Agent, or any Lender through the Administrative Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, conveyances, pledge agreements, mortgages, estoppel and consent agreements of lessors, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments as any Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party's or any such Subsidiary's properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Second Lien Collateral Documents, (iii) cause each such Subsidiary to become a Guarantor hereunder by executing a Joinder Agreement and to pledge all of its assets under the Second Lien Security Agreement or a security agreement substantialty similar thereto to the Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties (together with any opinions of counsel reasonably requested by any Agent) and (iv) perfect and maintain the validity, effectiveness and priority of any of the Second Lien Collateral Documents and any of the Liens intended to be created thereunder.
(1) Accounts. (i) Establish (unless already established) and maintain at all times in accordance with the Security Deposit Agreement, the Accounts, (ii) cause all Revenues (as defined in the Security Deposit Agreement) and other amounts payable to it (except for interest earned on deposits in the Local Accounts, if any, which shall be credited to such Local Account) to be deposited into, or credited to, the Accounts, in accordance with the terms of the Security Deposit Agreement and (iii) cause all funds (to the extent permitted by the Security Deposit Account) deposited in the Accounts to be appiied and disbursed in accordance with the terms of the Security Deposit Agreement.
(m) Reserved].
(n) Maintenance of Credit Ratin~s. Use all commercially reasonable efforts to maintain ratings on the Facility from each of Moody's and S&P for so long as such rating agency is in the business of rating loans and securities of a type similar to the Facility (it being acknowledged and agreed that the Barrower shall not be required to maintain any minimum credit rating).
(o) Consents. The Borrower will use commercially reasonable efforts to promptly obtain the consents referred to in Section 5.03(fl~ii)SB). 63 Boston Genereting, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 371 of 510
(p) Separateness. Comply with the following:
(i) Each of the Borrower and its Subsidiaries will act solely in its name and through its duly authorized officers, managers, representatives or agents in the conduct of its businesses;
(ii) Each ofthe Borrower and its Subsidiaries will conduct in all material respects its business solely in its own name, in a manner not misleading to other Persons as to its identity (without limiting the generality of the foregoing, all oral and written communications (if any), including invoices, purchase orders, and contracts);
(iii) Each ofthe Borrower and its Subsidiaries will obtain proper authorization from member(s), shareholder(s), director(s) and manager(s), as required by its limited liability company agreement or bylaws for all of its limited liability company or corporate actions; and
(iv) Each of the Borrower and its Subsidiaries will comply in all material respects with the terms of its certificate of incorporation or formation and by-laws or limited liability company agreement (or similar constituent documents).
(q) Maintenance of Re~ u latorv Status. The Project Companies shall maintain EWG status, market-based rate authority under FPA Section 205, FPA Section 204 blanket authorization and compliance with previously issued FPA Section 203 orders applicable to the Borrower or Project Company, except in the event that such authorizations become no longer available, or to the extent such authorizations are limited or restored as a result of FERC's rulemakings of general applicability including but not limited to, Market-Based Rates for Wholesale Sales of Energy, Capacity and Ancillary Services by Public Utilities in Docket No. RM04-7-000.
(r) Certain Collateral Matters. Use commercially reasonable efforts to obtain consents necessary for the granting of any Lien on Property constituting Excluded Property pursuant to clause (a) of the definition thereof.
(s) Commoditv Hed~ing. Enter into prior to the date that is twelve (12) months following the Effective Date, and maintain at all times for the term referred to below, Eligible Permitted Commodity Hedge and Power Sale Agreements covering capacity payments and/or premiums to be received by the Borrower for an additiona1600 to 800 megawatts of capacity for a term of three (3) to five (5) years in the form of a heat rate tolling option or of a similar product or set of products and otherwise reasonably acceptable to the Adrninistrative Agent; provided that any Eligible Permitted Commodity Hedge and Power Sale Agreement that is in form and substance substantially similar to the Initial Commodity Hedge and Power Sale Agreement (with such modifications thereto as are necessary or desirable to reflect the modified term and modified capacity requirements stated herein) shall be acceptable for purposes hereof.
64 Hoston Generating, LLC Second Lien Credit Agreement NYI :#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 372 of 510
SECTION 5.02. Ne~~ative Covenants. Until a Repayment Event has occurred, neither the Borrower nor any Guarantor will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist any Lien on or with respect to any of its properties of any character (including, without limitation, accounts) whether now owned or hereafter acquired or assign any accounts or other right to receive income, except:
(i) Liens created under the First Lien Collateral Documents; provided that (i) such Liens only secure (A) Debt permitted under Section 5.02(b)(ii), (B) obligations under Eligible Permitted Commodity Hedge and Power Sale Agreements (including, without limitation, the Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section SAl(sl) and (C) obligations under Secured Hedge Agreements, (ii) such Liens are subject to the terms of the Intercreditor Agreement and (iii) any Commodity Hedge Counterparty party to any such Eligible Permitted Commodity Hedge and Power Sale Agreement ar any Hedge Bank party to any such Secured Hedge Agreement shall have become a party to the Intercreditor Agreement as, and shall have the obligations of, a First Lien Secured Party thereunder;
(ii) Liens created under the Second Lien Collateral Documents; provided that (i) such Liens only secure Debt permitted under Section 5.02(b)(i), (ii) such Liens are subject to the terms of the Intercreditor Agreement and (iii) any lender (or any agent or trustee thereo fl with respect to such Debt shall have become a party to the Intercreditor Agreement as, and shall have the obligations of a Second Lien Secured Party thereunder;
(iii) Permitted Liens;
(iv) Liens existing on the date hereof and described on Schedule 5.02(a) hereto;
(v) purchase money Liens upon or in real property or equipment acquired or held by the Borrower or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing or refinancing the acquisition of any such property or equipment to be subject to such Liens, or Liens existing on any such property or equipment at the time of acquisition (other than any such Liens created in contemplation of such acquisition that do not secure the purchase price), ar extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, that no such Lien shall extend to or cover any property other than the property ar equipment being acquired, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced; and provided further that the aggregate principal amount of the Debt
65 Boston Generating, LI.0 Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 373 of 510
secured by Liens permitted by this clause v shall not exceed the amount permitted under Section 5.02(bZ iv) at any time outstanding;
(vi) Liens arising by virtue of any statutory or common law provision relating to banker's liens, rights of set-off or similar rights;
(vii) Liens arising from precautionary Uniform Commercial Code financing statements regarding and any interest or title of a licensor, lessor or sublessor under, any operating lease;
(viii) pledges or deposits of Cash or Cash ~quivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the ordinary course of business;
(ix) Liens arising under Capitalized Leases permitted under Section 5.02(bl(viii); provided that no such Lien shall extend to or cover any Collateral or assets other than the property subject to such Capitalized Leases;
(x) Liens securing Debt permitted under Section 5.02(b)(iii); and
(xi) any other Liens securing Debt in aggregate amount not to exceed at any time $7,500,000.
(b) Debt. Create, incur, assume or suffer to exist any Debt, except:
(i) Debt under the Loan Documents;
(ii) Debt under the First Lien Loan Documents in an aggregate principal amount not to exceed $1,500,000,000;
(iii) Debt incurred solely to finance Permitted Developments not to exceed in the aggregate, when taken together with any equity proceeds referred to in Section 5.02(fl(viii)(A), $140,000,000;
(iv) Debt secured by Liens permitted by Section 5.02(a)(v) not to exceed in the aggregate $30,000,000 at any time outstanding;
(v) to the extent constituting Debt, (A) payment obligations under Secured Hedge Agreements and (B) obligations under the Borrower's fuel oil inventory financing program relating to (x) Mystic I not to exceed in the aggregate at any time 750,000 bbls and (y) Fore River not to exceed in the aggregate at any time 700,000 bbls;
(vi) to the extent permitted under Section 5.02(1) and constituting Debt, obligations under any (A) Permitted Commodity Hedge and Power Sale
66 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 374 of 510
Agreements and (B) other Commodity Hedge and Power Sale Agreements with net exposure thereunder not to exceed in the aggregate at any time $110,000,000;
(vii) Debt owed to any Loan Party, which Debt shall (x) constitute Pledged Debt, (y) be subordinated pursuant to the Terms of Subordination and (z) be otherwise permitted under Section 5.02(fl;
(viii) Capitalized Leases not to exceed in the aggregate $25,000,000 for Fore River, $45,000,000 for Mystic Development and $20,000,000 for Mystic I, in each case, at any time outstanding;
(ix) to the extent constituting Debt, Debt in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or pay obligations and similar obligations incurred in the ordinary course of business and not in connection with Debt for Borrowed Money;
(x) other unsecured Debt of the Loan Parties issued in settlement of delinquent obligation of the Loan Parties or disputes between the Loan Parties and other Persons under Contractual Obligations of the Loan Parties (other than in respect of Debt);
(xi) Guaranteed Debt of any Loan Party in respect of any Debt otherwise permitted to be incurred under this Section 5.02(b);
(xii) endorsements of negotiable instruments for collection;
(xiii) (without duplication) Surviving Debt; and
(xiv) other unsecured Debt of the Loan Parties in an aggregate amount not to exceed $55,000,000 at any time outstanding.
(c) Chan~e in Nature of Business. 1Vlake any material change in the nature of its business as carried on at the date hereof and activities reasonably incidental thereto or in connection with any Permitted Development.
(d) Mer~ers, Etc. Merge into or consolidate with any Person or permit any Person to merge into it; provided that any Subsidiary of the Borrower may merge into or consolidate with any other Subsidiary of the Borrower; provided that, in the case of any such merger or consolidation, the Person formed by such merger or consolidation shall be a wholly owned Subsidiary of the Borrower; provided that the Person formed by such merger or consolidation obtain prior approval under Section 204 of the FPA to the extent required; and provided further that, in the case of any such merger or consolidation to which a Guarantor is a party, the Person formed by such merger or consolidation shall be a Guarantor.
67 Boston Generating, LLC Second Lien Credit Agreement NY1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 375 of 510
(e) Sales of Assets, Etc. Sell, lease, transfer or otherwise dispose of any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(i) sales of (or the granting of any option or other right to purchase, lease or otherwise acquire) power, natural gas, fuel, capacity, gas or fuel transportation, power transportation or ancillary services or other inventory in the ordinary course of such Person's business including, without limitation, Permitted Trading Activities;
(ii) sales, transfers or other dispositions in the ordinary course of its business of Property that is surplus (including, without limitation, surplus land and emission credits not required for the continued operation of any Project in any given year), obsolete, defective, worn-out, damaged, rendered unfit for normal use or property that is being exchanged for similar property, or that individually or in the aggregate is not essential for the continued operation of any Project;
(iii) the liquidation, sale or use of Cash and Cash Equivalents;
(iv) sales, transfers or other dispositions of assets among Loan Parties;
(v) sales or discounts without recourse of accounts receivable arising in the ordinary course of such Person's business in connection with the compromise or collection thereof;
(vi) dispositions required or contemplated by the Contractual Obligations in existence as of the date hereof with or relating to Governmental Authorities and relating to the Guarantors; and
(vii) sales of Property by the Borrower or any Guarantor so long as (A) the purchase price paid to the Borrower or such Guarantor for such Property shall be no less than the fair market value of such Property at fhe time of such sale, (B) at least 75% of the consideration to be received is paid in cash or Cash Equivalents and such remaining 25% is not a debt instrument of the Borrower or any of its Affiliates (provided that for purposes of this subclause (B), (I) any amounts deposited into an escrow or other type of holdback account and any consideration in the form of readily marketable securities shall be deemed to be cash, (II) customary purchase price adjustments may be settled on a non-cash basis and (III) the assumption of Debt relating to the asset being disposed shall be disregarded for the purposes of this provision) and (C) the aggregate purchase price paid to the Borrower and all of the Guarantors for such Property and all other Property sold by the Borrower and the Guarantors (1) during the same Fiscal Year pursuant to this clause (vii) shall not exceed $30,000,000 and (2) since the Effective Date shall not exceed $140,000,000.
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Events of Eminent Domain or Casualty Events (as such terms are defined in the Security Deposit Agreement) do not qualify as sales, leases, transfers or other dispositions of Property for purposes of this Section 5.02(e).
(~ Investments in Other Persons. Make or hold any Investment in any Person, except:
(i) Investments by and among Loan Parties in other Loan Parties;
(ii) Investments by the Loan Parties in Cash Equivalents;
(iii) to the extent constituting Investments, Investments in contracts and agreements (including, without limitation, (A) Permitted Commodity Hedge and Power Sale Agreements, (B) interest rate Hedge Agreements and (C) other Commodity Hedge and Power Sale Agreements with net exposure thereunder not to exceed in the aggregate $110,000,000 at any time, when taken together with any net exposure referred to in Section 5.02(b)(vi)(B)1, including prepaid deposits and expenses thereunder, to the extent permitted under the Loan Documents;
(iv) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business;
(v) Investments in the Accounts and the Local Accounts and Investments of the funds on deposit therein, in each case, as otherwise permitted under the Loan Documents;
(vi) loans and advances to officers, directors and employees of any Loan Party for reasonable and customary business related travel expenses, moving expenses and similar expenses incurred in the ordinary course of business of such Loan Party in an aggregate principal amount at any time outstanding not exceeding $1,000,000;
(vii) to the extent constituting lnvestments, Debt which is permitted under Section 5.02(b);
(viii) Investments by the Borrower or any Guarantor in Permitted Developments made solely with the proceeds (not to exceed, in the aggregate, $140,000,000) of (A) of capital contributions (or sales of equity securities of EBG Holdings) received directly or indirectly from EBG Holdings and (B) any Debt permitted to be incurred pursuant to Sections 5.02(bl(ix); and
(ix) Investments in Permitted Developments by the Borrower or any Guarantor after the Effective Date in an aggregate amount not to exceed $10,000,000; and
69 Boston Generating LLC Second Lien Credit Agreement NY 1: #3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 377 of 510
(x) any other Investments in an aggregate amount not to exceed $7,500,000 at any time.
(g) Restricted Pavments. Declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent Persons thereo fl as such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or the equivalent Persons thereo fl as such, or permit any of its Subsidiaries to do any of the foregoing, or permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any Equity Interests in the Borrower, except that any Subsidiary of the Borrower may (A) declare and pay cash dividends to the Borrower or to any Loan Party of which it is a Subsidiary and (B) accept capital contributions from its parent to the extent permitted under Section 5.02(fl; provided that the Borrower shall be able to pay EBG Holdings Tax Liabilities, EBG Holdings O&M Costs, the Distribution and the Tender Offer, in each case, in accordance with the Closing Date Flow of Funds Memo or the Security Deposit Agreement.
(h) Amendments of Constitutive Documents. Amend its limited liability company agreement, bylaws or other constitutive documents other than amendments that could not be reasonably expected to have a Material Adverse Effect.
(i) Accountin~~. Make or permit, or permit any of its Subsidiaries to make or permit, any change in (i) accounting policies or reporting practices, except as permitted by GAAP, or (ii) Fiscal Year.
(j) Prepavments, Etc. of Debt. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt other than the intercompany Debt among the Loan Parties that is expressly subordinated to the Obligations hereunder, or that is secured and the Liens securing such Debt rank behind the Liens created by the Second Lien Collateral Documents, or permit any of its Subsidiaries to do any of the foregoing, in each case, except to the extent permitted by the Loan Documents.
(k) Partnerships; Formation of Subsidiaries, Etc. (i) Become a general partner in any general or limited partnership or joint venture, or permit any of its Subsidiaries to do so or (ii) organize any new Subsidiary (other than (x) a Permitted Development Subsidiary organized in connection with a Permitted Development or (y) a Subsidiary formed for the purpose of conducting Permitted Trading Activities, in each case, in compliance with Section 5.01(k)).
(1) ~eculative Transactions and Permitted Commodit~d~e and Power Sale A~reements. Engage, or permit any of its Subsidiaries to engage, in any Commodity Hedge and Power Sale Agreements or any similar transactions entered into solely for speculative purposes (it being acknowledged and agreed that the ]nitial Commodity Hedge and Power Sale Agreements, the Eligible Permitted Commodity Hedge and Power 70 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 378 of 510
Sale Agreements required pursuant to Section 5.O I(s) and any other Eligible Permitted Commodity Hedge and Power Sale Agreements or any other Permitted Trading Activity (other than an Excess Duration Transaction) shall be deemed to be in compliance with this Section 5.02(I)).
For purposes of this Section 5.02(1), "Excess Duration Transaction" means any Commodity Hedge and Power Sale Agreements or any similar transactions (A) that, when taken together on a net basis with all other such agreements outstanding (other than the RMR Agreement) for any period, would cause the aggregate amount of contracted capacity to be provided (whether financially or physically) by the Loan Parties pursuant to such agreements for such period to exceed an amount equal to the projected available capacity of all of the Projects for such period; provided that, if the Permitted Development is not subject to the independent system operator to which the other Projects are subject, the projected available capacity related to the Permitted Development shall not be taken together with the projected available capacity of the other Projects but shall be treated as separate contracted capacity or (B) other than any Eligible Permitted Commodity Hedge and Power Sale Agreements, have a stated maturity in excess of fourteen (14) months from the date such agreement is entered into.
(m) Capital Expenditures. Make any Capital Expenditures that would cause the aggregate of all such Capital Expenditures made by the Loan Parties to exceed, in any Fiscal Year, the Adjusted Capex Limit. During any Fiscal Year, Capital Expenditures shall be deemed to be made first from Carryover Amounts for such Fiscal Year, second from the Base Capex Allowance for such Fiscal Year and third from any Pullback Amount for such Fiscal Year.
(n) Amendment, Etc. of Material Contracts. Cancel or terminate any Material Contract or consent to or accept any cancellation or termination thereof, amend or otherwise modify any Material Contract or give any consent, waiver or approval thereunder, waive any default under or breach of any Material Contract, or agree in any manner to any other amendment, modification or change of any term or condition of any Material Contract, except as could not reasonably be expected to have a Material Adverse Effect ; provided that no such cancellation, termination, amendment, modification, change, agreement, waiver, approval or consent shall be a Default hereunder if such Loan Party enters into a Replacement Material Contract within sixty (60) days thereafter; provided further that, if a Responsible Officer of the Borrower certifies to the satisfaction of the Administrative Agent that the Borrower or any Loan Party is diligently pursuing such Replacement Material Contract and that such Replacement Material Contract is reasonably likely to be entered into within the next sixty (60) days, then such 60-day period shall be extended for an additional sixty (60) days; provided further that notwithstanding the foregoing, the Borrower and Mystic Development shall be permitted to terminate and release the Distrigas Guaranty and/or the Cabot Guaranty in connection with the settlement of the Distrigas Litigation.
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(o) (ii) Regulatorv Matters. Make ar permit to be made any change in the upstream ownership of a Guarantor without first obtaining any necessary authorization under Section 203 of the FPA.
(p) Transactions with Affiliates. Enter into or cause or permit to exist any arrangement, transaction or contract (including for the purchase, lease or exchange of property or the rendering of services) with any of its other Affiliates, unless such arrangement, transaction or contract is:
(i) (A) on fair and reasonable terms no less favorable to such Loan Parly than it could obtain in an arm's-length transaction with a Person that is not an Affiliate and (B) of the kind which would be entered into by a prudent Person in the position of such Loan Party with a Person that is not one of its Affiliates;
(ii) an arrangement, transaction or contract expressly permitted by the terms of this Agreement;
(iii) the payment of fees and indemnities to directors, officers, consultants and employees of the Loan Parties in the ordinary course of business;
(iv) pursuant to the Management and Operation Agreements, including the payment of fees, costs and expenses as required thereunder (as of the date hereo fl;
(v) (A) any employment or severance agreements or arrangements entered into by the Loan Parties in the ordinary course of business, or (B) any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract or arrangement and transactions pursuant thereto; or
(vi) the payment of fees, expenses, bonuses and awards related to the Transactions contemplated by the Transaction Documents and Loan Documents to the extent, in the case of the Transaction Documents, written notice thereof has been provided to the Administrative Agent prior to the Effective Date.
(q) Maintenance of Accounts. Establish or maintain any account other than (i) the Accounts established and maintained pursuant to the Security Deposit Agreement, (ii) the Local Accounts and (iii) other accounts in existence on the Effective Date (provided that the Borrower causes each such account to be closed and the funds on deposit therein, or credited thereto, at the time of such closure to be transferred to the Revenue Account within sixty (60) days after the Effective Date).
SECTION 5.03. Reporting Requirements. Until a Repayment Event has occurred, the Borrower will furnish to the Agents (who will then circulate to the Lenders):
72 Roston Generating, LLC Second Lien Credit Agreement N Y 1: #3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 380 of 510
(a) Default Notice. As soon as possible and in any event within five (5) days after the Borrower obtains knowledge thereof, the occurrence of each Default or any event, development or occurrence reasonably likely to have a Material Adverse Effect continuing on the date of such statement, a statement of a Responsible Officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within 120 days after the end of each Fiscal Year (but, in the case of the 2006 Fiscal Year, 150 days after the end of such Fiscal Year), a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by (i) an opinion as to such audit report of KPMG LLP or other independent public accountants of recognized standing acceptable to the Administrative Agent and (ii) a certificate of the senior financial officer of the Borrower (A) certifying such financial statements as having been prepared in accordance with GAAP, (B) stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (C) attaching a schedule in form reasonably satisfactory to the Administrative Agent of the computations used by the Borrower in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04; provided that, in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide a reconciliation of such financial statements to GAAP.
(c) (~uarterly Financials. As soon as available and in any event within sixty (60) days after the end of each of the first three (3) quarters of each Fiscal Year, a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Quarter and ending with the end of such Fiscal Quarter and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly certified (subject to normal year-end audit adjustments) by the senior financial officer of the Borrower as having been prepared in accordance with GAAP, together with (i) a certificate of said officer stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by the Borrower in determining compliance with the covenants contained in Section 5.04; provided that, in the event of any change in
73 IIoston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 381 of 510
generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide a reconciliation of such financial statements to GAAP.
(d) Annual Bud~et. As soon as available and in any event no later than fifteen (15) days before the start of each Fiscal Year, an annual budget, prepared on a quarterly basis for such Fiscal Year in substantially the form attached hereto as Exhibit I or in a form otherwise acceptable to the Administrative Agent (with respect to each such Fiscal Year, the "BudgeP'), which Budget shall be certified by the senior financial officer of the Borrower as having been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made. The Barrower and the Guarantors shall use their best efforts to comply in all material respects with each applicable Budget, subject to market conditions.
(e) Liti~ a tion. Promptly after the commencement thereof, notice of all actions, suits, litigation and proceedings before any Governmental Authority of the type described in Section 4.01(~).
(~ A~reement Notices; Etc. (i) Promptly upon execution thereof, copies of any Material Contract entered into by any Loan Party after the date hereof;
(ii) (A) Promptly (but in any event within 10 days) following any Loan Party's entering into of any Material Contract after the date hereof, a Consent and Agreement in respect of such Material Contract and (B) promptly following receipt by the Borrower after the Effective Date, a Consent and Agreement with respect of each Material Contract as of the Effective Date for which a Consent and Agreement was not delivered pursuant to Section 3.01(a)(ii)(E); and
(iii) Promptly upon execution thereof, copies of any amendment, modification or waiver of any material provision of any First Lien Loan Document or any Material Contracts.
(g) ERISA.
(i) ERISA Events and ERISA Reports. (A) Promptly and in any event within ten (10) Business Days after any Loan Party or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred that could reasonably be expected to result in liability in excess of $10,000,000, a statement of a Responsible Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information within 10 Business Days.
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(ii) Plan Terminations. Promptly and in any event within ten Business Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan.
(iii) Multiemplover Plan Notices. Promptly and in any event within ten Business Days after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal Liability that could reasonably be expected to result in liability in excess of $10,000,000 by any such Multiemployer Plan, (B) the reorganization or termination, within the meaning of Title IV of ERISA, of any such Multiemployer Plan that could reasonably be expected to result in liability in excess of $10,000,000 or (C) the amount of liability incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause A or ~.
(h) Environmental Conditions. Promptly after the assertion or occurrence thereof, notice of any Environmental Action against or of any noncompliance known to the Borrower by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Second Lien Mortgages to be subject to any material restrictions on ownership or transferability, or subject to any material Lien, under any Environmental Law.
(i) Real PropertX. As soon as available and in any event within thirty (30) days after the end of each Fiscal Year, a report supplementing Schedules 4.01(r) and 4.01(s1 hereto, including an identification of all material owned and leased real property disposed of by the Borrower or any of its Subsidiaries during such Fiscal Year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, and, in the case of leases of property, lessor and lessee thereo fl of all material real property acquired or leased during such Fiscal Year and a description of such other changes in the information included in such Schedules as may be reasonably necessary for such Schedules to be accurate and complete.
(j) Insurance. Promptly after the Borrower gains knowledge of the occurrence thereof, a report summarizing any changes in the insurance coverage of the Borrower and its Subsidiaries resulting from a change in the insurance markets of the type described in Section 2 of Schedule 5.01(d).
(i) Promptly after the occurrence thereof, notice of any Casualty Event or Event of Eminent Domain affecting any Loan Party, whether or not insured, through fire, theft, other hazard, casualty involving a probable loss of $10,000,000 or more.
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(ii) Promptly after receipt thereof, copies of any cancellation or receipt of written notice of threatened cancellation of any properly damage insurance required to be maintained under Section 5.01(d).
(k) Other Information. Such other information respecting the business, condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party or any of its Subsidiaries as any Agent, or any Lender through the Administrative Agent, may from time to time reasonably request.
SECTION 5.04. Financial Covenants. Until a Repayment Event has occurred, the Borrower will:
(a) Levera e~tio. The Borrower shall not permit the Leverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31 2007, to exceed the correlative ratio indicated:
Levera e Ratio Fiscal Quarter Ratio uarter 1 2007 ...... 12.Ox Quarter 2 2007 ...... 12.Ox Quarter 3 2007 ...... 12.Ox uarter 4 2007 ...... 12.Ox Quarter 1 2008 ...... 12.Ox uarter 2 2008 ...... 12.Ox uarter 3 2008 ...... 12.Ox Quarter 4 2008 ...... 12.Ox Quarter 1 2009 ...... 11.Ox uarter 2 2009 ...... 11.Ox uarter 3 2009 ...... 1 l.Ox Quarter 4 2009 ...... 11.Ox uarter 1 2010 ...... lO.Ox Quarter 2 2010 ...... l O.Ox Quarter 3 2010 ...... lO.Ox Quarter 4 2010 ...... lO.Ox Quarter 1 2011 ...... 9.Ox
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Levera e Ratio Fiscal uarter Ratio Quarter 2 2011 ...... 9.Ox Quarter 3 2011 ...... 9.Ox Quarter 4 2011 ...... 9.Ox uarter 1 2012 ...... 8.Ox Quarter 2 2012 ...... 8.Ox uarter 3 2012 ...... 8.Ox Quarter 4 2012 ...... 8.Ox Quarter 1 2013 ...... 7.Ox Quarter 2 2013 ...... 7.Ox Quarter 3 2013 ...... 7.Ox Quarter 4 2013 ...... 7.Ox
(b) Interest Covera~e Ratio. The Borrower shall not permit the Interest Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31, 2007, to be less than the correlative ratio indicated:
Interest Covera e Ratio Fiscal uarter Ratio
Quarter1 2007 ...... 1.00x Quarter 2 2007 ...... I.00x Quarter 3 2007 ...... 1.00x Quarter 4 2007 ...... 1.00x Quarter 1 2008 ...... 1.00x uarter 2 2008 ...... 1.00x Quarter 3 2008 ...... 1.OSx Quarter 4 2008 ...... 1.OSx Quarter 1 2009 ...... l.OSx Quarter 2 2009 ...... 1.OSx Quarter 3 2009 ...... l.OSx
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Interest Covera e Ratio Fiscal uarter Ratio Quarter 4 2009 ...... 1.OSx Quarter 1 2010 ...... 1.lOx Quarter 2 2010 ...... 1. l Ox Quarter 3 2010 ...... l.l Ox Quarter 4 2010 ...... 1. l Ox uarter1 2011 ...... 1.25x uarter 2 2011 ...... 1.25x Quarter 3 2011 ...... 1.25x uarter 4 2011 ...... 1.25x uarter 1 2012 ...... 1.SOx uarter 2 2012 ...... 1.50x uarter 3 2012 ...... 1.SOx uarter 4 2012 ...... 1.SOx uarter 1 2013 ...... 1.75x uarter 2 2013 ...... 1.75x uarter 3 2013 ...... 1.75x Quarter 4 2013 ...... 1.75x
(c) Ri~ht to Cure Financial Covenants. (i) Notwithstanding anything to the contrary contained in Section 5.04(a) or ~, if the Loan Parties fail to comply with the requirements of either covenant set forth in Section 5.04(a) or ~(the "Financial Covenants"), then until the 10`~' calendar day after delivery of the related certificate pursuant to Section 5.03(b) or ~, the Borrower shall have the right to receive cash contributions from EBG Holdings in an aggregate amount equal to or greater than the amount that, if added to Consolidated Adjusted EBITDA for the relevant Fiscal Quarter, would have been sufficient to cause compliance with the Financial Covenants for such Fiscal Quarter (an `Bquity Cure").
(ii) The Borrower shall give the Administrative Agent written notice (the "Cure Notice") of an Equity Cure on or before the day the Equity Cure is consummated. The Borrower shall not be entitled to exercise the Equity Cure any more than one (1) time in any consecutive four (4) Fiscal Quarters.
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(iii) Upon the delivery by the Borrower of a Cure Notice, no Event of Default or Default shall be deemed to exist pursuant to the Financial Covenants (and any such Default or Event of Default shall be retroactively considered not to have existed or occurred). If the Equity Cure is not consummated within ten (10) days after delivery of the related certificate pursuant to Section 5.03(b) or ~, each such Default or Event of Default shall be deemed reinstated.
(iv) The cash amount received by the Borrower pursuant to exercise of the Equity Cure shall be added to Consolidated Adjusted EBITDA for the immediately preceding Fiscal Quarter solely for purposes of recalculating compliance with the Financial Covenants for such Fiscal Quarter and of calculating the Financial Covenants for the periods that include such Fiscal Quarter.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of Default") shall occur and be continuing:
(a) Pavment Defaults. (i) the Borrower shall fail to pay any principal of any Loan when the same shall become due and payable, (ii) the Borrower shall fail to pay any interest on any Loan within three (3) Business Days after the same shall become due and payable, or (iii) any Loan Party shall fail to make any other payment under any Loan Document, in each case under this clause a within ten (10) Business Days after the same shall become due and payable;
(b) Misrepresentation. any representation or warranty made by any Loan Party (or any of its officers) under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; provided, however, that if (i) such Loan Party was not aware that such representation or warranty was false or incorrect at the time such representation or warranty was made, (ii) the fact, event or circumstance resulting in such false or incorrect representation or warranty is capable of being cured, corrected or otherwise remedied and (iii) such fact, event or circumstance resulting in such false or incorrect representation or warranty shall have been cured, corrected or otherwise remedied, within thirty (30) days from the date on which the Borrower or any officer thereof first obtains knowledge thereof such that such incorrect or false representation or warranty (as cured, corrected or remedied) could not reasonably be expected to result in a Material Adverse Effect, then such incorrect or false representation or warranty shall not constitute a Default or Event of Default;
(c) Certain Covenants. the Borrower shall fail to perform or observe any term, covenant or agreement contained in (i) Section 2.14, 5.01(e) and ~1 ,~, 5.02 (other than clause 1 and ~ thereo fl, 5.03 a or 5.04 or (ii) Sections 5 A 1(d), ~, ~ and ~ and 5.02(1) and ~ and such default under this subclause (ii) shall continue 79 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 387 of 510
unremedied for a period of ten (10) days after the earlier of the date on which (x) any Responsible Officer of a Loan Party becomes aware of such failure or (y) written notice thereof shall have been given to the Borrower by any Agent or any Lender;
(d) Other Covenants. any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for thirty (30) days after the earlier of the date on which (i) any Responsible Officer of a Loan Party becomes aware of such failure ar(ii) written notice thereof shall have been given to the Borrower by any Agent or any Lender; provided, however, that (A) if such failure is not susceptible of being remedied solely by the payment of money to any Person that is due after giving effect to any grace provisions, dispute resolution provisions or similar provisions and is not susceptible of cure within 30 days, (B) such Loan Party is proceeding with diligence and in good faith to cure such default and such default is susceptible to cure and (C) the existence of such failure could not reasonably be expected to have a Material Adverse Effect, such 30-day period shall be extended as may be necessary to cure such failure, such extended period not to exceed ninety (90) days in the aggregate (inclusive of the origina130-day period);
(e) Cross Default. any Loan Party or any of its Subsidiaries shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Debt of such Loan Party or such Subsidiary (as the case may be) that is outstanding in a principal amount of at least $30,000,000 either individually or in the aggregate for all such Loan Parties and Subsidiaries (but excluding Debt outstanding under this Agreement and obligations under Hedge Agreements, Commodity Hedge and Power Sale Agreements and Debt described in clause b of the definition of "Guaranteed Debt"), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; provided that in the case of any such failure to pay, event or condition described in this subsection (e) in respect of the First Lien Credit Agreement, such failure, event or condition shall only constitute an Event of Default under this Agreement if such failure, event or condition is not cured or waived prior to the date that is forty-five (45) days after the occurrence of such failure, event or condition;
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( fl Hed~e Cross Default. any Loan Party shall default under any one or more Hedge Agreements or Commodity Hedge and Power Sale Agreements on any required payment obligation in excess of $30,000,000 individually or in the aggregate for all Loan Parties, after giving effect to any grace periods, dispute resolution provisions or similar provisions contained in such Hedge Agreement or Commodity Hedge and Power Sale Agreement (it being acknowledged and agreed that any such Default shall be deemed to be cured for all purposes under the Loan Documents if and when such Loan Party pays or causes the payment of such defaulted amount);
(g) Insolvenc E~ve_nt. any Loan Party or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it) that is being diligently contested by it in good faith, eifher such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any Loan Party or any of its Subsidiaries shall take any corporate action to authorize any ofthe actions set forth above in this subsection (~);
(h) Judgments. any final judgments or orders, either individually or in the aggregate, for the payment of money in excess of $30,000,000 shall be rendered against any Loan Party or any of its Subsidiaries by one ar more Governmental Authorities, arbitral tribunals or other bodies having jurisdiction against such Loan Party which remains unsatisfied and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 60 consecutive days during which a stay of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(i) Non-Monetarv Jud m~ents_. any non-monetary judgment or order shall be rendered against any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect, and there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(j) Invaliditv. any provision of any Loan Document after delivery thereof pursuant to Section 3.01 or 5.41 ' shall for any reason (except as a result of acts or omissions of the Second Lien Secured Parties) cease to be valid and binding on or enforceable against any Loan Party to it, or any such Loan Party shall so state in writing;
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(k) Collateral. any Second Lien Collateral Document or financing statement after delivery thereof pursuant to Section 3.01 or 5.01 ' shall for any reason (other than pursuant to the terms thereo fl cease to create a valid and perfected second priority lien on and security interest in any material portion of the Collateral purported to be covered thereby;
(1) Equity of Borrower. the failure of EBG Holdings to hold (directly or indirectly) 100% of the Equity Interests of the Borrower and its Subsidiaries;
(rn) ERISA. (i) any ERISA Event shall have occurred with respect to a Plan and the sum (determined as of the date of occurrence of such ERISA Event) of the Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates related to such ERISA Event) could reasonably be expected to have a Material Adverse Effect;
(ii) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), could reasonably be expected to have a Material Adverse Effect;
(iii) any Loan Party or any ERISA Affiliate shall have been notified by fhe sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such reorganization or terriiination occUrs b~ ~n amount that could reasonably be expected to have a Material Adverse Effect;
(n) Commoditv Hedge and Power Sale A~reements. (i) any Commodity Hedge Counterparty to any Initial Commodity Hedge and Power Sale Agreement or any Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section 5.01(sl shall fail to perform or observe any material term, covenant or agreement contained in such lnitial Commodity Hedge and Power Sale Agreement or any Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section S.OI (s) if after each case, such failure shall remain unremedied for 30 days or (ii) any Initial Commodity Hedge and Power Sale Agreement or any Eligible Permitted Commodity Hedge and Power Sale Agreement required pursuant to Section S.O l(s) shall terminate on or before its scheduled expiration date except upon fulfillment of each party's obligations thereunder, or shall be declared null and void or unenforceable by a Governmental Authority or a party thereto anticipatorily repudiates its obligations 82 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 390 of 510
thereunder, and in each such case of (i) or (ii), the Loan Parties shall not have entered into a Replacement Commodity Hedge and Power Sale Agreement within 60 days of the occurrence of any such event; or
(o) Loss Proceeds. the occurrence of (i) a Casualty Event with respect to (A) all or a material portion of the Property of any Project or (B) all ar a material portion of the Collateral or (ii) an Event of Eminent Domain with respect to (A) all or a material portion of the Property of any Project or (B) all or a material portion of the Collateral, unless in the case of each of clause (i) and (ii) the Borrower shall have received, within 90 days after such occurrence, Insurance Proceeds or Eminent Domain Proceeds or cash equity contributions from EBG Holdings in an amount sufficient to repair or rebuild such Project or Collateral, as the case may be;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Commitments of each Lender and the obligation of each Lender to make Loans to be terminated, whereupon the same shall forthwith terminate and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Loans, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that, in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (x) the Commitments of each Lender and the obligation of each Lender to make Loans shall automatically be terminated and (y) the Loans, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. (a) Each Lender (in its capacity as a Lender) hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Obligations of the Loan Parties), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or applicable law.
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(b) The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes ofholding or enforcing any Lien on the Collateral (or any portion thereofl granted under the Second Lien Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Second Lien Collateral Agent) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects in accordance with the foregoing provisions of this Section 7.01(bl in the absence of the Administrative Agent's gross negligence or willful misconduct.
SECTION 7.02. Administrative A~ent's Reliance, Etc. Neither the Administrative Agent nor any of its directors, officers, agents or ernployees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (a) may consult with legal counsel (including counsel for any Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents; (c) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan Document on the part of any Loan Party or the existence at any time of any Default under the Loan Documents or to inspect the property (including the books and records) of any Loan Party; (d) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (e) shall incur no liability under or in respect of any Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopy or electronic communication) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. lnitial Banks and Affiliates. With respect to its Commitments, the Loans made by it and any Notes issued to it, each Initial Bank shall have the same rights and powers under the Loan Documents as any other Lender and may exercise the same as though each were not an Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include each Initial Bank in their respective individual capacities. Each Initial Bank and their respective affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Loan Party, any of its Subsidiaries and any Person that may do business with or own securities of any Loan Party or any such Subsidiary, all as if such Initial Bank was not an Agent and without any duty to account therefor to the Lenders. No Initial Bank shall have any duty to disclose any information obtained or received by it or any of its Affiliates
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relating to any Loan Party or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as such Initial Bank.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender severally agrees to indemnify each Agent (to the extent not promptly reimbursed by the Borrower) from and against such Lender's ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Agent in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Agent under the Loan Documents (collectively, the "Indemnified Costs"); provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 9.04, to the extent that such Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person.
(b) For purposes of Section 7.05(a), each Lender's ratable share of any amount shall be determined, at any time, according to the aggregate principal amount of the Loans outstanding at such time and owing to such Lender. The failure of any Lender to reimburse any Agent promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Agent for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse such Agent for such other Lender's ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent may resign at any time by giving 30 days' written notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause by the Required Lenders.
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Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent's giving of notice of resignation or the Required Lenders' removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon fhe acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. If within 45 days after written notice is given of the retiring Administrative Agent's resignation or removal under this Section 7.06 no successor Administrative Agent shall have been appointed and shall have accepted such appointment, then on such 45th day (a) the retiring Administrative Agent's resignation or removal shall become effective, (b) the retiring Administrative Agent shall thereupon be discharged from its duties and obligations under the Loan Documents and (c) the Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent as provided above. After any retiring AdministraYive Agent's resignation or removal hereunder shall have become effective, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of each other Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the "Guaranteed Obligations"), and agrees to pay any and all expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the Administrative Agent or any other Lender in enforcing any rights under this Guaranty or any other Loan Document. Without limiting the generality of the foregoing, each Guarantor's liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Lender under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party.
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(b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each other Lender, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other Lenders and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Lender under this Guaranty or any other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Lenders under or in respect of the Loan Documents.
SECTION 8.02. Guaranty Absolute. Each Guarantar guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Lender with respect thereto. The Obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against fhe Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;
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(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other Obligations of any Loan Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of any Loan Party or any of its Subsidiaries;
( fl any failure of any Lender to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to such Lender (each Guarantor waiving any duTy on the part of the Lenders to disclose such information);
(g) the failure of any other Person to execute or deliver this Agreement or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Lender that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Lender or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party or otherwise, all as though such payment had not been made.
SECTION 8.03. Waivers and Acknowled~ments. (a) Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Lender protect, secure, perfect or insure any Lien or any property subject thereto or e~chaust any right or take any action against any Loan Party or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Loan Parties, any
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other guarantor or any other Person or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Second Lien Collateral Agent may, without notice to or demand upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to the recovery by the Second Lien Collateral Agent and the other Second Lien Secured Parties against such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Lender to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party or any of its Subsidiaries now or hereafter known by such Lender.
(fl Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in Section 8.02 and this Section 8.03 are knowingly made in contemplation of such benefits.
SECTION 8.04. Subrog a tion. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, any other Loan Party that arise from the existence, payment, performance or enforcement of such Guarantor's Obligations under or in respect of this Guaranty or any other Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Lender against the Borrower, any other Loan Party or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other Loan Party directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and the Commitments shall have expired or been terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Maturity Date and (c) the latest date of expiration or termination of all Secured Hedge Agreements, such amount shall be received and held in trust for the benefit of the Lenders, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) any Guarantor shall make payment to any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this
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Guaranty shall have been paid in full in cash and (iii) the Maturity Date shall have occurred, the Lenders will, at such Guarantor's request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.
SECTION 8.05. Subordination. Each Loan Party hereby subordinates any and all debts, liabilities and other Obligations owed to such Loan Party by each other Loan Party (the "Subordinated Obligations") to the Second Lien Obligations of such Loan Party to the extent and in the manner provided in the Terms of Subordination.
SECTION 8.06. Continuing Guaranty; Assi n~nts. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until a Repayment Event has occurred, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Lenders and their successors, transferees and assigns. Without limiting the generality of clause c of the immediately preceding sentence, any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to it and any Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise, in each case as and to the extent provided in Section 9.07. Except as expressly permitted under the Loan Documents, no Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. (a) Subject to Sections 53(dl of the Intercreditor Agreement and clause b below, no amendment or waiver of any provision of this Agreement, the Notes or any other Loan Document (including the Intercreditor Agreement and the Security Deposit Agreement), nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the Required Lenders (or the Administrative Agent on their behal fl, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that
(i) no amendment, waiver or consent shall, unless in writing and signed by the Borrower and all of the Lenders, do any of the following at any time:
(A) waive any of the conditions specified in Section 3.01 or, in the case of the Initial Extension of Credit, Section 3.02;
(B) change (A) the definition of "Required Lenders" or (B) the number of Lenders or the percentage of (x) the Commitments or (y) the
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aggregate unpaid principal amount of the Loans that, in each case, shall be required for the Lenders or any of them to take any action hereunder or under any other Loan Document;
(C) change any other definition in the Intercreditar Agreement or the Security Deposit Agreement in any manner materially and adversely affecting the Lenders;
(D) other than as expressly contemplated by Section 5.1 of the Intercreditor Agreement, release one or more Guarantors (or otherwise limit such Guarantors' liability with respect to the Obligations owing to the Agents and the Lenders under the Guaranties) if such release or limitation is in respect of a material portion of the value of the Guaranties to the Lenders;
(E) other than as expressly contemplated by Section 5.1 of the intercreditor Agreement, release any material portion of the Collateral in any transaction or series of related transactions; or
(F) amend this Section 9.01, and
(ii) no amendment, waiver or consent shall, unless in writing and signed by the Borrower and the Required Lenders and each Lender specified below for such amendment, waiver or consent:
(A) increase the Commitments of a Lender without the consent of such Lender;
(B) reduce the principal of, or stated rate of interest on, the Loans owed to a Lender or any fees or any other amounts stated to be payable hereunder ar under the other Loan Documents to such Lender without the consent of such Lender;
(C) postpone any date scheduled for any payment of principal of, or interest on, the Loans pursuant to Section 2.04 or 2.07 or any date fixed for any payment of fees hereunder in each case payable to a Lender without the consent of such Lender;
(D) impose any restrictions on the rights of such Lender under Section 9.07;
(E) [Reserved];
(F) change the order of application of proceeds of Collateral and other payments set forth in Section 4.1 of the Intercreditor Agreement or Article III of the Security Deposit Agreement in a manner that
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materially adversely affects any Lender without the consent of such Lender; or
(G) otherwise amend or modify any of the Intercreditor Agreement or any Second Lien Collateral Document in a manner which disproportionately affects any Lender vis-a-vis any other Secured Party without the written consent of such Lender;
provided facrther that no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Borrower and the Lenders required above to take such action, affect the rights or duties of such Agent under this Agreement or the other Loan Documents.
(b) Notwithstanding the other provisions of this Section 9.01, the Borrower, the Guarantors, the Second Lien Collateral Agent and the Administrative Agent may (but shall have no obligation to) amend or supplement the Loan Documents without the consent of any Lender: (i) to cure any ambiguity, defect or inconsistency; (ii) to make any change that would provide any additional rights or benefits to the Lenders; or (iii) to make, complete or confirm any grant of Collateral permitted or required by this Agreement or any of the Second Lien Collateral Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the Second Lien Collateral Documents.
(c) If, in connection with any proposed amendment, waiver or consent, the consent of all of the Lenders, or all of the Lenders directly affected thereby, is required pursuant to this Section 9.01, and any such Lender refuses to consent to such amendment, waiver or consent as to which the Required Lenders have consented (any such Lender whose consent is not obtained as described in this Section 9.01 being referred to as a"Non-Consenting Lender"), then, so long as the Administrative Agent is not a Non-Consenting Lender, at the Borrower's request and at the sole cost and expense of the Borrower, the Administrative Agent or an Eligible Assignee shall be entitled (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender (by its acceptance of the benefits of the applicable Loan Documents) agrees that it shall, upon the Administrative Agent's request, sell and assign to the Administrative Agent or such Eligible Assignee, all of the Loans and Commitments of such Non-Consenting Lender or Non-Consenting Lenders for an amount equal to the principal balance of all Loans held by the Non-Consenting Lender and all accrued interest and fees with respect thereto through the date of sale; provided that such Eligible Assignee consents to the proposed amendment, waiver or consent. Each Lender (by its acceptance of the benefits of the Loan Documents) agrees that, if it becomes a Non-Consenting Lender, it shall execute and deliver to the Administrative Agent an Assignment and Acceptance to evidence such sale and purchase and shall deliver to the Administrative Agent any Note (if the assigning Lender's Loans are evidenced by Notes) subject to such Assignment and Acceptance; provided, however, that the failure of any Non-Consenting Lender to execute an Assignment and Acceptance shall not render such sale and purchase (and the corresponding assignment) ineffective.
SECTION 9.02. Notices, Etc. (a) All notices and other communications provided for hereunder shall be either (x) in writing (including telegraphic, telecopy or electronic (including portable document format (pd fl) communication) and mailed, telegraphed, telecopied 92 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 400 of 510
or delivered or (y) as and to the extent set forth in Section 9.02(b) and in the proviso to this Section 9.02(a), in an electronic medium and delivered as set forth in Section 9.02(b), if to any Loan Party, to the Borrower at its address at The Schrafft Center, 529 Main Street, Suite 605, Charlestown, MA 02129, Attention: Executive Vice President, Fax: (617) 381-2211 (with a copy sent to Boston Generating LLC c/o K Road Power Management, LLC, 330 IVladison Avenue, 25~' Floor, New York, NY 10017, Attention: President, Fax: (212) 351-0515 and a copy sent to Robert F. Quaintance Jr. and Paul D. Brusiloff, Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022, Fax: (212) 521-7451 and (212) 521-7015, respectively); if to any Initial Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the administrative questionnaire delivered in conjunction with the Assignment and Acceptance pursuant to which it became a Lender; if to the Administrative Agent or the Second Lien Collateral Agent, at its address at 11 Madison Avenue, New York, NY 10010, Attention: Candace Sorina, Fax: (212) 325-8304, E-mail Address: candace.sorina(a~credit-suisse.com ; or, as to the Borrower or the Administrative Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrower and the Administrative Agent; provided, however, that materials and information described in Section 9.02(b) shall be delivered to the Administrative Agent in accordance with the provisions thereof or as otherwise specified to the Borrower by the Administrative Agent. All such notices and other communications shall, when mailed, telegraphed, telecopied, or e-mailed, be effective when deposited in the mails, delivered to the telegraph company, transmitted by telecopier or sent by electronic communication, respectively, except that notices and communications to any Agent pursuant to Article II, ILI or VII shall not be effective until received by such Agent. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Agreement or the Notes shall be effective as delivery of an original executed counterpart thereof.
(b) The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certiticates and other information materials, but excluding any such communication that (i) relates to a request for a new, or a Conversion of an existing, Borrowing (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other Extension of Credit thereunder (all such non-excluded communications being referred to herein collectively as "Communications"), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent to an electronic mail address specified by the Administrative Agent to fhe Borrower. In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the
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Communications on IntraLinks or a substantially similar electronic transmission system (the "Platform").
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY K1ND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, "AGENT PARTIES") HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY K1ND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER'S OR THE ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees (i) that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Ylatform shall constitute eff'ective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender's e-mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
SECTION 9.03. No Waiver: Remedies. No failure on the part of any Lender or any Agent to exercise, and no delay in exercising, any right hereunder or under any Note or any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
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The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) Other than with respect to Other Taxes which are governed solely by Section 2.12, the Borrower agrees to pay on demand (i) all costs and expenses of each Agent in connection with the preparation, execution, delivery, administration, modification and amendment of, or any consent or waiver under, the Loan Documents (including, without limitation, (A) all due diligence, collateral review, syndication, transportation, computer, duplication, appraisal, audit, insurance, consultant, search, filing and recording fees and expenses and (B) the reasonable fees and expenses of counsel for each Agent with respect thereto, with respect to advising such Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the Loan Documents, with respect to negotiations with any Loan Party or with other creditors of any Loan Parly or any of its Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims in or otherwise participating in ar monitoring any bankruptcy, insolvency or other similar proceeding involving creditors' rights generally and any proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and each Lender in connection with the enforcement of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors' rights generally (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent and each Lender with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold harmless each Agent, each Lender and each of their Affiliates (other than any Commodity Hedge Counterparty in such capacity) and their respective officers, directors, employees, agents, trustees and advisors (each, an "Indemnified Party") from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and related expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) the Facility, the actual or proposed use ot'the proceeds ot~the Loans, the Transaction Doc~tments or any of the transactions contemplated thereby (including, without limitation, the Transaction) or (ii) the actual or alleged presence of Hazardous Materials on any property of any Loan Party or any of its Subsidiaries or any Environmental Action relating in any way to any Loan Party or any of its Subsidiaries, except to the extent such clairn, damage, loss, liability or expense (x) is found in a final, non- appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct or (y) in the case of clause i above, is a tax. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors, any Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the Transaction is consummated. The Borrower also agrees not to assert any claim against any Agent, any Lender or any of their Affiliates, or any of their respective officers, directors, employees, agents, trustees and advisors, on any theory of liability,
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for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Facility, the actual or proposed use of the proceeds of the Loans, the Transaction Documents or any of the transactions contemplated by the Transaction Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Loan is made by the Borrower to or for the account of a Lender as a result of a payment or Conversion pursuant to Section 2.06, 2.09 b i or 2.10 d, acceleration of the maturity of the Loans pursuant to Section 6.01 or for any other reason, or if the Borrower fails to make any payment or prepayment of an Loan for which a notice of prepayment has been given or that is otherwise required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent far the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion or such failure to pay or prepay, as the case may be, including, without limitation, any loss (but excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Loan.
(d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it under any Loan Document, including, without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or under any other Loan Document, the agreements and obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 6.01, each Agent and each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and otherwise apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Agent, such Lender or such Affiliate to or for the credit or the account of the Borrower against any and all of the Obligations of the Borrower now or hereafter existing under the Loan Documents, irrespective of whether such Agent or such Lender shall have made any demand under this Agreement and although such Obligations may be unmatured. Each Agent and each Lender agrees promptly to notify the Barrower after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Agent and each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-offl that such Agent, such Lender and their respective Affiliates may have.
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SECTION 9.06. Bindin~ Effect. This Agreement shall become effective when it shall have been executed by the Borrower and each Agent and the Administrative Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of each Lender. SECTION 9.07. Assi~nments and Particinations. (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment or Commitments, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower) for the Facility, provided that simultaneous assignments by two or more Related Funds shall be treated as one assignment for purposes of the minimum assignment reyuirement, (ii) each such assignment shall be to an Eligible Assignee, and to the extent such assignment is to any Eligible Assignee that, immediately prior to such assignment, was not a Lender, an Affiliate of a Lender or an Approved Fund, the Administrative Agent shall have consented to such assignment (in each case such consent not to be unreasonably withheld or delayed), (iii) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.17 or Section 9.01 shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (iv) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to Section 2.17 or Section 9.01 unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least eyual to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (v) no such assignments shall be permitted without the consent of the Administrative Agent until the Administrative Agent shall have notified the Lenders that syndication of the Commitments hereunder has been completed and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), together with (A) any Note or I~TOtes (if any) subject to such assignment (B) an administrative questionnaire and tax forms, if applicable and (C) a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent);
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provided, however, that only one such fee shall be payable with respect to simultaneous assignments by or to one or more Related Funds; provided further that for each such assignment made as a result of a demand by the Borrower pursuant to Section 2.17 or 9.01, the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender, as the case may be, hereunder and (ii) the Lender or assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the tinancial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose (but only for this purpose) as the agent of the Borrower, shall maintain at its address referred to in Section 9.02 a
98 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 406 of 510
copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments under the Facility, and the principal amount of the Loans owing under the Facility to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. If requested, in the case of any assignment by a Lender, within ten (10) Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) an amended and restated Note (which shall be marked "Amended and Restated") to the account of such Eligible Assignee in an amount eyual to the Commitment assumed by it under the Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such assignment has retained a Commitment hereunder under such Facility, an amended and restated Note to the account of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such amended and restated Note or Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
( fl Each Lender may sell participations to one or more Persons (other than any Loan Party) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto far the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially al l of the Collateral or the value of the Guarantys.
99 Boston Generacing, LLC Second Lien Credit Agreement NY1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 407 of 510
(g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee ar participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes (if any) held by it) in favor of any Federal Reserve Bank in accordance with Regulation A ofthe Board of Governors of the Federal Reserve System.
(i) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and any Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that, unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 9.07, (i) no such pledge shall release fhe pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an "SPC") the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of an Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, arid as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased costs protection provision) and (iii) the Granting Lender shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each parly hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, the Borrower and the Administrative Agent
100 Boston Generating, LLC Second Lien Credit Agreement NY 1: #3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 408 of 510
and with the payment of a processing fee of $500, assign all or any portion of its interest in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (i) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Loans are being funded by the SPC at the time of such amendment.
SECTION 9.08. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Electronic delivery (by telecopier or portable document format (pd fl) of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.
SECTION 9.09. [Reservedl.
SECTION 910. Confidentialitv. Neither any Agent nor any Lender shall disclose any Confidential Information to any Person without the consent of the Borrower, other than (a) to such Agent's or such Lender's Affiliates and their officers, directors, employees, agents, trustees and advisors and to actual or prospective Eligible Assignees and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process, (c) as requested or required by any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any similar organization or quasi-regulatory authority) regulating such Lender, (d) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to the Loan Parties received by it from such Lender, (e) in connection with any litigation or proceeding to which such Agent ar such Lender or any of its Affiliates may be a party or (~ in connection with the exercise of any right or remedy under this Agreement or any other Loan Document.
SECTION 9.11. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Loan Party makes a payment or payments to the Administrative Agent or the Lenders (or to the Administrative Agent, on behalf of the Lenders), or any Agent or Lender enforces any security interests or exercise its rights of set-off, and such payment or payments or the proceeds of such enforcement or set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver ar any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or set-off had not occurred.
SECTION 9.12. Patriot Act Notice. Each Lender and each Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of
101 Boston Generating, LLC Second Lien Credit Agreement NY I : #3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 409 of 510
the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or such Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide such information and take such actions as are reasonably requested by any Agent or any Lender in order to assist the Agents and the Lenders in maintaining compliance with the Patriot Act.
SECTION 9.13. Hed~e Banks. Each Lender hereby agrees that in its capacity as a Hedge Bank it shall, and shall cause its Affiliates in their capacity as Hedge Banks to, comply with all obligations of such party as a Hedge Bank under the Intercreditor Agreement.
SECTION 9.14. Intercreditor A~reement. Each Lender hereby acknowledges and agrees on behalf of itself and each of its Affiliates in their capacity as Hedge Banks that their respective Lien priorities and other matters related to the Loan Documents and the Collateral are subject to and governed by the Intercreditor Agreement. Each Lender, by delivering its signature page hereto, funding its Loans on the Effective Date and/or executing an Assignment and Acceptance (as applicable) shall be deemed to have (a) acknowledged receipt of, consented to and approved of the Intercreditor Agreement both on its behalf (and on behalf of its Affiliates acting as Hedge Banks) and (b) authorized (on behalf of itself and any Affiliate acting as a Hedge Bank) the Administrative Agent and the Second Lien Collateral Agent to perform their respective obligations thereunder.
SECTION 9.15. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the fullest extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction.
(b) Each ofthe parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, fhe defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
102 Boston Generating, LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 410 of 510
SECTION 9.16. Governin~ Law. This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 9.17. Waiver of Jurv Trial. Each of the Loan Parties, the Agents and the Lenders irrevocably waives, to the fullest extent permitted by applicable law, all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to any of the Loan Documents, the Loans or the actions of any Agent or any Lender in the negotiation, administration, performance or enforcement thereof.
103 Boston Generating LLC Second Lien Credit Agreement NY 1:#3439094v7 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 411 of 510
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BOSTON GENERATING, LLC, as Borr wer
gY: / . ~~~ Name: r,~. ; a ~ . -ro,,,;, Title: P„S~~.z„~..
MYSTIC I, LLC, as Guarantor
By: ~~~~~ ~ .~~G~-+ Name: D~.: a c. . r~r,;, Title: ~; as, ~,~-
FORE RIVER DEVELOPMENT, LLC, as Gua ntor By: ~ ~~~- Name: A..~; ~ i . rL~.;i Title: r, ~S ~ ~e-~,,,t.
MYSTIC DEVELOPMENT, LLC, as Guazantor
By: /C~~^" ~" `' ~%~ Name: oti..;~ `. T~..:~ Title: p, ~s;d~,.,,r
BG BOSTON SERVICES, LLC, as Guarantor
By: i~~~%G~tl ~ ~%~ Name: -~,,,,; d L.TaH~~ Title: p f ~r; ~..
(Signature Page - Second Lien Credit Agreement] 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 412 of 510
BG NEW ENGLAND POWER SERVICES, INC., as Guarantor
By: ~ ~:~~- Name: p..,,.~ ~. -~~:~ Title: p; ~ ~;d,,..,k
[Signature Page - Second Lien Credit Agreement] 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 413 of 510
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent, Second Lien Collateral Agent and Initial Lender
By: Name: T~.,,~, r.,,,.H,. Title: ✓~,.< 5,r3 ,.«< ta ~
BY: Name: +ti t2 ~,~ vN-G~il(Z/ Title: ~ S ~'-~°~Q
Bosmn Generating LLC Second Lien Credit Agreement NY1:~3439953v2 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 414 of 510
GOLDMAN SACHS CREDIT PAR'INERS, L.P., as Initial Len
B Name: gRUCE H. MENOELS4HN Title: AUTHQRIZED SIGNATORY
Roston Genorating, LL.0 Second ~ien Credit Agreement PlYI:N3439953v2 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 415 of 510
EXHIBIT G
12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 416 of 510
EXECUTION COUNTERPART
$300,000,000 CREDITCREDIT AGREEMENT
Dated as of December 21,21, 20062006 Among EBG HOLDINGS LLC as Borrower
and THE INITIAL LENDERS HEREIN as Initial Lenders
and CREDIT SUISSESUISSE as AdministrativeAdministrative Agent ~
and CREDIT SUISSE SECURITIES (USA) LLC AND GOLDMAN SACHS CREDIT PARTNERS L.P. as Co-SvndicationCo-Syndication AgentAgent andand asas Co-DocumentationCo-Documentation Agent Agent
and CREDIT SUISSE SECURITIES (USA) LLC AND GOLDMAN SACHS CREDIT PARTNERS L.P. as Joint Lead Arran~ersArrangers andand asas JointJoint BookBook Runnine Running Managers Managers
EBG Holdings LLC Credit Agreement NYl:#3437976vllNY 1:#3437976v 11
EXHIBIT G 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 417 of 510
TABLE OFOF CONTENTSCONTENTS
Section Page
ARTICLE II
DEFINITIONS ANDAND ACCOUNTINGACCOUNTING TERMSTERMS
SECTION 1.01.1.01. CertainCertain DefinedDefined TermsTenns ...... 22 SECTION 1.02.1.02. ComputationComputation ofof Time Time Periods;Periods; OtherOther Definitional Definitional Provisions Provisions ...... 2828 SECTION 1.03.1.03. AccountingAccounting TermsTenns ...... 2828
ARTICLE II
AMOUNTS AND TERMS OFOF THE LOANS
SECTIONSECTION2.01. 2.01. The The Loans Loans ...... 29 SECTION 2.02. Making the LoansLoans ...... 29 SECTIONSECTION2.03. 2.03. [Reserved] ...... 30 SECTION 2.04.2.04. RepaymentRepayment of of Loans Loans ...... •-•...... 30 SECTION 2.05. Prepayments ...... 30 SECTIONSECTION2.06. 2.06. Application Application ...... 31 SECTION 2.07. Interest.Interest ...... ••-•--•~----~•---••--•---•---•-•---._.._._.__...__...... 32 SECTION 2.08. Conversion ofof Loans Loans ...... 34 SECTION 2.09.2.09. IncreasedIncreased Costs, Costs, Etc..-•----~--•-• Etc ...... 34 SECTION 2.10. Payments andand ComputationsComputations ...... 35 SECTION 2.11. Taxes ...... 37 SECTION 2.12.2.12. SharingSharing ofof Payments, Payments, Etc Etc ...... 40 SECTION 2.13. Use of Proceeds ...... 40 SECTION 2.14. Change of ControlControl PrepaymentPrepayment ...... 41 SECTION 2.15. Evidence of Debt ...... 41 SECTION 2.16. Duty to Mitigate ...... 42
ARTICLE III
CONDITIONS TO EFFECTIVENESSEFFECTNENESS ANDAND OFOF LENDING
SECTION 3.01. Conditions Precedent ...... 4242 SECTION 3.02. DeterminationsDetenninations UnderUnder SectionSection 3.013.01 ...... 4545
ARTICLE IV
REPRESENTATIONS ANDAND WARR.ANTIESWARRANTIES
SECTION 4.01. Representations andand Warranties Warranties ...... 46
EBG Holdings LLC Credit Agreement NYl:#3437976vllNY l :#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 418 of 510
ARTICLE VV
COVENANTS
SECTION 55.01. A 1. AffirmativeAffirmative Covenants ...... 51 51 SECTION 5.02.5.02. Negative CovenantsCovenants ...... 52 52 SECTION 5.03.5.03. ReportingReporting RequirementsRequirements ...... 556
ARTICLE VIVI
EVENTS OF DEFAULTDEF AUL T
SECTION 6.01. Events of Default ...... 5757 SECTION 6.02. ActionAction ifif Insolvency Insolvency ...... 6060 SECTION 6.03.6.03. ActionAction ifif Other Other Event Event of of Default Default...... 60 60
ARTICLE VII
THE AGENTS
SECTION 7.01.7.01. AuthorizationAuthorization and and Action Action ...... 61 61 SECTION 7.02. Administrative Agent's Reliance,Reliance, Etc...... Etc ...... 61 61 SECTION 7.03. InitialInitial BanksBanks andand AffiliatesAffiliates ...... 6262 SECTION 7.04. LenderLender CreditCredit DecisionDecision ...... 6262 SECTION 7.~5.7.05. Indemnification ...... --~ ...... 6262 SECTION 7.06. SuccessorSuccessor Administrative Administrative Agent Agent...... 63 63
ARTICLE Vlll
MISCELLANEOUS
SECTION 8.01. Amendments, EtcEtc ...... 6363 SECTIONS~CTION 8.02.8.02. Notices,Notices, EtcEtc ...... •---...... 65 65 SECTION 8.03.8.03. No No Waiver; Waiver; Remedies Remedies ...... 67 67 SECTION 8.04.8.04. Costs Costs and and Expenses-----~-• Expenses ...... ~---....---...... 6767 SECTION 8.05. Right of Set-offSet-off ...... 6969 SECTION 8.06. Binding EffectEffect ...... 6969 SECTION 8.07. Assignments andand ParticipationsParticipations ...... 69 69 SECTION 8.08. ExecutionExecution inin CounterpartsCounterparts ...... 73 73 SECTION 8.09_8.09. ConfidentialitYConfidentiality ...... ~----...... 73 73 SECTION 8.10. PatriotPatriot ActAct NoticeNotice ...... 73 73 SECTION 8.18.11. l. Jurisdiction,Jurisdiction, EtcEtc ...... 73 73 SECTION 8.12. Governing Law ...... 7474 SECTION 8.13. Waiver of Jury TrialTrial...... 7474
EBG Holdings LLC 11 Credit Agreement NYINY1:#3437976v1 :#3437976vll ] 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 419 of 510
SCHEDULES Schedule I - Commitments and Applicable LendingLending OfficesOffices Schedule II - Make Whole Premium Schedule 4.01(b) - Subsidiaries Schedule 4.01(c) - Ownership Information Schedule 4.01(e) - Consents and Approvals Schedule 4A4.01(g) 1(g) - Litigation Schedule 4.01(0) - Environmental Matters Schedule 4.01(p) - Existing Debt
EXHIBITS Exhibit A - Form of Note Exhibit B - Form of Notice of Borrowing Borrowing Exhibit C - Form of Assignment andand AcceptanceAcceptance Exhibit D - Form of SolvencySolvency CertificateCertificate ExhibitE~ibit EE - Form of Annual Budget
EBG Holdings LLCLLC Ill111 Credit Agreement NYNYl:#3437976vll 1:#3437976v l ] 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 420 of 510
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of DecemberDecember 21,21,2006 2006 amongamong EBGEBG HOLDINGS LLC, a Delaware limitedlimited liabilityliability companycompany (the(the "Borrower"), the Lenders (as(as hereinafter defined), CREDIT SUISSE,SUISSE, CAYMANCAYMAN ISLANDSISLANDS BRANCHBRANCH ("CS"),("CS"), asas administrative agent (together(together withwith anyany successorsuccessor administrative administrative agent agent appointed appointed pursuant pursuant to to Article VII, the "Administrative Agent") Agenf') for the Lenders, CREDITCREDIT SUISSESUISSE SECURITIESSECURITIES (USA) LLC and GOLDMAN SACHSSACHS CREDITCREDIT PARTNERSPARTNERS L.P.,L.P., asas co-syndicationco-syndication agentsagents (together with anyany successorsuccessor co-syndication co-syndication agents, agents, the the "Co-Syndication Agent"), CREDIT SUISSE SECURITIES (USA) LLC and GOLDMAN SACHSSACHS CREDITCREDIT PARTNERSPARTNERS L.P.,L.P., asas co-co documentation agentsagents (together(together with with any any successorsuccessor co-documentation co-documentation agents, agents, the the "Co"Co- Documentation Agent"), Agent"), CREDIT SUISSE SECURITIESSECURITIES (USA}(USA) LLC and GOLDMANGOLDMAN SACHS CREDIT PARTNERS L.P., asas joint leadlead arrangersarrangers (together(together withwith anyany successorsuccessor joint lead arrangers, thethe "Joint Lead Arrangers") and as joint leadlead bookbook runningrunning managersmanagers (together(together with any successor joint leadlead arrangers, arrangers, thethe "Joint Book RunningRunning Managers"). Managers").
PRELIMINARY STATEMENTS:
(1) The Borrower has requestedrequested thatthat thethe LendersLenders provide provide a a term term loan loan facility facility to the Borrower andand makemake loansloans upup toto $300,000,000 $300,000,000 to to pay pay transaction transaction fees fees and and expenses expenses and and to to fund in part the DistributionDistribution andand thethe TenderTender Offer Offer (each (each as as hereinafter hereinafter defined) defined) and and to to provide provide funds for other generalgeneral corporatecorporate purposes purposes of of the the Borrower. Borrower.
(2) The Borrower has commencedcommenced thethe TenderTender Offer Offer (as (as herein herein after after defined) defined) for up to $925,000,000 ofof its its UnitsUnits (as(as hereinafterhereinafter defined) defined) to to be be financed financed in in part part with with the the proceeds ofof the loansloans hereunder.hereunder.
(3) Simultaneously with the entering intointo ofof this this Agreement,Agreement, BostonBoston Generating, LLC ("BostonGen") and the Guarantors namednamed thereintherein areare enteringentering intointo that that certain certain (a) First Lien CreditCredit andand GuaranteeGuarantee Agreement Agreement dated dated as as of of the the date date hereof hereof (the (the "First Lien Credit Agreement")Agreemenf') with each of the the banks,banks, financialfinancial institutionsinstitutions and and other other institutional institutional lenders lenders party party thereto from time toto timetime (the(the "First Lien Lenders"), and CS, as administrative agent (the(the "First Lien 14dministrativeAdministrative Agent''), Agenr), and (b) Second Lien CreditCredit andand GuarantyGuaranty Agreement,Agreement, dated dated as as of of the date hereof (the (the "Second Lien CreditCredit Agreement")Agreemenf') with each of the banks, financial institutions and other institutionalinstitutional lenderslenders party party thereto thereto from from time time to to time time (the (the "Second Lien Lenders"), and CS, as administrative agentagent (the(the "Second LienLien AdministrativeAdministrative AgenP'), Agenf') , the proceeds of which shallshall bebe usedused toto (i)(i) repayrepay inin fullfull amountsamounts outstandingoutstanding underunder thethe ExistingExisting CreditCredit Agreements, (ii)(ii) fundfund thethe DistributionDistribution and and the the Tender Tender Offer, Offer, (iii) (iii) provide provide working working capital, capital, and and (iv) to pay transaction feesfees andand expensesexpenses ("Transaction Costs").Costs").
(4) The Borrower intends to makemake aa propro ratarata distributiondistribution to to its its unit unit holders, holders, prior to the purchase ofof Units Units inin thethe TenderTender Offer,Offer, inin anan amountamount ofof up up toto $40,000,000$40,000,000 toto bebe financed inin part with thethe proceedsproceeds ofof the the loansloans hereunder hereunder (the (the "Distribution").
(5) The Lenders have indicatedindicated theirtheir willingnesswillingness toto agreeagree toto make make Loans Loans (as (as hereinafter defined), subjectsubject to to thethe terms terms and and conditions conditions of of this this Agreement. Agreement.
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NOW, THEREFORE, inin considerationconsideration ofof the the premises premises and and of of the the mutual mutual covenants and agreements containedcontained herein,herein, thethe parties parties hereto hereto hereby hereby agree agree as as follows: follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CertainCertain DefinedDefined Terms.Terms. AsAs used used in in thisthis Agreement, Agreement, thethe following termsterms shallshall havehave thethe followingfollowing meaningsmeanings (such (such meanings meanings to to be be equally equally applicable applicable to to both the singular andand plural formsforms ofof the the termsterms defined): defined):
"Administrative AgenP' Agent' has the meaning specifiedspecified inin thethe recitalrecital ofof parties parties toto thisthis Agreement.
"Administrative"AdministrativeAgent's Agent's Account" Account" means the account ofof the the AdministrativeAdministrative Agent specified byby thethe AdministrativeAdministrative AgentAgent in in writing writing to to the the Lenders Lenders from from time time to to time. time.
"Affiliate" means, as to any Person,Person, anyany otherother PersonPerson that,that, directlydirectly or or indirectly, indirectly, controls, is controlled byby oror isis underunder commoncommon control control withwith suchsuch Person Person or or is is a a director director or or officer of such Person. ForFor purposes purposes of of this this definition, definition, the the termterm "controf'"control" (including the terms "controlling," "controlled"controlled by" and "under common control with")with") of a Person means the possession, directdirect oror indirect,indirect, ofof the the powerpower to to votevote 15% 15% or or more more of of the the Voting Voting Interests of suchsuch PersonPerson oror toto directdirect oror cause cause thethe directiondirection of of the the management management and and policies policies of such Person, whether throughthrough thethe ownershipownership ofof Voting Voting Interests, Interests, by by contract contract or or otherwise.
"Agreement'"Agreement" means this CreditCredit Agreement,Agreement, asas amended.amended.
"Applicable LendingLending Office" means, with respect to each Lender,Lender, suchsuch Lender'sLender's Domestic Lending Office in the case of a Base Rate Loan and such Lender'sLender's Eurodollar Eurodollar Lending Office inin the casecase ofof a a EurodollarEurodollar Rate Rate Loan. Loan.
"Applicable Margin" means 6.00% perper annum annum for for Base Base Rate Rate Loans Loans and and 7.00°/a 7.00% per annum for EurodollarEurodollar RateRate Loans.Loans.
"Approved Fund" means any Fund thatthat isis administeredadministered oror managed managed byby (a)(a) aa Lender, (b)(b) an Affiliate ofof a a LenderLender oror (c)(c) anan entityentity oror an an Affiliate Affiliate of of an an entity entity that that administers or manages aa Lender.Lender.
"Asset Sale"Sale" means any sale, lease,lease, transfertransfer oror otherother dispositiondisposition ofof any any PropertyProperty of the Borrower or any ofof its its SubsidiariesSubsidiaries (other (other than than (a)(a) salessales of of (or (or the the granting granting of of any any option or other right to purchase, leaselease oror otherwise otherwise acquire)acquire) power,power, natural natural gas, gas, fuel, fuel, capacity, gas or fuel transportation, powerpower transportation transportation oror ancillary ancillary services services or or other other inventory inin thethe ordinary coursecourse ofof such such Person'sPerson's business business including, including, without without limitation, limitation, Permitted Trading Activities, (b)(b) thethe liquidation,liquidation, salesale or or use use ofof Cash Cash and and Cash Cash Equivalents, (c)( c) sales,sales, transferstransfers oror other other dispositions dispositions of of assets assets among among BostonGen BostonGen and and its its Subsidiaries, (d) sales oror discountsdiscounts withoutwithout recourserecourse ofof accounts accounts receivable receivable arising arising in in the the ordinary course of such Person's businessbusiness inin connectionconnection withwith thethe compromisecompromise oror
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collection thereof, (e) dispositionsdispositions reyuiredrequired oror contemplated contemplated by by the the Contractual Contractual Obligations in existence asas ofof the the datedate hereofhereof with with oror relating relating to to Governmental Governmental Authorities and relating to the SubsidiariesSubsidiaries of BostonGen andand (~(f) sales, sales, transferstransfers oror other other dispositions of Property on an arm's lengthlength basisbasis forfor cashcash considerationconsideration inin anan aggregateaggregate amount not to exceed $10,000,000$10,000,000 perper calendarcalendar year). year).
"Asset Sale Proceeds" means, with respect to anyany AssetAsset Sale,Sale, thethe NetNet CashCash Proceeds payable toto thethe BorrowerBorrower or or anyany ofof its its SubsidiariesSubsidiaries in in connection connection with with such such Asset Asset Sale.
"Assignment andand Acceptance" Acceptance" means an assignment andand acceptanceacceptance enteredentered intointo by a Lender and anan Eligible AssigneeAssignee (with(with thethe consentconsent of of any any party party whose whose consent consent is is required by Section 8.07 or by the definition of "Eligible Assignee"), and accepted by the Administrative Agent, inin accordanceaccordance with Section 8.078.07 andand inin substantiallysubstantially the form of ExhibitE~ibit C C hereto hereto or or any any other other form form approved approved by by the the Administrative Administrative Agent. Agent.
"Auction Date" means the date of the consummationconsummation ofof the the TenderTender Offer.Offer.
"Bankruptcy Code"Code" means Title 1111 of the United StatesStates CodeCode entitledentitled "Bankruptcy," as now and hereafter inin effect,effect, oror anyany successorsuccessor statute. statute.
"Base Case Projections"Projections" has the meaning specifiedspecified in in Section Section 3.01(a)(ix~. 3.01(a)(ix).
"Base Ratt!'Rate" means a fluctuating interestinterest raterate per annum in effect from time toto time, which raterate perper annumannum shallshall atat allall timestimes bebe equal equal toto the the higher higher of: of:
(a) the raterate ofof interestinterest announcedannounced publiclypublicly byby CSCS inin NewNew York, York, NewNew York, York, from time to time,time, asas thethe primeprime rate;rate; andand
(b) ~%2 of of 11%% perper annum above the Federal FundsFunds Rate.Rate.
"Base Rate Loan" means any Loan that bears interestinterest asas providedprovided inin SectionSection 2.07(a)(i).2.07 a i .
"Borrower" has the meaning specifiedspecified inin thethe recitalrecital ofof parties parties toto thisthis Agreement.Agreement.
"Borrowing" means a borrowing consisting ofof simultaneous simultaneous LoansLoans ofof the the samesame Type made by the Lenders.
"BostonGen" has the meaning specified inin thethe preliminarypreliminary statementsstatements toto thisthis Agreement.
"BostonGen Facilities" means each of the First LienLien CreditCredit AgreementAgreement andand thethe Second Lien Credit Agreement.
"BostonGen RepaymentRepayment Event" Event" means the date on which bothboth (a)(a) aa RepaymentRepayment Event (as defined inin thethe FirstFirst LienLien CreditCredit Agreement)Agreement) oror any any otherother similar similar event event under under any Successor Facility (as(as defineddefined below)below) hashas occurredoccurred onon or or prior prior to to suchsuch datedate and and (b) (b) a a
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Repayment EventEvent (as(as defineddefined inin thethe Second Second Lien Lien Credit Credit Agreement) Agreement) or or any any other other similar similar event underunder anyany SuccessorSuccessor Facility Facility (as (as defined defined below) below) has has occurred occurred on on or or prior prior to to such such date; provided that,that, any such Repayment EventEvent oror similar similar event event shall shall not not be be deemed deemed to to have occurredoccurred underunder anyany facilityfacility byby reason reason of of any any extension, extension, replacement replacement or or other other refinancing ofof such such facility,facility, inin each each case case in in an an aggregate aggregate principal principal amount amount not not to to exceed exceed the sumsum ofof the the principalprincipal amountamount being being extended, extended, replaced replaced or or refinanced, refinanced, accrued accrued interest interest thereon, prepaymentprepayment premiumspremiums (if(if any) any) andand associated associated transaction transaction fees fees and and expenses expenses (such extension, replacementreplacement oror refinancing,refinancing, a"Successora "Successor Facility"). Facility").
"Business Day"Day" means any dayday thatthat isis notnot aa Saturday,Saturday, SundaySunday or or other other day day on on which commercialcommercial banksbanks inin NewNew York York City City are are authorized authorized or or required required by by law law to to remain remain closed; provided that, when usedused inin connectionconnection withwith a a Eurodollar Eurodollar Rate Rate Loan, Loan, the the term term "Business Day"Day" shall also exclude any dayday onon whichwhich banksbanks areare notnot open open for for dealings dealings in in dollar deposits inin thethe LondonLondon interbankinterbank market. market.
"Call Premium" shall mean, with respectrespect toto anyany applicableapplicable prepaymentprepayment under under Section 2.052.05 oror SectionSection 2.14,2.14, anan amountamount equal equal toto (a) (a) the the Make Make Whole Whole Premium Premium on on such such prepayment ifif such such prepaymentprepayment is is mademade on on or or prior prior to to the the second second anniversary anniversary of of the the Effective Date,Date, (b)(b) 3.00%3.00% of of the the aggregateaggregate principal principal amount amount of of such such prepayment prepayment if if such such prepayment isis mademade afterafter thethe secondsecond anniversary anniversary of of the the Effective Effective Date Date but but on on or or prior prior to to the third anniversaryanniversary ofof the the EffectiveEffective Date, Date, (c) (c) 2.00% 2.00% of of the the aggregate aggregate principal principal amount amount of such prepayment ifif such such prepaymentprepayment is is made made after after the the third third anniversary anniversary of of the the Effective DateDate butbut onon oror priorprior toto thethe fourthfourth anniversaryanniversary of of the the Effective Effective Date Date or or (d) (d) 1.00% 1.00% of the aggregate principalprincipal amountamount ofof such such prepayment prepayment if if such such prepayment prepayment is is made made after after the fourth anniversaryanniversary ofof the the EffectiveEffective Date Date but but on on or or prior prior to to the the fifth fifth anniversary anniversary of of the the Effective Date. AnyAny commitment commitment reduction reduction or or prepayment prepayment after after the the fifth fifth anniversary anniversary of of the Effective DateDate willwill notnot bebe subjectsubject to to the the Call Call Premium. Premium.
"Capitalized Leases" means all leases thatthat havehave beenbeen oror shouldshould be,be, inin accordanceaccordance with GAAP,GAAP, recordedrecorded asas capitalizedcapitalized leases. leases.
"Cash" means money, currency oror aa creditcredit balancebalance inin anyany demanddemand accountaccount or or deposit account.
"Cash Equivalents" means any of the following: (a)(a) directdirect obligations obligations of, of, oror obligations the principalprincipal ofof and and interestinterest on on whichwhich are are unconditionally unconditionally guaranteed guaranteed by, by, the the United States ofof America America (or(or byby anyany agencyagency thereof thereof to to the the extent extent such such obligations obligations are are backed by the fullfull faithfaith andand creditcredit ofof the the UnitedUnited States States of of America), America), in in each each case case maturing maturing within one year fromfrom thethe datedate ofof acquisition acquisition thereof;thereof; (b) (b) securities securities issued issued by by any any state state of of the United StatesStates ofof America America oror anyany politicalpolitical subdivision subdivision of of any any such such state state or or any any public public instrumentality thereofthereof or or anyany politicalpolitical subdivisionsubdivision of of any any suchsuch statestate or or any any public public instrumentalityinstrumentality thereof havinghaving maturitiesmaturities ofof not not moremore thanthan oneone yearyear from from thethe date date of of acquisition thereof and,and, atat thethe timetime ofof acquisition, acquisition, havinghaving a a rating rating of of AA- AA- oror higher higher from from S&P or Aa3 or higher from Moody's (or,(or, ifif at at anyany timetime neitherneither S&PS&P nornor Moody'sMoody's shall shall be be rating such obligations,obligations, anan equivalentequivalent ratingrating fromfrom anotheranother nationally nationally recognized recognized rating rating service); (c) investmentsinvestments inin commercialcommercial paperpaper maturing maturing within within 365365 daysdays from from the the date date of of acquisition thereof andand having,having, atat suchsuch datedate ofof acquisition, acquisition, aa rating rating of of at at least least A A 1 1or or P P 1 1
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from either S&P or Moody's (or,(or, ififat at any any time time neither neither S&P S&P nor nor Moody's Moody's shall shall be be rating rating such obligations, an equivalent ratingrating fromfrom anotheranother nationally nationally recognized recognized rating rating service); service); (d) investments in certificates of deposit,deposit, banker'sbanker's acceptances acceptances and and time time deposits deposits maturing within 270 days from the datedate ofof acquisition acquisition thereofthereof issued issued oror guaranteedguaranteed byby oror placed with, andand moneymoney marketmarket deposit deposit accounts accounts issued issued or or offered offered by, by, the the Depositary, Depositary, the the Administrative Agent or any domesticdomestic officeoffice ofof any any commercialcommercial bankbank organizedorganized underunder the lawslaws ofof thethe UnitedUnited StatesStates ofof America America or or any any State State thereof thereof that that has has a acombined combined capital capital and surplus and undivided profitsprofits ofof not not less less than than $500,000,000; $500,000,000; (e) (e) fully fully collateralized collateralized repurchase agreements withwith aa termterm ofof not not more more than than 30 30 days days for for securities securities described described in in clause (a) above and entered intointo withwith aa financialfinancial institutioninstitution satisfyingsatisfying thethe criteriacriteria ofof clause (d) above; (~(f) investmentsinvestments inin "money marketmarket funds" within the meaning ofof Rule 2a-7 of the Investment Company ActAct ofof 1940, 1940, asas amended,amended, substantiallysubstantially allall ofof whose whose assets are invested in investments of the type described in clausesclauses Ca)(a) throughthrough W~ above above (without regard, however, to thethe thirtythirty (30)(30) dayday termterm restrictionrestriction describeddescribed inin clauseclause eCe) above or the one year term restriction described in clauseclause Ca)a above); above); (g) (g) other other short-term short-term investments utilized byby foreignforeign subsidiariessubsidiaries in in accordanceaccordance with with normal normal investment investment practices forfor cashcash managementmanagement in in investments investments of of a a type type analogous analogous to to the the foregoing; foregoing; and and (h) cash.
"Casualty Event"Event" means a casualty eventevent thatthat causescauses allall oror a a portionportion of of the the tangible CollateralCollateral (as(as defineddefined inin thethe Related Related Documents) Documents) to to be be damaged, damaged, destroyed destroyed or or rendered unfit forfor normalnormal useuse forfor any any reasonreason whatsoever, whatsoever, other other than than (a) (a) ordinary ordinary use use and and wear and tear oror (b)(b) anyany EventEvent of of Eminent Eminent Domain. Domain.
"CERCLA" means the ComprehensiveComprehensive EnvironmentalEnvironmental Response, Response, Compensation Compensation and Liability ActAct ofof 1980, 1980, asas amendedamended from from time time to to time. time.
"CERCLIS'"CERCLIS" means the ComprehensiveComprehensive EnvironmentalEnvironmental Response, Response, Compensation Compensation and Liability Information SystemSystem maintainedmaintained byby thethe U.S.U.S. EnvironmentalEnvironmental ProtectionProtection Agency.
"Change ofo~Control" Contror' means, at an~any time after the Auction Date,Date, anyany "person" orpr "group" (within the meaning ofof Rules Rules 13(d)13(d) ofof the the ExchangeExchange Act Act and and the the rules rules of of the the Securities and Exchange CommissionCommission thereunder thereunder as as inin effect effect on on the the Effective Effective Date) Date) (other than any suchsuch ''person''"person" or "group" holding, directly oror indirectly,indirectly, beneficiallybeneficially oror of record, any Equity InterestsInterests inin thethe BorrowerBorrower as as of of the the Auction Auction Date) Date) (the (the "Proposed Acquiror") shall have acquired ownership, directly or indirectly, beneficially or of record, of more thanthan 35%35% onon aa fullyfully diluteddiluted basis basis of of the the aggregate aggregate voting voting power power represented byby thethe issuedissued andand outstandingoutstanding Equity Equity Interests Interests in in the the Borrower Borrower unless unless such such Proposed Acquiror is a Qualified OwnerOwner andand eacheach ofof S&P S&P andand Moody'sMoody's shall shall have have provided written confirmationconfirmation ofof their their respective respective ratings ratings of of the the Debt Debt under under the the BostonGen BostonGen Facilities (as(as inin effecteffect immediatelyimmediately prior prior to to such such acquisition) acquisition) after after giving giving effect effect to to such such acquisition. ForFor the the purposespurposes of of this this definition,definition, a"person"a ''person'' or "group" shall not include any of the unit holders ofof the the BorrowerBorrower solely solely by by virtue virtue of of such such unit unit holders holders being being a aparty party to the limitedlimited liabilityliability companycompany agreement agreement of of the the Borrower. Borrower.
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"Co-Documentation AgenP'Agent" has the meaning specifiedspecified inin thethe recitalrecital ofof parties parties to to this Agreement.
"Co-Syndication Agent" has the meaning specifiedspecified inin thethe recitalrecital ofof parties parties to to thisthis Agreement.
"Commitment'"Commitment" means, with respect toto anyany LenderLender at at anyany time,time, thethe amountamount set set forth opposite such Lender's namename onon Schedule Schedule I I heretohereto under under the the caption caption "Commitment""CommitmenP' or, if such Lender hashas enteredentered intointo oneone oror more more Assignment Assignment and and Acceptances, Acceptances, set set forth forth for such Lender inin thethe RegisterRegister maintainedmaintained byby the the Administrative Administrative Agent Agent pursuant pursuant to to Section 8.07(e) as such Lender's "Commitment," as such amount may be reduced atat oror prior to suchsuch timetime pursuantpursuant to to SectionSection 2.05. 2.05.
"Commodity Hedge andand PowerPower Sale Agreement"Agreement' means, with respect toto power,power, electricity, capacity,capacity, ancillaryancillary services,services, electricelectric transmission, transmission, weather, weather, fuel, fuel, fuel fuel transmission, fuelfuel transportation,transportation, fuelfuel storage,storage, heat heat rate rate options, options, emissions emissions allowances allowances and emissions creditscredits and,and, inin thethe casecase ofof each each of of the the foregoing, foregoing, products products related related thereto, thereto, any swap, cap,cap, collar,collar, floor,floor, ceiling,ceiling, option,option, future,future, forward, forward, spot spot agreement, agreement, contract contract for for differences, basis trade,trade, purchasepurchase agreement,agreement, sale sale agreement, agreement, netting netting agreement, agreement, tolling tolling agreement or any otherother similarsimilar agreement,agreement, whetherwhether physical physical or or financial, financial, entered entered into into with respect to anyany commoditycommodity oror commodity-relatedcommodity-related product. product.
"Communications" has the meaning specifiedspecified inin SectionSection 8.02(b).8.02(b).
"Comparable Project'ProjecP' means one or moremore electricelectric generatinggenerating facilitiesfacilities thatthat are are ofof the size and scopescope substantiallysubstantially similarsimilar to to oror greater greater than than the the Projects Projects taken taken as as a awhole. whole.
"Confidential Information" means information thatthat thethe BorrowerBorrower furnishes furnishes toto any Administrative AgentAgent oror any any LenderLender designated designated as as confidential, confidential, but but does does not not include include any such informationinformation thatthat isis oror becomesbecomes generallygenerally available available to to the the public public other other than than as as a a result of a breach byby suchsuch AdministrativeAdministrative AgentAgent or or any any Lender Lender of of its its obligations obligations hereunder oror that isis oror becomesbecomes availableavailable toto suchsuch Administrative Administrative Agent Agent or or such such Lender Lender from a source other thanthan thethe BorrowerBorrower that that is is not,not, to to the the best best of of such such Administrative Administrative Agent's oror suchsuch Lender'sLender's knowledge, knowledge, acting acting in in violation violation of of a aconfidentiality confidentiality agreement agreement with the Borrower.
"Consolidatei/'"Consolidated" refers to the consolidation ofof accounts accounts inin accordanceaccordance withwith GAAP.GAAP.
"Consolidated Adjusted EBITDA" means, for any period (without(without duplication),duplication), an amount determineddetermined forfor thethe BorrowerBorrower and and its its Subsidiaries Subsidiaries on on a a Consolidated Consolidated basis basis equal to (a) the sum,sum, withoutwithout duplication,duplication, ofof the the amounts amounts for for such such period period of of (i) (i) Consolidated Net Income,Income, (ii)(ii) ConsolidatedConsolidated Cash Cash Interest Interest Expense, Expense, (iii) (iii) provisions provisions for for taxes based onon income,income, (iv)(iv) CashCash proceedsproceeds of of any any Permitted Permitted Emissions Emissions Sales Sales Gains, Gains, (v) (v) total depreciation expense,expense, (vi)(vi) totaltotal amortizationamortization expense, expense, (vii) (vii) other other non non Cash Cash items items reducing ConsolidatedConsolidated NetNet Income Income forfor suchsuch period, period, including including unrealized unrealized losses losses attributable to thethe changechange inin fairfair marketmarket value value of of all all Commodity Commodity Hedge Hedge and and Power Power Sale Sale Agreements andand HedgeHedge AgreementsAgreements andand accrualsaccruals for for liquidated liquidated damages damages and and related related late late fees associated with thethe DistrigasDistrigas LitigationLitigation described described in in Schedule Schedule 4.01(~) 4.01 (g) (excluding (excluding any any
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such nonnon CashCash itemitem toto thethe extentextent that that it it represents represents an an accrual accrual or or reserve reserve for for potential potential Cash Cash items inin anyany futurefuture periodperiod oror amortizationamortization of of a a prepaid prepaid Cash Cash item item that that was was paid paid in in a aprior prior period), minus (b) to the extent includedincluded inin determiningdetermining Consolidated Consolidated Net Net Income, Income, other other non Cash itemsitems increasingincreasing ConsolidatedConsolidated NetNet IncomeIncome forfor suchsuch period,period, includingincluding unrealizedunrealized gains attributableattributable toto thethe changeschanges inin fair fair market market value value of of all all Comznodity Commodity Hedge Hedge and and Power Power Sale Agreements andand HedgeHedge AgreementsAgreements (excluding (excluding any any such such non non Cash Cash item item to to the the extent extent it represents thethe reversalreversal ofof an an accrualaccrual or or reserve reserve for for potential potential Cash Cash items items in in any any prior prior period). ForFor purposes purposes of of this this definition, definition, Consolidated Consolidated Adjusted Adjusted EBITDA EBITDA for for each each of of the the periods endingending the lastlast dayday ofof each each ofof June, June, SeptemberSeptember and and DecemberDecember 2006 2006 shallshall bebe $57,250,000, $57,250,000$57,250,000 and $57,250,000,$57,250,000, respectively.respectively.
"Consolidated Cash InterestInterest Expense" means, for any period, totaltotal interestinterest expense (including(including thatthat portionportion attributableattributable to to Capitalized Capitalized Leases Leases in in accordance accordance with with GAAP andand capitalizedcapitalized interest)interest) ofof the the BorrowerBorrower and and its its Subsidiaries Subsidiaries on on a aConsolidated Consolidated basis with respectrespect toto allall outstandingoutstanding Debt Debt for for Borrowed Borrowed Money Money of of the the Borrower Borrower and and its its Subsidiaries for such period, includingincluding allall commissions,commissions, discountsdiscounts andand otherother feesfees andand charges owedowed withwith respectrespect toto lettersletters of of credit credit and and net net obligations obligations under under Hedge Hedge Agreements, butbut excluding,excluding, however,however, (a) (a) any any amount amount for for related related late late fees fees and and interest interest associated withwith thethe DistrigasDistrigas LitigationLitigation described described in in Schedule Schedule 4.01(~), 4.01 (g), (b) (b) interest interest payable under BostonGen'sBostonGen's fuel fuel oiloil inventory inventory program program permitted permitted under under the the Related Related Documents andand (c)(c) interestinterest andand feesfees associatedassociated with with RMR RMR Revenues Revenues subject subject to to refund. refund. For purposes ofof determining ConsolidatedConsolidated CashCash InterestInterest ExpenseExpense forfor anyany periodperiod endingending prior to January l,1,2008, 2008, Consolidated Consolidated Cash Cash Interest Interest Expense Expense shall shall be be deemed deemed to to be: be: (i) (i) for the Fiscal QuarterQuarter endingending MarchMarch 31, 31, 2007,2007, an an amount amount equal equal to to (x) (x) actual actual Consolidated Consolidated Cash Interest Expense for suchsuch FiscalFiscal QuarterQuarter multiplied byby (y)(y) four (4), (ii) forfor thethe twotwo Fiscal Quarters endingending JuneJune 30,30, 2007,2007, anan amountamount equal equal to to (x) (x) actual actual Consolidated Consolidated Cash Cash Interest Expense for suchsuch Fiscal QuartersQuarters multiplied by by (y) (y) two (2), (iii) forfor thethe threethree Fiscal Quarters endingending SeptemberSeptember 30, 30, 2007,2007, an an amount amount equal equal to to (x) (x) actual actual Consolidated Consolidated Cash Interest Expense for suchsuch FiscalFiscal QuartersQuarters multiplied byby (y)(y) four-thirds (4/3)(4/3) and (iv)(iv) for the four FiscalFiscal QuartersQuarters endingending December December 31, 31, 2007, 2007, actual actual Consolidated Consolidated Cash Cash Interest Interest Expense forfor suchsuch FiscalFiscal Quarters.Quarters.
"Consolidated NetNet Income" means, for any period, (a) the net income (or loss) of the Borrower and itsits SubsidiariesSubsidiaries onon aa ConsolidatedConsolidated basisbasis forfor suchsuch periodperiod determineddetermined inin conformity with GAAP,GAAP, minus (b) to the extent otherwise includedincluded inin ConsolidatedConsolidated NetNet Income, (i) the incomeincome ofof any any SubsidiarySubsidiary of of the the Borrower Borrower to to the the extent extent that that the the declaration or payment of dividends oror similarsimilar distributionsdistributions byby suchsuch SubsidiarySubsidiary ofof that that income isis not atat thethe timetime permittedpermitted byby operationoperation of of the the terms terms of of its its charter charter or or any any agreement, instrument,instrument, judgment, decree,decree, order,order, statute, statute, rule rule or or governmental governmental regulation regulation applicable to suchsuch Subsidiary,Subsidiary, (ii)(ii) anyany after-taxafter-tax gains gains or or losses losses attributable attributable to to Asset Asset Sales Sales or returned surplus assets of any Plan, (iii) (to the extent notnot includedincluded inin clausesclauses (i)i and and .<.illii above) above) any any net net extraordinary extraordinary gains gains or or net net extraordinary extraordinary losses losses and and (iv) (iv) income income attributable to the RMR AgreementAgreement (other(other than than Permitted Permitted RMR RMR Revenues) Revenues) plus (c)(c) without duplication, Permitted RMR Revenues. InIn addition, addition, Consolidated Consolidated Net Net Income Income for any period shallshall reflectreflect expensesexpenses associatedassociated with with long-term long-term service service agreements agreements on on the the basis of equivalent operating hours incurred duringduring suchsuch period (instead(instead ofof on on the basisbasis ofof maintenance work performed duringduring suchsuch periodperiod as as requiredrequired by by GAAP). GAAP).
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"Consolidated Total Total Debt" Debt" means, as at any date ofof determination, determination, thethe aggregateaggregate stated balance sheet amountamount ofof all all DebtDebt forfor BorrowedBorrowed Money Money of of the the Borrower Borrower and and its its Subsidiaries determined onon aa ConsolidatedConsolidated basisbasis inin accordanceaccordance with with GAAP. GAAP.
"Contractual Obligations" means, as applied to anyany Person,Person, anyany provisionprovision ofof any any Equity Interests issuedissued byby suchsuch PersonPerson oror of of any any indenture,indenture, mortgage, mortgage, deed deed of of trust, trust, contract, undertaking, agreementagreement oror otherother instrument instrument to to whichwhich such such Person Person is is a a party party or or by which it or any ofof its its PropertiesProperties isis bound.bound.
"Control'"ControP' means, with respectrespect toto anyany Person,Person, thethe possession,possession, directly directly or or indirectly, of the power toto directdirect oror causecause thethe directiondirection of of the the management management and and policies policies of of such Person, whether throughthrough thethe abilityability toto exerciseexercise votingvoting power, power, contract contract or or otherwise. otherwise. "Controlling" and "Controlled" have meanings correlative thereto.thereto.
"Conversion," "Convert" and "Converted" each refer to a conversion of Loans Loans ofof one Type into Loans ofof the the otherother TypeType pursuantpursuant to to SectionSection 2.08 2.08 or or 2.09. 2.09.
"CS" has the meaning specifiedspecified inin thethe recitalrecital ofof parties parties toto this this Agreement. Agreement.
"Current"CurrentAssets" Assets" means, at any time, ConsolidatedConsolidated currentcurrent assetsassets ofof the the BorrowerBorrower and its Subsidiaries atat suchsuch timetime thatthat would,would, inin accordanceaccordance with with GAAP, GAAP, be be classified classified in in a a consolidated balance sheetsheet ofof the the BorrowerBorrower as as currentcurrent assets assets at at such such date date of of determination, but excludingexcluding cash,cash, CashCash EquivalentsEquivalents and and liabilities liabilities owed owed to to the the Borrower Borrower and its Subsidiaries byby anyany AffiliateAffiliate thereof.thereof.
"Current Liabilities"Liabilities" means, at any time, Consolidated currentcurrent liabilitiesliabilities ofof the the Borrower and itsits SubsidiariesSubsidiaries atat suchsuch timetime thatthat would, would, in in accordance accordance with with GAAP, GAAP, be be classified on a balance sheetsheet ofof the the BorrowerBorrower as as currentcurrent liabilities liabilities at at such such date date of of determination, and inin anyany eventevent shallshall includeinclude allall DebtDebt payable payable on on demand demand or or within within one one year from any datedate ofof determination determination withoutwithout any any option option on on the the part part of of the the obligor obligor thereunder toto extendextend oror renewrenew beyondbeyond suchsuch year year and and all all accruals accruals for for federal federal or or other other taxes taxes based on or measured byby incomeincome andand payablepayable within within one one year, year, but but excluding excluding the the current current portion of long-term debtdebt (including(including anyany DebtDebt hereunder) hereunder) required required to to be be paid paid within within one one year.
"Debt" of any Person means, withoutwithout duplication,duplication, (a)(a) DebtDebt for for BorrowedBorrowed Money Money of such Person, (b) all obligationsobligations ofof such such PersonPerson forfor thethe deferred deferred purchase purchase price price of of property or servicesservices (other(other thanthan trade trade payablespayables not not overdue overdue (unless (unless being being contested contested in in good faith by appropriate proceedingsproceedings forfor whichwhich reserves reserves and and other other appropriate appropriate provisions, ifif any, requiredrequired byby GAAPGAAP shallshall havehave been been made) made) by by more more than than 90 90 days days incurred in the ordinary course of suchsuch Person's business),business), (c)(c) allall obligationsobligations of such Person evidenced byby notes,notes, bonds,bonds, debenturesdebentures oror other other similar similar instruments, instruments, (d) (d) all all obligations of such Person createdcreated oror arisingarising underunder anyany conditionalconditional salesale or or other other title title retention agreement withwith respectrespect toto propertyproperty acquired acquired by by such such Person Person (even (even though though the the rights and remediesremedies ofof the the sellerseller or or lender lender under under such such agreement agreement in in the the event event of default are limited to repossession oror salesale ofof such such properiy),property), (e) (e) all all obligations obligations of of such such Person Person as as lessee under Capitalized Leases,Leases, ((f) fl all obligations of such Person toto purchase,purchase, redeem,redeem,
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retire, defeasedefease oror otherwiseotherwise makemake anyany payment payment in in respect respect of of any any Equity Equity Interests Interests in in such such Person oror anyany otherother PersonPerson or or any any warrants, warrants, rights rights or or options options to to acquire acquire such such Equity Equity Interests, valued,valued, inin thethe casecase ofof Redeemable Redeemable Preferred Preferred Interests, Interests, at at the the greater greater of of its its voluntary oror involuntaryinvoluntary liquidationliquidation preferencepreference plus accrued and unpaid dividends,dividends, (g)(g) allall obligations ofof suchsuch Person inin respectrespect ofof Hedge Hedge AgreementsAgreements andand CommodityCommodity HedgeHedge andand Power SaleSale AgreementsAgreements (valued(valued at at the the Agreement Agreement Value Value thereo thereof), fl, inin eacheach case, case, pursuant pursuant to anan InternationalInternational SwapSwap Dealers Dealers Association Association agreement agreement form form or or similar similar arrangement, arrangement, (h) all GuaranteedGuaranteed DebtDebt and and SyntheticSynthetic Debt Debt of of such such Person Person and and (i) (i) all all indebtedness indebtedness and and other payment obligations referredreferred to to in in clauses clauses (a) a through through ~ill above above of of another another Person Person secured byby (or(or forfor whichwhich thethe holderholder of of such such Debt Debt has has an an existing existing right, right, contingent contingent or or otherwise, toto bebe securedsecured by)by) anyany LienLien on on property property (including, (including, without without limitation, limitation, accounts accounts and contract rights)rights) ownedowned byby suchsuch Person,Person, eveneven thoughthough suchsuch PersonPerson hashas notnot assumed assumed oror become liableliable forfor thethe paymentpayment of of such such indebtedness indebtedness or or other other payment payment obligations. obligations.
"Debtfor"Debt for Borrowed Money"Money" of any Person means,means, atat anyany datedate ofof determination, determination, the sumsum of (a)(a) allall itemsitems that,that, inin accordanceaccordance withwith GAAP,GAAP, wouldwould bebe classifiedclassified asas indebtedness onon aa ConsolidatedConsolidated balancebalance sheet sheet of of such such Person Person at at such such date date and and (b) (b) all all Synthetic Debt ofof such such PersonPerson atat suchsuch date;date; provided that with respectrespect toto eacheach ofof clauses clauses ill~ and and ~ 1.hl above, above, any any amounts amounts associated associated with with unutilized unutilized and and undrawn undrawn amounts amounts under under the Synthetic L/CLlC FacilityFacility andand thethe RevolvingRevolving CreditCredit FacilityFacility (each(each asas defineddefined inin thethe FirstFirst Lien Credit Agreement)Agreement) shallshaH notnot bebe deemeddeemed Debt Debt for for Borrowed Borrowed Money. Money.
"Debt Proceeds" means, with respect toto thethe incurrenceincurrence oror issuance issuance of of any any Debt Debt by by the Borrower (other(other thanthan PermittedPermitted Debt)Debt) or or any any of of its its Subsidiaries Subsidiaries (other (other than than Debt Debt Permitted underunder thethe RelatedRelated Documents),Documents), the the Net Net Cash Cash Proceeds Proceeds payable payable to to the the Borrower Borrower or any of itsits SubsidiariesSubsidiaries inin connectionconnection with with such such incurrence incurrence or or issuance. issuance.
"Default" means any Event of DefaultDefault oror anyany eventevent thatthat wouldwould constituteconstitute anan Event of Default butbut forfor thethe passagepassage ofof time time oror the the requirement requirement that that notice notice be be given given or or both.
"Default Interest" has the meaning setset forthforth inin SectionSection 2.07(b).2.07(b).
"Distribution" has the meaning setset forthforth inin thethe preliminarypreliminary statementsstatements toto thisthis Agreement.
"Distrigas Litigation"Litigation" means that certain casecase pendingpending inin thethe SuffolkSuffolk County,County, Massachusetts SuperiarSuperior CourtCourt (Civil (Civil ActionAction No: No: OS-0764) 05-0764) entitledentitled DistrigasDistrigas ofof Massachusetts, LLCLLC v.v. MysticMystic DevelopmentDevelopment and and Exelon Exelon New New England, England, LLC, LLC, as as described inin ScheduleSchedule 4.01(~).4.01(g).
"Dollars" and the sign "$" mean the lawful currency of the United States of America.
"Domestic"Domestic Lending Office"Office" means, with respectrespect toto anyany Lender,Lender, thethe officeoffice ofof such such Lender specified asas itsits "Domestic"Domestic LendingLending Office"O~ce" opposite its name on ScheduleSchedule II heretohereto or in the Assignment andand AcceptanceAcceptance pursuantpursuant to to which which it it became became a a Lender, Lender, as as the the case case
EBG Holdings LLC 9 Credit Agreement NYINYI:#3437976v11 :#3437976vll 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 429 of 510
may be,be, oror suchsuch otherother officeoffice ofof such such LenderLender as as suchsuch Lender Lender may may from from time time to to time time specify to the BorrowerBorrower andand thethe AdministrativeAdministrative Agent.Agent.
"Effective Date"Date" has the meaningmeaning specifiedspecified inin SectionSection 3.01.3.01.
"Eligible Assignee" means (a)(a) aa Lender;Lender; (b)(b) anan AffiliateAffiliate of of a a Lender; Lender; (c) (c) an an Approved Fund; andand (d)(d) anyany otherother PersonPerson (other(other thanthan an an individual) individual) approved approved by by the the Administrative AgentAgent (such(such approvalapproval notnot to to bebe unreasonablyunreasonably withheldwithheld or or delayed); delayed); provided, however,however, that neither thethe BorrowerBorrower nornor itsits SubsidiariesSubsidiaries shall shall qualifyqualify as as anan Eligible AssigneeAssignee underunder thisthis definition.definition.
"Eminent DomainDomain Proceeds"Proceeds" means with respectrespect toto anyany EventEvent of of Eminent Eminent Domain, the Net Cash ProceedsProceeds payablepayable toto thethe BorrowerBorrower or or any any ofof its its Subsidiaries Subsidiaries in in connection with suchsuch Event ofof Eminent Eminent Domain. Domain.
"Environmental"EnvironmentalAction" Action" means any action, suit,suit, demand,demand, demanddemand letter,letter, claim,claim, written notice ofof non compliance oror violation,violation, writtenwritten noticenotice ofof liability liability or or potential potential liability, investigation,investigation, proceeding, consentconsent orderorder oror consentconsent agreementagreement relatingrelating in in anyany way to any EnvironmentalEnvironmental Law,Law, anyany EnvironmentalEnvironmental PermitPermit or or Hazardous Hazardous Material Material including, without limitation,limitation, (a)(a) byby anyany governmentalgovernmental oror regulatoryregulatory authorityauthority forfor enforcement, cleanup, removal,removal, response,response, remedialremedial oror otherother actionsactions or or damages damages andand (b) by any governmentalgovernmental oror regulatory regulatory authority authority or or third third party party for for damages, damages, contribution, contribution, indemnification, cost recovery, compensationcompensation oror injunctiveinjunctive relief.relief.
"Environmental Law" means any Federal, statestate oror locallocal statute,statute, law,law, ordinance, ordinance, rule, regulation, code, order, writ,writ, judgment, injunctioninjunction oror decreedecree relatingrelating toto pollutionpollution oror protection of the the environmentenvironment or,or, asas such such relates relates to to exposure exposure to to Hazardous Hazardous Materials, Materials, health or natural resources, including,including, withoutwithout limitation,limitation, thosethose relatingrelating toto thethe use,use, handling, transportation,transportation, treatment,treatment, storage,storage, disposal, disposal, release release or or discharge discharge of of Hazardous Hazardous Materials.
"Environmental Permit'Permit" means any permit, approval,approval, identificationidentification number, number, license or other authorization requiredrequired underunder any any Environmental Environmental Law. Law.
"Equity Interests" means, with respect to any Person, shares ofof capital capital stockstock ofof (or other ownership or profitprofit interestsinterests in)in) suchsuch Person, Person, warrants, warrants, options options or or other other rights rights for the purchase oror otherother acquisitionacquisition from from such such Person Person of of shares shares of of capital capital stock stock of of (or (or other ownership or profit interestsinterests in)in) suchsuch Person,Person, securitiessecurities convertibleconvertible intointo oror exchangeable for sharesshares ofof capital capital stockstock of of (or (or other other ownership ownership or or profit profit interests interests in) in) such such Person or warrants, rights oror optionsoptions for for the the purchase purchase or or other other acquisition acquisition from from such such Person of such sharesshares (or(or suchsuch otherother interests), interests), and and other other ownership ownership or or profit profit interests interests in in such Person (including, withoutwithout limitation,limitation, partnership,partnership, member member or or trust trust interests interests therein), therein), whether voting or nonvoting, and whether oror notnot suchsuch shares,shares, warrants,warrants, options,options, rightsrights oror other interests are authorized oror otherwise otherwise existing existing on on any any date date of of determination. determination.
"Equity"Equity Issuance" means any issuance of any Equity Interests byby thethe BorrowerBorrower oror any of its Subsidiaries, other than anyany Excluded EquityEquity Issuance.Issuance.
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) 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 430 of 510
"Equity Proceeds" means, with respect to anyany EquityEquity Issuance,Issuance, thethe NetNet Cash Cash Proceeds payable toto thethe BorrowerBorrower or or any any of of its its SubsidiariesSubsidiaries in in connection connection with with such such Equity Issuance.
"ERISA" means the EmployeeEmployee RetirementRetirement IncomeIncome Security Security Act Act of of 1974, 1974, as as amended from time to time, andand the regulations promulgatedpromulgated andand rulingsrulings issuedissued thereunder.
"ERISA Affiliate"Affiliate" means any Person that forfor purposespurposes ofof Title Title IVIV ofof ERISA ERISA is is aa member of the controlledcontrolled groupgroup ofof the the Borrower,Borrower, or or under under common common control control with with the the Borrower, within thethe meaningmeaning ofof Section Section 414(b) 414(b) or or (c) (c) of of the the Internal Internal Revenue Revenue Code. Code.
"ERISA Event"Event" means (a}(i)(a)(i) the occurrence ofof a a reportablereportable event,event, within within the the meaning of SectionSection 40434043 ofof ERISA, ERISA, withwith respect respect to to any any Plan Plan unless unless the the 30 30 day day notice notice requirement with respect toto suchsuch event has beenbeen waivedwaived byby thethe PBGCPBGC ar(ii)or (ii) the the requirements ofof Section Section 4043(b)4043(b) ofof ERISA ERISA apply apply with with respect respect to to a a contributing contributing sponsor, sponsor, as defined in SectionSection 4001(a)(13)4001 (a)(13) ofof ERISA, ERISA, ofof a a Plan, Plan, and and an an event event described described in in paragraph (9),(9), (10),(10), (11),(11), (12)(12) oror (13) (13) ofof Section Section 4043(c) 4043(c) of of ERISA ERISA is is reasonably reasonably expected to occur withwith respectrespect toto suchsuch PlanPlan withinwithin the the following following 30 30 days; days; (b) (b) the the application for a minimum fundingfunding waiverwaiver with with respect respect to to a a Plan; Plan; (c) (c) the the provision provision by by the the administrator of anyany PlanPlan ofof a a noticenotice ofof intent intent to to terminate terminate such such Plan, Plan, pursuant pursuant to to Section Section 40414041(a)(2) (a)(2) ofof ERISA (including(including anyany suchsuch notice notice with with respect respect to to a a plan plan amendment amendment referred to inin Section 4041(e)4041 (e) ofof ERISA); ERISA); (d)(d) thethe cessationcessation ofof operations operations atat aa facilityfacility ofof the Borrower oror anyany ERISAERISA AffiliateAffiliate inin thethe circumstancescircumstances described described in in Section Section 4062(e) 4062( e) of ERISA;ER[SA; (e) the withdrawal byby thethe BorrowerBorrower or or any any ERISA ERISA Affiliate Affiliate from from a a Multiple Multiple Employer Plan duringduring aa planplan yearyear for for whichwhich it it was was a a substantial substantial employer, employer, as as defined defined in in Section 40014001(a)(2) (a)(2) of ERISA; (~(f) thethe conditionsconditions forfor impositionimposition ofofa a lien lien underunder SectionSection 302(302(f) fl ofof ERISAERISA shallshall have been met with respect toto anyany Plan;Plan; (g)(g) thethe adoptionadoption ofof an an amendment to a PlanPlan requiringrequiring thethe provisionprovision of of security security to to such such Plan Plan pursuant pursuant to to Section Section 307 of ERISA; oror (h)(h) thethe institutioninstitution byby the the PBGCPBGC of of proceedings proceedings to to terminate terminate a a Plan Plan pursuant toto SectionSection 40424042 ofof ERISA, ERISA, oror the the occurrence occurrence of of any any event event or or condition condition described inin SectionSection 40424042 ofof ERISA ERISA thatthat constitutes constitutes grounds grounds for for the the termination termination of, of, or or the the appointment of a trusteetrustee toto administer,administer, suchsuch Plan.Plan.
"Eurocurrency Liabilities" has the meaning specifiedspecified inin RegulationRegulation DD ofof the the Board of GovernorsGovernors ofof the the FederalFederal ReserveReserve System,System, as as in in effect effect from from time time to to time. time.
"Eurodollar Lending Office"Office" means, with respect toto anyany Lender,Lender, thethe officeoffice ofof such Lender specifiedspecified asas itsits "Eurodollar Lending Office"Office" opposite its name onon ScheduleSchedule II hereto or in the Assignment andand AcceptanceAcceptance pursuant pursuant to to which which it it became became a a Lender Lender (or, (or, if if no such office isis specified,specified, itsits DomesticDomestic Lending Lending Office), Office), or or such such other other office office of of such such Lender as suchsuch LenderLender maymay fromfrom timetime to to timetime specify specify to to the the Borrower Borrower and and the the Administrative Agent.Agent.
"Eurodollar Rate"Rate" means, for any Interest PeriodPeriod forfor allall EurodollarEurodollar RateRate LoansLoans comprising part ofof the the samesame BorrowingBorrowing an an interestinterest rate rate per annumannum equal to the rate per annum obtained by dividingdividing (a)(a) thethe raterate per annumannum (rounded upwards, ifif necessary, necessary, toto thethe
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nearest 1/10011100 ofof 1°/a) 1%) appearing onon TelerateTelerate PagePage 3750 3750 (or (or any any successor successor page) page) as as the the London interbankinterbank offeredoffered raterate forfor deposits deposits in in U.S. u.s. dollars dollars at at 11:00 11 :00 A.M. A.M. (London (London time) time) on the InterestInterest RateRate DeterminationDetermination DateDate for for such such Interest Interest Period Period for for a a period period equal equal to to such Interest PeriodPeriod (provided that, ifif for for anyany reasonreason suchsuch raterate isis notnot available, available, the the term term "Eurodollar Rate" shall mean, forfor anyany InterestInterest PeriodPeriod forfor aliall EurodollarEurodollar Rate Rate Loans, Loans, the the rate per annumannum (rounded upwards, ifif necessary, necessary, toto thethe nearestnearest 1/100 11100 of of 1%) 1%) appearing appearing on on Reuters ScreenScreen LIBOLIBO PagePage asas thethe LondonLondon interbank interbank offered offered rate rate for for deposits deposits in in Dollars Dollars at at approximately 11:0011 :00 A.M.A.M. (London(London time) time) two two Business Business Days Days prior prior to to the the first first day day of of such such Interest PeriodPeriod forfor aa termterm comparablecomparable toto suchsuch Interest Interest Period; Period; provided, however,however, if more than oneone raterate isis specifiedspecified onon ReutersReuters Screen Screen LIBO LIBO Page, Page, the the applicable applicable rate rate shall shall be be the the arithmetic meanmean ofof all all suchsuch rates),rates), byby (b) (b) a a percentage percentage equal equal to to 100% 100% minus minus the the Eurodollar RateRate ReserveReserve PercentagePercentage for for such such Interest Interest Period. Period.
"Eurodollar RateRate Loan" Loan" means a Loan thatthat bearsbears interestinterest asas providedprovided in in SectionSection 2.072.07(a)(ii). a ii _
"Eurodollar RateRate Reserve Reserve Percentage" Percentage" for any Interest Period forfor allall EurodollarEurodollar Rate Loans comprisingcomprising partpart ofof the the samesame Borrowing Borrowing means means the the reserve reserve percentage percentage applicable twotwo BusinessBusiness DaysDays beforebefore the the firstfirst day day of of such such Interest Interest Period Period under under regulations issuedissued fromfrom timetime toto timetime by by the the Board Board of of Governors Governors of of the the Federal Federal Reserve Reserve System (or anyany successor)successor) forfor determiningdetermining the the maximum maximum reserve reserve requirement requirement (including, (including, without limitation,limitation, anyany emergency,emergency, supplementalsupplemental or or other other marginal marginal reserve reserve requirement) requirement) for a member bankbank ofof the the FederalFederal ReserveReserve SystemSystem in in New New York York City City with with respect respect to to liabilities or assets consistingconsisting ofof or or includingincluding Eurocurrency Eurocurrency Liabilities Liabilities (or (or with with respect respect to to any other category ofof liabilities liabilities thatthat includesincludes deposits deposits by by reference reference to to which which the the interest interest rate on Eurodollar RateRate LoansLoans isis determined)determined) having having a a term term equal equal to to such such Interest Interest Period. Period.
"Event ofojEminentEminent Domain" Domain" means any action, seriesseries ofof actions, actions, omissionsomissions oror series of omissions byby anyany GovernmentalGovernmental AuthorityAuthority (a) (a) by by which which such such Governmental Governmental Authority appropriates, confiscates,confiscates, condemns,condemns, expropriates, expropriates, nationalizes, nationalizes, seizes seizes or or otherwise takes allall oror aa materialmaterial portionportion of of the the Property Property of of the the Borrower Borrower or or any any of of its its Subsidiaries (including any EquityEquity InterestsInterests ofof the the Borrower Borrower or or any any of of its its Subsidiaries) Subsidiaries) or or (b) by which such Governmental AuthorityAuthority assumesassumes custody custody orar control of the Property (other than immaterialimmaterial portionsportions ofof such such Property)Property) or or business business operations operations of of the the Borrower Borrower or any of its Subsidiaries oror anyany EquityEquity InterestsInterests of of the the Borrower Borrower or or any any of of its its Subsidiaries.
"Events of Default" has the meaning specifiedspecified inin SectionSection 6.01.6.01.
"EWG'"EWG" means an exempt wholesale generatorgenerator withinwithin thethe meaningmeaning of of Section Section 1262(6) ofPUHCA.of PUHCA.
"Excess"Excess Cash Flow"Flow" means, for any Semi-Annual Period,Period, thethe excessexcess (if(if any) any) ofof
(a) the sum of (i) Consolidated AdjustedAdjusted EBITDAEBITDA forfor suchsuch Semi-Annual Period, (ii) to the extentextent notnot includedincluded inin suchsuch ConsolidatedConsolidated Adjusted Adjusted EBITDA, cash actually received byby thethe BorrowerBorrower and and itsits SubsidiariesSubsidiaries during during such such
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Semi-Annual Period inin respectrespect ofof extraordinary extraordinary gains gains and and gains gains from from any any sale, sale, transfer or disposition ofof cash cash oror CashCash Equivalents,Equivalents, or or in in respect respect of of business business interruption insurance, and (iii)(iii) reductions (if(if any) toto non-cashnon-cash workingworking capitalcapital ofof the Borrower andand itsits SubsidiariesSubsidiaries for for suchsuch Semi-Annual Semi-Annual Period Period (i.e., (i.e., the the decrease decrease (if any) in Current AssetsAssets minusminus CurrentCurrent Liabilities Liabilities from from the the beginning beginning to to the the end end of such Semi-Annual Period)Period) otherother thanthan reductionsreductions attributable attributable to to the the reclassification of any Debt fromfrom "long termterm debt"debt" toto "Current"Current Liabilities" Liabilities"
over
(b) the sum (for(for suchsuch Semi-AnnualSemi-Annual Period)Period) of of (i) (i) the the aggregate aggregate arnount amount of all principal payments, whetherwhether scheduled scheduled payments, payments, mandatory mandatory prepayments prepayments or voluntary prepayments, paidpaid byby the the BorrowerBorrower and and its its Subsidiaries Subsidiaries on on all all Debt Debt during such period (including the principal portion ofof payments payments inin respectrespect ofof Capitalized LeasesLeases butbut excludingexcluding prepaymentsprepayments mademade pursuant pursuant to to clause clause (b) b ofof Section 2.05), in each case,case, toto thethe extentextent permitted permitted to to be be mademade under under this this Agreement and soso longlong asas notnot mademade with,with, oror on on account account of, of, proceeds proceeds of of Debt Debt or or equity issuances oror otherother proceedsproceeds thatthat wouldwould not not be be included included in in Consolidated Consolidated Adjusted EBITDA, (ii)(ii) allall ConsolidatedConsolidated Cash Cash Interest Interest Expense Expense paid paid or or payable payable in in cash during such Semi-Annual Period (including(including the capitalizedcapitalized interestinterest portion ofof obligations under CapitalizedCapitalized LeasesLeases paidpaid in in cashcash and and the the interest interest portion portion of of any any deferred payment obligationobligation paidpaid inin cashcash duringduring such such Semi-Annual Semi-Annual Period), Period), to to the the extent such payments areare inin respectrespect ofof interest interest which which accrued accrued during during such such Semi- Semi Annual Period; provided that,that, forfor thethe avoidanceavoidance of of doubt, doubt, amounts amounts deducted deducted under under this clause may be deducted inin onlyonly oneone Semi-AnnualSemi-Annual Period,Period, (iii)(iii) allall CapitalCapital Expenditures made byby thethe BorrowerBorrower and and itsits SubsidiariesSubsidiaries paid paid or or payable payable in in cash cash to the extent permitted toto bebe mademade underunder this this Agreement Agreement and and so so long long as as not not financed with the proceeds ofof Debt Debt oror equity equity issuancesissuances or or other other proceeds proceeds that that would not be included inin ConsolidatedConsolidated Adjusted EBITDA;EBITDA; providedprovided that, forfor thethe avoidance of doubt, amountsamounts deducteddeducted underunder this this clause clause may may be be deducted deducted in in only only one Semi-Annual Period,Period, (iv)(iv) allall TaxesTaxes paidpaid by by thethe Borrower Borrower in in cash cash during during such such Semi-Annual Period, toto thethe extentextent suchsuch paymentspayments are are in in respectrespect of of income income which which accrued during suchsuch Semi-AnnualSemi-Annual Period,Period, (v)(v) toto the the extent extent not not subtracted subtracted in in determining Consolidated AdjustedAdjusted EBITDAEBITDA for for such such Semi-Annual Semi-Annual Period, Period, cash cash actually paid by the BorrowerBorrower andand itsits SubsidiariesSubsidiaries during during such such Semi-Annual Semi-Annual Period in respect ofof losses losses fromfrom anyany sale,sale, transfertransfer or or disposition disposition of of cash cash or or Cash Cash Equivalents, (vi)(vi) to thethe extentextent addedadded toto ConsolidatedConsolidated Net Net Income Income in in determining determining Consolidated Adjusted EBITDAEBITDA forfor suchsuch Semi-AnnualSemi-Annual Period, Period, Transaction Transaction Costs Costs actually paid in cashcash byby thethe BorrowerBorrower and and itsits SubsidiariesSubsidiaries during during such such Semi- Semi Annual Period, andand (vii)(vii) additionsadditions (if(if any) any) toto non-cash non-cash working working capital capital of of the the Borrower and its Subsidiaries forfor suchsuch Semi-AnnualSemi-Annual PeriodPeriod (i.e.,(i.e., thethe increaseincrease (if(if any) in Current Assets minus Current Liabilities fromfrom thethe beginningbeginning to the end of such Semi-Annual Period).
"Excluded Equity Issuance" Issuance" means (i) any issuanceissuance ofof any any EquityEquity Interests,Interests, thethe proceeds of which are to bebe usedused to financefinance aa PermittedPermitted Development,Development, (ii)(ii) anyany issuanceissuance ofof any Equity Interests inin connectionconnection withwith anan EquityEquity Cure Cure under under (and (and as as defined defined in) in) the the
EBG Holdings LLC 13 Credit Agreement NY!NY ] :#3437976vl!:#3437476v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 433 of 510
Related Documents,Documents, (iii)(iii) anyany issuanceissuance of of any any Equity Equity Interest Interest in in connection connection with with an an Investment permittedpermitted pursuantpursuant to to SectionSection 5.02(fl(iv~, 5.02(f)(iv), (iv)(iv) anyany issuanceissuance of of any any Equity Equity Interests in transactions permitted pursuant to Section 5.02(~~5.02(g)(i) or or (v) (v) any any other other issuance issuance of any Equity InterestsInterests inin anan amountamount notnot to to exceed exceed $25,000,000 $25,000,000 in in the the aggregate. aggregate.
"Existing Credit Credit Agreements" means, collectively,collectively, (i)(i) thethe AmendedAmended andand RestatedRestated First Lien CreditCredit andand ReimbursementReimbursement Agreement Agreement dated dated as as of of October October 11, 11,2005 2005 among among the the Borrower, thethe FirstFirst LienLien TermTerm LendersLenders named named therein, therein, the the Working Working Capital Capital Lenders Lenders named therein, thethe LCLC LendersLenders namednamed therein, therein, the the LC-DSR LC-DSR Lenders Lenders named named therein, therein, CS, CS, as First Lien AdministrativeAdministrative AgentAgent and and CS, CS, as as Collateral Collateral Agent Agent and and (ii) (ii) the the Amended Amended and and Restated SecondSecond LienLien CreditCredit and and Reimbursement Reimbursement Agreement Agreement dated dated as as of of October October 11, 11, 2005 among thethe Borrower,Borrower, thethe SecondSecond Lien Lien Lenders Lenders named named therein, therein, CS, CS, as as Second Second Lien Lien Administrative AgentAgent andand CS,CS, asas CollateralCollateral Agent.Agent.
"Existing Debt" has the meaning specifiedspecified inin SectionSection 4.01(p).4.01 (p).
"Facility" means, at any time, the aggregateaggregate amountamount ofof the the Lenders'Lenders' Commitments atat suchsuch time.time.
"Federal Funds Rate"Rate" means, for any period, aa fluctuatingfluctuating interestinterest raterate per annum equal for eacheach dayday duringduring suchsuch periodperiod to to the the weighted weighted average average of of the the rates rates on on overnight Federal fundsfunds transactionstransactions withwith members members of of the the Federal Federal Reserve Reserve System System arranged by FederalFederal fundsfunds brokers,brokers, asas publishedpublished for for such such day day (or, (or, if if such such day day is is not not a a Business Day, forfor thethe nextnext precedingpreceding BusinessBusiness Day) Day) by by the the Federal Federal Reserve Reserve Bank Bank of of New New York, or, if suchsuch raterate isis notnot soso publishedpublished for for anyany day day that that is is a a Business Business Day, Day, the the average average of the quotations forfor suchsuch dayday forfor suchsuch transactions transactions received received by by the the Administrative Administrative Agent Agent from three Federal fundsfunds brokersbrokers ofof recognized recognized standing standing selected selected by by it. it.
"Fee Letter" means the engagement letterletter dateddated NovemberNovember 20,20,2006 2006 betweenbetween the the Borrower, BostonGen andand CS.CS.
"FERC'"FERC" means the Federal Energy RegulatoryRegulatory CommissionCommission and and its its successors. successors.
"Financing Documents" has the meaning specifiedspecified inin thethe IntercreditorIntercreditor Agreement.
"First Lien Administrative Agent" Agent" has the meaning specifiedspecified inin thethe preliminarypreliminary statements to this Agreement.Agreement.
"First Lien CreditCredit AgreemenP'Agreement" has the meaning specifiedspecified inin the preliminarypreliminary statements to this Agreement.
"First Lien Lenders" has the meaning specifiedspecified inin thethe preliminary statementsstatements toto this Agreement.
"First"First Lien Pledge Agreement"AgreemenP' means that certain First Lien Pledge AgreementAgreement dated as of December 21,21, 20062006 byby thethe BorrowerBorrower in in favorfavor of of the the First First Lien Lien Collateral Collateral Administrative Agent forfor thethe benefitbenefit ofof the the FirstFirst Lien Lien Secured Secured Parties, Parties, as as amended. amended.
EBG Holdings LLC 14 Credit Agreement NYINY 1:#3437976v :#3437976vll I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 434 of 510
"Fiscal Quarter"Quarter" means a fiscal quarterquarter ofof any any FiscalFiscal Year.Year.
"Fiscal Year" means a fiscal year ofof the the BorrowerBorrower andand itsits SubsidiariesSubsidiaries ending ending on on December 3131 of eacheach calendarcalendar year.year.
"Fore River" means Fore River Development,Development, LLC,LLC, aa DelawareDelaware limited limited liability liability company.
"Fore River Project" Project" means a combined-cycle electricelectric generatinggenerating facilityfacility inin Weymouth andand Quincy,Quincy, MassachusettsMassachusetts and and owned owned by by Fore Fore River River with with a anominal nominal capacity capacity of 807 MW inin operation.
"FPA" means the Federal PowerPower Act,Act, asas amended.amended.
"Fund" means any Person (other(other thanthan anan individual)individual) thatthat is is oror will will be be engaged engaged in in making, purchasing, holding or otherwise investinginvesting inin commercialcommercial loansloans andand similarsimilar extensions of credit credit inin thethe ordinaryordinary course.course.
"GMP'"GAAP°' has the meaning specifiedspecified inin SectionSection 1.03.1.03.
"Governmental Authority" Authority" means any nation oror government,government, anyany state,state, province,province, city, municipal entityentity oror otherother politicalpolitical subdivisionsubdivision thereof, thereof, and and any any governmental, governmental, executive, legislative,legislative, judicial, administrativeadministrative or or regulatory regulatory agency, agency, department, department, authority, instrumentality,instrumentality, commission,commission, board,board, bureau bureau or or similar similar body, body, whether whether federal, federal, state, provincial, territorial, locallocal oror foreign. foreign.
"Governmental Authorization" Authorization" means any authorization, approval,approval, consent,consent, franchise, license,license, covenant,covenant, order,order, ruling,ruling, permit,permit, certification, certification, exemption, exemption, notice, notice, declaration or similarsimilar right,right, undertakingundertaking oror other other action action of, of, to to or or by, by, or or any any filing, filing, qualification oror registration with,with, anyany GovernmentalGovernmental Authority. Authority.
"Granting Lender" Lender" has the meaning specifiedspecified inin SectionSection 8.07(i).8.07CD.
"Guaranteed DebP' Debt" means, withwith respectrespect toto anyany Person,Person, anyany obligationobligation or or arrangement ofof suchsuch PersonPerson toto guaranteeguarantee or or intended intended to to guarantee guarantee any any Debt Debt (''primary("primary obligations") of any other Person (the(the ''primary"primary obligor")obligor") in any manner, whether directly or indirectly,indirectly, including,including, withoutwithout limitation, limitation, (a) (a) the the direct direct or or indirect indirect guarantee, guarantee, endorsement (other(other than forfor collectioncollection or or deposit deposit in in the the ordinary ordinary course course of of business), business), co co making, discountingdiscounting withwith recourserecourse oror sale sale with with recourse recourse by by such such Person Person of of the the obligation obligation of a primary obligor, (b) the obligation to makemake take-or-pay oror similarsimilar payments, if required, regardlessregardless ofof nonperformance nonperformance by by any any other other pariy party or or parties parties to to an an agreement agreement orar (c) any obligation ofof such such Person,Person, whetherwhether or or not not contingent, contingent, (i) (i) to to purchase purchase any any such such primary obligation oror anyany propertyproperty constitutingconstituting direct direct or or indirect indirect security security therefor, therefor, (ii) (ii) to to advance or supplysupply fundsfunds (A)(A) forfor thethe purchasepurchase or or payment payment of of any any such such primary primary obligation obligation or (B) to maintain workingworking capitalcapital oror equity equity capital capital of of the the primary primary obligor obligor or or otherwise otherwise to to maintain the netnet worthworth oror solvencysolvency ofof the the primary primary obligor, obligor, (iii) (iii) to to purchase purchase property, property, assets, securities oror servicesservices primarilyprimarily forfor the the purpose purpose of of assuring assuring the the owner owner of of any any such such primary obligationobligation ofof the the abilityability ofof the the primary primary obligor obligor to to make make payment payment of of such such primary primary
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obligation oror (iv)(iv) otherwiseotherwise toto assureassure or or hold hold harmless hannless the the holder holder of of such such primary primary obligation against lossloss inin respectrespect thereof.thereof. TheThe amount amount of of any any Guaranteed Guaranteed Debt Debt shall shall be be deemed to bebe anan amountamount equalequal toto thethe statedstated or or determinable detenninable amount amount of of the the primary primary obligation inin respectrespect ofof which which suchsuch Guaranteed Guaranteed Debt Debt is is made made (or, (or, if ifless, less, the the maximum maximum amount of suchsuch primaryprimary obligationobligation for for whichwhich such such Person Person may may be be liable liable pursuant pursuant to to the the termstenns ofof the the instrumentinstrument evidencingevidencing such such Guaranteed Guaranteed Debt) Debt) or, or, if ifnot not stated stated or or determinable,detenninable, the maximummaximum reasonablyreasonably anticipatedanticipated liability liability in in respect respect thereof thereof (assuming (assuming such Person isis requiredrequired toto performperfonn thereunder), thereunder), as as determined detennined by by such such Person Person in in good good faith.
"Hazardous Materials"Materials" means (a) petroleum oror petroleumpetroleum products,products, by-productsby-products or breakdown products,products, radioactiveradioactive materials,materials, asbestos-containing asbestos-containing materials materials and and polychlorinated biphenylsbiphenyls andand (b)(b) anyany otherother chemicals, chemicals, materials materials or or substances substances designated, classifiedclassified oror regulatedregulated asas hazardoushazardous or or toxic toxic or or as as a a pollutant pollutant or or contaminant contaminant under any Environmental Law.Law.
"Hedge"HedgeAgreements" Agreements" means interest rate swap,swap, capcap oror collarcollar agreements, agreements, interestinterest rate future or optionoption contracts,contracts, currencycurrency swapswap agreements, agreements, currency currency future future or or option option contracts and otherother hedginghedging agreementsagreements butbut excluding excluding any any Commodity Commodity Hedge Hedge and and Power Power Sale Agreement.
"Indemnified Costs" Costs" has the meaning specifiedspecified inin SectionSection 7.05.7.05.
"Indemnified Party" Party" has the meaning specifiedspecified inin SectionSection 8.04(b).8.04(b).
"Initial Banks" means the Administrative Agent,Agent, eacheach Co-SyndicationCo-Syndication Agent,Agent, each Co-Documentation Agent,Agent, eacheach JointJoint BookBook Running Running Manager Manager and and each each Joint Joint Lead Lead Arranger.
"Initial Extension of Credit" means the initial BorrowingBorrowing hereunder.hereunder.
"Initial Lenders" means the banks, financial institutionsinstitutions andand otherother institutional institutional lenders listed on the signaturesignature pagespages hereofhereof as as thethe InitialInitial Lenders. Lenders.
"Initial Operating Budget" Budget" means has the meaning specifiedspecified inin SectionSection 3.01 (a)(ix). a ix .
"Insufficiency" means, with respect to any Plan, thethe amount,amount, ififany, any, ofof its its unfunded benefit liabilities,liabilities, asas defineddefined inin SectionSection 4001(a)(18)4001 (a)(18) of of ERISA. ERISA.
"Insurance Proceeds" means, with respect to any CasualtyCasualty Event,Event, thethe NetNet CashCash Proceeds payable to thethe BorrowerBorrower oror any any ofof its its SubsidiariesSubsidiaries from from time time to to time time with with respect to such Casualty Event.Event.
"Intercreditor"Intercreditor AgreemenP' Agreement" means that certain CollateralCollateral AgencyAgency andand IntercreditorIntercreditor Agreement, dated as ofof December December 21,21,2006, 2006, byby andand among among BostonGen, BostonGen, the the Borrower, Borrower, the the Guarantors named therein, the FirstFirst LienLien CollateralCollateral AdministrativeAdministrative Agent, Agent, the the Second Second Lien Collateral Administrative Agent,Agent, FirstFirst LienLien AdministrativeAdministrative Agent, Agent, CS, CS, as as SecondSecond
EBG Holdings LLCLLC 16 Credit Agreement NYl#3437976vllNYl :#3437976v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 436 of 510
Lien Administrative Agent, certain CommodityCommodity HedgeHedge CounterpartiesCounterparties andand thethe other other Persons party thereto fromfrom timetime toto time,time, asas amended.amended.
"Interest Period"Period" means, for eacheach EurodollarEurodollar Rate Rate LoanLoan comprising comprising part part of of the the same Borrowing, thethe periodperiod commencingcommencing on on the the date date of of such such Eurodollar Eurodollar Rate Rate Loan Loan or or the the date of the Conversion ofof any any BaseBase RateRate LoanLoan intointo suchsuch EurodollarEurodollar RateRate Loan,Loan, andand ending on the lastlast day ofof the the periodperiod selectedselected byby thethe BorrowerBorrower pursuantpursuant toto thethe provisionsprovisions below and, thereafter, each subsequentsubsequent periodperiod commencingcommencing onon thethe lastlast dayday ofof the the immediately preceding Interest Period andand endingending onon thethe lastlast dayday ofof the the periodperiod selectedselected by the Borrower pursuant to thethe provisionsprovisions below.below. TheThe duration duration of of each each such such Interest Interest Period shall be one,one, two, three oror sixsix months,months, or,or, ifif available available toto eacheach Lender,Lender, ninenine oror twelve months oror suchsuch otherother periodperiod acceptableacceptable toto thethe Administrative Administrative Agent, Agent, asas thethe Borrower may, uponupon noticenotice receivedreceived byby thethe AdministrativeAdministrative AgentAgent notnot laterlater thanthan 1111:00 :00 A.M. (New York CityCity time)time) onon thethe thirdthird Business Business Day Day prior prior to to the the first first day day of of such such Interest Period, select;select; provided, however,however, that:
(a) the Borrower may notnot selectselect anyany InterestInterest Period Period with with respect respect to to any any Eurodollar Rate LoanLoan underunder aa FacilityFacility that that ends ends after after any any principal principal repayment repayment installment date forfor suchsuch FacilityFacility unless,unless, afterafter giving giving effect effect to to such such selection, selection, the the aggregate principal amountamount ofof Base Base Rate Rate Loans Loans and and of of Eurodollar Eurodollar Rate Rate Loans Loans having Interest Periods that endend onon oror priorprior toto suchsuch principalprincipal repaymentrepayment installment date forfor suchsuch FacilityFacility shallshall bebe at at least least equal equal to to the the aggregate aggregate principal principal amount of Loans underunder suchsuch FacilityFacility due due and and payable payable on on or or prior prior to to such such date; date;
(b) [Reserved];
(c) whenever the last dayday ofof any any InterestInterest Period Period would would otherwise otherwise occur occur on on a day other than aa BusinessBusiness Day,Day, thethe lastlast day day of of such such Interest Interest Period Period shall shall be be extended to occuroccur onon the nextnext succeedingsucceeding Business Business Day, Day,provided, provided, however,however, that, if such extension would causecause thethe lastlast day day of of such such Interest Interest Period Period to to occur occur in in the the next following calendarcalendar month,month, thethe lastlast day day of of such such Interest Interest Period Period shall shall occur occur on on the next preceding BusinessBusiness Day;Day;
(d) whenever the first day ofof any any InterestInterest PeriodPeriod occursoccurs on on a a day day of of an an initial calendar month forfor whichwhich therethere isis nono numericallynumerically corresponding corresponding day day in in the the calendar month that succeeds such initialinitial calendarcalendar monthmonth byby thethe numbernumber ofof months equal toto thethe numbernumber ofof months months in in such such Interest Interest Period, Period, such such Interest Interest Period shall endend onon thethe lastlast BusinessBusiness Day Day of of such such succeeding succeeding calendar calendar month; month; and and
(e) the Borrower shallshall notnot bebe permittedpermitted toto selectselect Interest Interest Periods Periods to to be be in in effect at anyanyone one time which havehave expirationexpiration dates dates occurring occurring on on more more than than eight eight different dates (it(it being understoodunderstood thatthat there there shall shall not not be be more more than than eight eight contracts in respect ofof Eurodollar Eurodollar RateRate LoansLoans in in effecteffect at at any anyone one time). time).
"Interest RateRate Determination Determination Date" Date" means, with respect to anyany InterestInterest Period,Period, the date thatthat isis twotwo BusinessBusiness DaysDays priorprior to to the the first first day day of of such such Interest Interest Period. Period.
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"Internal Revenue Code" Code" means the InternalInternal RevenueRevenue CodeCode ofof 1986, 1986, as as amendedamended from timetime toto time,time, andand thethe regulationsregulations promulgated promulgated and and rulings rulings issued issued thereunder. thereunder.
"Investment'"InvestmenP' in any Person meansmeans anyany loanloan oror advance advance to to suchsuch Person, Person, any any purchase oror otherother acquisitionacquisition of of any any Equity Equity Interests Interests or or Debt Debt or or the the assets assets comprising comprising a a division oror businessbusiness unitunit oror a a substantial substantial part part or or all all of of the the business business of of such such Person, Person, any any capital contributioncontribution toto suchsuch PersonPerson or or any any other other direct direct or or indirect indirect investment investment in in such such Person, including,including, without limitation,limitation, anyany acquisitionacquisition byby wayway ofof a a mergermerger oror consolidation (or(or similarsimilar transaction)transaction) and and any any arrangement arrangement pursuant pursuant to to which which the the investor investor incurs Debt ofof thethe typestypes referred referred to to in in clause clause (h) h oror ~ill of of the the definition definition ofof "Debf'"Debt" in respect ofof such such Person.Person.
"Joint Book Running Managers"Managers" has the meaning specified inin the recital of parties to thisthis Agreement.Agreement.
"Joint Lead Arrangers" has the meaning specifiedspecified inin thethe recitalrecital ofof parties parties toto this this Agreement.
"K"KRoad Road Manager" means K Road BG Management,Management, LLC,LLC, aa DelawareDelaware limited limited liability company.
"Lender" means anyany LenderLender thatthat hashas aa Commitment.Commitment.
"Lenders" means the Initial LendersLenders andand eacheach PersonPerson that that shall shall become become a a Lender Lender hereunder pursuant toto SectionSection 8.07 8.07 for for so so longlong as as such such Initial Initial Lender Lender or or Person, Person, as as the the case may be, shallshall bebe aa partyparty toto thisthis Agreement.Agreement.
"Leverage Ratio" means the ratio as of the last day ofof any any FiscalFiscal QuarterQuarter of (a) Consolidated Total DebtDebt asas ofof such such day day toto (b) (b) ConsolidatedConsolidated Adjusted Adjusted EBITDA EBITDA for for the the four-Fiscal Quarter period endingending onon such such date. date.
"Lien" means, with respectrespect toto anyany Property,Property, (a)(a) anyany mortgage, mortgage, deed deed of of trust, trust, deed deed to secure debt, lienlien (statutory(statutory oror otherwise), otherwise), pledge,pledge, hypothecation, hypothecation, encumbrance, encumbrance, collateral assignment, chargecharge oror security security interestinterest in, in, onon or or of of such such Property, Property, (b) (b) the the interest of a vendor or aa lessorlessor underunder anyany conditionalconditional salesale agreement, agreement, capital capital lease lease or or title title retention agreement (or(or anyany financingfinancing leaselease havinghaving substantially substantially the the same same economic economic effect as any of the foregoing), relatingrelating toto suchsuch Property,Property, and and (c) (c) in in the the case case of of Equity Equity Interests or debt securities,securities, anyany purchasepurchase option,option, call call oror similar similar right right of of a a third third party party with with respect to such Equity Interests oror debtdebt securities.securities. ForFor the the avoidance avoidance of of doubt, doubt, "Lien" shall not include any nettingnetting oror set-offset-off arrangements arrangements under under any any Contractual Contractual Obligation Obligation (other than Contractual ObligationsObligations constitutingconstituting Debt Debt for for Borrowed Borrowed Money Money or or having having the the effect of Debt for Borrowed Money}Money) otherwise pertnittedpermitted underunder thethe termsterms ofof the the LoanLoan Documents.
"Loan""Loan" has the meaning specified inin SectionSection 2.01.2.01.
"Loan Documents" means (a) this Agreement, (b) the NotesNotes andand (c)(c) thethe FeeFee Letter, in each case asas amended.amended.
EBG Holdings LLC 181 g Credit Agreement NY1NY 1:#3437976v :#3437976vll 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 438 of 510
"Make WholeWhole Premium"Premium" means, withwith respectrespect toto anyany applicableapplicable prepayment,prepayment, a a make-whole premium,premium, asas reasonablyreasonably determineddetermined byby thethe AdministrativeAdministrative AgentAgent inin accordance withwith acceptedaccepted financialfinancial practicepractice and and as as set set forth forth in in Schedule Schedule II. II.
"Management andand Operation Operation Agreements" means each of the Management andand Operation Agreements eacheach dateddated asas ofof October October 11, 11, 2005 2005 between between K K Road Road Manager Manager and and each of BostonGenBostonGen andand thethe ProjectProject Companies. Companies.
"Margin Stock" has the meaning specifiedspecified inin RegulationRegulation U.U.
"Material Adverse Change" means anyany change,change, occurrenceoccurrence oror developmentdevelopment (including, withoutwithout limitation,limitation, asas aa resultresult of of regulatory regulatory changes changes applicable applicable to to the the Borrower oror anyany ofof its its Subsidiaries)Subsidiaries) that that has has had had or or could could reasonably reasonably be be expected expected to to have have a Material Adverse Effect.Effect.
"Material Adverse Effect"Effect" means a material adverseadverse effecteffect onon (a)(a) thethe conditioncondition (financial oror otherwise),otherwise), business,business, resultsresults oror operations operations of of the the Borrower Borrower and and its its Subsidiaries, taken asas aa whole,whole, (b)(b) thethe rightsrights and and remedies remedies of of the the Administrative Administrative Agent Agent or or the Lenders, takentaken asas aa whole,whole, underunder any any Loan Loan Document Document or or (c) (c) the the ability ability of of the the Borrower to performperform itsits ObligationsObligations under under the the Loan Loan Documents. Documents.
"Maturity Date" means December 20,20,2016. 2016.
"Moody's" means Moody's InvestorsInvestors Services,Services, Inc.Inc.
"Multiemployer Plan" means a multiemployer plan,plan, asas defineddefined inin SectionSection 4001(a)(3) of ERISA, to which the BorrowerBorrower oror anyany ERISAERISA AffiliateAffiliate isis makingmaking oror accruing an obligationobligation toto makemake contributions,contributions, or or has has within within any any of of the the preceding preceding five five plan plan years made oror accruedaccrued anan obligationobligation toto makemake contributions. contributions.
"Multiple Employer Plan" means a single employeremployer plan, asas defineddefined inin SectionSection 40014001(a)(15) (a)(l5) ofof ERISA, ERISA, thatthat (a)(a) isis maintainedmaintained for for employees employees of of the the Borrower Borrower or or any any ERISA Affiliate andand atat leastleast oneone PersonPerson otherother than than the the Borrower Borrower and and the the ERISA ERISA Affiliates oror (b)(b) waswas soso maintainedmaintained andand in in respect respect of of which which the the Borrower Borrower or or any any ERISA ERISA Affiliate could have liabilityliability under SectionSection 40644064 oror 40694069 ofofERlSA ERISA inin thethe eventevent suchsuch planplan has been or werewere toto bebe terminated.terminated.
"Mystic 8&9 Project" means two (2) combined-cycle electricelectric generatinggenerating facilitiesfacilities with a combined nominalnominal capacitycapacity ofof 1614 1614 MWMW in in operation operation in in Everett, Everett, Massachusetts Massachusetts owned by Mystic Development.Development.
"Mystic Development" means Mystic Development, LLC,LLC, f/k/aflkJa ExelonExelon MysticMystic Development LLC, aa DelawareDelaware limitedlimited liabilityliability company.company.
"Mystic"Mystic rP' means Mystic I, LLC, a Delaware limitedlimited liabilityliability company.company.
"Mystic"Mystic Station Project" means an electric generatinggenerating facilityfacility withwith aa nominalnominal capacity of 576 MW inin operationoperation inin Everett,Everett, MassachusettsMassachusetts and and owned owned by by Mystic Mystic I. 1.
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"Net Cash Proceeds" means:
(a}(a) with respect toto anyany AssetAsset Sale,Sale, thethe excess,excess, if ifany, any, of of (i) (i) the the sum sum of of Cash and Cash EquivalentsEquivalents receivedreceived by by the the Borrower Borrower or or any any of of its its Subsidiaries Subsidiaries in in connection with suchsuch AssetAsset Sale Sale minus (ii)(A)(ii)(A) the out of pocket pocket costs,costs, fees,fees, commissions, premiumspremiums andand expensesexpenses (including (including Iegal legal and and accounting accounting costs, costs, fees fees and expensesexpenses andand titletitle andand recordingrecording fees, fees, costscosts and and expenses) expenses) reasonably reasonably incurred incurred directly or indirectlyindirectly byby thethe BorrowerBorrower or or any any of of its its Subsidiaries Subsidiaries in in connection connection with with such Asset SaleSale toto thethe extentextent suchsuch amounts amounts were were not not deducted deducted in in determining determining the the amount referred to in clause (i)i and and (B) (B) federal, federal, state state and and local local taxes taxes paid paid or or reasonably estimatedestimated toto bebe payablepayable by by the the Borrower Borrower or or any any of of its its Subsidiaries Subsidiaries in in connection therewith toto thethe extentextent such such amounts amounts were were not not deducted deducted in in determining the amountamount referredreferred toto inin clauseclause Ci);i; provided,provided, however,however, that, (i)(i) toto thethe extent that, within three-hundredthree-hundred sixty-five sixty-five (365) (365) days days of of receipt receipt of of proceeds proceeds of of any Asset SaleSale inin anan amountamount notnot toto exceedexceed $500,000, $500,000, the the applicable applicable Loan Loan Party Party reinvests suchsuch proceedsproceeds inin productiveproductive assets assets of of a a kind kind then then used used or or usable usable in in connection with thethe operationoperation andand maintenance maintenance of of the the Projects, Projects, such such proceeds proceeds shall not constitute Net CashCash ProceedsProceeds and and (ii) (ii) ifif the the Borrower Borrower shall shall deliver deliver a a certificate of aa ResponsibleResponsible OfficerOfficer of of the the BorrowerBorrower to to the the Administrative Administrative Agent Agent at the time of receipt receipt th~reofthereof setting setting forthforth thethe intentintent ofof the the BorrowerBorrower or or any any of of its its Subsidiaries to reinvest proceedsproceeds ofof any any AssetAsset Sale Sale in in excess excess of of $500,000 $500,000 in in productive assetsassets ofof a a kindkind thenthen usedused or or usable usable in in connection connection with with the the operation operation and maintenance of the Projects, withinwithin three-hundred sixty-fivesixty-five (365)(365) daysdays ofof receipt of such proceeds, suchsuch proceedsproceeds shallshall notnot constituteconstitute NetNet CashCash ProceedsProceeds ifif and to the extentextent thatthat thethe IndependentIndependent Engineer Engineer (as (as defined defined in in the the First First Lien Lien Credit Credit Agreement) hashas providedprovided toto thethe AdministrativeAdministrative Agent Agent a a certificate, certificate, certifying certifying that that such assets are productiveproductive assetsassets ofof a a kindkind then then usedused or or usable usable in in connection connection with with the operation andand maintenancemaintenance ofof the the Projects; Projects;
(b) with respect toto thethe incurrenceincurrence oror issuance issuance of of any any Debt Debt by by the the Borrower Borrower or any of itsits Subsidiaries thethe excessexcess ifif any, any, ofof (i) (i) the the sum sum of of the the Cash Cash and and Cash Cash Equivalents received byby BorrowerBorrower or or any any ofof its its SubsidiariesSubsidiaries in in connection connection with with such incurrence or issuanceissuance minus (ii)(ii} thethe underwritingunderwriting discounts andand commissions or other similarsimilar payments,payments, andand otherother out out of of pocket pocket costs, costs, fees, fees, commissions, premiums andand expensesexpenses (including(including legallegal and and accounting accounting costs, costs, fees fees and expenses and title andand recordingrecording fees,fees, costscosts andand expenses)expenses) reasonably reasonably incurred incurred directly or indirectlyindirectly byby thethe BorrowerBorrower or or anyany ofof its its SubsidiariesSubsidiaries in in connection connection with with such incurrence or issuanceissuance toto thethe extentextent suchsuch amountsamounts were were not not deducted deducted in in determining thethe amountamount referredreferred toto inin clauseclause Ci) i of of this this paragraph paragraph (b); (b);
(c) with respect to anyany EquityEquity Issuance,Issuance, thethe excessexcess of of (i) (i) thethe sum sum of of the the Cash and Cash Equivalents receivedreceived byby thethe BorrowerBorrower or or any any of of its its Subsidiaries Subsidiaries in in connection with such salesale oror issuanceissuance minus (ii) thethe underwriting discountsdiscounts andand commissions or similar payments,payments, andand otherother out out of of pocket pocket costs, costs, fees, fees, commissions, premiums andand expensesexpenses (including(including legallegal andand accounting accounting costs, costs, fees fees and expenses), reasonably incurredincurred byby thethe BorrowerBorrower or or any any of of its its Subsidiaries Subsidiaries in in connection with such salesale oror issuanceissuance toto thethe extentextent such such amounts amounts were were not not
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deducted in determining the amount referred to in clause (i)i of of this this paragraph paragraph (c); (c); and
(d) withwith respectrespect toto anyany EventEvent of of Eminent Eminent Domain Domain or or Casualty Casualty Event, Event, the the excess, if any,any, ofof (i) (i) thethe sumsum ofof Cash Cash andand Cash Cash Equivalents Equivalents received received by by the the Borrower oror anyany ofof its its SubsidiariesSubsidiaries in in connectionconnection with with such such Event Event of of Eminent Eminent Domain oror CasualtyCasualty EventEvent minus (ii) the sum ofof (A) (A) thethe out-of-pocketout-of-pocket costscosts andand expenses reasonablyreasonably incurredincurred byby thethe BorrowerBorrower or or any any of of its its Subsidiaries Subsidiaries in in connection withwith thethe collection,collection, enforcement,enforcement, negotiation, negotiation, consummation, consummation, settlement, proceedings, administrationadministration oror other other activity activity related related to to the the receipt receipt or or collection ofofthe the relevantrelevant proceedsproceeds toto the the extentextent such such amounts amounts were were not not deducted deducted in determining the amount referred toto inin clause (i)i of ofthis this paragraph paragraph (d) (d) and and (B) federal,federal, statestate andand local local taa~es taxes reasonably estimatedestimated to to bebe payable payable by by the the Borrower oror anyany ofof its its SubsidiariesSubsidiaries inin connectionconnection therewith therewith to to the the extent extent such such amounts were not deducteddeducted inin determiningdetermining the the amountamount referred referred to to in in clause clause 0) i ofof this paragraph (d).(d).
"Non-Consenting Lender"Lender" has the meaning specifiedspecified inin SectionSection 8.01(c).8.01(c).
"Note" means aa promissory notenote ofof the the BorrowerBorrower payable payable to to thethe order order of of any any Lender, inin substantiallysubstantially thethe formform ofof Exhibit Exhibit A A hereto, hereto, evidencing evidencing the the indebtedness indebtedness of ofthe the Borrower to suchsuch LenderLender resultingresulting fromfrom thethe Loan Loan made made by by such such Lender, Lender, as as amended. amended.
"Notice of Borrowing" means a Notice of Borrowing substantially in the form of Exhibit B hereto.
"NPL" means the National PrioritiesPriorities ListList underunder CERCLA.CERCLA.
"Obligation" means all payment obligationsobligations ofof every every naturenature ofof the the BorrowerBorrower from from time to time owedowed toto thethe AdministrativeAdministrative AgentAgent (including (including former fonner Administrative Administrative Agents) Agents) or any Lender fromfrom timetime toto timetime underunder any any LoanLoan Document, Document, whether whether for for principal, principal, interest (including interestinterest which,which, butbut forfor thethe filingfiling ofof a a petition petition in in bankruptcy bankruptcy with with respect to the Borrower,Borrower, wouldwould havehave accruedaccrued onon anyany Obligation, Obligation, whether whether or or not not a a claim claim is is allowed against the BorrowerBorrower forfor suchsuch interestinterest inin thethe related related bankruptcy bankruptcy proceeding), proceeding), expenses, indemnification oror otherwise.otherwise.
"Other Taxes" has the meaning specifiedspecified inin SectionSection 2.11(b).2.11(b).
"Patriot"PatriotAct" Acf' means the Uniting andand StrengtheningStrengthening AmericaAmerica byby ProvidingProviding Appropriate Tools ReyuiredRequired toto InterceptIntercept and and ObstructObstruct Terrarism Terrorism Act Act of of2001, 2001, Pub. Pub. L. L. 107-56, signed into law October 26,26,2001. 2001.
"PBGC'"PBGC" means the Pension Benefit GuarantyGuaranty CorporationCorporation (or(or any any successor).successor).
"Permitted"Permitted Debt" means:
(a) Debt under the Loan Documents;
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(b) (without duplicationduplication ofof any any otherother Permitted Permitted Debt) Debt) Existing Existing Debt; Debt;
(c) Debt of the the BorrowerBorrower arisingarising byby reason reason of of any any Lien Lien permitted permitted by by Section 5.02(a)(iii~;5.02(a)(iii);
(d) Debt of the the BorrowerBorrower arising arising fromfrom thethe honoringhonoring of of a a check, check, draft draft or or similar instrumentinstrument ofof the the BorrowerBorrower drawn drawn against against insufficient insufficient funds, funds, provided, however, that suchsuch DebtDebt isis extinguishedextinguished withinwithin five five BusinessBusiness Days Days of of its its mcurrence;incurrence;
(e) to thethe extentextent deemeddeemed toto bebe Debt,Debt, ( (1) I) unitunit appreciationappreciation rights rights granted to directorsdirectors inin anan aggregateaggregate amountamount (valued (valued as as of of the the date date of of issuance) issuance) incurred inin anyany FiscalFiscal YearYear notnot toto exceedexceed $1,000,000 $1,000,000 in in such such Fiscal Fiscal Year Year (provided that suchsuch directorsdirectors shallshall havehave acknowledged acknowledged and and agreed agreed that, that, with with respect to anyany suchsuch unitunit appreciationappreciation rights rights grantedgranted after after the the date date hereof, hereof, any any purchase, redemption,redemption, retirement,retirement, defeasance defeasance or or other other acquisition acquisition of of such such unit unit appreciation rights byby thethe BorrowerBorrower may may be be mademade only only to to the the extent extent permitted permitted by by Section 5.02(5.02(g»g)) and (2) obligations toto purchasepurchase warrantswarrants inin anan aggregateaggregate amount amount to not exceedexceed $1,000,000$1,000,000 atat anyany timetime outstanding;outstanding; andand
(~(f) additional unsecuredunsecured DebtDebt ofof the the BorrowerBorrower not not to to exceed exceed $300,000 $300,000 at any time outstanding.outstanding.
"Permitted DevelopmenP'Development" means, after the Effective Date,Date, thethe developmentdevelopment oror construction ofof any any electricelectric generatinggenerating facility; facility; provided that at thethe time anyany amountamount isis invested (or(or committed toto bebe invested)invested) inin respect respect of of Permitted Permitted Developments Developments by by BostonGen andand itsits SubsidiariesSubsidiaries inin excess excess of of$10,000,000 $10,000,000 in in the the aggregate aggregate each each of of the the following conditions areare met:met:
(a) the Permitted DevelopmentDevelopment isis financedfinanced withwith amounts amounts permitted permitted pursuant to to Sections Sections 5.02(b) 5.02 b and and 5.02(f)(iii). 5.02 iii .
(b) an independent engineer reasonably acceptableacceptable toto thethe Administrative Agent shallshall havehave certifiedcertified thatthat any any such such development development or or construction would notnot reasonablyreasonably bebe expectedexpected to to materiallymaterially and and adversely adversely impact impact the operation of the the ProjectsProjects oror the the efficientefficient generation generation and and distribution distribution of of electricity from the ProjectsProjects (both(both duringduring andand after after such such development development or or construction) andand shallshall havehave confirmedconfirmed toto thethe Lenders Lenders that that amounts amounts invested invested and and committed to bebe investedinvested byby BostonGenBostonGen andand itsits SubsidiariesSubsidiaries are are sufficient sufficient to to pay pay for all costs associatedassociated therewith;therewith; andand
(c) each ofS&Pof S&P and Moody's shallshall havehave providedprovided writtenwritten confirmation of their respectiverespective ratingsratings ofof the the DebtDebt under under BostonGen BostonGen Facilities Facilities (as (as in effect immediately prior toto givinggiving effecteffect toto suchsuch PermittedPermitted Development). Development).
"Permitted"Permitted Emissions Sales Gains" means gains (determined in accordance with GAAP) from the salessales ofof Accumulated Accumulated EmissionsEmissions CreditsCredits (as (as defineddefined in in the the Security Security
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Deposit Agreement)Agreement) toto thethe extentextent such such proceeds proceeds are are deposited deposited into into the the Revenue Revenue Account Account in accordance with thethe SecuritySecurity DepositDeposit Agreement. Agreement.
"Permitted Liens" means (a) Liens forfor taxes,taxes, assessmentsassessments andand governmental governmental charges oror levieslevies toto thethe extentextent notnot required required to to be be paid paid under under Section Section 5.0 5.01(b); ~b); (b) (b) pledges pledges or deposits in the ordinary course ofof business business toto securesecure obligationsobligations underunder workers'workers' compensation, unemploymentunemployment insurance,insurance, socialsocial securitysecurity legislationlegislation oror otherother similar similar legislation or toto securesecure publicpublic oror statutorystatutory obligations; obligations; (c) (c) Liens Liens arising arising from from judgments judgments (or the payment ofof money money notnot constitutingconstituting a a Default Default under under Section Section 6.01(~)) 6.01(g)) or or securing securing appeal or otherother suretysurety bondsbonds relatedrelated to to suchsuch judgments. judgments.
"Permitted RMR Revenues" means, for any period, fundsfunds transferredtransferred toto thethe Revenue AccountAccount pursuantpursuant toto SectionSection 3.15(a)(iv) 3. 15(a)(iv) of of the the Security Security Deposit Deposit Agreement; Agreement; provided that for purposes ofof determining determining thethe applicableapplicable Fiscal Fiscal Quarter Quarter to to which which such such funds will be includedincluded inin Consolidated NetNet Income,Income, fundsfunds transferredtransferred withinwithin 4545 daysdays following anyany FiscalFiscal QuarterQuarter shall shall bebe deemed, deemed, at at the the option option of of the the Borrower, Borrower, to to be be included (without duplication) inin ConsolidatedConsolidated NetNet IncomeIncome forfor suchsuch FiscalFiscal QuarterQuarter oror the the immediately preceding Fiscal Quarter.Quarter.
"Permitted Subsidiary Asset Sales" means:
(i) sales of (or the granting ofof any any optionoption oror other other right right to to purchase, purchase, lease lease or or otherwise acquire)acquire) power,power, naturalnatural gas,gas, fuel,fuel, capacity,capacity, gas gas or or fuel fuel transportation, transportation, power power transportation oror ancillaryancillary servicesservices or or other other inventory inventory in in the the ordinary ordinary course course of of such such Person's businessbusiness including,including, withoutwithout limitation, limitation, Permitted Permitted Trading Trading Activities; Activities;
(ii) sales, transfers or other dispositionsdispositions inin thethe ordinaryordinary coursecourse of of its its business business of Property that isis surplussurplus (including, withoutwithout limitation,limitation, surplussurplus landland andand emissionemission credits notnot requiredrequired forfor thethe continuedcontinued operation operation of of any any Project Project in in any any given given year), year), obsolete, defective,defective, worn-out,worn-out, damaged,damaged, rendered rendered unfit unfit for for normal normal use use or or property property that that is is being exchanged forfor similarsimilar property,property, oror thatthat individuallyindividually oror inin thethe aggregateaggregate isis notnot essential forfor thethe continuedcontinued operationoperation of of any any Project; Project;
(iii) the liquidation,liquidation, salesale oror useuse ofof Cash Cash andand Cash Cash Equivalents; Equivalents;
(iv) sales, transfers or other dispositionsdispositions ofof assets assets amongamong BostonGen BostonGen and and its its Subsidiaries;
(v) sales or discounts without recourserecourse ofof accounts accounts receivablereceivable arising arising in in the the ordinary course ofof suchsuch Person's business business in in connection connection with with the the compromise compromise or or collection thereof;thereof;
(vi) dispositions required oror contemplatedcontemplated byby thethe ContractualContractual Obligations Obligations in in existence asas ofof the the datedate hereofhereof with with or or relating relating to to Governmental Governmental Authorities Authorities and and relating relating to the Project Companies;Companies; andand
(vii) sales of Property by BostonGenBostonGen aror its its SubsidiariesSubsidiaries so so longlong as as (A) (A) the the purchase price paidpaid toto BostonGenBostonGen oror suchsuch SubsidiarySubsidiary forfor suchsuch PropertyProperty shallshall bebe nono lessless
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than thethe fairfair market valuevalue ofof such such PropertyProperty atat thethe timetime ofof such such sale,sale, (B)(B) atat least least 75% 75% of of the considerationconsideration toto bebe receivedreceived is is paid paid in in cash cash or or Cash Cash Equivalents Equivalents and and such such remaining remaining 25% is not aa debtdebt instrumentinstrument ofof the the BorrowerBorrower or or any any of of its its Affiliates Affiliates (provided (provided that that for for purposes ofof thisthis subclausesubclause (B),(B), (I)(I) anyany amountsamounts depositeddeposited intointo anan escrowescrow or or otherother typetype ofof holdback accountaccount andand anyany considerationconsideration in in the the form form of of readily readily marketable marketable securities securities shall shall be deemed to bebe cash,cash, (II)(II) customarycustomary purchase purchase price price adjustments adjustments may may be be settled settled on on a anon- non cash basis andand (III)(III) thethe assumptionassumption of of Debt Debt relating relating to to the the asset asset being being disposed disposed shall shall be be disregarded forfor thethe purposespurposes ofof this this provision); provision); and and (C) (C) the the aggregate aggregate purchase purchase price price paid paid to BostonGen andand itsits SubsidiariesSubsidiaries forfor suchsuch PropertyProperty andand allall otherother PropertyProperty soldsold byby BostonGen andand itsits SubsidiariesSubsidiaries (1) (1) during during the the same same Fiscal Fiscal Year Year pursuant pursuant to to this this clause clause (vii) shallshall notnot exceedexceed $50,000,000$50,000,000 and and (2) (2) sincesince the the Effective Effective Date Date shall shall not not exceed exceed $250,000,000.
"Permitted Trading Trading Activity" means the entry intointo ofof any any CommodityCommodity HedgeHedge andand Power Sale Agreement inin aa rnannermanner consistent consistent with with Prudent Prudent Industry Industry Practice Practice from from time time to time inin supportsupport ofof the the marketingmarketing and and trading trading related related to to the the Projects Projects or or any any Permitted Permitted Development, whetherwhether physicalphysical or or financial, financial, in in each each case, case, to to the the extent extent such such activity activity is is conducted inin thethe ordinaryordinary coursecourse of of business business of of the the Borrower Borrower and and the the other other Loan Loan Parties. Parties.
"Person""Ferson" means an individual,individual, partnership, corporationcorporation (including(including aa businessbusiness trust), limitedlimited liabilityliability company,company, jointjoint stock stock company, company, trust, trust, unincorporated unincorporated association, association, joint ventureventure oror otherother entity,entity, oror a a governmentgovernment oror any any politicalpolitical subdivisionsubdivision or or agency agency thereof.
"Plan" means a Single Employer Plan oror aa Multiple EmployerEmployer Plan.Plan.
"Platform" has the meaning specifiedspecified inin SectionSection 8.02(b).8.02(b).
"Preferred Interests" Interests" means, with respect to anyany Person,Person, EquityEquity InterestsInterests issuedissued by such Person that areare entitledentitled toto aa preferencepreference or or priority priority over over any any other other Equity Equity Interests Interests issued by such Person upon any distributiondistribution ofof suchsuch Person'sPerson's property property and and assets, assets, whether by dividend or upon liquidation.liquidation.
"Project Company"Company" means each of Mystic I,I, MysticMystic DevelopmentDevelopment andand ForeFore RiverRiver (and collectively, the "Project Companies").Companies").
"Projects" means, Mystic StationStation Project,Project, MysticMystic 8&98&9 ProjectProject and and ForeFore River River Project and, ifif applicable, thethe PermittedPermitted Development. Development.
"Property" means any rightright oror interestinterest inin oror toto anyany assetasset or or propertyproperty of of any any kind kind whatsoever (including EquityEquity Interests),Interests), whetherwhether real, real, personal personal or or mixed mixed and and whether whether intangible or tangible.
"Prudent"Prudent Industry Practice" Practice" means those practices, methods, equipment,equipment, specifications and standards ofof safety safety andand performance,performance, asas areare commonly commonly used used by by electric electric generating stations inin the UnitedUnited StatesStates utilizingutilizing comparablecomparable fuels fuels as as good, good, safe safe and and prudent engineering practicespractices wouldwould dictatedictate inin connectionconnection with with the the design, design, construction, construction, operation, maintenance, repairrepair andand useuse ofof electrical electrical andand other other equipment, equipment, facilities facilities and and
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improvements of such electrical generating stations,stations, withwith commensuratecommensurate standardsstandards ofof safety, perfonnance,performance, dependability (including(including thethe implementationimplementation ofof procedures procedures thatthat shallshall not adversely affectaffect thethe longlong termtenn reliability reliability of of the the Projects, Projects, in in favor favor of of short short term tenn perfonnance),performance), efficiencyefficiency andand economy,economy, inin eacheach suchsuch casecase asas thethe samesame maymay evolveevolve fromfrom time to time, consistent withwith applicableapplicable lawlaw andand consideringconsidering thethe statestate inin whichwhich aa ProjectProject is is located and the typetype andand sizesize ofof such such Project.Project. "Prudent"Prudent Industry Industry Practice" Practice" as as defined defined herein does not necessarily meanmean oneone particularparticular practice,practice, method,method, equipmentequipment specificationspecification or sta.ndardstandard inin allall cases,cases, but is instead intended to encompassencompass aa broadbroad rangerange ofof acceptable acceptable practices, methods, equipmentequipment specificationsspecifications andand standards.standards.
"PUHCA" means the Public Utility HoldingHolding CompanyCompany ActAct of of2005. 2005.
"Qualified Owner" Owner" means any Person (including anyany Person ControlledControlled byby suchsuch Person) that (a)(a) isis aa pastpast oror presentpresent owner owner of ofa a Comparable Comparable Project, Project, (b) (b) has has substantial substantial experience asas anan operatoroperator of of a a ComparableComparable Project Project or or (c) (c) has has contracted contracted for for the the operation operation of the Projects by KK RoadRoad ManagerManager oror byby aa PersonPerson meetingmeeting thethe requirementsrequirements ofof clause clause (b)(b) of this definition.
"Redeemable" means, with respectrespect toto anyany EquityEquity Interest,Interest, anyany suchsuch Equity Equity Interest that (a)(a) thethe issuerissuer hashas undertakenundertaken to to redeem redeem at at a a fixed fixed or or determinable detenninable date date or or dates, whether by operation ofof a a sinkingsinking fundfund oror otherwise,otherwise, oror uponupon thethe occurrenceoccurrence ofof a a condition not solely within thethe controlcontrol ofof the the issuerissuer oror (b) (b) isis redeemableredeemable atat thethe optionoption ofof the holder.
"Refinance" means, in respect ofof the the applicableapplicable Debt,Debt, (a)(a) suchsuch Debt Debt (or (or any any portion thereothereof) fl as extended, renewed, defeased,defeased, refinanced,refinanced, replaced,replaced, refundedrefunded or or repaid, repaid, and (b) any otherother DebtDebt issuedissued inin exchangeexchange or or replacement replacement for for or or to to refinance refinance such such Debt, Debt, in whole oror inin part,part, whetherwhether withwith thethe samesame or or different different leaders, leaders, arrangers arrangers and/or and/or a alonger longer or shorter maturity,maturity, inin eacheach case,case, toto thethe extent extent permitted pennirted under under the the terms tenns of of the the Loan Loan Documents. "Refinanced" and "Refinancing" shall have correlative meanings.
"Register" has the meaning specifiedspecified inin SectionSection 8.07(d).8.07(d).
"Regulation U'U" means Regulation UU ofof the the BoardBoard ofofGovemors Governors of of the the Federal Federal Reserve System,System, asas inin effecteffect fromfrom timetime toto time. time.
"Related Documents"Documents" means the First LienLien CreditCredit AgreementAgreement andand thethe Second Second Lien Credit Agreement.Agreement.
"Related Fund" Fund" means, with respectrespect toto anyany LenderLender thatthat isis aa Fund,Fund, anyany otherother Fund Fund that isis advised oror managedmanaged byby (a)(a) suchsuch Lender, Lender, (b) (b) an an Affiliate Affiliate of of such such Lender Lender or or (c) (c) an an entity (or anan AffiliateAffiliate ofof such such entity)entity) thatthat administers, administers, advises advises or or manages manages such such Lender. Lender.
"Repayment Event" Event" means the satisfaction ofof the the followingfollowing conditionsconditions thethe repayment inin full inin CashCash ofof all all ofof the the outstandingoutstanding principalprincipal amountamount ofof the the LoansLoans andand allall other Obligations (other(other than contingentcontingent Obligations)Obligations) duedue andand payablepayable underunder thethe LoanLoan Documents.
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"Required Lenders" Lenders" means, atat anyany time,time, LendersLenders owedowed oror holding holding more more than than 50% 50% of the aggregateaggregate principalprincipal amountamount of of the the Loans Loans outstanding outstanding at at such such time. time.
"Responsible Officer" means, asas toto anyany Person,Person, anyany individualindividual holding holding the the position ofof chairman chairman ofof the the boardboard (if (if an an officer), officer), president, president, chief chief executive executive officer, officer, senior senior vice president, treasurer,treasurer, chiefchief financial financial officer officer or or director director of of finance. finance.
"Revenue Account"Accounf' has the meaningmeaning specifiedspecified inin thethe SecuritySecurity Deposit Deposit Agreement.
"RMR Agreement"Agreement" means the Cost-of-ServiceCost-of-Service Agreement,Agreement, effectiveeffective as as of of January January 1,1,2006, 2006, among Mystic Development, LLC,LLC, SempraSempra Energy Energy Trading Trading Corp. Corp. and and ISO ISO New New England Inc.
"RMR Revenues"Revenues" has the meaningmeaning specifiedspecified inin thethe SecuritySecurity Deposit Deposit Agreement. Agreement.
"S&P" means Standard & Poor'sPoor's Ratings Ratings Services,Services, aa division division of of the the McGraw-Hill McGraw-Hill Companies, Inc.Inc.
"Second LienLien Administrative Administrative Agent" Agent" has the meaning specifiedspecified inin thethe preliminary statementsstatements toto thisthis Agreement.Agreement.
"Second Lien CreditAgreemenP'Credit Agreement" has the meaning specifiedspecified inin thethe preliminarypreliminary statements to this Agreement.Agreement.
"Second Lien Lenders" has the meaning specifiedspecified inin thethe preliminarypreliminary statements statements to this Agreement.
"Second Lien Pledge Agreement" Agreement" means that certain SecondSecond LienLien PledgePledge Agreement dated asas ofof December December 21,21,2006 2006 by by the the Borrower Borrower in in favor favor of of the the Second Second Lien Lien Collateral Administrative AgentAgent forfor thethe benefitbenefit of of the the Second Second Lien Lien Secured Secured Parties, Parties, as as amended.
"Security DepositDepositAgreement" Agreement" means that certain Security DepositDeposit AgreementAgreement dated December 21, 2006 byby BostonGenBostonGen and and itsits SubsidiariesSubsidiaries and and the the First First Lien Lien Collateral Collateral Agent, the Second Lien CollateralCollateral AgentAgent and and the the Depositary,Depositary, in in each each case, case, party party thereto, thereto, as amended.
"Semi-Annual"Semi Annual PerioaP' Period" means a period commencing onon aa Semi-AnnualSemi-Annual Prepayment Date and endingending onon thethe next-succeedingnext-succeeding Semi-Annual Semi-Annual Prepayment Prepayment Date. Date.
"Semi-Annual"Semi Annual Prepayment Prepayment Date" Date" means the last Business Day ofof each each JuneJune andand December, commencing onon thethe firstfirst toto occuroccur of of such such date date after after the the BostonGen BostonGen Repayment Event.
"Single"Single Employer Plan" Plan" means a single employer plan,plan, asas defineddefined inin SectionSection 4001(a)(15) of ERISA, that (a)(a) isis maintainedmaintained forfor employeesemployees of of the the Borrower Borrower or or any any ERISA Affiliate and no Person otherother thanthan thethe BorrowerBorrower and and the the ERISA ERISA Affiliates Affiliates or or
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(b) was so maintained andand inin respectrespect ofof which which the the Borrower Borrower or or any any ERISA ERISA Affiliate Affiliate could could have liability underunder SectionSection 40694069 ofof ERISA ERISA in in thethe event event such such plan plan has has been been or or were were to to be be terminated.
"Solvent" and "Solvency" mean, with respect toto anyany PersonPerson onon aa particularparticular date, date, that on suchsuch datedate (a)(a) thethe fairfair valuevalue ofof the the propertyproperty and and assets assets of of such such Person Person is is greater greater than the total amount ofof liabilities,liabilities, including,including, withoutwithout limitation,limitation, contingentcontingent liabilities,liabilities, ofof such Person, (b) the presentpresent fairfair salablesalable valuevalue ofof the the assets assets of of such such Person Person is is not not less less than than the amount that willwill bebe requiredrequired toto paypay thethe probableprobable liability liability of of such such Person Person on on its its debts debts as they become absoluteabsolute andand matured,matured, (c)(c) suchsuch Person Person does does not not intend intend to, to, and and does does not not believe that it will, incur debts or liabilities beyond suchsuch Person'sPerson's ability ability to to paypay such such debts and liabilities asas theythey maturemature (taking(taking intointo account account reasonably reasonably anticipated anticipated prepayments andand refinancings)refinancings) andand (d)(d) suchsuch Person Person is is not not engaged engaged in in business business or or a a transaction, andand isis notnot aboutabout toto engageengage inin businessbusiness or or a a transaction, transaction, for for which which such such Person's propertyproperty wouldwould constituteconstitute anan unreasonablyunreasonably smallsmall capital.capital. TheThe amount amount ofof contingent liabilities atat anyany timetime shallshall bebe computedcomputed as as the the amount amount that, that, in in the the light light of of all all the facts andand circumstancescircumstances existingexisting atat such such time, time, represents represents the the amount amount that that can can reasonably be expectedexpected toto becomebecome anan actualactual oror matured matured liability. liability.
"Subsidiary" of any Person means anyany corporation,corporation, partnership,partnership, jointjoint venture, venture, limited liability company,company, trusttrust oror estateestate ofof which which (or (or in in which) which) more more than than 50% 50% of of (a) (a) the the issued and outstanding capital stock having ordinary votingvoting powerpower toto electelect aa majority of the Board of Directors Directors ofof such such corporationcorporation (irrespective (irrespective of of whether whether at at the the time time capital capital stock of any other classclass oror classesclasses ofof such such corporationcorporation shall shall or or might might have have voting voting power power upon the occurrence ofof any any contingency),contingency), (b) (b) the the interest interest in in the the capital capital or or profits profits of of such such partnership, joint ventureventure oror limited limited liabilityliability company company or or (c) (c) the the beneficial beneficial interest interest in in such such trust or estate isis atat thethe timetime directlydirectly oror indirectly indirectly owned owned or or controlled controlled by by such such Person, Person, by by such Person and one or more of itsits other SubsidiariesSubsidiaries oror byby oneone oror moremore ofof such such Person's other Subsidiaries.
"Synthetic DebP'Debt" means, with respect toto anyany Person,Person, withoutwithout duplicationduplication ofof any any clause within the definition of "Debt," the principal amountamount ofof all all (a)(a) obligationsobligations ofof such such Person under anyany leaselease thatthat isis treatedtreated asas anan operatingoperating lease lease for for financial financial accounting accounting purposes and aa financing leaselease forfor taxtax purposespurposes (i.e.,(i.e., a"synthetica "synthetic lease"), (b) obligations of such Person inin respectrespect ofof transactions transactions enteredentered into into by by such such Person, Person, the the proceeds proceeds from from which would bebe reflectedreflected onon thethe financialfinancial statementsstatements of of such such Person Person in in accordance accordance with with GAAP as cash flows fromfrom financingsfinancings atat thethe timetime such such transaction transaction was was entered entered into into (other (other than as a result ofof the the issuanceissuance ofof Equity Equity Interests) Interests) and and (c) (c) obligations obligations of of such such Person Person in in respect of other transactionstransactions enteredentered intointo byby suchsuch Person Person that that are are not not otherwise otherwise addressed addressed in the definition of "Debt" or in clauseclause Ca)a or or ~ ® above above that that are are intended intended to to function function primarily as aa borrowing ofof funds funds (including,(including, withoutwithout limitation,limitation, anyany minorityminority interestinterest transactions thatthat functionfunction primarilyprimarily asas aa borrowing).borrowing).
"Taxes" has the meaning specifiedspecified inin SectionSection 2.11(a).2.ll(a).
"Tender Offer" shall mean, collectively, (a)(a) thethe offeroffer byby thethe BorrowerBorrower toto purchasepurchase outstanding units ofoflimited limited liabilityliability companycompany interest interest in in the the Borrower Borrower pursuant pursuant to to the the
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Offer to Purchase dateddated asas ofof November November 16, 16, 2006 2006 and and the the related related letter letter of of transmittal transmittal sent sent to holders ofof such such units, as eacheach maymay bebe amendedamended andand supplementedsupplemented fromfrom timetime toto timetime and (b) the repurchase ofof warrants warrants andand thethe cashless cashless exercise exercise of of warrants warrants referred referred to to in in such Offer to Purchase.Purchase.
"Transaction" means (a) the enteringentering intointo ofof the the InitialInitial CommodityCommodity Hedge Hedge and and Power SaleSale AgreementsAgreements (as(as defineddefined inin thethe First First Lien Lien Credit Credit Agreement), Agreement), (b) (b) the the Distribution andand thethe TenderTender Offer,Offer, (c)(c) thethe entering entering into into of of the the First First Lien Lien Loan Loan Documents Documents and the refinancingrefinancing ofof amounts amounts outstandingoutstanding under under the the Existing Existing Credit Credit Agreements Agreements in in part part with the proceeds ofof amounts amounts underunder the the First First Lien Lien Credit Credit Agreement, Agreement, (d) (d) the the entering entering into into of the SecondSecond Lien Loan Documents andand thethe refinancingrefinancing ofof amounts amounts outstandingoutstanding underunder the Existing CreditCredit Agreements inin partpart withwith thethe proceedsproceeds ofof amounts amounts underunder thethe SecondSecond Lien Credit Agreement,Agreement, (e)(e) thethe enteringentering into into of of the the Mezzanine Mezzanine Documents Documents and and ( (f)fl the the other transactions contemplatedcontemplated byby thethe TransactionTransaction Documents. Documents.
"Transaction Costs" has the meaning specifiedspecified inin thethe preliminarypreliminary statements statements to to this Agreement.
"Transaction Documents" means, collectively, thethe LoanLoan DocumentsDocuments andand thethe Related Documents.
"Type" refers to the distinctiondistinction betweenbetween Loans Loans bearingbearing interest interest at at the the Base Base Rate Rate and Loans bearingbearing interestinterest atat the the EurodollarEurodollar Rate. Rate.
"Units" means units of limitedlimited liabilityliability companycompany interestsinterests inin thethe Borrower. Borrower.
"Voting Interests" means shares ofof capital capital stockstock issuedissued byby aa corporation,corporation, or or equivalent EquityEquity InterestsInterests inin anyany otherother Person, Person, the the holders holders of of which which are are ordinarily, ordinarily, in in the the absence ofof contingencies, contingencies, entitledentitled toto votevote for for the the election election of of directors directors (or (or persons persons performing similarsimilar functions)functions) ofof such such Person, Person, even even if if the the right right so so to to vote vote has has been been suspended by the happening ofof suchsuch aa contingency.contingency. ForFor the the avoidance avoidance of of doubt doubt with with regard to thethe Borrower,Borrower, allall UnitsUnits shallshall be be deemed deemed to to be be Voting Voting Interests. Interests.
"Withdrawal Liability" has the meaning specifiedspecified inin PartPart II ofof Subtitle Subtitle EE ofof Title Title IV of ERISA.
SECTION 1.02. ComputationComputation ofof Time Time Periods;Periods; OtherOther Definitional Provisions. InIn this Agreement andand thethe otherother Loan Loan Documents Documents in in the the computation computation of of periods periods of of tirne time from from a a specified date toto aa laterlater specifiedspecified date,date, thethe wordword ` "from" from" means "from and including"including" andand thethe words "to" and "untit'"untiC' each mean "to but excluding." ReferencesReferences in in the the Loan Loan Documents Documents to to any any agreement oror contractcontract "as amended" shall mean andand bebe aa referencereference toto suchsuch agreementagreement or or contract contract as amended, amendedamended andand restated,restated, supplementedsupplemented or or otherwise otherwise modified modified from from time time to to time time in in accordance with itsits terms.terms.
SECTION 1.03. Accountin~Accounting Terms.Terms. AllAll accounting accounting termsterms not not specificallyspecifically defined herein shallshall bebe construedconstrued inin accordanceaccordance with with generally generally accepted accepted accounting accounting principles principles in in effect in the UnitedUnited StatesStates fromfrom timetime toto time time ("GAAP');("GAAP°'); provided that, ififthe the Borrower notifiesnotifies the Administrative AgentAgent thatthat the the BorrowerBorrower requests requests an an amendment amendment to to any any provision provision hereof hereofto to
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eliminate the effect ofof any any changechange occurringoccurring after after the the date date hereof hereof in in GAAP GAAP or or in in the the application application thereof on thethe operationoperation ofof such such provisionprovision (or (or if if the the Administrative Administrative Agent Agent notifies notifies the the Borrower Borrower that the Required LendersLenders requestrequest an an amendment amendment to to any any provision provision hereof hereof for for such such purpose), purpose), regardless of whether anyany suchsuch noticenotice is is givengiven before before or or after after such such change change in in GAAP GAAP or or in in the the application thereof, thenthen suchsuch provisionprovision shall shall be be interpreted interpreted on on the the basis basis of of GAAP GAAP as as in in effect effect and applied immediatelyimmediately beforebefore suchsuch change change shall shall have have become become effective effective until until such such notice notice shall shall have been withdrawn or such provision amendedamended inin accordanceaccordance herewith.herewith.
ARTICLE II
AMOUNTS AND TERMS OF THETHE LOANSLOANS
SECTION 2.01. TheThe Loans.Loans. EachEach Lender Lender severally severally agrees, agrees, on on the the terms terms and and conditions hereinafter setset forth,forth, toto makemake a a singie single advance advance (a "Loan")"Loan") to the Borrower onon thethe Effective Date in an amount not to exceed such Lender's CommitmentCommitment at suchsuch time. TheThe Borrowing onon thethe EffectiveEffective DateDate shallshall consistconsist of of Eurodollar Eurodollar Rate Rate Loans Loans and and shall shall be be made made simultaneously by the Lenders ratably accordingaccording toto theirtheir Commitments.Commitments. AmountsAmounts borrowed borrowed under this Section 2.01 andand repaidrepaid oror prepaidprepaid maymay notnot bebe reborrowed.reborrowed.
SECTION 2.02. MakingMaking thethe Loans.Loans. EachEach Lender Lender shall, shall, before before 11:00 11 :00 A.M. A.M. (New(New York City time) onon thethe datedate ofof the the initialinitial Borrowing,Borrowing, make make available available for for the the account account of of its its Applicable Lending Office to the AdministrativeAdministrative AgentAgent atat thethe AdministrativeAdministrative Agent'sAgent's Account, Account, in same day funds, such Lender's ratableratable portionportion of of such such Borrowing Borrowing in in accordance accordance with with the the Commitments of such Lender. AfterAfter the the Administrative Administrative Agent's Agent's receipt receipt of of such such funds funds and and upon upon fulfillment of the applicableapplicable conditionsconditions set set forth forth in in Article Article III, III, the the Administrative Administrative Agent Agent will will make suchsuch fundsfunds availableavailable toto thethe BorrowerBorrower by by crediting crediting the the account account of of the the Borrower Borrower set set forth forth in in the Notice of Borrowing. Borrowing.
(a) The initial Notice ofof Borrowing Borrowing shallshall bebe irrevocableirrevocable and and binding binding on on the the Borrower. InIn the the case case of of any any Borrowing Borrowing that that the the related related Notice Notice of of Borrowing Borrowing specifies specifies is is to to be be comprised ofof EurodollarEurodollar RateRate Loans,Loans, thethe Borrower Borrower shall shall indemnify indemnify each each Lender Lender against against any any loss, loss, cost or expense incurredincurred byby suchsuch LenderLender as as a a result result of of any any failure failure to to fulfill fulfill on on or or before before the the date date specified in the initialinitial Notice ofof Borrowing Borrowing conditions conditions set set forth forth in in Article Article III, III, including, including, without without limitation, any lossloss (but(but excludingexcluding lossloss ofof anticipated anticipated profits), profits), cost cost or or expense expense incurred incurred by by reason reason of the liquidation oror reemploymentreemployment of of deposits deposits or or other other funds funds acquired acquired by by such such Lender Lender to to fund fund the Loan toto bebe mademade byby suchsuch LenderLender when when such such Loan, Loan, as as a a result result of of such such failure, failure, is is not not made made on on such date.
(b) Unless the Administrative AgentAgent shallshall havehave receivedreceived notice notice from from a a Lender Lender prior to the datedate ofof the the initialinitial BorrowingBorrowing that that such such Lender Lender will will not not make make available available to to the the Administrative Agent such Lender's ratable ratable portion portion of of such such Borrowing, Borrowing, the the Administrative Administrative Agent may assume thatthat suchsuch LenderLender has has made made such such portion portion available available to to the the Administrative Administrative Agent on the datedate ofof such such BorrowingBorrowing in in accordance accordance with with subsection subsection (a) (a) of of this this Section Section 2A2 2.02 and and the Administrative AgentAgent may,may, inin reliancereliance upon upon such such assumption, assumption, make make available available to to the the Borrower on such date a corresponding amount.amount. IfIf and and to to the the extent extent that that such such Lender Lender shall shall not not have so made suchsuch ratableratable portionportion availableavailable to to the the Administrative Administrative Agent, Agent, such such Lender Lender and and the the Borrower severally agreeagree toto repayrepay oror pay pay to to thethe Administrative Administrative Agent Agent forthwith forthwith on on demand demand such such
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corresponding amountamount andand toto paypay interest interest thereon, thereon, for for each each day day from from the the date date such such amount amount is is made availableavailable toto thethe BorrowerBorrower until until the the date date such such amount amount is is repaid repaid or or paid paid to to the the Administrative Administrative Agent, atat (i)(i) inin thethe casecase ofof the the Borrower,Borrower, the the interest interest rate rate applicable applicable at at such such time time under under Section Section 2.07 toto LoansLoans comprisingcomprising suchsuch Borrowing Borrowing and and (ii) (ii) in in the the case case of of such such Lender, Lender, the the Federal Federal Funds Funds Rate. IfIf such such Lender Lender shall shall pay pay to to the the Administrative Administrative Agent Agent such such corresponding corresponding amount, amount, such such amount soso paid shallshall constituteconstitute suchsuch Lender'sLender's Loan Loan as as part part of of such such Borrowing Borrowing for for all all purposes. purposes.
(c}(c) The failure of any any LenderLender toto makemake thethe LoanLoan to to bebe made made by by it it as as part part of of the the initial Borrowing shallshall notnot relieverelieve anyany otherother Lender Lender of of its its obligation, obligation, if if any, any, hereunder hereunder to to make make its Loan onOn thethe datedate ofof such such Borrowing,Borrowing, butbut no no Lender Lender shall shall be be responsible responsible for for the the failure failure of of any any other Lender toto makemake thethe LoanLoan toto bebe mademade by by such such other other Lender Lender on on the the date date of of the the initial initial Borrowing.
SECTION 2.03. [Reserved][Reserved]
SECTION 2.04.2.04. RepaRepaymentyment of Loans. TheThe Borrower Borrower shall shall repayrepay toto thethe Administrative AgentAgent forfor thethe ratableratable accountaccount of of the the Lenders Lenders on on the the Maturity Maturity Date Date the the aggregate aggregate outstanding principalprincipal amountamount ofof the the thenthen outstanding outstanding Loans. Loans.
SECTION 2.05. Prepavments.Prepayments.
(a) From time to time onon anyany BusinessBusiness Day,Day, thethe Borrower Borrower may may make make a a voluntary prepayment, inin wholewhole oror inin part,part, ofof the the outstandingoutstanding principalprincipal amountamount ofof any any LoansLoans together withwith anyany accruedaccrued interest,interest, whichwhich has has not not been been previously previously capitalized capitalized and and added added to to the the outstanding principal amountamount ofof the the Loans,Loans, toto thethe date date of of such such prepayment prepayment on on the the aggregate aggregate outstanding principal amountamount prepaid;prepaid; provided that (i) any prepayment ofof Loans Loans isis toto bebe appliedapplied pro rata amongamong thethe LoansLoans soso prepaidprepaid of of the the same same type type and, and, if if applicable, applicable, having having the the same same Interest Interest Period of allall Lenders thatthat havehave mademade suchsuch LoansLoans (to (to be be applied applied as as set set forth forth in in Section Section 2.06), 2.06), (ii) all such voluntary prepaymentsprepayments shallshall requirerequire at at least least one one but but no no more more than than five five Business Business Days' (and(and atat least least threethree BusinessBusiness Days Days inin the the case case of of Eurodollar Eurodollar Rate Rate Loans) Loans) irrevocable irrevocable prior prior written notice the AdministrativeAdministrative Agent,Agent, (iii)(iii) all all such such voluntary voluntary partial partial prepayments prepayments of of any any Loans Loans shall be in an aggregate minimumminimum amountamount ofof $5,000,000 $5,000,000 and and (iv) (iv) each each prepayment prepayment of of Loans Loans shall include the applicable Call Premium (if any). EachEach such such irrevocable irrevocable request request may may be be made made by telephone confirmed promptlypromptly byby handhand delivery,delivery, portable portable document document format format (PDF) (PDF) or or facsimile to the Administrative AgentAgent ofof the the applicableapplicable voluntary voluntary prepayment. prepayment.
(b) Promptly following each Semi-AnnualSemi-Annual PrepaymentPrepayment Date, Date, beginning beginning with with the first of such such Semi-AnnualSemi-Annual PrepaymentPrepayment Dates Dates after after the the BostonGen BostonGen Repayment Repayment Event, Event, the the Borrower shall make a mandatory prepayment of the LoansLoans withwith 100%100% ofof Excess Excess CashCash FlowFlow (if(if any) for the Semi-Annual PeriodPeriod thenthen endingending andand deliver deliver a a statement, statement, certified certified by by the the senior senior financial officer ofof the the Borrower,Borrower, thatthat setssets forthforth inin reasonablereasonable detail detail the the calculation calculation of of such such Excess Cash Flow; provided that if the Leverage Ratio isis lessless than 2.50:1.00, the percentage of Excess Cash FlowFlow toto bebe prepaidprepaid inin accordanceaccordance with with this this clause clause (b) b shall shall bebe 50.0%.50.0%.
(c) From and after the BostonGen RepaymentRepayment Event,Event, nono laterlater than than one one Business Day following thethe receiptreceipt byby thethe BorrowerBorrower or or any any Subsidiary Subsidiary of of any any Debt Debt Proceeds, Proceeds, the the Borrower shallshall deliver toto thethe AdministrativeAdministrative AgentAgent a a calculation calculation of of the the amount amount of of such such Debt Debt
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Proceeds and makemake aa mandatorymandatory prepaymentprepayment of of the the Loans Loans in in an an amount amount equal equal to to 100% 100% of of such such Debt Proceeds toto bebe appliedapplied asas setset forthforth inin SectionSection 2.06. 2.06.
(d) From and after thethe BostonGenBostonGen RepaymentRepayment Event, Event, no no later later than than five five Business Days followingfollowing thethe receiptreceipt by by the the Borrower Borrower or or any any Subsidiary Subsidiary of of any any Asset Asset Sale Sale Proceeds, InsuranceInsurance ProceedsProceeds oror Eminent Eminent Domain Domain Proceeds, Proceeds, the the Borrower Borrower shall shall de[iver deliver to to the the Administrative AgentAgent aa calculationcalculation of of the the amount amount of of such such proceeds proceeds and, and, in in the the event event the the aggregate amount ofof such such proceedsproceeds receivedreceived by by the the Borrower Borrower or or any any Subsidiary Subsidiary exceeds exceeds $10,000,000, thethe BorrowerBorrower shallshall makemake aa mandatorymandatory prepayment prepayment of of the the Loans Loans in in an an amount amount equal equal to 100%100% of allall suchsuch AssetAsset SaleSale Proceeds,Proceeds, Insurance Insurance Proceeds Proceeds or or Eminent Eminent Domain Domain Proceeds, Proceeds, to to be be applied as set forthforth inin SectionSection 2.06;2.06; provided that, upon written noticenotice byby thethe BorrowerBorrower toto thethe Administrative AgentAgent notnot moremore thanthan .fivefive Business Days followingfollowing receiptreceipt ofof any any suchsuch Asset Asset Sale Sale Proceeds, Insurance ProceedsProceeds oror Eminent Eminent Domain Domain Proceeds, Proceeds, such such proceeds proceeds may may be be retained retained by by the Borrower (and(and bebe excludedexcluded fromfrom thethe prepayment prepayment requirements requirements of of this this clause) clause) if if (i) (i) the the Borrower informsinforms thethe AdministrativeAdministrative Agent Agent in in such such notice notice of of its its good good faith faith intention intention to to apply apply such Asset Sale Proceeds, Insurance Proceeds oror EminentEminent DomainDomain ProceedsProceeds toto thethe acquisitionacquisition ofof other assets oror properties consistentconsistent with with the the businesses businesses permitted permitted to to be be conducted conducted pursuant pursuant to to Article V or,or, inin thethe casecase ofofInsurance Insurance Proceeds, Proceeds, the the rebuilding rebuilding or or restoration restoration of of the the assets assets subject subject to the Casualty EventEvent whichwhich resultedresulted inin suchsuch Insurance Insurance Proceeds, Proceeds, and and (ii) (ii) such such proceeds proceeds are are applied or committed to such acquisition, rebuildingrebuilding oror restoration.restoration. TheThe amount amount of of such such Asset Asset Sale Proceeds, Insurance ProceedsProceeds oror Eminent Eminent Domain Domain Proceeds Proceeds unused unused or or uncommitted uncommitted shall shall be be applied to prepay the LoansLoans asas setset forthforth inin thisthis clauseclause (d) d and and in in Section Section 2.06. 2.06.
(e) From and after thethe BostonGenBostonGen RepaymentRepayment Event, Event, no no later later than than one one Business Day followingfollowing thethe receiptreceipt by by the the Borrower Borrower or or any any Subsidiary Subsidiary of of any any Equity Equity Proceeds, Proceeds, the Borrower shallshall makemake aa mandatorymandatory prepaymentprepayment ofof the the LoansLoans inin anan amountamount equalequal toto 50%50% ofof such Equity Proceeds, toto bebe appliedapplied asas setset forth forth inin Section Section 2.06; 2.06; provided that if the Leverage Ratio is lessless thanthan 2.50:1.00,2.50:1.00, thethe percentagepercentage of of Equity Equity Proceeds Proceeds to to be be prepaid prepaid in in accordance accordance with with this clause (e)e shall shall be be 25%. 25%.
Each prepayment of any any LoansLoans mademade pursuantpursuant toto thisthis Section Section 2.05 2.05 shall shall be be without premium oror penalty,penalty, exceptexcept asas maymay be be required required by by Section Section 8.04(c) 8.04(c) and and Section Section 2.0~(a). 2.05(a). The Borrower shallshall givegive priarprior written written notice notice of of any any mandatory mandatory prepayment prepayment required required under under clauses (b),(b), i£).,~, ~ @ and and ~ ofUD. this of this Section Section 2.05 2.05 (including (including the the date date and and an an estimate estimate of of the the aggregate amountamount ofof such such mandatorymandatory prepaymentprepayment at at least least five five Business Business Days Days prior prior thereto); thereto); provided that the failure to givegive suchsuch noticenotice shallshall notnot relieverelieve the the Borrower Borrower of of its its obligation obligation to to make such mandatorymandatory prepayments prepayments on on or or prior prior to to the the dates dates set set forth forth in suchin such clauses clauses (b), b,~,i£)., @~, and UD.~ and and the the Borrower Borrower shall shall be be permitted permitted to to make make such such mandatory mandatory prepayments prepayments on on or or prior prior to to such dates.
SECTION 2.06.2.06. AApplication.pplication. Amounts Amounts prepaidprepaid pursuantpursuant to to SectionSection 2.05 2.05 shallshall bebe applied as set forthforth inin thisthis Section.Section.
(a) Subject toto clauseclause (b)b of of this this Section Section 2.06, 2.06, each each prepayment prepayment or or repayment repayment of the principal ofof the the LoansLoans shallshall bebe applied, applied, to to thethe extent extent of of such such prepayment prepayment or or repayment, repayment, first, to the principal amountamount thereofthereof being being maintained maintained as as Base Base Rate Rate Loans, Loans, and and second, second, subject subject
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to the termstenns of Section 8.04(c),8.04(c), toto thethe principalprincipal amountamount thereofthereof being being maintainedmaintained asas EurodollarEurodollar Rate Loans.
(b) Each prepayment ofof Loans Loans mademade pursuantpursuant to to Section Section 2.05 2.05 propro rata rata to to a a prepayment ofof the outstandingoutstanding principalprincipal amountamount of ofal! all Loans Loans regardless regardless of of what what Type Type (with (with the the amount of suchsuch prepaymentprepayment ofof Loans Loans beingbeing applied applied to to the the remaining remaining Loans Loans on on a apro pro rata rata basis); basis); provided that, subject to the termstenns set forth in the immediately succeeding clauseclause (c),c, each each Lender entitled to receivereceive anyany mandatorymandatory prepaymentprepayment of of its its Loans Loans under under this this clause clause may may waive waive its right to receive anyany suchsuch mandatorymandatory prepayment,prepayment, and and the the aggregate aggregate amount amount of of such such prepayments soso waivedwaived shallshall bebe offeredoffered to to the the Lenders Lenders that that did did not not waive waive their their rights rights to to such such prepayments forfor applicationapplication inin accordanceaccordance with with this this clause. clause.
(c) So long as the Administrative AgentAgent hashas receivedreceived prior prior written written notice notice from from the Borrower ofof a a mandatorymandatory prepaymentprepayment that that may may be be waived waived by by the the Lenders Lenders pursuant pursuant to to clause clause ill~b,1 above,above, thethe Administrative Agent shall provide noticenotice ofof such such mandatorymandatory prepayment prepayment to to the the Lenders. UnlessUnless the the Administrative Administrative Agent Agent shall shall otherwise otherwise so so provide, provide, in in the the event event a a Lender Lender does does not notify the Administrative AgentAgent in in writingwriting of of its its waiver waiver of of the the right right to to receive: receive:
(i) its pro rata share of suchsuch mandatorymandatory prepayment;prepayment; andand
(ii) its pro rata share (such(such propro ratarata shareshare toto bebe basedbased onon thethe percentage percentage obtained by dividing the principal amount ofof LoansLoans heldheld immediatelyimmediately priorprior toto suchsuch mandatory prepayment byby suchsuch LenderLender by by the the aggregate aggregate principal principal amount amount of of Loans Loans held held immediately prior toto suchsuch mandatorymandatory prepaymentsprepayments by by the the Lenders Lenders that that do do not not waive waive their their right to receive aa portionportion ofof the the mandatorymandatory prepayment prepayment described described in in this this clause) clause) of of any any portion (if any) ofof such such mandatorymandatory prepaymentprepayment that that may may be be waived waived by by Lenders, Lenders, within within two Business DaysDays ofof the the providingproviding of of such such notice notice by by the the Administrative Administrative Agent; Agent;
the Administrative AgentAgent maymay assumeassume that that such such Lender Lender will will receive receive its its applicable applicable pro pro rata rata share share of such mandatory prepaymentprepayment andand suchsuch portionportion (if (if any) any) of of such such mandatory mandatory prepayment prepayment that that has has actually been waived by the Lenders. ItIt is is understood understood and and agreed agreed by by the the Borrower Borrower that, that, notwithstanding receiptreceipt byby thethe AdministrativeAdministrative Agent Agent of of any any such such mandatory mandatory prepayment, prepayment, the the Loans shall notnot bebe deemeddeemed repaid,repaid, unlessunless otherwise otherwise consented consented to to by by the the Administrative Administrative Agent, Agent, until five Business DaysDays havehave elapsedelapsed from from thethe delivery delivery to to the the Administrative Administrative Agent Agent of of the the notice described inin thethe lastlast paragraphparagraph ofof Section Section 2.05. 2.05.
SECTION 2.07. Interest.Interest.
(a) Scheduled Interest. Interest, Interest, includingincluding Default Default Interest, Interest, onon thethe unpaid unpaid principal amountamount ofof each each LoanLoan owingowing to to each each Lender Lender shall shall be be capitalized capitalized and and added added to to the the outstanding amount ofof such such LoanLoan fromfrom thethe datedate ofof such such Loan Loan until until such such principal principal amount amount shall shall be be paid in full,full, atat thethe followingfollowing ratesrates perper annum: annum:
(i) Base Rate Loans. DuringDuring such such periods periods as as such such Loan Loan is is aa Base Base Rate Rate Loan, Loan, a rate per annum equalequal atat allall timestimes toto thethe sumsum ofof (A) (A) the the Base Base Rate Rate in in effect effect from from time time to to time plus (B) the Applicable Margin inin effecteffect fromfrom timetime toto time,time, whichwhich shallshall bebe automatically capitalized andand addedadded toto thethe outstanding outstanding principal principal amount amount of of such such Loan Loan in in arrears quarterly onon thethe lastlast BusinessBusiness DayDay ofof each each December, December, March, March, June June and and September September
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during suchsuch periodsperiods andand onon the the datedate such such Base Base Rate Rate Loan Loan shall shall be be Converted Converted or or paid paid in in fullfull commencingcommencing onon thethe lastlast BusinessBusiness Day Day of of March March 2007. 2007.
(ii) EurodollarEurodollar Rate Rate Loans. Loans. During During such such periods periods as assuch such Loan Loan is isa aEurodollar Eurodollar Rate Loan, aa raterate perper annum annum equalequal at at all all times times during during each each Interest Interest Period Period for for such such Loan Loan to thethe sumsum ofof (A) (A) thethe EurodollarEurodollar Rate Rate for for such such Interest Interest Period Period for for such such Loan Loan plus (B) thethe Applicable MarginMargin inin effect,effect, whichwhich shall shall be be automatically automatically capitalized capitalized and and added added to to the the outstanding principalprincipal amountamount ofof such such Loan Loan in in arrears arrears on on the the last last day day of of such such Interest Interest Period and,and, ifif such such InterestInterest Period Period has has a a duration duration of of more more than than three three months, months, on on each each day day that occursoccurs duringduring suchsuch InterestInterest Period Period every every three three months months from from the the first first day day of of such such Interest PeriodPeriod andand onon thethe datedate suchsuch Eurodollar Eurodollar Rate Rate Loan Loan shall shall be be Converted Converted or or paid paid in in full.
Any accruedaccrued andand capitalizedcapitalized interestinterest under under this this SectionSection 2.07 2.07 shall, shall, after after being being so so capitalized, bebe treatedtreated asas aa partpart of of the the principalprincipal amount amount of of such such Loan Loan and and bear bear interest interest in in accordance withwith thisthis SectionSection 2.07.2.07.
(b) Default Interest. UponUpon the the occurrence occurrence and and during during the the continuance continuance of of an an Event of Default, thethe BorrowerBorrower shallshall paypay interestinterest ("Default InteresP')In teresf') on (i) the unpaidunpaid principalprincipal amount ofof eacheach LoanLoan owingowing toto eacheach Lender,Lender, payable payable in in arrears arrears on on the the dates dates referred referred to to in in clause (i)i or or ii (ill of Sectionof Section 2.07(a), 2.07(a), as asapplicable, applicable, and, and, payable payable in in the the manner manner set set forth forth inin subsection (a),(a), atat aa raterate per annumannum equal at all times toto 2% per annum above the rate per annumannum required to be paidpaid onon suchsuch LoanLoan pursuant pursuant to to clause clause (i) i oror ii@ of of Section Section 2.07(a), 2.07(a), as as applicable, applicable, and (ii) to the fullestfullest extentextent permittedpermitted byby applicable applicable law, law, the the amount amount of of any any interest, interest, fee fee or or other other amount payable underunder thisthis AgreementAgreement oror any any other other Loan Loan Document Document to to any any Agent Agent or or any any Lender Lender that isis not paidpaid whenwhen due,due, fromfrom thethe datedate suchsuch amount amount shall shall be be due due until until such such amount amount shall shall be be paid paid in full, payable inin arrearsarrears onon thethe datedate suchsuch amountamount shall shall be be paid paid in in full full and, and, payable payable in in the the manner set forthforth inin subsectionsubsection (a),(a), atat aa raterate per annum equal at all times toto 2% per annum above the raterate per annum required to be paidpaid onon BaseBase RateRate LoansLoans pursuant pursuant to to clause clause (i) i of of Section Section 2.072.07(a); a; provided, however,however, that following thethe makingmaking ofof the the requestrequest oror the the grantinggranting of of the the consent specifiedspecified byby SectionSection 6.016.01 toto authorizeauthorize the the Administrative Administrative Agent Agent to to declare declare the the Loans Loans due due and payable pursuant toto thethe provisionsprovisions ofof Section Section 6.01, 6.01, Default Default Interest Interest shall shall accrue accrue and and be be payable hereunderhereunder whetherwhether oror not not previouslypreviously required required by by the the Administrative Administrative Agent; Agent; provided, further, that notwithstanding thethe foregoing,foregoing, DefaultDefault Interest Interest arising arising pursuant pursuant to to this this Section Section 2.07(b)2.07 b shall shall be be automatically automatically capitalized capitalized and and added added to to the the outstanding outstanding principal principal amount amount of of such such Loan and will remain duedue and payable. PaymentPayment or or acceptance acceptance of of the the increased increased rates rates of of interest interest provided for inin thisthis SectionSection 2.07(b)2.07(b) isis notnot a a permitted permitted alternative alternative to to timely timely payment payment and and shall shall not not constitute a waiver ofof any any EventEvent ofof Default Default or or otherwise otherwise prejudice prejudice or or limit limit any any rights rights or or remedies remedies of the Administrative AgentAgent oror anyany Lender.Lender.
(c) Notice ofofInterest Interest Period and InterestInterest Rate. PromptlyPromptly after after the the Effective Effective Date, a notice ofof ConversionConversion pursuantpursuant toto SectionSection 2.08 2.08 oror a a notice notice of of selection selection of of an an Interest Interest Period pursuant to thethe termsterms ofof the the definitiondefinition of of "Interest "Interest Period," Period," the the Administrative Administrative Agent Agent shall shall give notice to the Borrower andand eacheach AppropriateAppropriate Lender Lender of ofthe the applicable applicable Interest Interest Period Period and and the applicable interestinterest raterate determineddetermined byby thethe Administrative Administrative Agent Agent for for purposes purposes of of clause clause (a)(il (a)(i) or~above.or a ii above.
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(d) Administrative Agent's Fees.Fees. TheThe Borrower Borrower shall shall pay pay to to the the Administrative Agent forfor itsits ownown accountaccount suchsuch feesfees asas maymay fromfrom timetime toto timetime bebe agreedagreed betweenbetween the Borrower andand thethe AdministrativeAdministrative Agent. Agent.
SECTION 2.08. ConversionConversion ofof Loans. Loans.
(a) Optional.Ontional. TheThe Borrower Borrower may may on on any any Business Business Day, Day, upon upon notice notice given given to to the Administrative Agent notnot laterlater thanthan 11:0011 :00 A.M.A.M. (New(New YorkYork CityCity time)time) onon thethe thirdthird BusinessBusiness Day prior to the datedate ofof the the proposedproposed Conversion Conversion and and subject subject to to the the provisions provisions of of Section Section 2.09, 2.09, Convert all or anyany portionportion ofof the the LoansLoans of of one one Type Type into into Loans Loans of of the the other other Type; Type; provided, however, that any ConversionConversion ofof Eurodollar Eurodollar Rate Rate Loans Loans into into Base Base Rate Rate Loans Loans shall shall be be made made only only on the last dayday ofof an an InterestInterest PeriodPeriod forfor such such Eurodollar Eurodollar Rate Rate Loans Loans or, or, if if made made on on another another date, date, shall be subject to thethe provisionsprovisions ofof Section Section 8.04(c), 8.04(c), any any Conversion Conversion of of Base Base Rate Rate Loans Loans into into Eurodollar Rate Loans shallshall bebe inin anan amountamount notnot lessless thanthan anan aggregateaggregate minimumminimum amountamount ofof $5,000,000. EachEach such such notice notice of of Conversion Conversion shall, shall, within within the the restrictions restrictions specified specified above, above, specify (i) the datedate ofof such such ConversionConversion and and (ii) (ii) ifif such such Conversion Conversion is is into into Eurodollar Eurodollar Rate Rate Loans, Loans, the duration of thethe initialinitial InterestInterest PeriodPeriod forfor suchsuch Loans.Loans. EachEach notice notice of of Conversion Conversion shall shall be be irrevocable and bindingbinding onon thethe Borrower.Borrower.
(b) Mandatory.Mandatorv. (i)(i) If Ifthe the Borrower Borrower shall shall fail fail to to select select the the duration duration of of any any Interest Period forfor anyany EurodollarEurodollar Rate Rate LoansLoans in in accordance accordance with with the the provisions provisions contained contained in in the the definition of "Interest Period'Period" in Section 1.01,1.01, the Administrative AgentAgent will will forthwithforthwith soso notify notify the Borrower andand thethe Lenders,Lenders, whereuponwhereupon eacheach suchsuch EurodollarEurodollar Rate Rate LoanLoan shall shall havehave anan InterestInterest Period of one month.
(ii) Upon the occurrenceoccurrence andand duringduring thethe continuancecontinuance of of any any Event Event of of Default, Default, (x) each Eurodollar RateRate LoanLoan willwill automatically,automatically, on on the the last last day day of of the the then then existing existing Interest Interest Period therefor, ConvertConvert intointo aa BaseBase Rate Rate Loan Loan and and (y) (y) the the obligation obligation of of the the Lenders Lenders to to make, make, or or to Convert Loans into,into, EurodollarEurodollar RateRate LoansLoans shallshall bebe suspended.suspended.
SECTION 2.09.2.09. IncreasedIncreased Costs, Etc. (a)(a) If,If, due due to to either either (i) (i) the the introduction introduction ofof or any change inin oror inin thethe interpretationinterpretation of of any any law law or or regulation regulation or or (ii) (ii) the the compliance compliance with with any any guideline or requestrequest fromfrom anyany centralcentral bank bank or or other other Governmental Governmental Authority Authority (whether (whether or or not not having the forceforce ofof law), law), therethere shallshall bebe any any increase increase in in the the cost cost to to any any Lender Lender of of agreeing agreeing to to make or of making, funding oror maintainingmaintaining EurodollarEurodollar RateRate LoansLoans (excluding,(excluding, forfor purposespurposes ofof this Section 2.09,2.09, anyany suchsuch increasedincreased costs costs resulting resulting from from (x) (x) Taxes Taxes or or Other Other Taxes Taxes (as (as to to which which Section 2.11 shall govern)govern) andand (y)(y) changeschanges in in the the basis basis or or rate rate of of taxation taxation of of overall overall net net income income or overall grossgross incomeincome byby thethe UnitedUnited States States or or by by the the foreign foreign jurisdiction jurisdiction or or state state under under the the laws laws of which such LenderLender isis organizedorganized or or has has its its Applicable Applicable Lending Lending Office Office or or any any political political subdivision thereo~,thereof), thenthen thethe BorrowerBorrower shall shaH fromfrom timetime toto time, time, uponupon demand demand by by such such Lender Lender (with a copy ofof suchsuch demanddemand toto thethe AdministrativeAdministrative Agent), Agent), pay pay to to the the Administrative Administrative Agent Agent for for the account ofof such such LenderLender additional additional amounts amounts sufficient sufficient to to compensate compensate such such Lender Lender for for such such increased cost. AA certificatecertificate as as to to the the amount amount of of such such increased increased cost, cost, submitted submitted to to the the Borrower Borrower by such Lender, shallshall bebe conclusiveconclusive andand binding binding for for all all purposes, purposes, absent absent manifest manifest error. error.
(b) If any Lender determinesdetermines thatthat compliancecomp liance withwith any any law law or or regulation regulation or or any guideline oror requestrequest fromfrom anyany centralcentral bank bank or or other other Governmental Governmental Authority Authority (whether (whether or or not not
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having the forceforce ofof law) law) affectsaffects oror would would affect affect the the amount amount of of capital capital required required or or expected expected to to be be maintained by such Lender oror anyany corporationcorporation controllingcontrolling suchsuch LenderLender and and thatthat the the amountamount of of such capital is increased by or based uponupon thethe existenceexistence ofof such such Lender'sLender's Loans, Loans, then, then, upon upon demand by such Lender oror suchsuch corporationcorporation (with(with aa copycopy ofof such such demanddemand toto thethe AdministrativeAdministrative Agent), the BorrowerBorrower shall shall paypay to to thethe Administrative Administrative Agent Agent for for the the account account of of such such Lender, Lender, from from time to time as specified byby suchsuch Lender,Lender, additionaladditional amountsamounts sufficientsufficient toto compensatecompensate suchsuch Lender in the lightlight ofof such such circumstances,circumstances, to to the the extent extent that that such such Lender Lender reasonably reasonably determines determines such increase in capital to be allocableallocable toto thethe existenceexistence ofof such such Lender'sLender's Loans. Loans. A A certificate certificate as as to such amounts submittedsubmitted toto thethe BorrowerBorrower byby suchsuch LenderLender shallshall bebe conclusiveconclusive andand bindingbinding for for all purposes, absentabsent manifestmanifest error.error.
(c) If, with respectrespect toto anyany EurodollarEurodollar Rate Rate Loans,Loans, Lenders Lenders owed owed at at least least 331h%33'/3% ofof thethe thenthen aggregate unpaid principal amountamount thereofthereof notify notify thethe AdministrativeAdministrative Agent Agent that the Eurodollar RateRate forfor anyany InterestInterest Period Period for for such such Loans Loans will will not not adequately adequately reflect reflect the the cost to such Lenders of making, fundingfunding oror maintainingmaintaining theirtheir EurodollarEurodollar RateRate LoansLoans forfor suchsuch Interest Period, thethe AdministrativeAdministrative AgentAgent shall shall forthwith forthwith so so notify notify the the Borrower Borrower and and the the Lenders, Lenders, whereupon (i) each suchsuch EurodollarEurodollar RateRate LoanLoan willwill automatically,automatically, onon thethe lastlast dayday ofof the the thenthen existing Interest Period therefor,therefor, ConvertConvert into into a a Base Base Rate Rate Loan Loan and and (ii) (ii) the the obligation obligation of of the the Lenders to make, or to Convert Loans into,into, EurodollarEurodollar RateRate LoansLoans shallshall bebe suspended,suspended, inin eacheach case, until the AdministrativeAdministrative AgentAgent shall shall notify notify the the Borrower Borrower that that such such Lenders Lenders have have determined determined that the circumstances causingcausing suchsuch suspensionsuspension nono longerlonger exist, exist, inin whichwhich casecase (x)(x) thethe obligationobligation of the Lenders toto make,make, oror toto ConvertConvert Loans Loans into, into, Eurodollar Eurodollar Rate Rate Loans Loans shall shall be be reinstated. reinstated.
(d) Notwithstanding anyany otherother provisionprovision ofof this this Agreement,Agreement, ifif the the introductionintroduction of or any change inin oror inin thethe interpretationinterpretation of of any any law law or or regulation regulation shall shall make make it it unlawful, unlawful, or or any any central bank or other GovernmentalGovernmental AuthorityAuthority shallshall assertassert thatthat itit isis unlawful,unlawful, forfor anyany LenderLender or or its Eurodollar Lending OfficeOffice toto perform itsits obligationsobligations hereunderhereunder toto makemake EurodollarEurodollar RateRate Loans or to continue to fund oror maintainmaintain EurodollarEurodollar RateRate LoansLoans hereunder,hereunder, then,then, onon noticenotice thereof andand demanddemand therefortherefor by by suchsuch Lender Lender to to the the Borrower Borrower through through the the Administrative Administrative Agent, Agent, (i) each Eurodollar Rate Loan of suchsuch Lender willwill automatically,automatically, uponupon suchsuch demand,demand, ConvertConvert into a Base Rate Loan andand (ii)(ii) thethe obligationobligation of of the the Lenders Lenders to to make, make, or or to to Convert Convert Loans Loans into, into, Eurodollar Rate LoansLoans s~allshall bebe suspended,suspended, in in each each case, case, until until the the Administrative Administrative Agent Agent shall shall notify the Borrower thatthat suchsuch LenderLender has has determined determined that that the the circumstances circumstances causing causing such such suspension no longer exist, inin which case thethe obligationobligation ofof the the LendersLenders toto make,make, oror toto ConvertConvert Loans into, Eurodollar Rate LoansLoans shallshall bebe reinstated;reinstated; provided, however,however, that, before making any such demand, suchsuch LenderLender agrees agrees toto useuse reasonable reasonable efforts efforts (consistent (consistent with with its its internal internal policy and legallegal andand regulatoryregulatory restrictions)restrictions) toto designatedesignate aa differentdifferent EurodollarEurodollar LendingLending OfficeOffice ifif the making of suchsuch aa designationdesignation wouldwould allowallow suchsuch LenderLender oror itsits EurodollarEurodollar LendingLending OfficeOffice toto continue to perform itsits obligations to makemake Eurodollar RateRate LoansLoans oror toto continuecontinue toto fundfund oror maintain Eurodollar RateRate Loans andand wouldwould not,not, inin thethe judgmentjudgment of of such such Lender,Lender, bebe otherwiseotherwise disadvantageous to suchsuch Lender.Lender.
SECTION 2.10. PaymentsPayments andand ComComputations.putations. (a)(a) TheThe Borrower Borrower shall shall make make each payment hereunder andand underunder the otherother LoanLoan Documents,Documents, irrespectiveirrespective ofof any any rightright ofof counterclaim oror set-offset-off (except (except asas otherwiseotherwise provided provided in in Section Section 2.12), 2.12), not not later later than than 11:00 11 :00 A.M. A.M. (New York CityCity time)time) onon thethe dayday whenwhen duedue inin U.S. U.S. dollars dollars to to the the Administrative Administrative Agent Agent at at the the Administrative Agent's Account Account in in same same dayday funds, funds, withwith payments payments being being received received by by the the
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Administrative AgentAgent afterafter suchsuch timetime beingbeing deemeddeemed toto havehave been been received received on on the the next next succeeding Business Day in the Administrative Agent's solesole discretion.discretion. TheThe Administrative Administrative Agent will promptlypromptly thereafterthereafter causecause likelike fundsfunds toto bebe distributeddistributed (i) (i) ifif such such payment payment by by thethe Borrower isis inin respectrespect ofof principal, principal, interest,interest, commitmentcommitment fees fees oror any any otherother Obligation Obligation then then payable hereunderhereunder andand underunder thethe otherother LoanLoan DocumentsDocuments toto more more than than one one Lender, Lender, toto suchsuch Lenders forfor thethe accountaccount ofof their their respective respective Applicable Applicable Lending Lending Offices Offices ratably ratably in in accordance accordance with the amountsamounts ofof such such respectiverespective ObligationsObligations thenthen payablepayable to to suchsuch Lenders Lenders and and (ii) (ii) ifif such such payment byby thethe BorrowerBorrower is is inin respect respect of of any any Obligation Obligation then then payable payable hereunder hereunder to to one one Lender, Lender, to suchsuch LenderLender forfor thethe accountaccount ofof its its ApplicableApplicable LendingLending Office, Office, in in each each case case to to be be applied applied in in accordance withwith thethe termsterms ofof this this Agreement. Agreement.
(b) The Borrower herebyhereby authorizesauthorizes eacheach i,enderLender and and eacheach ofof its its Affiliates,Affiliates, ifif and to the extentextent paymentpayment owedowed to to suchsuch Lender Lender is is not not made made when when due due hereunder hereunder or or under under the the other Loan DocumentsDocuments toto chargecharge from from timetime to to time, time, to to the the fullest fullest extent extent permitted permitted by by law, law, against against any or all of the Borrower'sBorrower's accounts accounts with with such such Lender Lender or or such such Affiliate Affiliate any any amount amount so so due. due.
(c) All computations ofof interest interest basedbased on on thethe Base Base Rate Rate shall shall be be made made by by the the Administrative AgentAgent onon thethe basisbasis ofof a a yearyear ofof 365 365 oror 366 366 days,days, asas thethe casecase may may be, be, andand all all computations ofof interest interest basedbased onon thethe Eurodollar Eurodollar Rate Rate or or the the Federal Federal Funds Funds Rate Rate and and of of fees fees shall shall be made by thethe AdministrativeAdministrative AgentAgent on on the the basis basis of of a a year year of of 360 360 days, days, in in each each case case for for the the actual number of daysdays (including(including thethe firstfirst dayday butbut excludingexcluding thethe lastlast day)day) occurringoccurring inin thethe periodperiod for which suchsuch interest,interest, feesfees oror commissionscommissions areare payable.payable. EachEach determination determination by by the the Administrative Agent ofof an an interestinterest rate,rate, feefee oror commissioncommission hereunderhereunder shallshall bebe conclusiveconclusive andand binding for allall purposes,purposes, absentabsent manifest manifest error. error.
(d) Except as otherwise providedprovided underunder the the LoanLoan Documents, Documents, whenever whenever any any payment hereunder oror underunder thethe otherother LoanLoan DocumentsDocuments shallshall bebe statedstated toto bebe duedue onon a a dayday otherother than a Business Day, suchsuch paymentpayment shallshall bebe mademade onon thethe nextnext succeeding succeeding BusinessBusiness Day, Day, andand such extension ofof time time shallshall inin suchsuch case case be be included included in in the the computation computation of of payment payment of of interest, interest, fee or commission, asas thethe casecase maymay be;be; provided, however,however, that, ifif suchsuch extensionextension wouldwould causecause payment of interestinterest onon oror principalprincipal ofof Eurodollar Eurodollar RateRate LoansLoans toto bebe mademade inin thethe nextnext following following calendar month, such payment shallshall bebe mademade onon thethe precedingpreceding BusinessBusiness Day.Day.
(e) Unless the Administrative AgentAgent shallshall havehave receivedreceived notice notice from from the the Borrower prior toto thethe datedate onon whichwhich any any payment payment is is due due to to any any Lender Lender hereunder hereunder that that the the Borrower will not make suchsuch paymentpayment inin full,full, thethe AdministrativeAdministrative AgentAgent maymay assumeassume thatthat thethe Borrower has made suchsuch payment inin fullfull toto thethe AdministrativeAdministrative AgentAgent onon suchsuch datedate andand thethe Administrative Agent may,may, inin reliancereliance uponupon suchsuch assumption,assumption, causecause toto bebe distributeddistributed toto eacheach such Lender on such due date an amount equalequal to thethe amountamount thenthen duedue suchsuch Lender.Lender. IfIf and and to to the the extent the Borrower shallshall notnot havehave soso mademade such such payment payment in in full full to to the the Administrative Administrative Agent, Agent, each such Lender shallshall repay to the AdministrativeAdministrative AgentAgent forthwithforthwith onon demanddemand suchsuch amountamount distributed to such LenderLender togethertogether with with interest interest thereon, thereon, for for each each day day from from the the date date such such amount amount isis distributed to suchsuch LenderLender untiluntil thethe datedate suchsuch LenderLender repays repays such such amount amount to to the the Administrative Administrative Agent, at the Federal FundsFunds Rate.Rate.
(f)( fl If the Administrative AgentAgent receivesreceives fundsfunds forfor applicationapplication to to the the Obligations of the BorrowerBorrower underunder oror in in respectrespect of of the the Loan Loan Documents Documents under under circumstances circumstances for for
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which the Loan Documents dodo notnot specifyspecify toto which,which, oror thethe mannermanner inin which,which, suchsuch fundsfunds areare toto bebe applied, the AdministrativeAdministrative AgentAgent may, may, if if no no instructions instructions with with respect respect thereto thereto are are received received from from the Lenders uponupon request,request, butbut shallshall notnot bebe obligatedobligated to,to, electelect toto distributedistribute suchsuch fundsfunds toto eacheach ofof the Lenders inin accordanceaccordance with suchsuch Lender'sLender's pro pro rata rata share share of of the the aggregate aggregate principal principal amount amount of of all Loans outstandingoutstanding atat suchsuch timetime inin repaymentrepayment or or prepayment prepayment of of such such of of the the outstanding outstanding Loans Loans or other ObligationsObligations thenthen owingowing toto suchsuch Lender, Lender, as as the the Administrative Administrative Agent Agent shall shall direct. direct.
SECTION 2.11.2.11. Taxes.Taxes. (a)(a) Any Any and and all all payments payments by by the the Borrower Borrower to to oror for for thethe account ofof any any LenderLender oror thethe AdministrativeAdministrative Agent Agent hereunder hereunder or or under under any any other other Loan Loan Document shall bebe made,made, in accordanceaccordance withwith SectionSection 2.102.10 oror thethe applicableapplicable provisionsprovisions ofof such such other Loan Document,Document, ifif any, any, freefree andand clear clear of of and and without without deduction deduction for for any any and and all all present present or or future taxes, levies,levies, imposts,imposts, deductions, chargescharges oror withholdings,withholdings, andand allall liabilitiesliabilities withwith respectrespect thereto, excluding, in the case of each LenderLender andand thethe AdministrativeAdministrative Agent,Agent, (x)(x) taxes taxes that that are are imposed on itsits overalloverall netnet incomeincome byby thethe United United States States and and taxes taxes that that are are imposed imposed on on its its overall overall net income (and franchisefranchise taxes imposedimposed inin lieulieu thereo~thereof) by by the the state state or or foreign foreign jurisdiction jurisdiction under under the lawslaws of which suchsuch LenderLender aror thethe AdministrativeAdministrative Agent,Agent, asas thethe case case may may be,be, isis organizedorganized (or (or any political subdivisionsubdivision thereo~,thereof), hashas itsits ApplicableApplicable Lending Lending Office, Office, has has a a permanent permanent establishment oror isis engagedengaged inin businessbusiness (other (other than than the the business business that that the the Lender Lender is is engaged engaged in in solely by reasonreason ofof the the transactionstransactions contemplatedcontemplated by by this this Agreement), Agreement), (y) (y) any any branch branch profits profits taxes imposedimposed byby thethe UnitedUnited StatesStates ofof America America andand (z)(z) withholdingwithholding taxestaxes imposedimposed underunder lawlaw inin effect on the datedate hereofhereof or or atat thethe timetime the the Lender Lender designates designates a a new new Applicable Applicable Lending Lending Office, Office, other than anyany newnew ApplicableApplicable LendingLending Office Office designated designated at at the the written written request request of of the the Borrower Borrower (in the case of a Lender that is not an Initial Lender, this clause Cz)z shall shall include include taxes taxes imposed imposed under lawlaw inin effecteffect onon thethe datedate suchsuch Lender Lender becomes becomes a a Lender, Lender, except except to to the the extent extent that that the the Lender's predecessorpredecessor would would havehave been been entitled entitled to to receive receive additional additional amounts amounts under under this this Section Section 2.112.11(a)) Cal) and,and, inin thethe casecase ofof each each Lender,Lender, taxes taxes that that are are imposed imposed on on its its overall overall net net income income (and (and franchise taxes imposedimposed inin lieulieu thereo~thereof) byby thethe state state or or foreign foreign jurisdictionjurisdiction of of such such Lender'sLender's Applicable LendingLending OfficeOffice oror anyany politicalpolitical subdivision subdivision thereof thereof (all (all such such non-excluded non-excluded taxes, taxes, levies, imposts,imposts, deductions,deductions, charges,charges, withholdingswithholdings and and liabilities liabilities in in respect respect of of payments payments hereunder oror underunder anyany otherother Loan Loan Document Document being being hereinafter hereinafter referred referred to to as as "Taxes"). If the Borrower oror thethe AdministrativeAdministrative AgentAgent shall shall be be required required by by law law to to deduct deduct any any Taxes Taxes from from or or in in respect ofof any any sumsum payablepayable hereunderhereunder or or under under any any other other Loan Loan Document Document to to any any Lender Lender or or the the Administrative Agent,Agent, (i)(i) thethe sumsum payablepayable by by the the Borrower Borrower shall shall be be increased increased as as may may be be necessary soso thatthat afterafter thethe BorrowerBorrower and and the the Administrative Administrative Agent Agent have have made made all all required required deductions (including(including deductionsdeductions applicableapplicable to to additional additional sums sums payable payable under under this this Section Section 2.11) 2.11) such Lender oror thethe AdministrativeAdministrative Agent,Agent, asas thethe case case may may be, be, receives receives an an amount amount equal equal to to the the sum it would havehave receivedreceived hadhad nono suchsuch deductionsdeductions been been made, made, (ii) (ii) the the Borrower Borrower shall shall make make all all such deductions andand (iii)(iii) thethe BorrowerBorrower shall shall paypay the the full full amountamount deducted deducted to to the the relevant relevant taxation taxation authority oror otherother authorityauthority inin accordanceaccordance with with applicable applicable law. law.
(b) In addition, the Borrower shallshall paypay anyany presentpresent or or future future stamp,stamp, documentary, excise,excise, propertyproperty (including(including intangible intangible property, property, but but with with regard regard to to all all property property taxes, onlyonly toto thethe extentextent relatingrelating toto property property of of the the Borrower) Borrower) mortgage mortgage recording recording or or similar similar taxes, chargescharges oror levieslevies thatthat arisearise from from anyany payment payment made made by by the the Borrower Borrower hereunder hereunder or or under under any other LoanLoan DocumentsDocuments oror fromfrom thethe execution,execution, delivery delivery or or registration registration of, of, performance performance under under this Agreement oror thethe otherother LoanLoan Documents Documents (hereinafter (hereinafter referred referred to to as as "Other Taxes").
EBG Holdings LLC 37 Credit Agreement NYI:#3437976vllNY l :#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 457 of 510
(c) The Borrower shall indemnify eacheach LenderLender andand thethe AdministrativeAdministrative AgentAgent for and hold them harmlessharmless againstagainst the the fullfull amountamount of of Taxes Taxes and and Other Other Taxes, Taxes, and and for for the the full full amount of taxes of any kind imposed oror assertedasserted byby anyany jurisdiction onon amountsamounts payablepayable underunder this Section 2.11, imposedimposed onon oror paid byby suchsuch LenderLender oror thethe AdministrativeAdministrative AgentAgent (as(as thethe casecase may be) and any liability (including(including penalties,penalties, additionsadditions toto tax,tax, interestinterest andand expenses)expenses) arisingarising therefrom or with respect thereto.thereto. ThisThis indemnification indemnification shall shall be be made made within within 30 30 days days from from the the date such Lender oror thethe AdministrativeAdministrative AgentAgent (as (as the the case case may may be) be) makes makes written written demand demand therefor.
(d) Within 30 days after the datedate ofof any any paymentpayment of of Taxes, Taxes, the the Borrower Borrower shall shall furnish to the Administrative Agent,Agent, atat itsits address address referred referred to to in in Section Section 8.02, 8.02, the the original original or or a a certified copy ofof a a receiptreceipt evidencingevidencing such such payment, payment, to to the the extent extent such such a areceipt receipt is is issued issued therefor, or otherother writtenwritten proofproof of of payment payment thereof thereof that that is is reasonably reasonably satisfactory satisfactory to to the the Administrative Agent. InIn the the case case of of any any payment payment hereunder hereunder or or under under the the other other Loan Loan Documents Documents by or on behalf of of the the BorrowerBorrower through through an an account account or or branch branch outside outside the the United United States States or or by by or or on behalf of the Borrower byby aa payorpayor that that is is notnot a a United United States States person, person, if if the the Borrower Borrower determines that no TaxesTaxes areare payablepayable inin respectrespect thereof, thereof, the the Borrower Borrower shall shall furnish, furnish, or or shall shall cause such payor toto furnish,furnish, toto thethe Administrative Administrative Agent, Agent, at at such such address, address, an an opinion opinion of of counsel counsel acceptable to the Administrative AgentAgent statingstating thatthat suchsuch paymentpayment isis exemptexempt fromfrom Taxes.Taxes. ForFor purposes of subsections (d) andand uu~ of of this this Section Section 2.11, 2.11, the the terms terms "United States" and "United States person" shall have the meanings specifiedspecified inin SectionSection 7701 7701 ofof the the Internal Internal Revenue Revenue Code. Code.
(e) Each Lender organized underunder thethe lawslaws ofof a a jurisdiction jurisdiction outside outside the the United United States shall, on or prior to the date of itsits execution andand deliverydelivery ofof this this AgreementAgreement inin thethe casecase ofof each Initial Lender and on the datedate ofof the the AssignmentAssignment andand AcceptanceAcceptance pursuantpursuant toto whichwhich itit becomes a Lender inin thethe casecase ofof each each otherother Lender, Lender, and and from from time time to to time time thereafter thereafter as as reasonably requested inin writing byby thethe BorrowerBorrower (but(but onlyonly soso longlong thereafterthereafter asas suchsuch LenderLender remains lawfully able toto dodo so),so), provideprovide eacheach ofof the the AdministrativeAdministrative AgentAgent andand thethe BorrowerBorrower with with two original Internal RevenueRevenue ServiceService FormsForms W-8BENW -8BEN oror W-8ECI W -8ECI oror (in(in thethe casecase ofof a a LenderLender that has certified inin writingwriting toto thethe AdministrativeAdministrative AgentAgent thatthat itit isis notnot (i)(i) a"bank"a "bank" as as defined defined in in Section 881(c)(3)(A)881 (c)(3)(A) ofof the the InternalInternal RevenueRevenue Code),Code), (ii)(ii) a a 10-percent 10-percent shareholder shareholder (within (within the the meaning of SectionSection 871(h)(3)(B)871 (h)(3)(B) ofof the the Internal Internal Revenue Revenue Code) Code) of of the the Borrower Borrower or or (iii) (iii) a a controlled foreign corporationcorporation relatedrelated toto thethe Borrower Borrower (within (within the the meaning meaning of of Section Section 864(d)(4) 864(d)( 4) of the Internal RevenueRevenue Code),Code), InternalInternal RevenueRevenue Service Service Form Form W-8BEN, W-8BEN, as as appropriate, appropriate, or or any any successor or other formform prescribedprescribed byby thethe Internat Internal Revenue Revenue Service, Service, certifying certifying that that such such Lender Lender is exempt from or entitled toto aa reducedreduced raterate ofof United United States States withholding withholding tax tax on on payments payments pursuant to thisthis AgreementAgreement or or any any otherother Loan Loan Document Document or, or, in in the the case case of of a aLender Lender that that has has certified that it is not a"bank"a "bank" as as described described above, above, certifying certifying that that such such Lender Lender is is a aforeign foreign corporation, partnership, estateestate oror trust. AsAs provided provided in in Section Section 2.11(a), 2.11(a), if if the the forms forms provided provided by by a Lender at the timetime suchsuch LenderLender first first becomesbecomes a a party party to to this this Agreement Agreement indicate indicate a aUnited United States States interest withholding taxtax raterate inin excessexcess ofof zero, zero, withholdingwithholding tax tax at at such such rate rate shall shall be be considered considered excluded from Taxes unlessunless andand untiluntil suchsuch Lender providesprovides thethe appropriateappropriate formsforms certifyingcertifying thatthat a lesser rate applies,applies, whereuponwhereupon withholdingwithholding tax tax at at such such lesser lesser rate rate only only shall shall be be considered considered excluded from Taxes for periodsperiods governedgoverned byby suchsuch forms;forms; provided, however,however, that if,if, atat thethe effective date ofof the AssignmentAssignment andand AcceptanceAcceptance pursuant pursuant to to which which a a Lender Lender becomes becomes a aparty party to to this Agreement, thethe LenderLender assignor assignor was was entitled entitled to to payments payments under under subsection subsection (a) (a) of of this this Section 2.11 in respect ofof United United StatesStates withholdingwithholding tax tax with with respect respect to to interest interest paid paid at at such such date, date,
EBG Holdings LLC 338 $ Credit Agreement NY)NY 1:#3437976v :#3437976vl1 ] 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 458 of 510
then, toto suchsuch extent,extent, thethe termterm TaxesTaxes shallshall includeinclude (in(in addition addition to to withholding withholding taxes taxes that that may may be be imposed inin the futurefuture oror otherother amountsamounts otherwiseotherwise includableincludable inin Taxes)Taxes) UnitedUnited States States withholding withholding tax, ifif any, applicableapplicable withwith respectrespect toto thethe LenderLender assignee assignee onon such such date.date. IfIf any any form form or or document document referred to inin this subsectionsubsection (e)(e) requiresrequires thethe disclosuredisclosure ofof information, information, otherother than than information information necessary to computecompute thethe taxtax payablepayable andand informationinformation required required onon the the datedate hereofhereof by by Internal Internal Revenue ServiceService FormForm W-8BENW-SBEN oror W-8ECI W-SECI or or the the related related certificate certificate described described above, above, that that the the applicable Lender reasonablyreasonably considersconsiders toto bebe confidential,confidential, suchsuch LenderLender shall shall givegive notice notice thereof thereof to the Borrower andand shallshall notnot bebe obligatedobligated toto includeinclude in in such such form form oror document document such such confidential confidential information.
(f)(~ For any period with respectrespect toto whichwhich a a Lender Lender has has failed failed to to provide provide the the Borrower withwith thethe appropriateappropriate form,form, certificatecertificate or or other other document document described described in in subsection subsection (e) (e) above (other thanthan ifif such such failurefailure isis duedue toto aa changechange inin law,law, oror in in thethe interpretationinterpretation or or application application thereof, occuningoccurring after after the the date date on on which which a a form, form, certificate certificate or or other other document document originally originally was was required to bebe providedprovided oror ifif such such form,form, certificatecertificate or or other other document document otherwise otherwise is is not not required required under subsection (e)(e) above),above), suchsuch LenderLender shallshall notnot be be entitled entitled to to indemnificationindemnification under under subsection (a) or i£)~ of of this this Section Section 2.11 2.11 with with respect respect to to T~es Taxes imposed imposed by by the the United United Sta.tes States by by reason of such such failure;failure; provided, however,however, that should aa LenderLender becomebecome subjectsubject to to TaxesTaxes because because of its failure to deliverdeliver aa form,form, certificatecertificate oror other other document document requiredrequired hereunder,hereunder, thethe Borrower Borrower shall take such stepssteps asas suchsuch LenderLender shallshall reasonablyreasonably request,request, atat the the Lender'sLender's sole sole expense expense and and as as long as the Borrower determinedetermine thatthat suchsuch stepssteps willwill not,not, inin thethe reasonablereasonable judgmentjudgment of of the the Borrower, bebe disadvantageousdisadvantageous to to the the Borrower, Borrower, to to assist assist such such Lender Lender to to recover recover such such Taxes. Taxes.
(g) Any Lender claiming anyany additionaladditional amountsamounts payable pursuantpursuant toto thisthis Section 2.11 agrees toto use reasonable effortsefforts (consistent(consistent withwith itsits internalinternal policypolicy andand legallegal andand regulatory restrictions)restrictions) toto changechange thethe jurisdictionjurisdiction of of its its ApplicableApplicable LendingLending Office Office if ifthe the making making of such a change wouldwould avoidavoid thethe needneed for,for, oror reducereduce thethe amount amount of,of, anyany suchsuch additional additional amounts amounts that may thereafterthereafter accrueaccrue andand wouldwould not,not, inin thethe reasonablereasonable judgment judgment of of such such Lender, Lender, be be otherwise disadvantageous to such Lender. InIn addition, addition, ifif a a LenderLender determines, determines, inin suchsuch Lender'sLender's sole discretion, thatthat itit hashas receivedreceived a a refund refund or or credit credit in in respect respect of of any any Taxes Taxes or or Other Other Taxes Taxes as as to to which itit has beenbeen indemnifiedindemnified pursuantpursuant toto SectionSection 2.11(c), 2.1l(c), or or with with respect respect to to whichwhich additional additional amounts havehave been been paid paid pursuant pursuant to to Section Section 2.11(a), 2.11 Cal, Such such I,ender Lender shall shall pay pay to tothe the Bot~sow~r Borrower ~n an amount equal to suchsuch refundrefund (but(but suchsuch amountamount inin nono eventevent to to exceedexceed the the amountamount of of any any indemnity paymentspayments made,made, oror additional additional amounts amounts paid, paid, by by the the Borrower Borrower under under this this Section Section 2.11 2.11 with respect toto thethe TaxesTaxes oror OtherOther TaxesTaxes givinggiving riserise toto suchsuch refund)refund) netnet of of all all out-of-pocketout-of-pocket expenses ofof suchsuch Lender,Lender, andand withoutwithout interestinterest (other(other than than anyany interestinterest paidpaid by by the the relevantrelevant Governmental AuthorityAuthority with respectrespect toto suchsuch refund),refund), provided that the Borrower, uponupon thethe request ofof such such Lender,Lender, shallshall agreeagree to to repay repay the the amount amount paid paid over over to to the the Borrower Borrower (plus (plus any any penalties, interestinterest oror otherother chargescharges imposedimposed byby thethe relevant relevant Governmental Governmental Authority) Authority) to to such such Lender in the eventevent suchsuch LenderLender subsequentlysubsequently determinesdetermines thatthat suchsuch refundrefund oror credit credit is is unavailable underunder applicableapplicable lawlaw oror isis otherwiseotherwise requiredrequired to to repayrepay such such refund refund to to such such Governmental Authority.Authority. ThisThis paragraph paragraph shall shall not not be be construed construed to to require require a aLender Lender to to rearrange rearrange its tax affairs oror toto makemake availableavailable itsits taxtax returns returns (or (or any any other other information information relating relating to to its its taxes taxes that itit deemsdeems confidential)confidential) toto thethe Borrower Borrower or or any any other other Person. Person.
(h) The Administrative AgentAgent shallshall deliverdeliver to to thethe BorrowerBorrower on on the the Effective Effective Date (and(and shallshall keepkeep effectiveeffective thereafter)thereafter) two two duly duly completed completed copies copies of ofInternal Internal Revenue Revenue Service Service
EBG Holdings LLC 39 Credit Agreement NYINY ] :#3437976vll:#3437976v I 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 459 of 510
Form W-8IMY,W-SIMY, oror anyany successorsuccessor or or other other form form prescribedprescribed by by the the Internal Internal Revenue Revenue Service, Service, certifying that it is a"U.S.a "U.S. branch" branch" and and that that the the payments payments it it receives receives for for the the account account of of others others are are not effectively connectedconnected withwith thethe conductconduct of of its its trade trade or or business business in in the the United United States States and and that that it it is using such form asas evidenceevidence ofof its its agreementagreement with with the the Borrower Borrower to to be be treated treated as as a aU.S. U.S. person person with respect to suchsuch paymentspayments (and(and thethe Borrower Borrower and and the the Administrative Administrative Agent Agent agree agree to to so so treat treat the Administrative AgentAgent asas aa U.S.U.S. PersonPerson with with respect respect to to such such payments), payments), with with the the effect effect that that the Borrower cancan makemake paymentspayments toto thethe Administrative Administrative Agent Agent without without deduction deduction or or withholding withholding of any Taxes imposedimposed by the United States.States.
SECTION 2.12. SharingSharing ofof Payments, Payments, Etc.Etc. IfIf any any Lender Lender shall shall obtain obtain at at any any time time any payment (whether(whether voluntary,voluntary, involuntary,involuntary, through through the the exercise exercise of of any any right right of of set-off, set-off, or or otherwise, other than as a result ofof an an assignmentassignment pursuantpursuant toto SectionSection 8.07),8.07), (a)(a) onon accountaccount ofof Obligations due and payable to suchsuch LenderLender hereunderhereunder andand underunder thethe otherother LoanLoan DocumentsDocuments atat such time in excess ofof its its ratableratable shareshare (according(according to to the the proportion proportion of of (i) (i) the the amount amount of of such such Obligations due andand payablepayable toto suchsuch Lender Lender at at such such time time to to (ii) (ii) the the aggregate aggregate amount amount of of the the Obligations due and payablepayable toto allall LendersLenders hereunder hereunder and and under under the the other other Loan Loan Documents Documents at at such time) of payments on account ofof the the ObligationsObligations duedue andand payablepayable toto allall LendersLenders hereunderhereunder and under the otherother LoanLoan DocumentsDocuments at at such such time time obtained obtained by by all all the the Lenders Lenders at at such such time time or or (b) (b) on account of Obligations owingowing (but(but notnot duedue andand payable)payable) toto suchsuch LenderLender hereunderhereunder andand underunder the other Loan DocumentsDocuments atat such such time time in in excess excess of of its its ratable ratable share share (according (according to to the the proportion proportion of (i) the amount ofof such such ObligationsObligations owing owing to to suchsuch Lender Lender to to (ii) (ii) the the aggregate aggregate amount amount of of the the Obligations owing (but(but notnot duedue andand payable) payable) to to allall Lenders Lenders hereunder hereunder and and under under the the other other Loan Loan Documents at such time) of payments onon accountaccount ofof the the ObligationsObligations owingowing (but(but notnot duedue andand payable) to allall LendersLenders hereunderhereunder and and under under the the other other Loan Loan Documents Documents at at such such time time obtained obtained by by all of the Lenders atat suchsuch time,time, suchsuch Lender Lender shall shall forthwith forthwith purchase purchase from from the the other other Lenders Lenders such such interests or participating interestsinterests inin thethe Obligations Obligations due due and and payable payable or or owing owing to to them them as as shall shall be be necessary to cause such purchasing LenderLender toto shareshare thethe excessexcess paymentpayment ratablyratably withwith eacheach ofof them; provided, however,however, that ifif allall oror anyany portionportion ofof such such excessexcess payment payment is is thereafter thereafter recovered recovered from such purchasing Lender,Lender, suchsuch purchasepurchase from from eacheach other other Lender Lender shall shall be be rescinded rescinded and and such such other Lender shallshall repayrepay toto thethe purchasingpurchasing Lender Lender the the purchase purchase price price to to the the extent extent of of such such Lender's ratableratable shareshare (according(according to to the the proportion proportion of of (i) (i) the the purchase purchase price price paid paid to to such such Lender Lender to (ii)(ii) thethe aggregateaggregate purchasepurchase priceprice paid paid to to all all Lenders) Lenders) of of such such recovery recovery together together with with an an amount amount equal to such Lender's ratableratable shareshare (according (according to to the the proportion proportion of of (i) (i) the the amount amount of of such such other other Lender's requiredrequired repaymentrepayment to to (ii)(ii) thethe total total amountamount so so recovered recovered from from the the purchasing purchasing Lender) Lender) of of any interest oror otherother amountamount paidpaid or or payable payable by by the the purchasing purchasing Lender Lender in in respect respect of of the the total total amount so recovered. TheThe Borrower Borrower agrees agrees that that any any Lender Lender so so purchasing purchasing an an interest interest or or participating interestinterest fromfrom anotheranother Lender Lender pursuant pursuant to to this this Section Section 2.12 2.12 may, may, to to the the fullest fullest extent extent permitted by law, exercise allall itsits rightsrights ofof payment payment (including(including thethe rightright ofof set-of~ set-oft) with with respect respect to to such interest or participating interest,interest, asas thethe case case may may be, be, as as fully fully as as if if such such Lender Lender were were the the direct creditor ofof the the BorrowerBorrower in in thethe amount amount of of such such interest interest or or participating participating interest, interest, as as the the case case may be.
SECTION 2.l3.2.13. UseUse ofof Proceeds. Proceeds. TheThe proceeds proceeds of of the the Loans Loans shall shall be be available available (and the Borrower agreesagrees thatthat itit shallshall use use such such proceeds) proceeds) solely solely (i) (i) to to fund fund the the Distribution Distribution and and the Tender OfferOffer ofof the the Borrower,Borrower, (ii) (ii) to to pay pay transaction transaction fees fees and and expenses expenses and and (iii) (iii) for for general general corporate purposes.
EBG Holdings LLC 404~ Credit Agreement NYl:#3437976vllNY1 #3437976v1I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 460 of 510
SECTION 2.14. Chan~eChange ofof Control Control Prepavment.Prepayment. (a)(a) No No later later than than three three (3) Business Days afterafter thethe occurrenceoccurrence ofof a a Change Change of of Control, Control, the the Borrower Borrower shall shall through through the the Administrative AgentAgent offeroffer toto eacheach LenderLender (by (by delivery delivery of of a aprepayment prepayment offer offer to to the the Administrative Agent)Agent) toto prepayprepay allall (but(but not not part) part) of of its its outstanding outstanding Loans Loans in in accordance accordance with with this Section 2.14. TheThe prepayment prepayment offer offer may may be be conditioned conditioned on on the the occurrence occurrence of of such such Change Change of Control (if made priorprior toto suchsuch occurrence)occurrence) and and otherwise otherwise shall shall be be irrevocable irrevocable and and shall shall state: state: (i) the proposed datedate ofof such such prepaymentprepayment and/or and/or return return (which (which date date shall shall be be no no earlier earlier than than (x) the end of thethe OfferOffer PeriodPeriod andand (y)(y) thethe datedate of of the the applicable applicable Change Change of of Control Control and and no no later later than ten (10) BusinessBusiness DaysDays fromfrom thethe datedate of of the the applicable applicable Change Change of of Control); Control); (ii) (ii) the the prepayment priceprice (which,(which, withwith respectrespect to to each each Lender, Lender, shall shall be be calculated calculated as as the the sum sum of of (A) (A) the the aggregate principal amountamount ofof the outstandingoutstanding LoansLoans mademade byby suchsuch Lender,Lender, (B)(B) thethe greatergreater ofof (x) an amount equal toto 1.00%1.00% ofof the the aggregateaggregate principal principal amount amount of of such such outstanding outstanding Loans Loans made made by such Lender andand (y)(y) thethe CallCall PremiumPremium (if (if any), any), (C) (C) all all accrued accrued and and unpaid unpaid interest interest on on the the principal amount beingbeing repaid,repaid, prepaidprepaid oror returnedreturned andand (D)(D) anyany amountsamounts owingowing pursuantpursuant toto Section 8.04(c)); (iii)(iii) thatthat eacheach LenderLender thatthat accepts accepts such such prepayment prepayment offer offer must must accept accept such such offer offer with respect to allall (but(but notnot part)part) ofof its its Loans;Loans; (iv) (iv) that that each each Lender Lender must must accept accept such such offer offer by by delivering notice ofof such such acceptanceacceptance toto thethe AdministrativeAdministrative Agent Agent within within ten ten (10) (10) days days after after the the date the Borrower makesmakes itsits offeroffer toto suchsuch Lender Lender (the (the "Offer Period"); and (v) in reasonable detail, the nature of the applicableapplicable ChangeChange ofof Control Control andand thethe projectedprojected impactimpact ofof such such ChangeChange ofof Control on the Projects, thethe operationsoperations thereofthereof and and BostonGen BostonGen and and its its Subsidiaries. Subsidiaries.
(b) The Borrower shall complycomply withwith thethe termsterms ofof each each such such prepayment prepayment offer. offer. Each Lender shallshall havehave thethe rightright to to acceptaccept such such offer offer prior prior to to the the expiration expiration of of the the applicable applicable Offer Period.
(c) The Commitments of each each LenderLender that that accepts accepts aa prepayment prepayment offer offer in in accordance with this SectionSection 2.142.14 shallshall terminateterminate inin itsits entiretyentirety onon thethe datedate suchsuch Lender'sLender's Loans Loans are repaid or, ififlater, later, scheduledscheduled toto bebe repaidrepaid or or returned. returned.
SECTION 2.15. EvidenceEvidence of Debt. (a)(a) Each Each Lender Lender shall shall maintain maintain in in accordance with itsits usualusual practicepractice anan accountaccount or or accounts accounts evidencing evidencing the the indebtedness indebtedness of of the the Borrower to suchsuch LenderLender resultingresulting fromfrom eacheach Loan Loan owing owing to to such such Lender Lender from from time time to to time, time, including the amountsamounts ofof principal principal andand interestinterest payable payable and and paid paid to to such such Lender Lender from from time time to to time hereunder. TheThe Borrower Borrower agrees agrees that that upon upon notice notice by by any any Lender Lender to to the the Borrower Borrower (with (with a a copy of such noticenotice toto thethe AdministrativeAdministrative Agent)Agent) to to the the effect effect that that a a promissory promissory note note or or other other evidence of indebtednessindebtedness isis requiredrequired oror appropriate appropriate in in order order for for such such Lender Lender to to evidence evidence (whether for purposes ofof pledge, pledge, enforcementenforcement or or otherwise) otherwise) the the Loans Loans owing owing to, to, or or to to be be made made by, such Lender, thethe BorrowerBorrower shall shall promptlypromptly execute execute and and deliver deliver to to such such Lender, Lender, with with a acopy copy to to the Administrative Agent, a Note in substantially the form of ExhibitE~ibit A A hereto, hereto, payable payable to to the the order of such Lender inin aa principal amountamount equalequal toto thethe LoansLoans ofof such such Lender.Lender. AllAll references references to to Notes in the LoanLoan DocumentsDocuments shall shall meanmean Notes, Notes, if if any, any, to to the the extent extent issued issued hereunder. hereunder.
(b) The Register maintained byby thethe AdministrativeAdministrative AgentAgent pursuant pursuant to to Section Section 8.07(e)8.07 e shall shall include include a a control control account, account, and and a a subsidiary subsidiary account account for for eacheach Lender,Lender, inin whichwhich accounts (taken together)together) shallshall bebe recorded recorded (i) (i) the the date date and and amount amount of of the the Loans Loans made made hereunder, hereunder, the Type of the Loans and,and, ifif appropriate, appropriate, thethe InterestInterest PeriodPeriod applicableapplicable thereto,thereto, (ii)(ii) thethe termsterms ofof each Assignment andand AcceptanceAcceptance delivereddelivered to to and and accepted accepted by by it, it, (iii) (iii) the the amount amount of of any any
EBG Holdings LLC 41 Credit Agreement NYINY ] :#3437976v:#3437976vll 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 461 of 510
principal oror interestinterest duedue andand payablepayable oror to to becomebecome due due and and payable payable from from the the Borrower Borrower to to each each Lender hereunder andand (iv)(iv) thethe amountamount ofof any any sumsum receivedreceived by by the the Administrative Administrative Agent Agent from from the the Borrower hereunder andand eacheach Lender'sLender's share share thereof. thereof.
(c) Entries made inin goodgood faithfaith byby thethe AdministrativeAdministrative AgentAgent in in the the RegisterRegister pursuant to subsectionsubsection (b)(b) above,above, andand byby eacheach LenderLender in in its its account account or or accounts accounts pursuant pursuant to to subsection (a) above, shallshall bebe prima facie evidence of the amount ofof principal principal andand interestinterest duedue and payable oror to become duedue andand payablepayable fromfrom thethe BorrowerBorrower to, to, in in the the case case of of the the Register, Register, each each Lender and, inin the casecase ofof such such accountaccount oror accounts, accounts, suchsuch Lender, Lender, under under this this Agreement, Agreement, absent absent manifest error;error; provided, however,however, that the failure ofof the the AdministrativeAdministrative AgentAgent oror such such LenderLender to to make an entry, oror anyany findingfinding thatthat an entry is incorrect, inin the Register oror suchsuch accountaccount oror accounts shallshal1 not limitlimit oror otherwiseotherwise affectaffect thethe obligationsobligations of of the the Borrower Borrower under under this this Agreement.
SECTION 2.16. Duty to Mitigate. In the event that anyany LenderLender demands demands payment of costs costs oror additionaladditional amountsamounts pursuantpursuant to to Section Section 2.09 2.09 or or 2.11 2.11 oror asserts, asserts, pursuant pursuant to to Section 2.09(d), that itit isis unlawfulunlawful forfor suchsuch LenderLender to to makemake Eurodollar Eurodol1ar Rate Rate Loans Loans then then (subject (subject to such Lender's right right to to rescindrescind such such demand demand or or assertion assertion within within 10 10 days days after after the the notice notice from from the Borrower referredreferred toto below)below) thethe BorrowerBorrower may, may, uponupon 20 20 days' days' prior prior written written notice notice to to such such Lender and the AdministrativeAdministrative Agent,Agent, electelect to to causecause such such Lender Lender to to assign assign its its Loans Loans and and Commitments inin fullfull to oneone oror moremore PersonsPersons selectedselected byby thethe Borrower Borrower so so long long as as (i) (i) each each such such Person satisfiessatisfies the criteriacriteria ofof an an EligibleEligible AssigneeAssignee and and isis reasonablyreasonably satisfactory satisfactory to to the the Administrative Agent,Agent, (ii)(ii) suchsuch LenderLender receives receives payment payment in in full ful1 inin cash cash of of the the outstanding outstanding principal amountamount ofof all all LoansLoans mademade byby it it and and all all accruedaccrued and and unpaid unpaid interest interest thereon thereon and and all all other other amounts due and payablepayable toto suchsuch LenderLender as as ofof the the datedate ofof such such assignment assignment (including, (including, without without limitation, amounts owing pursuant to Sections 2.09, 2.11 and 8.048.04) and and (iii) (iii) each each such such assignee assignee agrees to accept suchsuch assignmentassignment andand toto assumeassume allall obligationsobligations of of such such Lender Lender hereunder hereunder in in accordance withwith Section 8.07.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND OF LENDINGLENDING
SECTION 3.01.3A1. ConditionsConditions Precedent.Precedent. SectionSection 2.01 2.01 ofof this this Agreement Agreement shallshall become effective onon andand asas ofof the the firstfirst datedate onon oror before before December December 21, 21,2006 2006 (the (the "Effective Date") on which the following conditionsconditions precedentprecedent havehave beenbeen satisfiedsatisfied (and (and the the obligation obligation of of each Lender to makemake aa LoanLoan onon thethe occasionoccasion ofof the the InitialInitial Extension Extension of of Credit Credit hereunder hereunder is is subject to the satisfactionsatisfaction ofof such such conditionsconditions precedentprecedent before before or or concurrently concurrently with with the the Effective Effective Date):
(a) TheThe Administrative Administrative Agent Agent shall shall have have received received on on or or before before the the Effective Effective Date the following, each dateddated asas ofof such such datedate (unless(unless otherwiseotherwise specified) specified) and and in in formform and substance reasonably satisfactorysatisfactory toto thethe AdministrativeAdministrative Agent:Agent:
(i) The Notes payable toto thethe orderorder ofof the the LendersLenders toto thethe extentextent requested by the Lenders pursuantpursuant toto thethe termsterms ofof Section Section 2.15. 2.15.
EBG Holdings LLC 42 Credit Agreement NY 1:#3437976v I :#3437976v 11 II 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 462 of 510
(ii) completed requests forfor informationinformation oror similarsimilar search search reports, reports, dated dated on or not more than 1414 daysdays beforebefore thethe EffectiveEffective Date, Date, listing listing all all effective effective financing statementsstatements filedfiled inin thethe StateState ofof Delaware Delaware and and any any other other jurisdiction jurisdiction in in which the BonowerBorrower owns owns PropertyProperty that that names names the the Borrower Borrower as as debtor,debtor, together together with copies ofof such such otherother financingfinancing statements.statements.
(iii) Certified copies of the resolutionsresolutions ofof the the boardboard of of directors directors of of the the Borrower approving thethe TransactionTransaction andand eacheach Transaction Transaction Document Document to to which which it it is or is to be a party, andand ofof all all documentsdocuments evidencing evidencing other other necessary necessary corporate corporate action and governmental andand otherother third third party party approvals approvals and and consents, consents, if if any, any, with with respect to thethe TransactionTransaction andand eacheach TransactionTransaction Document Document to to which which it it is is or or is is to to be a party.
(iv) A copy of a certificate ofof the the SecretarySecretary ofof State State of of Delaware, Delaware, dated dated reasonably near the Effective Date certifyingcertifying (A)(A) asas toto aa truetrue andand correctcorrect copycopy ofof the certificate ofof formation formation ofof the the BorrowerBorrower and and each each amendment amendment thereto thereto on on file file in in such Secretary's officeoffice andand (B)(B) thatthat (1) (1) suchsuch amendments amendments are are thethe onlyonly amendments to the Borrower'sBorrower's certificatecertificate of of formation, formation, as as the the case case may may be, be, on on file file in such Secretary's office,office, (2)(2) toto thethe extentextent applicable, applicable, thethe BorrowerBorrower has has paid paid all all franchise taxestaxes toto thethe datedate ofof such such certificate certificate and and (3) (3) the the Borrower Borrower is is duly duly formed formed and in good standing or presently subsistingsubsisting underunder thethe lawslaws ofof the the StateState ofof Delaware.
(v) A certificate of the BorrowerBorrower signedsigned onon behalf behalf of of the the Borrower Borrower by by a Responsible Officer,Officer, dateddated thethe EffectiveEffective Date Date (the (the statements statements made made in in such such certificate shallshall bebe truetrue onon andand asas ofof the the EffectiveEffective Date), Date), certifying certifying as as to to (A) (A) the the absence ofof anyany amendmentsamendments toto thethe certificatecertificate of of formation formation of of the the Borrower Borrower since since the date ofof the the SecretarySecretary of of State's State's certificate certificate referred referred to to in in Section Section 3A1(aZ(viii~, 3.01(a)(viii), (B) a true and correct copycopy ofof the the limitedlimited liability liability company company agreement agreement of of the the Borrower as inin effecteffect onon thethe datedate onon whichwhich the the resolutions resolutions referred referred to to in in Section Section 3.01(a)(vii)3 A 1(a (viil werewere adoptedadopted andand on the Effective Date,Date, (C)(C) thethe duedue formation formation and and good standing oror validvalid existenceexistence ofof the the BorrowerBorrower as as a a limited limited liabilit~ liability compan~ company organized under the laws of the jurisdiction ofof its its formation,formation, andand the absenceabsence ofof any proceeding for thethe dissolutiondissolution oror liquidation liquidation of of the the Borrower Borrower and and (D) (D) the the truth truth in all material respectsrespects ofof the the representationsrepresentations and and warranties warranties contained contained in in the the Loan Loan Documents as though mademade onon andand as as ofof the the Effective Effective Date. Date.
(vi) A Certificate of the BorrowerBorrower executed executed by by aa ResponsibleResponsible Officer Officer thereof certifyingcertifying thethe namename andand truetrue signature signature of of each each officer officer of of the the Borrower Borrower authorized to signsign eacheach TransactionTransaction DocumentDocument to to which which it it is is or or is is to to be be a a party party and and the other documentsdocuments toto bebe delivereddelivered hereunder hereunder and and thereunder. thereunder.
(vii) Certified copies of each ofof the the RelatedRelated Documents,Documents, dulyduly executedexecuted by each of the partiesparties thereto.thereto.
(viii) Certificates in substantially thethe formform ofof Exhibit Exhibit D,D, attestingattesting to to the the Solvency of the BorrowerBorrower andand itsits SubsidiariesSubsidiaries on on a a Consolidated Consolidated basis basis after after giving giving
EBG Holdings LLC 43 Credit Agreement NY1NY 1 :#3437976vll#3437976v i 1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 463 of 510
effect to the Transactions andand thethe otherother transactions transactions contemplated contemplated hereby hereby from from its its director of finance.finance.
(ix) (A) A certified hardhard copycopy of,of, andand aa computercomputer disk disk containing, containing,pro pro forma balance sheets, incomeincome statementsstatements andand cashcash flow flow statements statements with with respect respect to to the Borrower consolidated withwith itsits SubsidiariesSubsidiaries forfor thethe periodperiod throughthrough FiscalFiscal YearYear 2014, on a quarterly basis for thethe periodperiod fromfrom JanuaryJanuary 1,1,2007 2007 throughthrough DecemberDecember 31, 2008 and on anan annualannual basisbasis for for eacheach year year thereafter thereafter (the (the "Base Case Projections") and (B) a certified copycopy ofof the the operatingoperating budget budget for for BostonGen BostonGen and and its Subsidiaries forfor FiscalFiscal YearYear 2007 2007 (the (the "Initial Operating Budget"). Budget").
(x) (A) Certified copiescopies ofof audited audited financialfinancial statementsstatements of of the the BorrowerBonower and and itsits SubsidiariesSubsidiaries dated dated December December 31, 31, 2005 2005 and and interim interim financial financial statements of the Borrower andand itsits SubsidiariesSubsidiaries dated dated the the end end of of each each Fiscal Fiscal Quarter ending since December 31,31, 20052005 andand (B)(B) thethe ConsolidatedConsolidated propro formaforma balance sheet of the Borrower andand itsits SubsidiariesSubsidiaries asas atat SeptemberSeptember 30,30, 2006,2006, andand the related Consolidated pro formaforma statementstatement ofof income income ofof the the BorrowerBorrower and and itsits Subsidiaries for the twelve-month periodperiod then then ended. ended.
(xi) [Reserved].
(xii) A favorable opinion ofofDebevoise Debevoise && PlimptonPlimpton LLP,LLP, counselcounsel forfor the Borrower, inin formform andand substancesubstance reasonablyreasonably satisfactorysatisfactory toto thethe AdministrativeAdministrative Agent.
(xiii) A favorable opinionopinion ofof White White && CaseCase LLP,LLP, special special federal federal energy energy regulatory counselcounsel forfor thethe BorrowerBorrower in in form form and and substance substance reasonably reasonably satisfactory satisfactory to the Administrative Agent.Agent.
(b) The Lender shall be reasonablyreasonably satisfiedsatisfied that:that:
(i) all Existing Debt, other than SurvivingSurviving Debt,Debt, hashas beenbeen (or(or isis contemporaneously being}being) prepaid, redeemedredeemed oror defeaseddefeased inin fullfull oror otherwise otherwise satisfied and extinguished andand allall commitmentscommitments relating relating thereto thereto terminated terminated (or (or contemporaneously therewiththerewith terminated)terminated) and and that that all all Surviving Surviving Debt Debt is is on on terms terms and conditions reasonably satisfactorysatisfactory to to the the Lender; Lender;
(ii) all Liens securing paymentpayment ofof any any ExistingExisting Debt Debt shall shall have have been been released; andand
(iii) the Administrative Agent shallshall havehave receivedreceived allall UniformUniform Commercial Code Form UCC-3UCC-3 terminationtermination statements, statements, mortgage mortgage releases, releases, pay-off lettersletters andand otherother instrumentsinstruments as as maymay be be necessary necessary or or desirable, desirable, in in the the reasonable judgment ofof the the AdministrativeAdministrative Agent, Agent, in in connection connection therewith. therewith.
(c) Before giving effecteffect toto thethe Transaction,Transaction, therethere shallshall have have occurred occurred no no Material Adverse Change since DecemberDecember 31,31, 2005.2005.
EBG Holdings LLC 44 Credit Agreement NYI#3437976vllNY 1:#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 464 of 510
(d) Except as set forthforth onon ScheduteSchedule 4.01(~),4.01(g), therethere shallshall existexist no no action, action, suit, suit, investigation, litigationlitigation oror proceedingproceeding affectingaffecting thethe Borrower Borrower pending pending or or threatened threatened in in writing before anyany GovernmentalGovernmental AuthorityAuthority that that (i) (i) could could reasonably reasonably be be expected expected to to have have a Material Adverse EffectEffect oror (ii)(ii) purportspurports to to affect affect the the legality, legality, validity validity or or enforceability enforceability of any Loan Document oror thethe consummationconsummation of ofthe the Transaction. Transaction.
(e) All Governmental AuthorizationsAuthorizations andand members, members, shareholder shareholder and and third third party consents andand approvalsapprovals necessarynecessary inin connection connection with with the the Transaction Transaction shall shall have have been obtained (without(without thethe impositionimposition ofof any any conditionsconditions that that are are not not acceptable acceptable to to the the Lenders) and shall remainremain inin fullfull forceforce andand effect. effect.
(fl(f) The Borrower shallshall havehave paidpaid (or(or shall shall bebe contemporaneouslycontemporaneously paying paying from from the proceeds of the the Loans)Loans) allall accruedaccrued fees fees ofof the the Administrative Administrative Agent Agent and and the the Lenders Lenders and all accrued expenses ofof the the AdministrativeAdministrative Agent Agent (including (including the the accrued accrued fees fees and and expenses of counselcounsel toto thethe AdministrativeAdministrative Agent Agent and and local local counsel counsel to to the the Lenders). Lenders).
(g) The Administrative AgentAgent shallshall havehave receivedreceived evidence evidence reasonably reasonably satisfactory to it that prior to, or concurrentlyconcurrently with, the makingmaking ofof the the InitialInitial ExtensionExtension ofof Credit hereunder, BostonGenBostonGen shallshall havehave receivedreceived not not less less than than (i) (i) $1,130,000,000 $1,130,000,000 in in gross gross cash, commitments andand proceedsproceeds fromfrom borrowings,borrowings, $250,000,000 $250,000,000 in in letter letter of of credit credit commitments andand $70,000,000$70,000,000 inin revolvingrevolving creditcredit commitments, commitments, in in each each case, case, under under the the First Lien Credit AgreementAgreement andand (ii)(ii) $350,000,000$350,000,000 in in gross gross cash cash proceeds proceeds from from borrowings under thethe SecondSecond LienLien CreditCredit Agreement. Agreement.
(h) The Related Documents shallshall havehave beenbeen executedexecuted and and delivered delivered by by all all parties thereto andand shallshall bebe effective,effective, andand all all materialmaterial obligations obligations to to be be performed performed under under any such documents onon oror beforebefore thethe EffectiveEffective Date Date shall shall have have been been performed. performed.
(i) The Lenders shall havehave received,received, toto thethe extentextent requested, requested, on on or or before before the the date which isis five (5)(5) BusinessBusiness DaysDays priorprior to to the the Effective Effective Date, Date, all all documentation documentation and and other information required byby bankbank regulatoryregulatory authorities authorities under under applicable applicable "know your customer" and anti-money launderinglaundering rulesrules andand regulationsregulations including including the the Patriot Patriot Act. Act.
G)(j) The Administrative AgentAgent shallshall havehave receivedreceived for for the the accountaccount of of each each Lender a certificatecertificate signedsigned byby aa ResponsibleResponsible Officer Officer of of the the Borrower, Borrower, dated dated the the date date hereof, stating that:that:
(i) the representations andand warrantieswarranties containedcontained in in eacheach Loan Loan Document are correctcorrect inin allall materialmaterial respectsrespects on on and and as as of of the the Effective Effective Date, Date, before and after givinggiving effecteffect toto thethe initialinitial BorrowingBorrowing and and to to the the application application of of the the proceeds therefrom, asas thoughthough mademade onon and and as as ofof such such date; date; and and
(ii) no Default has occurredoccurred andand isis continuing,continuing, oror would would result result the the initial Borrowing oror issuanceissuance oror fromfrom thethe applicationapplication of of the the proceeds proceeds therefrom. therefrom.
SECTION 3.02.3.02. DeterminationsDeterminations Under Section 3.01. ForFor purposespurposes of determining compliance withwith thethe conditionsconditions specified specified in in Section Section 3.01, 3.01, each each Lender Lender shall shall be be deemed to have consentedconsented to,to, approvedapproved or or accepted accepted or or to to be be satisfied satisfied with with each each document document or or
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other matter required thereunderthereunder toto bebe consentedconsented to to or or approved approved by by or or acceptable acceptable or or satisfactory satisfactory to the Lenders unlessunless anan officerofficer of of the the AdministrativeAdministrative Agent Agent responsible responsible for for the the transactions transactions contemplated byby thethe LoanLoan DocumentsDocuments shallshall havehave received received notice notice from from such such Lender Lender prior prior to to the the Effective Date specifyingspecifying itsits objectionobjection theretothereto and and such such Lender Lender shall shall not not have have made made available available to to the Administrative Agent suchsuch Lender's ratable ratable portion portion of of the the initial initial Borrowing. Borrowing.
ARTICLE IV
REPRESENTATIONS ANDAND WARRANTIES
SECTION 4.01. RepresentationsRepresentations andand Warranties.Warranties. TheThe Borrower Borrower represents represents and and warrants on behalfbehalf of of itself itself as as of of the the date date hereo~ hereof as as follows: follows:
(a) Organization. ItIt (i) (i) isis aa limited limited liability liability company company duly duly organized, organized, validly validly existing and inin good standingstanding underunder thethe lawslaws oftheof the jurisdiction jurisdiction of of its its formation, formation, (ii) (ii) is is duly qualified and inin good standingstanding as aa limitedlimited liabilityliability companycompany inin eacheach otherother jurisdiction inin whichwhich itit ownsowns oror leasesleases propertyproperty or or in in whichwhich thethe conductconduct of of its its businessbusiness requires itit toto soso qualifyqualify oror bebe licensedlicensed except except where where the the failure failure to to so so qualify qualify or or be be licensed could not bebe reasonablyreasonably likelylikely toto havehave a a Material Material Adverse Adverse Effect Effect and and (iii) (iii) has has all all requisite limited liabilityliability company power andand authorityauthority (including,(including, withoutwithout limitation,limitation, allall material GovernmentalGovernmental Authorizations)Authorizations) to to own own or or lease lease and and operate operate its its properties properties and and to to carry on itsits businessbusiness asas nownow conductedconducted andand as as proposed proposed to to be be conducted. conducted.
(b) Subsidiaries. SetSet forth forth onon Schedule Schedule 4.01(b) 4.01(b) hereto hereto is is aa complete complete and and accurate list of the Borrower and each ofof its its Subsidiaries.Subsidiaries. TheThe copy copy of of the the certificate certificate of of formation ofof the the BorrowerBorrower andand eacheach amendmentamendment thereto thereto provided provided pursuant pursuant to to Section Section 3.01(a)(iv) isis aa truetrue andand correctcorrect copycopy ofof each each such such document, document, each each of of which which is is valid valid and and in full force andand effect.effect.
(c) OwnershipOwnership Information. (i)(i) SetSet forth forth on on Schedule Schedule 4.01(c) 4.01(c) heretohereto isis aa complete and accurateaccurate listlist ofof all all ofof the the Subsidiaries Subsidiaries of of the the Borrower, Borrower, showing showing as as of of the the date hereof (as to each such Subsidiary)Subsidiary) the jurisdiction ofof its its formation,formation, thethe numbernumber ofof shares or membership interestsinterests (as(as applicable)applicable) ofof each each class class of of its its Equity Equity Interests Interests authorized, andand the numbernumber outstanding,outstanding, onon the the date date hereof hereof and and the the percentage percentage of of each each such class of itsits EquityEquity InterestsInterests ownedowned (directly(directly or or indirectly) indirectly) by by the the Borrower Borrower and and the the number of sharesshares oror membershipmembership interestsinterests (as (as applicable) applicable) covered covered by by all all outstanding outstanding options, warrants, rightsrights ofof conversion conversion oror purchase purchase and and similar similar rights rights at at the the date date hereof. hereof. (ii) AllAll of of the the outstanding outstanding Equity Equity Interests Interests in in BostonGen BostonGen have have been been validly validly issued, issued, are are fully paid and non-assessablenon-assessable andand areare ownedowned by by the the Borrower Borrower free free and and clear clear of of all all liens, liens, except those createdcreated underunder thethe FirstFirst LienLien Pledge Pledge Agreement, Agreement, the the Second Second Lien Lien Pledge Pledge Agreement oror PermittedPermitted Liens.Liens.
(d) Authorization; Non-Contravention. TheThe execution, execution, delivery delivery and and performance byby thethe BorrowerBorrower of of each each Transaction Transaction Document Document to to which which it it is is or or is is to to be be a a party, and the consummationconsummation ofof the the TransactionsTransactions areare withinwithin thethe Borrower'sBorrower's limited limited liability company powers, have been duly autharizedauthorized byby allall necessarynecessary limitedlimited liabilityliability company action, and do not (i) contravene thethe Borrower'sBorrower's limited limited liability liability companycompany
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agreement oror otherother constituentconstituent documents,documents, (ii)(ii) violateviolate any any law, law, rule, rule, regulation regulation (including, without limitation,limitation, RegulationRegulation X X ofof the the Board Board of of Governors Governors of of the the Federal Federal Reserve System),System), order,order, writ,writ, judgment,judgment, injunction,injunction, decree, decree, determination determination or or award award applicable to oror bindingbinding onon it,it, (iii)(iii) conflictconflict with with or or result result in in the the breach breach of, of, or or constitute constitute a a default or require anyany paymentpayment toto bebe mademade under,under, aa Contractual Contractual Obligation Obligation of of the the Borrower (except(except to thethe extentextent suchsuch conflict, conflict, breach, breach, default default or or payment payment could could not not reasonably bebe expectedexpected toto havehave aa MaterialMaterial Adverse Adverse Effect) Effect) or or (iv) (iv) except except for for the the Liens Liens created under thethe FirstFirst LienLien PledgePledge AgreementAgreement and and the the Second Second Lien Lien Pledge Pledge Agreement, Agreement, result inin or require thethe creationcreation oror imposition imposition of of any any Lien Lien upon upon or or with with respect respect to to any any of of the Properties of the Borrower. AsAs of of the the Effective Effective Date, Date, the the Borrower Borrower is is not not in in violation violation of any such law,law, rule,rule, regulation,regulation, order,order, writ,writ, judgment,judgment, injunction, injunction, decree, decree, determination determination or award oror inin breachbreach ofof any any suchsuch contract,contract, loanloan agreement, agreement, indenture, indenture, mortgage, mortgage, deed deed of of trust, leaselease oror otherother instrument,instrument, thethe violationviolation or or breach breach of of which which could could be be reasonably reasonably likely to have a Material AdverseAdverse Effect.Effect.
(e) Consents and Approvals. NoNo Governmental Governmental Authorization, Authorization, and and no no notice notice to, filing with, oror consentconsent oror approvalapproval ofof any any other other third third party party is is required required for for (A) (A) the the due due execution, delivery, recordation,recordation, filingfiling oror performance performance by by the the Borrower Borrower of of any any Transaction DocumentDocument toto whichwhich itit isis oror is is to to be be a a party, party, or or for for the the consummation consummation of of the the Transaction oror (B)(B) thethe exerciseexercise byby the the AdministrativeAdministrative Agent Agent or or any any Lender Lender of of its its rights rights under the Loan Documents,Documents, exceptexcept for for (1) (1) thosethose authorizations, authorizations, approvals, approvals, actions, actions, notices and filingsfilings setset forthforth onon ScheduleSchedule 4.01(e),4.01(e), (I) (I) all all of of which which have have been been duly duly obtained, obtained, taken, givengiven oror made,made, (II)(II) areare inin fullfull forceforce andand effect, effect, (III) (III) are are free free from from conditions conditions or or requirements thatthat havehave notnot beenbeen metmet or or complied complied with, with, (2) (2) authorizations, authorizations, approvals, approvals, actions, notices andand filingsfilings requiredrequired byby securities, securities, regulatoryregulatory or or applicable applicable law law in in connection with anan exerciseexercise ofof remedies remedies oror (3) (3) thosethose Governmental Governmental Authorizations, Authorizations, notices, filingsfilings with, oror consentsconsents of,of, anyany otherother third third party, party, the the failure failure of of which which to to obtain obtain and maintain couldcould notnot reasonablyreasonably bebe expectedexpected to to result result in in a a Material Material Adverse Adverse Effect. Effect.
(f)( fl BindingBindin~Agreement. Agreement. ThisThis Agreement Agreement has has been, been, and and each each other other Transaction DocumentDocument whenwhen delivereddelivered hereunder hereunder will will have have been, been, duly duly executed executed and and delivered by the Borrower. ThisThis Agreement Agreement is, is, and and each each other other Transaction Transaction Document Document when delivered hereunderhereunder willwill be,be, thethe legal,legal, validvalid and and binding binding obligation obligation of of the the Borrower, Borrower, enforceable against thethe BorrowerBorrower in in accordanceaccordance with with its its terms. terms.
(g) Litigation.Liti~ation. ExceptExcept as as set set forth forth on on Schedule Schedule 4.01(~), 4.01(g), there there is is no no action, action, suit, suit, investigation, litigationlitigation oror proceeding affectingaffecting the the Borrower Borrower or or any any of of its its Subsidiaries, Subsidiaries, including any Environmental Action,Action, pendingpending oror threatened threatened in in writing writing before before any any Governmental Authority oror arbitratorarbitrator thatthat (i) (i) couldcould reasonably reasonably be be likely likely to to have have a a Material Adverse EffectEffect oror (ii)(ii) purportspurports toto affectaffect the the legality, legality, validity validity or or enforceability enforceability of of any Loan Document oror the consummationconsummation ofof the the Transaction.Transaction.
(h) Financial Statements. (i)(i) TheThe Consolidated Consolidated balance balance sheet sheet of of the the Borrower Borrower and its Subsidiaries asas ofof December December 31,31, 2005,2005, thethe related related Consolidated Consolidated statement statement of of income and Consolidated statementstatement ofof cash cash flowsflows ofof the the BorrowerBorrower and and its its Subsidiaries Subsidiaries for for the Fiscal YearYear thenthen endedended andand thethe ConsolidatedConsolidated balance balance sheet sheet of of the the Borrower Borrower and and its its Subsidiaries as at SeptemberSeptember 30,30, 2006,2006, andand the the relatedrelated Consolidated Consolidated statement statement of of income income
EBG Holdi~gsHoldings LLC 47 Credit Agreement NY)NY ] :#3437976v:#3437976vll 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 467 of 510
and Consolidated statementstatement ofof cash cash flowsflows ofof the the Borrower Borrower and and its its Subsidiaries Subsidiaries for for the the nine months then ended,ended, dulyduly certifiedcertified byby the the director director of of finance finance of of the the Borrower, Borrower, copies copies of which have been furnishedfurnished toto thethe AdministrativeAdministrative Agent Agent pursuant pursuant to to Section Section 3.01, 3.01, fairly fairly present inin allall materialmaterial respects,respects, subject,subject, in in the the case case of of said said balance balance sheet sheet as as at at September September 30,2006,30, 2006, and saidsaid statementsstatements ofof income income and and cash cash flows flows for for the the nine nine months months then then ended, ended, to year endend auditaudit adjustments,adjustments, thethe ConsolidatedConsolidated financial financial condition condition of of the the Borrower Borrower and and its Subsidiaries asas atat suchsuch datesdates andand thethe ConsolidatedConsolidated results results of of operations operations of of the the BorrowerBonower and and itsits SubsidiariesSubsidiaries for for thethe periodsperiods ended ended on on such such dates, dates, all all inin accordance accordance with with GAAP applied onon aa consistentconsistent basis.basis.
(ii) The Consolidated propro formaforma balancebalance sheetsheet of of the the Borrower Borrower and and its its Subsidiaries as at SeptemberSeptember 30,30, 2006,2006, andand thethe relatedrelated Consolidated Consolidated pro pro forma forma statement statement of income ofof the BorrowerBorrower andand itsits SubsidiariesSubsidiaries for for the the twelve-month twelve-month period period then then ended, ended, respectively, certifiedcertified byby thethe directordirector ofof finance finance of of the the Borrower, Borrower, copies copies of of which which have have been furnished to thethe AdministrativeAdministrative AgentAgent pursuant pursuant to to Section Section 3.01, 3.01, fairly fairly present present in in all all material respects the ConsolidatedConsolidated propro formaforma financialfinancial condition condition of of the the Borrower Borrower and and its its Subsidiaries as at suchsuch datesdates andand thethe ConsolidatedConsolidated pro pro forma forma results results of of operations operations of of the the Borrower andand itsits SubsidiariesSubsidiaries forfor thethe periodperiod ended ended on on such such date date giving giving effect effect to to the the Transaction, allall inin accordanceaccordance withwith GAAP.GAAP.
(iii) The Consolidated forecastedforecasted balancebalance sheet,sheet, statementstatement of of income income and and statement of cash flowsflows ofof the the BorrowerBorrower and and itsits Subsidiaries Subsidiaries delivered delivered to to the the Administrative Agent, pursuantpursuant toto SectionSection 3.01(a)(ix) 3.0I(a)(ix) were were prepared prepared in in good good faith faith on on the the basis of the assumptions stated therein, which assumptionsassumptions werewere reasonablereasonable atat thethe timetime ofof delivery of such forecasts, and represented,represented, atat thethe timetime ofof delivery, delivery, thethe Borrower'sBorrower's reasonable bestbest estimateestimate ofof its its futurefuture financialfinancial performance.performance.
(i) AccuracyAccuracv ofofInformation; Information; Proiections.Proj ections. AllAll information information (other (other than than the the information delivered pursuantpursuant toto SectionSection 3.01(a)(ix~, 3.01(a)(ix), otherother financialfinancial projectionsprojections andand general economic information)information) heretoforeheretofore oror contemporaneously contemporaneously furnished furnished to to any any Lender Lender by or on behalf of of the the BorrowerBorrower in in connectionconnection with with any any Loan Loan Document Document or or any any transaction contemplatedcontemplated hereby hereby (including (including the the Transactions), Transactions), taker~ taken together together as as a a whole whole with all other information with which suchsuch LenderLender hashas previouslypreviously beenbeen furnished,furnished, isis complete and correct inin allall materialmaterial respects,respects, asas of of the the date date such such information information was was furnished and asas ofof the the EffectiveEffective Date,Date, andand diddid notnot contain contain any any untrue untrue statement statement of of a a material fact or omit toto statestate anyany materialmaterial factfact necessarynecessary to to make make any any information information not not misleading inin lightlight ofof the the circumstancescircumstances underunder which which furnished. furnished.
(j) Margin Stock. TheThe Borrower Borrower is is notnot engaged engaged in in the the business business of of extending extending credit for the purpose ofof purchasing purchasing oror carrying carrying Margin Margin Stock, Stock, and and no no proceeds proceeds of of any any Loan will be usedused toto purchasepurchase oror carrycarry anyany Margin Margin Stock Stock or or to to extend extend credit credit to to others others for for the purpose ofof purchasing purchasing oror carryingcarrying anyany MarginMargin Stock. Stock.
(k) Investment ComCompany.pan,~~. Act. The The Borrower Borrower is is not not an an "investment company,"company," as defined in or subject toto regulationsregulations underunder the the Investment Investment Company Company Act Act of of 1940, 1940, as as amended.
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(1) Solvency.Solvencv. AfterAfter giving giving affect affect to to the the Transaction,Transaction, thethe BorrowerBorrower and and itsits Subsidiaries are, on a ConsolidatedConsolidated basis,basis, Solvent.Solvent.
(m) ERISAERISA Etc. Etc. (i) No(i) NoERISA ERISA Event Event has has occurred occurred or oris isreasonably reasonably expected expected to occur with respectrespect toto anyany PlanPlan thatthat has has had had or or is is reasonablyreasonably expected expected to to have have a a Material Adverse Effect.Effect.
(ii) Neither the Borrower nornor anyany ERISAERISA AffiliateAffiliate hashas incurred incurred or or is is reasonably expected toto incurincur anyany WithdrawalWithdrawal LiabilityLiability to to any any Multiemployer Multiemployer Plan Plan except except for Withdrawal Liability thatthat couldcould notnot reasonably reasonably be be expected expected to to have have a a Material Material Adverse Effect.Effect.
(iii) Neither the Borrower nornor anyany ERISAERISA AffiliateAffiliate hashas been been notified notified by by the the sponsor of a material MultiemployerMultiemployer PlanPlan thatthat such such Multiemployer Multiemployer Plan Plan is is in in reorganization or hashas beenbeen terminated,terminated, withinwithin thethe meaningmeaning of of Title Title IV IV of of ERISA, ERISA, and and no no such Multiemployer PlanPlan isis reasonablyreasonably expectedexpected toto be be inin reorganizationreorganization or or to to be be terminated, withinwithin thethe meaningmeaning ofof Title Title IVIV of of ERISA. ERISA.
(n) Environmental Matters. (i)(i) ExceptExcept as as otherwise otherwise set set forth forth on on Part Part I I of of Schedule 4.01(0) hereto, the operationsoperations andand prope~iesproperties of of the the ~orrower Borrower and and each each of of its its Subsidiaries comply with allall applicableapplicable EnvironmentalEnvironmental LawsLaws and and Environmental Environmental Permits, Permits, all past non-compliance withwith suchsuch EnvironmentalEnvironmental LawsLaws and and Environmental Environmental Permits Permits has has been resolved withoutwithout ongoingongoing obligationsobligations or or costs, costs, exceptexcept for for any any such such noncompliance, noncompliance, obligation or cost that couldcould notnot reasonablyreasonably bebe likelylikely to to have have a a Material Material Adverse Adverse Effect Effect and, to the best knowledge ofof the the Borrower,Borrower, no no circumstances circumstances exist exist that that could could (A) (A) form form the basis of anan EnvironmentalEnvironmental ActionAction againstagainst the the Borrower Borrower or or any any of of its its Subsidiaries Subsidiaries or or any of their properties thatthat couldcould reasonablyreasonably bebe likely likely to to have have a a Material Material Adverse Adverse Effect Effect or (B) cause any suchsuch property toto bebe subjectsubject to to anyany restrictionsrestrictions on on ownership ownership or or transferability, oror subjectsubject toto anyany materialmaterial Lien,Lien, underunder any any Environmental Environmental Law. Law.
(ii) Except as otherwise setset forthforth onon PartPart IIII ofof Schedule Schedule 4.01(0)4.01(0) hereto, hereto, nonenone of the properties currentlycurrently oror formerlyformerly ownedowned oror operated operated by by the the Borrower Borrower or or any any of of its its Subsidiaries is currently listedlisted oror proposedproposed forfor listinglisting onon the the NPLNPL oror on on the the CERCLIS CERCLlS or or any analogous statestate oror locallocal list;list; therethere areare nono andand never never have have been been any any underground underground or or aboveground storage tanks oror anyany surfacesurface impoundments,impoundments, septicseptic tanks, tanks, pits, pits, sumps sumps or or lagoons in which Hazardous MaterialsMaterials areare beingbeing oror have have beenbeen treated, treated, stored stored or or disposed disposed on any property currentlycurrently ownedowned oror operatedoperated byby thethe BorrowerBorrower or or any any of of its its Subsidiaries Subsidiaries except where suchsuch treatment, storagestorage oror disposal disposal couldcould not not reasonably reasonably be be likely likely to to have have a a Material Adverse Effect;Effect; therethere isis nono asbestosasbestos oror asbestos-containing asbestos-containing material material on on any any property currentlycurrently ownedowned oror operatedoperated by by thethe Borrower Borrower or or any any of of its its Subsidiaries Subsidiaries that that requires abatement underunder anyany applicableapplicable EnvironmentalEnvironmental Law Law that that could could reasonably reasonably be be likely to have a Material Adverse Effect;Effect; andand HazardousHazardous Materials Materials have have not not been been released, dischargeddischarged oror disposeddisposed ofof on on anyany propertyproperty currently currently or or formerly formerly owned owned or or operated by the BorrowerBorrower oror anyany ofof its its SubsidiariesSubsidiaries inin aa manner manner that that would would reasonably reasonably be be expected to require any investigation,investigation, cleanup,cleanup, remediationremediation or or remedial remedial action action by by the the Borrower under anyany applicableapplicable EnvironmentalEnvironmental LawLaw that that could could reasonably reasonably be be likely likely to to have a Material Adverse Effect.Effect.
EBG Holdings LLC 49 Credit Agreement NY 1:i13437976v1:#3437976v I II1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 469 of 510
(iii) Except as otherwise setset forthforth onon PartPart III III ofof Schedule Schedule 4.01(0) 4.01(0) hereto, hereto, neither the Borrower nornor any ofof its its SubsidiariesSubsidiaries isis undertaking,undertaking, andand hashas notnot completed,completed, either individually oror togethertogether withwith otherother potentially potentially responsible responsible parties, parties, any any investigation investigation or assessment or remedialremedial oror responseresponse actionaction relating relating to to any any actual actual or or threatened threatened release, release, discharge or disposal ofof Hazardous Hazardous MaterialsMaterials at at any any site, site, location location or or operation, operation, either either voluntarily or pursuantpursuant toto thethe orderorder of of any any governmental governmental or or regulatory regulatory authority authority or or the the requirements ofof any any EnvironmentalEnvironmental Law;Law; and and all all Hazardous Hazardous Materials Materials generated, generated, used, used, treated, handled oror storedstored at,at, oror transported transported to to or or from, from, any any property property currently currently or or formerly formerly owned or operated by the Borrower oror anyany ofof its its SubsidiariesSubsidiaries havehave beenbeen disposeddisposed ofof in in aa manner not reasonably expectedexpected to to result result in in liability liability to to the the Borrower Borrower or or any any of of its its Subsidiaries, except,except, inin eacheach casecase above,above, wherewhere any any such such investigation investigation or or assessment assessment or or remedial or responseresponse actionaction oror Iiability liability couldcould not not reasonably reasonably be be likely likely to to have have a a Material Material Adverse Effect.
(o)(0) Tax Matters. (i)(i) Neither Neither the the Borrower Borrower nor nor any any of of its its Subsidiaries Subsidiaries is is party party to any tax sharingsharing agreement.agreement.
(ii) The Borrower and eacheach ofof its its SubsidiariesSubsidiaries has has filed, filed, hashas caused caused to to be be filed filed or has been includedincluded inin allall taxtax returnsreturns (Federal,(Federal, state, state, local local and and foreign) foreign) required required to to be be filed, other than thosethose taxtax returnsreturns wherewhere thethe failure failure to to file file such such returns returns could could not not be be reasonably expectedexpected to to have have a a Material Material Adverse Adverse Effect, Effect, and and has has paid paid all all taa~es taxes shown shown thereon to bebe due,due, togethertogether withwith applicable applicable interest interest and and penalties penalties (other (other than than taxes taxes contested inin goodgood faith).faith).
(iii) No issues have been raised byby the InternalInternal RevenueRevenue ServiceService inin respectrespect ofof federal income tax returns forfor years forfor which thethe expirationexpiration ofof the the applicableapplicable statutestatute ofof limitations has not occurredoccurred byby reasonreason ofof extension extension or or otherwise otherwise that, that, in in the the aggregate, aggregate, could be reasonably likelylikely toto havehave aa MaterialMaterial Adverse Adverse Effect. Effect.
(iv) No issues have beenbeen raisedraised byby anyany state,state, local local or or foreign foreign taxing taxing authorities, authorities, in respect of the returns forfor yearsyears forfor whichwhich the the expiration expiration of of the the applicable applicable statute statute of of limitations has not occurredoccurred byby reasonreason ofof extension extension or or otherwise, otherwise, that, that, in in the the aggregate, aggregate, could be reasonably likelylikely toto havehave aa MaterialMaterial Adverse Adverse Effect. Effect.
(P)(p) Debt. ExceptExcept as as otherwiseotherwise setset forthforth onon ScheduleSchedule 4.01(4.01(p)p) ("Existing Debt"), the BorrowerBorrower hashas nono DebtDebt other other than than Debt Debt under under this this Agreement. Agreement.
(q) RegulatoryRe ulatory A~provals.Approvals. ExceptExcept for for any any FERC FERC approvals approvals required required in in connection with the SecuredSecured Parties'Parties' (as (as defined defined in in the the Intercreditor Intercreditor Agreement) Agreement) exercise exercise of remedies under thethe FinancingFinancing Documents,Documents, no no approvals approvals or or authorizations authorizations from from FERC FERC are required to bebe obtainedobtained byby thethe Borrower,Borrower, itsits Subsidiaries Subsidiaries or or the the Lenders Lenders with with respect respect to the Transaction.
(r) Existing RegulatoryRe~ u I~rv Orders. Orders. The The Borrower Borrower and and each each of of its its Subsidiaries Subsidiaries are in full compliance inin allall materialmaterial respectsrespects with with the the terms terms and and conditions conditions of of all all orders orders issued by FERC under SectionSection 203203 ofof the the FPAFPA and and obtained obtained by by the the Borrower Borrower or or any any such such Subsidiary.
EBG Holdings LLC 505~ Credit Agreement NYINYI:#3437976v11 :#3437976vll 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 470 of 510
(s) PUHCA. TheThe BorrowerBorrower is is a"holdinga "holding company" company" within the meaning of Section 1262(8)1262(8) ofof PUHCA PUR CA sol~lysolely withwith respectrespect toto itsits ownership ownership of of one one or or more more EWGs, EW Gs, and is not subject to or isis otherwise exemptexempt fromfrom regulationregulation underunder PUHCAPUHCA exceptexcept forfor regulation underunder SectionSection 12651265 ofof PUHCA. PUHCA.
(t) Violation of Law. TheThe Borrower Borrower is is not not in in violation violation of of any any applicable applicable law, law, rule, regulation,regulation, order,order, writ,writ, judgment,judgment, injunction, injunction, decree, decree, determination determination or or award award binding binding on it, the violation oror breachbreach ofof which which couldcould bebe reasonablyreasonably likelylikely toto havehave aa MaterialMaterial Adverse Effect.Effect.
ARTICLE VV
COVENANTS
SECTION 5.01.SA l. AffirmativeAffirmative Covenants.Covenants. UntilUntil a a Repayment Repayment Event Event has has occurred,occurred, the Borrower will:will:
(a) Compliance with Laws, Etc. ComplyComply withwith allall applicableapplicable laws,laws, rules,rules, regulations andand orders binding onon it,it, suchsuch compliancecompliance toto include,include, withoutwithout limitation,limitation, compliance with ERISA andand thethe RacketeerRacketeer Influenced Influenced and and Corrupt Corrupt Organizations Organizations Chapter of the OrganizedOrganized CrimeCrime ControlControl ActAct of of 1970, 1970, other other than than any any such such non-compliance whichwhich couldcould notnot reasonablyreasonably be be expected expected to to have have a a Material Material Adverse Adverse Effect.
(b) PavmentPayment of Taxes, Etc. PayPay and and discharge discharge before before the the same same shall shall become become delinquent, (i) allall taxes,taxes, assessmentsassessments andand governmenta.l governmental chargescharges oror levieslevies imposedimposed uponupon itit or upon its property andand (ii)(ii) allall lawfullawful claimsclaims that, that, if if unpaid, unpaid, might might by by law law become become a aLien Lien upon its property (unless,(unless, inin thethe casecase ofof (i) (i) andand (ii), (ii), the the failure failure to to do do so so could could not not reasonably be expected toto havehave aa MaterialMaterial AdverseAdverse Effect); Effect); provided, however,however, that the Borrower shallshall not bebe requiredrequired toto paypayor or discharge discharge any any such such tax, tax, assessment, assessment, charge charge or or claim that is being contestedcontested inin goodgood faithfaith andand byby proper proper proceedings proceedings and and only only to to the the extent that adequate reservesreserves areare beingbeing maintained.maintained.
(c) Preservation of Existence, Etc. PreservePreserve and and maintain maintain its its existence existence as as a a limited liability company andand itsits goodgood standingstanding inin the the StateState of of Delaware. Delaware.
(d) Visitation Rights. UponUpon reasonable reasonable advance advance notice, notice, at at any any reasonable reasonable time time following the occurrence andand continuancecontinuance ofof an an EventEvent of of Default, Default, permit permit the the Administrative Agent oror anyany ofof the the Lenders,Lenders, oror any any agents agents or or representatives representatives thereof thereof (at (at the sole expense of the the AdministrativeAdministrative Agent,Agent, Lender,Lender, agent agent or or representative) representative) to to examine examine and make copies of andand abstractsabstracts fromfrom thethe recordsrecords andand books books of of account account of ofthe the Borrower Borrower and to discuss the finances andand accountsaccounts ofof the the BorrowerBorrower with with its its certified certified public public accountants.
(e) Keeping of Books. KeepKeep properproper books books and and records records and and in in accordance accordance withGAAP.with GAAP.
EBG Holdings LLC 51S 1 Credit Agreement NYl:#3437976vllNY 1:#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 471 of 510
(f)(~ Separateness. ComplyComply withwith thethe following:following:
(i) The Borrower will actact solelysolely inin itsits namename andand through through itsits dulyduly authorized authorized officers, managers, representativesrepresentatives oror agents agents inin thethe conduct conduct of of its its businesses; businesses;
(ii) The Borrower will conductconduct inin allall materialmaterial respectsrespects itsits businessbusiness solely solely in in its its own name, inin aa mannermanner notnot misleadingmisleading toto otherother Persons Persons as as to to its its identity identity (without (without limiting limiting the generality ofof the the foregoing,foregoing, allall oraloral andand written written communications communications (if (if any), any), including including invoices, purchase orders,orders, andand contracts);contracts);
(iii) The Borrower will obtainobtain properproper authorizationauthorization from from member(s),member(s), shareholder(s), director(s)director(s) andand manager(s),manager(s), asas requiredrequired by by its its limited limited liability liability company company agreement oror bylawsbylaws forfor allall ofof its its limitedlimited liabilityliability company company or or corporate corporate actions; actions; and and
(iv) Each of the Borrower andand itsits SubsidiariesSubsidiaries willwill complycomply in in all all material material respects with thethe termsterms ofof its its certificatecertificate ofof incorporation incorporation or or formation formation and and by-laws by-laws or or limited liability company agreementagreement (or(or similarsimilar constituent constituent documents). documents).
SECTION 5.02. NegativeNegative Covenants.Covenants. UntilUntil a a Repayment Repayment Event Event has has occurred, occurred, thethe Borrower will not,not, atat anyany time:time:
(a) Liens, Etc. Create,Create, incur,incur, assumeassume or or suffer suffer to to existexist any any Lien Lien on on or or with with respect to anyany ofof its its propertiesproperties ofof any any charactercharacter (including, (including, without without limitation, limitation, accounts) accounts) whether now ownedowned oror hereafterhereafter acquiredacquired or or assign assign any any accounts accounts or or other other right right to to receive receive income, except:
(i) Permitted Liens;Liens;
(ii) Liens arising by virtue ofof any any statutorystatutory oror common common law law provision provision relating to banker's liens,liens, rightsrights ofof set-off set-off or or similar similar rights; rights; andand
(iii) Liens under the First LienLien PledgePledge AgreementAgreement andand thethe Second Second Lien Lien Pledge Agreement andand LiensLiens underunder pledgepledge agreements agreements in in respect respect of of a a Refinancing Refinancing of Debt of BostonGen permittedpermitted hereunderhereunder and and underunder the the Related Related Documents. Documents.
(b) Debt. Create,Create, incur,incur, assumeassume or or suffer suffer to to existexist any any Debt, Debt, except except Permitted Permitted Debt.
(c) Change in Nature of Business. EngageEngage in in anyany business business other other than than holding holding the Equity InterestsInterests inin BostonGenBostonGen andand activitiesactivities reasonably reasonably incidental incidental thereto thereto or or in in connection with anyany PermittedPermitted Development.Development.
(d) Mergers,Mer~ers, Etc. TheThe BorrowerBorrower shall shall not not consolidate consolidate or or merge merge withwith or or into into (whether or not thethe BorrowerBorrower isis thethe survivingsurviving corporation),corporation), in in one one ar or more more related related transactions, anyany otherother PersonPerson unlessunless (i)(i) (1)(1) thethe Borrower Borrower is is the the surviving surviving corporation corporation or or (2) the entity oror thethe PersonPerson formedformed byby oror surviving surviving any any such such consolidation consolidation or or merger merger (if (if other than the Borrower)Borrower) (the(the entityentity oror PersonPerson described described in in this this clause clause (2), (2), the the "Successor "Successor Company") isis aa corporation,corporation, partnership,partnership, limitedlimited liability liability company company or or trust trust organized organized or or
EBG Holdings LLC 5252, Credit Agreement NYINY 1:#3437976v :#3437976vll 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 472 of 510
existing under the lawslaws ofof the the UnitedUnited States States or or any any State State thereof, thereof, (ii) (ii) immediately immediately after after giving effect to such transaction nono DefaultDefault or or Event Event of of DEfault Default shallshall occuroccur or or be be continuing andand no Default oror EventEvent of of Default, Default, in in each each case, case, under under (and (and as as defined defined in) in) the the Related Documents andand thethe FinancingFinancing Documents Documents referred referred to to therein therein shall shall have have occurred occurred and be continuing, (iii)(iii) immediatelyimmediately afterafter giving giving effect effect to to such such transaction, transaction, the the Borrower Borrower or the Successor Company shallshall ownown all all ofof the the Equity Equity Interests Interests of ofBostonGen, BostonGen, (iv) (iv) such such other Person is a Qualified Owner, (v)(v) eacheach ofof S&P S&P andand Moody'sMoody's shall shall have have provided provided written confirmation ofof their their respectiverespective ratings ratings of of the the Debt Debt under under the the BostonGen BostonGen Facilities (as(as in effect immediatelyimmediately priorprior to to such such consolidation consolidation or or merger) merger) after after giving giving effect to suchsuch consolidationconsolidation oror mergermerger and and (vi) (vi) the the Successor Successor Company Company assumes assumes all all of of the the obligations of the Borrower under under the the Notes Notes and and this this Agreement Agreement pursuant pursuant to to an an amendment or supplement toto thisthis AgreementAgreement and and each each other other instrument, instrument, document document or or agreement entered intointo byby thethe BorrowerBorrower in in connectionconnection therewith, therewith, in in each each case, case, in in a a form form reasonably satisfactorysatisfactory toto thethe AdministrativeAdministrative Agent. Agent.
(e) Sales of Assets, Etc.
(i) sell, lease, transfer oror otherwiseotherwise disposedispose ofof its its EquityEquity Interests Interests in in BostonGen or itsits SubsidiariesSubsidiaries (other(other than than thethe Liens Liens permitted permitted pursuant pursuant to to Section 5.02(a)(iii~);5.02(a)(iii));
(ii) permit any ofof its its SubsidiariesSubsidiaries toto sell,sell, lease,lease, transfer transfer or or otherwise otherwise dispose of any assets ofof such such Subsidiary,Subsidiary, exceptexcept Permitted Permitted Subsidiary Subsidiary Asset Asset Sales; Sales;
(iii) sell, lease, transfer oror otherwiseotherwise disposedispose ofof any any other other assets assets of of the the Borrower;
(iv) grant any option oror otherother rightright toto purchase,purchase, leaselease or or otherwise otherwise acquire anyany assetsassets referred referred to to in in clause clause (i) i oror iii(iii) above above (unless (unless such such option option or or right is conditioned uponupon compliancecompliance withwith allall obligationsobligations of of the the Borrower Borrower and and its its Subsidiaries under the LoanLoan Documents,Documents, thethe RelatedRelated Documents Documents and and the the Financing Documents referredreferred toto therein);therein);
except, in any case:case:
(A) the liquidation, salesale oror useuse ofof Cash Cash andand Cash Cash Equivalents; Equivalents; and
(B) Events of Eminent Domain oror CasualtyCasualty EventsEvents (as(as suchsuch terms are defined inin thethe SecuritySecurity DepositDeposit Agreement) Agreement) are are deemed deemed not not to to constitute sales, leases,leases, transferstransfers oror otherother dispositions dispositions of of Property Property for for purposes ofofthis this SectionSection 5.02(e).5.02(e).
(~(f) Investments in Other Persons. MakeMake or or hold hold any any Investment Investment in in anyany Person, except:except:
(i) Investments byby thethe BorrowerBorrower fromfrom timetime toto timetime in in thethe Equity Equity Interests of Persons whowho areare itsits SubsidiariesSubsidiaries onon the the Effective Effective Date; Date;
EBG Holdings LLC 53 Credit Agreement NY 1:#3437976vI :#3437976v I II1 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 473 of 510
(ii) Investments by the BorrowerBorrower inin CashCash andand CashCash Equivalents;Equivalents;
(iii) Investments indirectlyindirectly byby thethe BorrowerBorrower in in PermittedPermitted Developments Developments made solelysolely withwith thethe proceedsproceeds ofof capital capital contributions contributions to to the the Borrower Borrower from from the the holders of its its EquityEquity InterestsInterests (or(or sales sales of of equity equity securities securities of of the the Borrower) Borrower) not not to to exceed (when togethertogether withwith thethe aggregateaggregate amount amount of of Debt Debt incurred incurred by by BostonGen BostonGen and its Subsidiaries inin connectionconnection withwith a a PermittedPermitted Development) Development) in in the the aggregate aggregate $140,000,000;
(iv) Investments individuallyindividually byby thethe BorrowerBorrower in in anyany otherother Subsidiary Subsidiary permitted pursuantpursuant toto SectionSection 5.02(i)5.020) in in anan aggregate aggregate amount amount not not to to exceed exceed $5,000,000; and
(v) any other investmentsinvestments inin anan aggregateaggregate amountamount not not to to exceed exceed $500,000 at any time.time.
(g) Restricted Payments. Pa~. Except Except in connection in connection with with the the Tender Tender Offer Offer and and the the Distribution, declaredeclare oror paypay anyany dividends,dividends, purchase,purchase, redeem, redeem, retire, retire, defease defease or or otherwise otherwise acquire for value anyany ofof its its EquityEquity InterestsInterests now now or or hereafter hereafter outstanding, outstanding, return return any any capital to itsits stockholders,stockholders, partnerspartners oror members members (or (or the the equivalent equivalent Persons Persons thereo thereof) fl asas such, make any distribution ofof assets, assets, EquityEquity Interests, Interests, obligations obligations or or securities securities to to its its stockholders, partners or members (or(or the equivalentequivalent PersonsPersons thereo~thereof) asas suchsuch or or permit permit any of its SubsidiariesSubsidiaries toto purchase,purchase, redeem,redeem, retire,retire, defease defease or or otherwise otherwise acquire acquire for for value value any Equity InterestsInterests inin thethe Borrower,Borrower, exceptexcept that that any any Subsidiary Subsidiary of of the the Borrower Borrower may may declare and pay cash dividends to the BorrowerBorrower oror toto anyany SubsidiarySubsidiary ofof the the BorrowerBorrower ofof which itit isis aa Subsidiary,Subsidiary, except:except:
(i) in connection with thethe issuanceissuance ofof Equity Equity InterestsInterests ofofthe the Borrower Borrower and contemporaneous purchasepurchase ofof its its EquityEquity Interests Interests (for (for consideration consideration consisting ofof Cash Cash and/orand/or EquityEquity Interests)Interests) from from existing existing unitholders unitholders in in a a transaction (including(including byby wayway ofof inerger merger permitted permitted pursuant pursuant to to Section Section 5.02(d)) 5.02(d») in in which any "person" or "group" (within the meaning ofof Rules Rules 13(d)13(d) ofof the the Exchange Act andand thethe rulesrules ofof the the SecuritiesSecurities and and Exchange Exchange Commission Commission thereunder asas inin effecteffect onon thethe EffectiveEffective Date) Date) (other (other than than any any such such "person" or "group" holding, directly oror indirectly,indirectly, beneficiallybeneficially oror of of record, record, anyany Equity Equity Interests inin thethe BorrowerBorrower asas ofof the the AuctionAuction Date) Date) (the (the "Proposed Acquiror")Acquiror") acquires ownership, directlydirectly oror indirectly,indirectly, beneficiallybeneficially or or of of record, record, of of more more than than 35% on a fully diluteddiluted basisbasis ofof the the aggregateaggregate voting voting power power represented represented by by the the issued and outstanding EquityEquity InterestsInterests inin thethe Borrower;Borrower; provided that (A)(A) suchsuch Proposed Acquiror isis a Qualified OwnerOwner (B)(B) eacheach ofof S&P S&P andand Moody'sMoody's shall shall havehave provided writtenwritten confirmationconfirmation ofof their their respective respective ratings ratings of of the the Debt Debt under under the the BostonGen Facilities (as(as inin effecteffect immediatelyimmediately prior prior to to such such acquisition) acquisition) after after giving effect toto suchsuch acquisitionacquisition andand (C)(C) immediatelyimmediately after after giving giving effect effect to to such such issuance or salesale ofof Equity Equity InterestsInterests nono DefaultDefault or or Event Event of of Default Default shall shall have have occurred and bebe continuingcontinuing andand nono DefaultDefault or or Event Event of of Default, Default, in in each each case, case, under (and as defineddefined in)in) thethe RelatedRelated DocumentsDocuments and and the the Financing Financing Documents Documents shall have occurred andand bebe continuing;continuing;
EBG Holdings LLC 54 Credit Agreement NYI:#3437976vllNY 1:#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 474 of 510
(ii) the purchase, redemption,redemption, oror acquisition acquisition forfor valuevalue of of any any of of its its Equity Interests (other(other thanthan unitunit appreciationappreciation rights) rights) from from its its existing existing unitholders unitholders and holders of warrants ofof the the BorrowerBorrower as as of of the the EffectiveEffective Date Date in in an an aggregate aggregate amount not to exceed $25,000,000;$25,000,000; andand
(iii) the purchase ofof unit unit appreciationappreciation rightsrights ofof directors directors not not to to exceed exceed $1,000,000 for each Fiscal YearYear thatthat hashas elapsedelapsed since since the the Effective Effective Date. Date.
(h) Amendments of Constitutive Documents. AmendAmend its its limited limited liability liability company agreement, bylawsbylaws oror otherother constitutive constitutive documents documents other other than than amendments amendments that that could not be reasonably expectedexpected toto havehave aa MaterialMaterial Adverse Adverse Effect. Effect.
(i) Accounting Chan~es.Changes. MakeMake or or permit permit any any changechange in in accounting accounting policies policies or reporting practices, exceptexcept asas permittedpermitted by by GAAP.GAAP.
(j) Partnerships; Formation of Subsidiaries, Etc. (i)(i) Become Become a a general general partner partner in any general or limitedlimited partnershippartnership oror jointjoint venture venture or or (ii) (ii) organizeorganize any any new new Subsidiary Subsidiary (other than Subsidiaries ofofBostonGen BostonGen permittedpermitted under under the the First First Lien Lien Credit Credit Agreement). Agreement).
(k) RegulatoryReg u latory Matters.Matters. MakeMake or or permit permit to to be be made made any any change change in in the the ownership of itit or itsits SubsidiariesSubsidiaries withoutwithout first first obtainingobtaining any any necessary necessary authorization authorization under SectionSection 203203 ofof the the FPA.FPA.
(1) Transactions with Affiliates. BorrowerBorrower will will not not enter enter into into or or cause cause or or permit to existexist anyany arrangement,arrangement, transactiontransaction or or contract contract (including (including for for the the purchase, purchase, lease lease or exchange of property oror thethe renderingrendering ofof services) services) with with any any of of its its other other Affiliates, Affiliates, unless such arrangement,arrangement, transactiontransaction oror contract contract is: is:
(i) (A) on fair andand reasonablereasonable termsterms nono lessless favorablefavorable toto the the Borrower Borrower than itit could obtain inin an arm's-lengtharm's-length transactiontransaction withwith aa Person Person that that is is notnot an an Affiliate and (B)(B) of the kindkind whichwhich wouldwould be be enteredentered into into by by a a prudent prudent Person Person in in the position of the BorrowerBorrower with with aa PersonPerson that that is is notnot one one of of its its Affiliates; Affiliates;
(ii) an arrangement, transaction oror contract contract expressly expressly permitted permitted by by the the terms of this Agreement;
(iii) the payment ofof fees fees (including(including anyany paymentspayments in in respect respect of of unit unit appreciation rights permitted pursuant to SectionSection 5.02(g)(iii~5.02(g)(iii)) andand indemnitiesindemnities toto directors, officers, consultants andand employeesemployees ofof the the BorrowerBorrower in in the the ordinary ordinary course of business;business;
(iv) pursuant to thethe ManagementManagement andand OperationOperation Agreements Agreements (if (if any), any), including the payment of fees, fees, costscosts andand expensesexpenses asas requiredrequired thereunder thereunder (as (as of of the datedate hereohereof); fl; or
(v) the payment ofof fees, fees, expenses,expenses, bonusesbonuses and and awards awards related related to to the the Transactions contemplated byby thethe TransactionTransaction DocumentsDocuments and and Loan Loan Documents Documents
EBG Holdings LLC 55 Credit Agreement NYINY 1:#3437976v :#3437976vll 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 475 of 510
to the extent, inin thethe casecase ofof the the TransactionTransaction Documents, Documents, written written notice notice thereof thereof has has been provided toto thethe AdministrativeAdministrative AgentAgent prior prior to to the the Effective Effective Date. Date.
SECTION 5.03. ReportingReporting Requirernents.Requirements. UntilUntil a a Repayment Repayment Event Event has has occurred, the Borrower willwill furnishfurnish toto the the Administrative Administrative Agent Agent (who (who will will then then circulate circulate to to the the Lenders):
(a) Default Notice. AsAs soon soon as as possiblepossible and and in in any any event event within within five five days days after the Borrower obtainsobtains knowledgeknowledge thereof,thereof, thethe occurrence occurrence of of each each Default Default or or any any event, development oror occurrenceoccurrence reasonablyreasonably likely likely to to have have a a Material Material Adverse Adverse Effect Effect continuing on the datedate ofof such such statement,statement, aa statementstatement of of a a Responsible Responsible Officer Officer of of the the Borrower setting forthforth detailsdetails ofof such such DefaultDefault and and the the action action that that the the Borrower Borrower has has taken taken and proposes to take withwith respectrespect thereto.thereto.
(b) Annual Financials. AsAs soon soon as as available available and and in in any any event event within within 120 120 days days after the end of each FiscalFiscal YearYear (but,(but, inin thethe casecase of of the the 2006 2006 Fiscal Fiscal Year, Year, 150 150 days days after after the end of suchsuch Fiscal Year),Year), aa copycopy of of the the annual annual audit audit report report for for such such year year for for the the Borrower and itsits Subsidiaries,Subsidiaries, includingincluding thereintherein a a Consolidated Consolidated balance balance sheet sheet of of the the Borrower and itsits SubsidiariesSubsidiaries asas ofof the the endend of of such such Fiscal Fiscal Year Year and and a a Consolidated Consolidated statement of incomeincome andand aa ConsolidatedConsolidated statementstatement of of cash cash flows flows of ofthe the Borrower Borrower and and its its Subsidiaries for such Fiscal Year,Year, inin eacheach casecase accompaniedaccompanied by by (i) (i) an an opinion opinion as as to to such such audit report ofofKPMG KPMG LLPLLP oror other other independent independent public public accountants accountants of of recognized recognized standing acceptable toto thethe AdministrativeAdministrative AgentAgent and and (ii) (ii) a a certificate certificate of ofthe the director director of of finance of the Borrower (A)(A) certifyingcertifying such such financial financial statements statements as as having having been been prepared prepared in accordance with GAAPGAAP andand (B)(B) statingstating thatthat no no DefaultDefault has has occurred occurred and and is is continuing continuing or, if a Default has occurredoccurred andand isis continuing,continuing, a a statement statement as as to to the the nature nature thereof thereof and and the the action that the Borrower hashas takentaken andand proposesproposes to to take take with with respect respect thereto; thereto; provided that, inin the eventevent ofof any any changechange inin generally generally accepted accepted accounting accounting principles principles used used in in the the preparation ofof such such financialfinancial statements,statements, thethe Borrower Borrower shall shall also also provide provide a a reconciliation reconciliation of such financial statementsstatements toto GAAP.GAAP.
(c) Quarterly Financials. AsAs soon soon as as available available and and in in any any event event within within 60 60 days after the end ofof each each ofof the the firstfirst threethree quartersquarters of of each each Fiscal Fiscal Year, Year, a a Consolidated Consolidated balance sheetsheet ofof the the BorrowerBorrower and and itsits SubsidiariesSubsidiaries as as of of the the end end of of such such quarter quarter and and a a Consolidated statement ofof income income andand aa ConsolidatedConsolidated statement statement of of cash cash flows flows of of the the Borrower and itsits SubsidiariesSubsidiaries forfor thethe periodperiod commencing commencing at at the the end end of of the the previous previous Fiscal Fiscal Quarter and ending with the end of suchsuch Fiscal QuarterQuarter andand aa ConsolidatedConsolidated statementstatement ofof income and a Consolidated statementstatement ofof cash cash flows flows ofof the the Borrower Borrower and and its its Subsidiaries Subsidiaries for the period commencing atat thethe endend ofof the the previousprevious Fiscal Fiscal Year Year and and ending ending with with the the end end of such quarter, settingsetting forthforth inin eacheach casecase inin comparativecomparative form form the the corresponding corresponding figures figures for the corresponding datedate oror periodperiod ofofthe the preceding preceding Fiscal Fiscal Year, Year, all all in in reasonable reasonable detail detail and duly certified (subject(subject toto normalnormal year-endyear-end auditaudit adjustments) adjustments) by by the the director director of of finance of the Borrower asas havinghaving beenbeen preparedprepared in in accordance accordance with with GAAP, GAAP, together together with a certificate ofof said said officerofficer statingstating thatthat no no DefaultDefault has has occurred occurred and and is is continuing continuing or, or, if a Default has occurred andand isis continuing,continuing, aa statementstatement as as to to the the nature nature thereof thereof and and the the action that the Borrower hashas takentaken andand proposesproposes to to take take with with respect respect thereto; thereto; providedprOVided that, inin the event ofof any any changechange inin generallygenerally acceptedaccepted accounting accounting principles principles used used in in the the
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preparation ofof such such financialfinancial statements,statements, thethe Borrower Borrower shall shall also also provide provide a a reconciliation reconciliation of such financial statementsstatements to GAAP.GAAP.
(d) [Reserved].Reserved .
((e) e) Litigation.Litig a tion. PromptlyPromptly after after the the commencement commencement thereof, thereof, notice notice of of all all actions, suits, litigationlitigation andand proceedingsproceedings beforebefore any any Governmental Governmental Authority Authority of of the the type type described inin SectionSection 4.01(~).4.0lCg).
((t) fl ERISA.
(i) ERISA Events and ERISA ReReports.ports. (A)(A) PromptlyPromptly andand inin anyany eventevent withinwithin 10 BusinessBusiness Days after the Borrower or any ERISA AffiliateAffliate knowsknows oror has has reasonreason toto know that anyany ERISAERISA EventEvent hashas occurredoccurred that that could could reasonably reasonably be be expectedexpected to to result result in in liability inin excess ofof $10,000,000, $1 0,000,000, aa statementstatement of of a a ResponsibleResponsible OfficerOfficer of of the the Borrower Borrower describing suchsuch ERISAERISA EventEvent andand thethe action,action, ifif any, any, thatthat the the BorrowerBorrower or or such such ERISA ERISA Affiliate has taken andand proposesproposes toto taketake withwith respect respect thereto thereto and and (B) (B) on on the the date date any any records, documentsdocuments oror otherother informationinformation mustmust be be furnished furnished to to thethe PBGC PBGC with with respect respect to to any Plan pursuant toto SectionSection 40104010 ofof ERISA, ERISA, aa copycopy of of such such records, records, documents documents and and information within 1010 BusinessBusiness Days.Days.
(ii) Plan Terminations. PromptlyPromptly and and in in any any event event within within ten ten Business Business Days Days after receipt thereof by by the BorrowerBorrower oror anyany ERISAERISA Affiliate, Affiliate, copiescopies of of each each notice notice from from the PBGC statingstating itsits intentionintention toto terminateterminate anyany PlanPlan or or to to have have a a trustee trustee appointed appointed to to administer any Plan.Plan.
(iii) Multiemployer Plan Notices. PromptlyPromptly and and in in anyany eventevent withinwithin ten ten Business Days afterafter receiptreceipt thereofthereof by by thethe BorrowerBorrower or or any any ERISAERISA Affiliate Affiliate from from the the sponsor of a Multiemployer Plan,Plan, copiescopies ofof each each notice notice concerningconcerning (A) (A) the the imposition imposition of of Withdrawal LiabilityLiability thatthat couldcould reasonablyreasonably bebe expected expected to to resultresult in in liability liability in in excess excess of of $10,000,000 by anyany suchsuch MultiemployerMultiemployer Plan,Plan, (B)(B) the the reorganizationreorganization or or termination, termination, within the meaningmeaning ofof Title Title IVIV ofof ERISA, ERISA, ofof any any such such Multiemployer Multiemployer Plan Plan that that could could reasonably bebe expectedexpected toto resultresult inin liabilityliability inin excessexcess ofof $10,000,000 $1 0,000,000 or or (C) (C) the the amount amount of of liability incurred, oror thatthat maymay bebe incurred,incurred, byby thethe BorrowerBorrower or or any any ERISAERISA Affiliate Affiliate in in connection withwith any any event event described described in inclause clause CA) A or or tID. ~.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EventsEvents ofof Default. Default. EachEach of of the the following following events events or or occurrences occurrences described in this Article shallshall constituteconstitute anan "Event ofof Default".Default".
(a) Payment Defaults. (i)(i) thethe BorrowerBorrower shall shall failfail toto paypay anyany principalprincipal ofof any any Loan when the samesame shallshall becomebecome duedue andand payablepayable or or (ii) (ii) thethe BorrowerBorrower shall shall fail fail toto make make any other payment under any LoanLoan Document,Document, inin eacheach casecase underunder this this clause clause Ca) a within within ten Business DaysDays afterafter thethe samesame shallshall becomebecome due due and and payable. payable.
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(b) Misrepresentation. anyany representation representation or or warranty warranty made made by by the the Borrower Borrower (or any of itsits officers)officers) underunder oror in in connectionconnection with with any any Loan Loan Document Document shall shall prove prove to to have been incorrectincorrect inin anyany materialmaterial respectrespect when when made; made; provided, however,however, that if (i) thethe Borrower was not awareaware thatthat suchsuch representation representation or or warranty warranty was was false false or or incorrect incorrect at at the the time suchsuch representationrepresentation oror warrantywarranty waswas made, made, (ii) (ii) the the fact, fact, event event or or circumstance circumstance resulting inin suchsuch falsefalse oror incorrectincorrect representationrepresentation or or warranty warranty is is capable capable of of being being cured, cured, corrected or otherwise remediedremedied andand (iii)(iii) suchsuch fact, fact, eventevent or or circumstance circumstance resulting resulting in in such false or incorrect representationrepresentation oror warrantywarranty shall shall have have been been cured, cured, corrected corrected or or otherwise remedied, withinwithin 3030 daysdays fromfrom thethe date date on on which which the the Borrower Borrower ar or any any officer officer thereof firstfirst obtainsobtains knowledgeknowledge thereofthereof such such that that such such incorrect incorrect or or false false representation representation or or warrantywananty (as(as cured,cured, correctedcorrected or or remedied) remedied) could could not not reasonably reasonably be be expected expected to to result result in in aa Material ~dverseAdverse Effect,Effect, thenthen such such incorrect incorrect or or false false representationrepresentation or or warranty warranty shall shall notnot constitute a DefaultDefault oror EventEvent ofof Default. Default.
(c) Certain Covenants. thethe Borrower Borrower shall shall failfail toto perform perform or or observe observe any any term, covenant or agreement containedcontained inin SectionsSections 2.13,2.13, 5.01(c),5.01(c), 5.025.02 oror 5.035.03(a) a and and such such default shallshall continue unremediedunremedied forfor aa periodperiod of of 30 30 days days after after the the earlier earlier of of the the date date on on which (x)(x) anyany ResponsibleResponsible OfficerOfficer of of the the Borrower Borrower becomes becomes aware aware of of such such failure failure or or (y) written notice thereof shall shall havehave beenbeen given given to to the the Borrower Borrower by by the the Administrative Administrative Agent or anyany Lender.Lender.
(d) Other Covenants. thethe Borrower Borrower shall shall fail fail toto perform perform or or observe observe any any other other term, covenant oror agreementagreement containedcontained in in any any Loan Loan Document Document on on its its part part to to be be performed performed or observed ifif such such failurefailure shallshall remainremain unremedied unremedied for for 60 60 days days after after the the earlier earlier of of the the date on which writtenwritten noticenotice thereofthereof shall shall havehave been been given given to to the the Borrower Borrower by by the the Administrative AgentAgent oror anyany Lender.Lender.
(e) Cross Default. thethe Borrower Borrower shall shall fail fail toto pay pay any any principal principal of, of, premium premium or or interest on or any other amountamount payablepayable in in respectrespect of of any any Debt Debt of of the the Borrower Borrower that that is is outstanding inin aa principalprincipal amountamount of of at at least least $25,000,000 $25,000,000 either either individually individually or or in in the the aggregate for the BorrowerBorrower (but(but excluding excluding Debt Debt outstanding outstanding under under this this Agreement), Agreement), when when the samesame becomes duedue andand ~ayablepayable (whether(whether by by scheduledscheduled maturity, maturity, required required prepayment, acceleration,acceleration, demanddemand oror otherwise), otherwise), and and such such failure failure shall shall continue continue after after the the applicable gracegrace period, ifif any, any, specifiedspecified in in thethe agreement agreement or or instrument instrument relating relating to to such such Debt; or any otherother eventevent shallshall occuroccur or or condition condition shall shall exist exist under under any any agreement agreement or or instrument relating to any suchsuch DebtDebt andand shallshall continuecontinue afterafter the the applicable applicable grace grace period, period, if any, specified inin suchsuch agreementagreement oror instrument,instrument, ifif the the effecteffect of of such such event event or or condition conditi on is to accelerate, oror toto permit thethe accelerationacceleration of,of, thethe maturity maturity of of such such Debt Debt or or otherwise otherwise to to cause, or to permit the holderholder thereofthereof to to cause,cause, suchsuch Debt Debt to to mature; mature; or or any any such such Debt Debt shall be declared to bebe duedue andand payablepayable oror required required toto be be prepaid prepaid or or redeemed redeemed (other (other than than by a regularly scheduledscheduled requiredrequired prepaymentprepayment or or redemption), redemption), purchased purchased or or defeased, defeased, or or an offer to prepay, redeem,redeem, purchasepurchase oror defease defease such such Debt Debt shall shall be be required required to to be be made, made, in each case prior to thethe statedstated maturitymaturity thereof.thereof.
(~(f) Insolvency Event. thethe Borrower Borrower or or any any of of its its Subsidiaries Subsidiaries shall shall generally generally not pay its debts asas suchsuch debtsdebts becomebecome due,due, oror shall shall admit admit in in writing writing its its inability inability to to pay pay its its debts generally, oror shallshall makemake aa generalgeneral assignmentassignment for for the the benefit benefit of of creditors; creditors; or or any any
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proceeding shall be institutedinstituted byby oror againstagainst thethe BorrowerBorrower oror anyany suchsuch SubsidiarySubsidiary seekingseeking to adjudicate itit bankrupt oror insolvent,insolvent, oror seekingseeking liquidation,liquidation, windingwinding up,up, reorganization,reorganization, arrangement, adjustment, protection,protection, relief,relief, oror composition composition of of it it or or its its debts debts under under any any law relating to bankruptcy,bankruptcy, insolvencyinsolvency oror reorganization reorganization or or relief relief of of debtors, debtors, or or seeking seeking the entry of an an orderorder forfor reliefrelief or or the the appointmentappointment of of a a receiver, receiver, trustee trustee or or other other similar similar official for itit oror forfor anyany substantialsubstantial partpart of of its its propertyproperty and, and, in in the the case case of of any any such such proceeding institutedinstituted againstagainst itit (but(but not not instituted instituted by by it) it) that that is is being being diligently diligently contested contested by it in good faith, either suchsuch proceedingproceeding shallshall remainremain undismissedundismissed oror unstayedunstayed forfor aa period of 60 days oror anyany ofof the the actionsactions soughtsought inin suchsuch proceedingproceeding (including,(including, withoutwithout limitation, the entry ofof an an orderorder forfor reliefrelief against, against, oror the the appointment appointment of of a a receiver, receiver, trustee, custodiancustodian oror otherother similarsimilar official official for, for, itit or or any any substantial substantial part part of of its its property) property) shall occur; or thethe BorrowerBorrower oror anyany ofof its its SubsidiariesSubsidiaries shall shall take take any any corporate corporate action action to to authorize any of the actionsactions setset forthforth aboveabove inin thisthis subsectionsubsection (~.(f).
(g) Judgments.Jud~ments. anyany finalfinal judgmentsjUdgments or or orders, orders, either either individually individually or or in in the the aggregate, for the paymentpayment ofof money money inin excessexcess of of $25,000,000 $25,000,000 shall shall be be rendered rendered against against the Borrower byby oneone oror more more GovernmentalGovernmental Authorities, Authorities, arbitral arbitral tribunals tribunals or or other other bodies bodies having jurisdiction against thethe BorrowerBorrower whichwhich remainsremains unsatisfiedunsatisfied andand eithereither (i) enforcement proceedingsproceedings shallshall havehave beenbeen commenced commenced by by any any creditor creditor upon upon such such judgment oror orderorder oror (ii)(ii) therethere shallshall bebe anyany periodperiod ofof 60 60 consecutive consecutive days days duringduring whichwhich a a stay of such judgment oror order,order, byby reasonreason ofof a a pending pending appeal appeal or or otherwise, otherwise, shall shall not not be be in effect.
(h) Non-Monetary Jud~ments.Judgments. anyany non-monetarynon-monetary judgmentjudgment or or order order shall shall be be rendered against thethe BorrowerBorrower that that couldcould reasonably reasonably be be expected expected to to have have a a Material Material Adverse Effect, andand therethere shallshall bebe anyany periodperiod of of 60 60 consecutive consecutive days days during during which which a astay stay of enforcement ofof such such judgmentjudgment or or order, order, byby reason reason of of a a pending pending appeal appeal or or otherwise, otherwise, shall not be inin effect.effect.
(i) Invalidity.Invalidi . any any provision provision of of any any Loan Loan Document Document after after deliverydelivery thereofthereof pursuant to SectionSection 3.013.01 shallshall forfor anyany reasonreason ceasecease toto bebe validvalid andand bindingbinding onon oror enforceable againstagainst thethe BorrowerBorrower to to it,it, oror the the Borrower Borrower shall shall so so state state in in writing. writing.
G)(j) ERlSA.ERISA. (i)(i) anyany ERISA ERlSA Event Event shall shall have have occurred occurred with with respect respect to to a a Plan Plan and the sum (determined(determined asas ofof the the datedate ofof occurrence occurrence of of such such ERISA ERlSA Event) Event) of of the the Insufficiency of such such PlanPlan andand thethe InsufficiencyInsufficiency of of any any and and all all other other Plans Plans with with respect respect to to which an ERISA EventEvent shallshall havehave occurredoccurred and and then then exist exist (or (or the the liability liabi lity of of the the Borrower andand thethe ERISAERlSA AffiliatesAffiliates relatedrelated to to such such ERISA ERISA Event) Event) that that could could reasonably reasonably be expected to havehave aa MaterialMaterial AdverseAdverse Effect. Effect.
(ii) the Borrower oror anyany ERISAERlSA AffiliateAffiliate shallshall havehave been been notified notified by by the the sponsor of a Multiemployer PlanPlan thatthat itit has has incurredincurred Withdrawal Withdrawal Liability Liability to to such such Multiemployer PlanPlan inin anan amountamount that,that, whenwhen aggregated aggregated with with all all other other amounts amounts required required to be paid toto MultiemployerMultiemployer Plans Plans by by thethe Borrower Borrower and and the the ERISA ERlSA Affiliates Affiliates as as Withdrawal Liability (determined(determined asas ofof the the datedate of of such such notification), notification), that that could could reasonably bebe expectedexpected toto havehave aa MaterialMaterial AdverseAdverse Effect. Effect.
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(iii) thethe Borrower Borrower or orany any ERISA ERISA Affiliate Affiliate shall shall have have been been notified notified by by the the sponsor of a Multiemployer Plan that suchsuch MultiemployerMultiemployer PlanPlan isis inin reorganizationreorganization oror isis being terminated, within the meaning ofof Title Title IVIV ofof ERISA, ERISA, andand asas aa resultresult ofof such such reorganization oror terminationtermination thethe aggregateaggregate annual annual contributions contributions of of the the Borrower Borrower and and the the ERISA Affiliates to all Multiemployer PlansPlans thatthat areare thenthen inin reorganizationreorganization oror being being terminated havehave beenbeen or will bebe increasedincreased overover thethe amountsamounts contributedcontributed toto suchsuch Multiemployer Plans for the plan yearsyears ofof such such MultiemployerMultiemployer PlansPlans immediatelyimmediately preceding the plan year inin which suchsuch reorganizationreorganization oror termination termination occursoccurs byby an an amountamount that could reasonablyreasonably bebe expectedexpected to to have have a a Material Material Adverse Adverse Effect. Effect.
SECTION 6.02. ActionAction ifif Insolvencv. Insolvency. InIn the the event event of of an an actual actual or or deemed deemed entry entry of an orderorder forfor reliefrelief with with respectrespect toto the the Borrower Borrower or or any any of of its its Subsidiaries Subsidiaries under under the the Federal Federal Bankruptcy Code, (x) the CommitmentsCommitments of eacheach LenderLender andand thethe obligationobligation ofof each each Lender Lender to to make Loans shall automaticallyautomatically be terminated and (y)(y) thethe Loans,Loans, allall suchsuch interestinterest andand allall suchsuch amounts shall automaticallyautomatically become and bebe duedue andand payable, payable, without without presentment, presentment, demand, demand, protest or any notice ofof any any kind, allall ofof which which areare herebyhereby expresslyexpressly waivedwaived byby thethe Borrower.Borrower.
SECTION 6.03. ActionAction ifif Other Other EventEvent ofof Default. Default. (a)(a) If If any any Event Event of of Default Default specified in Sections 6.01(a), @~(other (other than than with with respect respect to to the the breach breach of of covenants covenants set set forth forth in in Section 5.02(i)),5.02(i)), @~(other (other than than with with respect respect to to the the breach breach of of covenants covenants set set forth forth in in Section Section 5.0l(a),5.01 a,~d @ ,~ andand Wand ~ and Sections 5.03(b), 5.03(b), @, ~, @and~ and f~, £ill, ~, {g},.ill ~, or ~or shall ill shall occur occur for for any any reason, reason, whether voluntary or involuntary,involuntary, andand bebe continuing,continuing, thethe AdministrativeAdministrative AgentAgent (i)(i) shallshall at at the the request, or maymay withwith thethe consent,consent, ofof the the RequiredRequired Lenders,Lenders, by by notice notice to to the the Borrower, Borrower, declare declare the the Commitments of each Lender and thethe obligationobligation ofof each each LenderLender to to make make Loans Loans and and (ii) (ii) shall shall at at the request, oror maymay withwith thethe consent,consent, ofof the the RequiredRequired Lenders, Lenders, by by notice notice to to the the Borrower, Borrower, declare declare the Loans, all interestinterest thereonthereon andand allall otherother amounts amounts payablepayable under under this this Agreement Agreement and and the the other other Loan Documents to bebe forthwithforthwith duedue andand payable,payable, whereuponwhereupon thethe Loans,Loans, allall suchsuch interestinterest andand allall such amounts shall becomebecome andand bebe forthwithforthwith duedue andand payable, payable, without without presentment, presentment, demand,demand, protest or furtherfurther noticenotice ofof any any kind,kind, all all ofof which which are are hereby hereby expressly expressly waived waived by by the the Borrower. Borrower.
(b) IfpriorIf prior to a BostonGen RepaymentRepayment Event Event any any eventevent shall shall occur occur or or condition shall existexist underunder anyany a~reementagreement or or instrument instrument relating relating to to any any Debt Debt under under the the First First Lien Lien Credit Agreement oror thethe SecondSecond LienLien CreditCredit Agreement Agreement (or, (or, in in each each case, case, any any Refinancing Refinancing thereof permitted byby thisthis AgreementAgreement and and the the Related Related Documents) Documents) and and shall shall continue continue after after the the applicable grace period,period, ifif any, any, specifiedspecified in in suchsuch agreement agreement or or instrument, instrument, if if the the effect effect of of such such event or condition isis toto accelerateaccelerate thethe maturity maturity of of such such Debt Debt or or otherwise otherwise to to cause cause such such Debt Debt to to mature; or any suchsuch DebtDebt shallshall bebe declareddeclared toto bebe duedue andand payablepayable oror requiredrequired toto bebe prepaidprepaid oror redeemed (other than byby aa regularlyregularly scheduledscheduled requiredrequired prepaymentprepayment oror redemption),redemption), purchasedpurchased oror defeased in each casecase priorprior toto thethe statedstated maturity maturity thereof thereof and and if if any any Event Event of of Default Default specified specified in in Section 6.01(b),6.01(b), i£}~(with (with respect respect to to a a breach breach of of the the covenantcovenant set forth in Section 5.02(i)),5.02(i)), @ ~ (other than with respect to the breach of covenants set forth in Section 5.015.01(d) (d) oror W~ or or Sections Sections 5.03(b),5.03 b,~, i£}, Wand~ and £ill~Jf shall shall occur occur for for any any reason, reason, whether whether voluntary voluntary or or involuntary, involuntary, andand bebe continuing, the AdministrativeAdministrative AgentAgent (i)(i) shallshall at at the the request, request, or or may may with with the the consent, consent, of of the the Required Lenders, byby noticenotice toto thethe Borrower, Borrower, declare declare the the Commitments Commitments of of each each Lender Lender and and the the obligation of each Lender to makemake Loans andand (ii)(ii) shallshall atat thethe request,request, oror maymay withwith thethe consent,consent, ofof the Required Lenders,Lenders, byby noticenotice toto the the Borrower, Borrower, declare declare the the Loans, Loans, all all interest interest thereon thereon and and all all other amounts payablepayable underunder thisthis AgreementAgreement and and the the other other Loan Loan Documents Documents to to be be forthwith forthwith due due
EBG Holdings LLC 606~ Credit Agreement NYI:#3437976vllNY ] :#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 480 of 510
and payable, whereupon thethe Loans,Loans, allall suchsuch interest interest and and all all such such amounts amounts shall shall become become and and be be forthwith due and payable, withoutwithout presentment,presentment, demand, demand, protest protest or or further further notice notice of of any any kind, kind, all of which are hereby expresslyexpressly waivedwaived by by the the Borrower. Borrower.
(c) If after a BostonGen RepaymentRepayment Event,Event, any any Event Event of of Default Default specified specified in in Section 6.01(d),6.01(d), ~~ or or.au ~ shall shall occur occur for for any any reason, reason, whether whether voluntary voluntary or or involuntary, involuntary, and and be be continuing, the Administrative AgentAgent (i) (i) shallshall at at the the request, request, or or may may with with the the consent, consent, of of the the Required Lenders, byby noticenotice toto thethe Borrower,Borrower, declare declare the the Commitments Commitments of of each each Lender Lender and and the the obligation of each Lender to make LoansLoans andand (ii)(ii) shallshall atat thethe request,request, oror maymay withwith thethe consent,consent, ofof the Required Lenders,Lenders, byby noticenotice toto thethe Borrower, Borrower, declare declare the the Loans, Loans, all all interest interest thereon thereon and and all all other amounts payable underunder thisthis AgreementAgreement and and the the other other Loan Loan Documents Documents to to be be forthwith forthwith due due and payable, whereupon thethe Loans,Loans, allall suchsuch interest interest and and all all such such amounts amounts shall shall become become and and be be forthwith due andand payable,payable, withoutwithout presentment, presentment, demand, demand, protest protest or or further further notice notice of of any any kind, kind, all of which are hereby expressly waived byby thethe Bonower.Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. AuthorizationAuthorization and Action. (a)(a) EachEach Lender Lender hereby hereby appoints appoints and and authorizes the Administrative AgentAgent to to taketake such such action action as as agent agent on on its its behalf behalf and and to to exercise exercise such powers and discretion underunder thisthis AgreementAgreement and and the the other other Loan Loan Documents Documents as as are are delegated delegated to the Administrative AgentAgent byby thethe terms terms hereof hereof and and thereof, thereof, together together with with such such powers powers and and discretion as are reasonably incidental thereto.thereto. AsAs to to any any matters matters not not expressly expressly provided provided for for by by the Loan Documents (including,(including, withoutwithout limitation,limitation, enforcementenforcement oror collection collection ofof the the ObligationsObligations of the Borrower), the AdministrativeAdministrative AgentAgent shall shall not not be be required required to to exercise exercise any any discretion discretion or or take any action,action, butbut shallshall bebe requiredrequired to to act act or or to to refrain refrain from from acting acting (and (and shall shall be be fully fully protected protected in so acting or refraining fromfrom acting)acting) uponupon the the instructions instructions of of the the Required Required Lenders, Lenders, and and such such instructions shall be binding upon allall LendersLenders andand allall holdersholders ofof Notes; Notes; provided, however,however, that the Administrative Agent shallshall notnot bebe requiredrequired toto taketake anyany actionaction thatthat exposesexposes thethe AdministrativeAdministrative Agent to personal liabilityliability oror thatthat isis contrarycontrary toto thisthis AgreementAgreement oror applicableapplicable law.law.
(b) The Administrative AgentAgent maymay executeexecute any any ofof its its duties duties under under this this Agreement or any other LoanLoan Document byby oror throughthrough agents,agents, employeesemployees oror attorneys-in-factattorneys-in-fact and shall be entitled toto adviceadvice ofof counsel counsel and and other other consultants consultants or or experts experts concerning concerning all all matters matters pertaining to suchsuch duties.duties. TheThe Administrative Administrative Agent Agent shall shall not not be be responsible responsible for for the the negligence negligence or misconduct ofof anyany agent,agent, employeeemployee oror attorney-in-fact attorney-in-fact that that it it selects selects in in accordance accordance with with the the foregoing provisions of thisthis Section 7.01(b)7A1(b) in the absence ofofthe the AdministrativeAdministrative Agent'sAgent's gross gross negligence or willful misconduct.
SECTION 7.02.7.02. AdministrativeAdministrative A~ent'sAgent's Reliance,Reliance, Etc. NeitherNeither thethe Administrative Agent nor any of its its directors,directors, officers,officers, agentsagents oror employeesemployees shallshall bebe liableliable forfor any action taken oror omittedomitted toto bebe takentaken by by it it or or them them under under or or in in connection connection with with the the Loan Loan Documents, except for itsits or their ownown grossgross negligencenegligence oror willfulwillful misconduct.misconduct. WithoutWithout limitation of the generality of the foregoing,foregoing, thethe AdministrativeAdministrative Agent:Agent: (a)(a) may may consult consult with with legal counsel (including(including counselcounsel forfor thethe Borrower), Borrower), independent independent public public accountants accountants and and other other experts selected byby itit andand shallshall notnot bebe liableliable for for any any action action taken taken or or omitted omitted to to be be taken taken in in good good
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faith by itit inin accordance withwith thethe adviceadvice ofof such such counsel, counsel. accountants accountants or or experts; experts; (b) (b) makes makes no no warranty or representation toto anyany LenderLender and and shali shall not not be be responsible responsible to to any any Lender Lender for for any any statements, warranties oror representationsrepresentations (whether (whether written written or or oral) oral) made made in in or or in in connection connection with with the Loan Documents; (c)(c) shallshall notnot have have anyany duty duty to to ascertain ascertain or or to to inquire inquire as as to to the the performance, performance, observance or satisfaction ofof any any ofof the the terms,terms, covenantscovenants or or conditions conditions of of any any Loan Loan Document Document on on the part of thethe BorrowerBorrower oror the the existenceexistence at at any any time time of of any any Default Default under under the the Loan Loan Documents Documents or to inspect the property (including(including thethe booksbooks and and records) records) of of the the Borrower; Borrower; (d) (d) shall shall not not be be responsible to any LenderLender forfor thethe duedue execution,execution, legality, legality, validity, validity, enforceability, enforceability, genuineness, genuineness, sufficiency or value of,of, oror thethe perfectionperfection or or priority priority of of any any lien lien or or security security interest interest created created or or purported to bebe createdcreated underunder oror inin connection connection with, with, any any Loan Loan Document Document or or any any other other instrument instrument or document furnished pursuantpursuant thereto;thereto; andand (e) (e) shall shall incur incur no no liability liability under under or or in in respect respect of of any any Loan Document byby actingacting uponupon anyany notice,notice, consent,consent, certificate certificate or or other other instrument instrument or or writing writing (which may be by telegram,telegram, telecopytelecopy oror electronic electronic communication) communication) believed believed by by it it to to be be genuine genuine and signed or sentsent byby thethe properproper partyparty oror parties. parties.
SECTION 7.03. InitialInitial BanksBanks andand Affiliates.Affiliates. WithWith respect respect to to its its Commitments, Commitments, the Loans made by itit andand anyany Notes issuedissued toto it,it, eacheach InitialInitial BankBank shallshall havehave thethe samesame rightsrights andand powers under the LoanLoan DocumentsDocuments asas anyany otherother Lender Lender and and may may exercise exercise the the same same as as though though each were not an Administrative Agent;Agent; andand the the term term "Lenders" or "Lender" shall, unless otherwise expressly indicated,indicated, includeinclude eacheach Initial Initial Bank Bank in in their their respective respective individual individual capacities. capacities. Each Initial Bank andand theirtheir respectiverespective affiliatesaffiliates may may accept accept deposits deposits from, from, lend lend money money to, to, act act as as trustee under indenturesindentures of,of, acceptaccept investment investment banking banking engagements engagements from from and and generally generally engage engage in any kind of business with,with, thethe Borrower,Borrower, anyany ofof its its Subsidiaries Subsidiaries and and any any Person Person that that may may do do business with or own securitiessecurities ofof the the BorrowerBorrower or or any any such such Subsidiary, Subsidiary, all all as as if if such such Initial Initial Bank was not an AdministrativeAdministrative AgentAgent and and without without any any duty duty to to account account therefor therefor to to the the Lenders. Lenders. No Initial Bank shall havehave anyany dutyduty toto disclosedisclose anyany informationinformation obtainedobtained oror receivedreceived byby itit oror anyany of its Affiliates relatingrelating toto thethe BorrowerBorrower or or any any ofof its its Subsidiaries Subsidiaries to to the the extent extent such such information information was obtained or receivedreceived inin anyany capacitycapacity other other than than as as such such Initial Initial Bank. Bank.
SECTION 7.04. LenderLender CreditCredit Decision.Decision. EachEach Lender Lender acknowledges acknowledges that that it it has, has, independently and without reliancereliance uponupon thethe AdministrativeAdministrative Agent Agent or or any any other other Lender Lender and and based on the financial statementsstatements referredreferred toto inin Section Section 4.01 4.01 andand such such other other documents documents and and information as it has deemeddeemed appropriate,appropriate, mademade itsits own own credit credit analysis analysis and and decision decision to to enter enter into into this Agreement. EachEach Lender Lender also also acknowledges acknowledges that that it it will, will, independently independently and and without without reliance reliance upon the Administrative AgentAgent oror anyany otherother Lender Lender and and based based on on such such documents documents and and information as it shallshall deemdeem appropriateappropriate atat thethe time,time, continue continue to to make make its its own own credit credit decisions decisions in in taking or not takingtaking actionaction underunder thisthis Agreement.Agreement.
SECTION 7.05. Indemnification.Indemnification. EachEach Lender Lender severally severally agrees agrees to to indemnifyindemnify the the Administrative Agent (to(to thethe extentextent not not promptly promptly reimbursed reimbursed by by the the Borrower) Borrower) from from and and against against such Lender's ratableratable shareshare (determined(determined asas providedprovided below) below) ofof any any andand all all liabilities,liabilities, obligations,obligations, losses, damages, penalties, actions,actions, judgments,judgments, suits, suits, costs, costs, expenses expenses or or disbursements disbursements of of any any kind or nature whatsoeverwhatsoever thatthat maymay bebe imposedimposed on, on, incurred incurred by, by, or or asserted asserted against against the the Administrative Agent inin anyany wayway relatingrelating toto oror arising arising out out of of the the Loan Loan Documents Documents or or any any action action taken or omitted byby suchsuch AdministrativeAdministrative AgentAgent under under the the Loan Loan Documents Documents (collectively, (collectively, the the "Indemnified Costs"); Costs"); provided, however,however, that no Lender shallshall bebe liableliable forfor anyany portionportion ofof such such liabilities, obligations, losses,losses, damages,damages, penalties,penalties, actions,actions, judgments, judgments, suits, suits, costs, costs, expenses expenses or or
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disbursements resultingresulting fromfrom the AdministrativeAdministrative Agent'sAgent's gross gross negligence negligence or or willful willful misconduct misconduct as found in a final, non-appealable judgment byby aa courtcourt ofof competent competent jurisdiction.jurisdiction. WithoutWithout limitation of thethe foregoing,foregoing, eacheach LenderLender agrees agrees to to reimburse reimburse the the Administrative Administrative Agent Agent promptly promptly upon demand forfor itsits ratableratable shareshare ofof any any costscosts andand expensesexpenses (including,(including, withoutwithout limitation, limitation, feesfees and expenses ofof counsel) counsel) payablepayable byby thethe BorrowerBorrower under under Section Section 8.04, 8.04, to to the the extent extent that that the the Administrative Agent isis notnot promptly reimbursedreimbursed forfor suchsuch costscosts andand expensesexpenses by by the the Borrower.Borrower. In the case ofof anyany investigation,investigation, litigationlitigation oror proceedingproceeding givinggiving riserise toto anyany IndemnifiedIndemnified Costs, Costs, this SectionSection 7.057.05 appliesapplies whetherwhether anyany suchsuch investigation,investigation, litigationlitigation oror proceedingproceeding is is broughtbrought by by any Lender oror anyany otherother Person.Person.
SECTION 7.06. SuccessorSuccessor AdministrativeAdministrative Agent.Agent. TheThe Administrative Administrative Agent Agent may resign at any time byby givinggiving 3030 days'days' writtenwritten notice notice thereof thereof to to the the Lenders Lenders and and the the Borrower Borrower and may be removed at any time withwith oror withoutwithout causecause byby thethe RequiredRequired Lenders.Lenders. UponUpon any any such such resignation oror removal,removal, the Required LendersLenders shallshall havehave thethe rightright toto appointappoint a a successorsuccessor Administrative AgentAgent asas to suchsuch ofof the the FacilitiesFacilities asas toto whichwhich thethe AdministrativeAdministrative AgentAgent has has resigned oror beenbeen removed.removed. IfIf no no successor successor Administrative Administrative Agent Agent shall shall have have been been so so appointed appointed by the Required Lenders, andand shallshall havehave acceptedaccepted suchsuch appointment,appointment, withinwithin 3030 daysdays afterafter the the retiring Administrative Agent's giving giving of of notice notice of of resignation resignation or or the the Required Required Lenders' Lenders' removal removal of the retiring Administrative Agent,Agent, thenthen thethe retiringretiring AdministrativeAdministrative AgentAgent may, may, onon behalfbehalf of of the Lenders, appointappoint aa successorsuccessor AdministrativeAdministrative Agent,Agent, whichwhich shallshall bebe aa commercialcommercial bank bank organized underunder thethe lawslaws ofof the the UnitedUnited States States or or of of any any State State thereof thereof and and having having a acombined combined capital and surplussurplus ofof atat leastleast $500,000,000.$500,000,000. UponUpon the the acceptance acceptance of of any any appointment appointment as as Administrative Agent hereunderhereunder byby aa successarsuccessor Administrative Administrative Agent, Agent, suchsuch successor successor Administrative Agent shallshall succeedsucceed toto andand becomebecome vestedvested withwith allall thethe rights,rights, powers,powers, discretion,discretion, privileges andand duties ofof the retiringretiring AdministrativeAdministrative Agent,Agent, andand thethe retiringretiring AdministrativeAdministrative AgentAgent shall be discharged from itsits duties andand obligationsobligations underunder thethe LoanLoan Documents.Documents. IfIf within within 45 45 days days after written notice isis givengiven of the retiringretiring AdministrativeAdministrative Agent'sAgent's resignation resignation or or removal removal under under this SectionSection 7.067.06 nono successorsuccessor AdministrativeAdministrative AgentAgent shall shall havehave beenbeen appointed appointed and and shall shall havehave accepted such appointment, then onon suchsuch 45th45th dayday (a)(a) thethe retiringretiring AdministrativeAdministrative Agent'sAgent's resignation oror removalremoval shallshall becomebecome effective,effective, (b)(b) thethe retiringretiring AdministrativeAdministrative AgentAgent shall shall thereupon bebe dischargeddischarged fromfrom itsits dutiesduties andand obligationsobligations underunder thethe LoanLoan Documents Documents andand (c)(c) thethe Required Lenders shallshall thereafter perform allall dutiesduties ofof the the retiringretiring AdministrativeAdministrative AgentAgent underunder the Loan Documents untiluntil suchsuch time,time, ifif any, any, asas thethe RequiredRequired LendersLenders appointappoint a a successor successor Administrative Agent as provided above. AfterAfter any any retiring retiring AdministrativeAdministrative Agent'sAgent's resignation resignation or removal hereunder asas AdministrativeAdministrative Agent Agent shall shall have have become become effective, effective, the the provisions provisions of of this this Article VII shallshall inureinure toto itsits benefitbenefit asas toto anyany actionsactions takentaken oror omitted omitted toto bebe takentaken byby itit whilewhile itit was Administrative AgentAgent underunder thisthis Agreement.Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01.8.01. Amendments, Etc.Etc. (a) Subject toto clauseclause Cb)b below, below, nono amendment or waiver of any provision ofof this this Agreement,Agreement, thethe NotesNotes oror any any otherother Loan Loan Document, nornor consentconsent toto anyany departuredeparture by by the the Borrower Borrower therefrom, therefrom, shall shall in in any any event event be be effective unless the samesame shall bebe inin writingwriting andand signedsigned byby thethe BorrowerBorrower and and thethe RequiredRequired Lenders (or the Administrative AgentAgent onon theirtheir behal~,behalf), and and then then such such waiver waiver or or consent consent shall shall be be
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effective only inin the specificspecific instanceinstance andand for for the the specific specific purpose purpose for for which which given; given; provided, however, that
(i) no amendment, waiver oror consentconsent shall,shall, unlessunless inin writingwriting andand signedsigned byby thethe BorrowerBorrower and all of the Lenders, dodo anyany ofof the the following following at at any any time: time:
(A) waive anyany ofofthe the conditionsconditions specified specified in in Section Section 3_Ol; 3.01;
(B}(B) change (A) the definition of "Required Lenders" or (B) the number of Lenders or the percentage ofof the the aggregate aggregate unpaid unpaid principal principal amount amount of of the the Loans Loans shall shall be be required for thethe LendersLenders oror any any ofof them them to to take take any any action action hereunder hereunder or or under under any any other other Loan Document; oror
(C) amend this SectionSection 8.01;8.01; andand
(ii) no amendment, waiver oror consentconsent shall,shall, unlessunless inin writingwriting andand signedsigned byby thethe BorrowerBorrower and the Required LendersLenders andand eacheach Lender Lender specified specified below below for for such such amendment, amendment, waiver waiver or or consent:
(A) reduce the principal of,of, oror statedstated raterate ofof interest interest on, on, the the Loans Loans owed owed to to a a Lender or any feesfees orar other amounts statedstated toto bebe payablepayable hereunderhereunder or or under under the the other other Loan Documents toto suchsuch LenderLender without without the the consent consent of of such such Lender; Lender;
(B) postpone anyany datedate scheduledscheduled forfor any any payment payment of of principal principal of, of, or or interest interest on, the Loans pursuant toto SectionSection 2.042.04 or or 2.07 2.07 or or any any date date fixed fixed for for any any payment payment of of fees fees hereunder inin eacheach casecase payablepayable to to aa LenderLender without without the the consent consent of of such such Lender; Lender;
(C) impose any restrictionsrestrictions onon thethe rightsrights ofof such such Lender Lender under under Section Section 8.07; 8.07; or or
(D) change the orderorder ofof application application ofof any any prepaymentprepayment of of Loans Loans from from the the application thereof set set forthforth inin thethe applicableapplicable provisions provisions of of Section Section 2.06 2.06 in in any any manner manner that materially adverselyadversely affectsaffects thethe Lenders Lenders without without the the consent consent of of holders holders of of a amajority majority oftheof the Loans outstanding hereunder;hereunder; provided furtherfurther that no amendment, waiverwaiver oror consent consent shall, shall, unless unless in in writing writing and and signed signed by by the the Borrower and the Administrative AgentAgent in in additionaddition to to the the Lenders Lenders required required above above to to take take such such action, affect the rightsrights oror dutiesduties ofof the the AdministrativeAdministrative Agent Agent under under this this Agreement Agreement or or the the other other Loan Documents.
(b) Notwithstanding thethe otherother provisionsprovisions ofof this this SectionSection 8.01,8.01, thethe BorrowerBorrower and the Administrative AgentAgent maymay (but(but shall shall havehave no no obligation obligation to) to) amend amend or or supplement supplement the the Loan Documents without the consent of any Lender:Lender: (i)(i) to to cure cure any any ambiguity, ambiguity, defect defect or or inconsistency or (ii)(ii) toto make anyany changechange thatthat wouldwould provide provide any any additional additional rights rights or or benefits benefits to to the Lender.
(c) If, in connection with anyany proposedproposed amendment,amendment, waiver waiver or or consent, consent, the the consent of all of the Lenders,Lenders, oror allall ofof the the LendersLenders directly directly affected affected thereby, thereby, is is required required pursuant pursuant to this Section 8.01,8.01, andand anyany suchsuch LenderLender refuses refuses to to consent consent to to such such amendment, amendment, waiver waiver or or
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consent as toto whichwhich thethe RequiredRequired LendersLenders havehave consentedconsented (any (any suchsuch LenderLender whose whose consent consent is is not not obtained asas describeddescribed inin thisthis SectionSection 8.018.01 beingbeing referredreferred toto asas a"Non-Consentinga "Non-Consenting Lender"),Lender"), then, soso longlong asas thethe AdministrativeAdministrative AgentAgent isis notnot a a Non-ConsentingNon-Consenting Lender, Lender, atat the the Borrower's Borrower's request and atat thethe solesole costcost andand expenseexpense ofof the the Borrower,Borrower, thethe AdministrativeAdministrative Agent Agent or or an an Eligible Eligible Assignee shallshall bebe entitledentitled (but(but shallshall havehave nono obligation)obligation) toto purchase purchase fromfrom suchsuch Non-ConsentingNon-Consenting Lender, andand suchsuch Non-ConsentingNon-Consenting Lender Lender (by (by its its acceptance acceptance of of the the benefits benefits of of the the applicable applicable Loan Documents) agreesagrees thatthat itit shall,shall, uponupon thethe AdministrativeAdministrative Agent'sAgent's request, request, sell sell and and assign assign to to the Administrative AgentAgent oror suchsuch EligibleEligible Assignee,Assignee, allall ofof the the LoansLoans andand CommitmentsCommitments of of such such Non-Consenting LenderLender oror Non-ConsentingNon-Consenting Lenders Lenders for for an an amount amount equal equal to to the the principal principal balance balance of all Loans heldheld byby thethe Non-ConsentingNon-Consenting LenderLender and and allall accruedaccrued interestinterest andand feesfees withwith respectrespect thereto throughthrough thethe datedate ofof sale; sale; provided that suchsuch EligibleEligible AssigneeAssignee consentsconsents toto thethe proposed proposed amendment, waiver oror consent.consent. EachEach Lender Lender (by (by its its acceptance acceptance of of the the benefits benefits of of the the Loan Loan Documents) agreesagrees that,that, ififit it becomes becomes a a Non-Consenting Non-Consenting Lender, Lender, it it shall shall execute execute and and deliver deliver to to the Administrative AgentAgent anan AssignmentAssignment andand AcceptanceAcceptance to to evidenceevidence suchsuch salesale andand purchase purchase and and shall deliver to the AdministrativeAdministrative AgentAgent anyany NoteNote (if(ifthe the assigningassigning Lender'sLender's Loans Loans are are evidenced by Notes) subjectsubject toto suchsuch AssignmentAssignment andand Acceptance;Acceptance; provided, however,however, that thethe failure of any Non-Consenting Lender toto executeexecute anan AssignmentAssignment andand AcceptanceAcceptance shallshall notnot render render such sale and purchase (and(and thethe correspondingcorresponding assignment) assignment) ineffective. ineffective.
SECTION 8.02. Notices,Notices, Etc.Etc. (a)(a) All All notices notices and and other other communications communications provided for hereunderhereunder shallshall bebe eithereither (x)(x) inin writingwriting (including(including telegraphic,telegraphic, telecopytelecopy oror electronic electronic (including portable documentdocument formatformat (pd~(pdf) communication)communication) and and mailed, mailed, telegraphed, telegraphed, telecopied telecopied or delivered or (y) asas and to the extentextent setset forthforth inin SectionSection 8.02(b)8.02(b) andand inin thethe provisoproviso toto thisthis Section 8.02(a), inin anan electronicelectronic mediummedium andand delivered delivered as as set set forth forth in in Section Section 8.02(b), 8.02(b), if ifto to the the Borrower, at its address atat The SchrafftSchrafft Center,Center, 529529 MainMain Street,Street, SuiteSuite 605,605, Charlestown,Charlestown, MAMA 02129, Attention: ChiefChief Executive Executive Officer,Officer, Fax: Fax: (617) (617) 381-2211 381-2211 (with (with a a copy copy sent sent to to EBG EBG Holdings LLC c/oc/o KK RoadRoad PowerPower Management,Management, LLC, LLC, 330 330 Madison Madison Avenue, Avenue, 25~' 25th Floor, Floor, New New York, NY 10017,10017, Attention:Attention: ChiefChief Executive Executive Officer, Officer, Fax: Fax: (212) (212) 351-0515 351-0515 and and a acopy copy sent sent to to Robert F. Quaintance Jr.Jr. andand PaulPaul D. Brusiloff,Brusiloff, DebevoiseDebevoise && PlimptonPlimpton LLP,LLP, 919919 ThirdThird Avenue,Avenue, New York, New YorkYork 10022,10022, Fax: Fax: (212) (212) 521-7451 521-7451 and and (212) (212) 521-7015, 521-7015, respectively); respectively); if if to to any any Initial Lender, atat itsits DomesticDomestic LendingLending OfficeOffice specified specified opposite opposite its its name name on on Schedule Schedule I Ihereto; hereto; if to any other Lender, atat itsits DomesticDomestic LendingLending Office Office specified specified in in the the administrative administrative questionnaire delivered inin conjunctionconjunction with the AssignmentAssignment andand AcceptanceAcceptance pursuantpursuant toto whichwhich itit became a Lender; andand ifif to to thethe AdministrativeAdministrative Agent, Agent, at at its its address address at at 11 11 Madison Madison Avenue, Avenue, New New York, NY 10010, Attention: Candace Sorina, Fax:Fax: (212)(212) 325-8304, 325-8304, E-mail E-mail Address: Address: [email protected],credit-suisse.com ar,or, asas toto thethe BorrowerBorrower oror thethe AdministrativeAdministrative Agent,Agent, atat suchsuch other address as shallshall bebe designateddesignated byby suchsuch partyparty in in a a written written notice notice to to the the other other parties parties and, and, as as to each other party, atat suchsuch otherother addressaddress asas shallshall be be designated designated by by such such party party in in a awritten written notice notice to the Borrower andand thethe AdministrativeAdministrative Agent;Agent; provided, however,however, that materials and informationinformation described in Section 8.02(b) shall be delivered toto thethe AdministrativeAdministrative AgentAgent inin accordanceaccordance withwith the provisions thereofthereof or or asas otherwiseotherwise specifiedspecified to to the the Borrower Borrower by by the the Administrative Administrative Agent. Agent. All such notices and other communications shall,shall, whenwhen mailed,mailed, telegraphed,telegraphed, telecopied,telecopied, aror e-e mailed, be effective whenwhen depositeddeposited inin thethe mails,mails, delivered delivered to to the the telegraph telegraph company, company, transmitted transmitted by telecopier or sent byby electronicelectronic communication,communication, respectively, respectively, except except that that notices notices and and communications to the AdministrativeAdministrative AgentAgent pursuant pursuant to to Article Article II, II, III III or or VII VII shall shall not not be be effective until received by the Administrative Agent. DeliveryDelivery by by telecopier telecopier of of an an executed executed
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counterpart ofof a a signaturesignature pagepage toto anyany amendmentamendment or or waiver waiver of of any any provision provision of of this this Agreement Agreement or the Notes shall bebe effectiveeffective asas deliverydelivery of of an an original original executed executed counterpart counterpart thereof. thereof.
(b) The Borrower herebyhereby agreesagrees thatthat itit willwill provideprovide to to the the Administrative Administrative Agent all information,information, documentsdocuments andand other other materials materials that that it it is is obligated obligated to to furnish furnish to to the the Administrative Agent pursuant toto thethe LoanLoan Documents,Documents, including,including, withoutwithout limitation,limitation, allall notices,notices, requests, financialfinancial statements,statements, financialfinancial andand other other reports, reports, certificates certificates and and other other information information materials, butbut excludingexcluding anyany suchsuch communicationcommunication that that (i) (i) relates relates to to a a request request for for a anew, new, or or a a Conversion ofof anan existing,existing, LoanLoan (including(including any any election election of of an an interest interest rate rate or or interest interest period period relating thereto), (ii)(ii) relatesrelates toto thethe paymentpayment of of any any principal principal or or other other amount amount due due under under this this Agreement prior to the scheduledscheduled datedate therefor,therefor, (iii)(iii) providesprovides noticenotice ofof any any DefaultDefault oror EventEvent ofof Default under thisthis AgreementAgreement oror (iv) (iv) is is required required to to be be delivered delivered to to satisfy satisfy any any condition condition precedent toto thethe effectivenesseffectiveness ofof this this Agreement Agreement and/or and/or (all (all such such non-excluded non-excluded communications communications being referred to hereinherein collectivelycollectively asas "Communications"), by transmitting the Communications inin anan electronic/softelectronic/soft medium medium in in a a format format acceptable acceptable to to the the Administrative Administrative Agent to an electronic mail addressaddress specifiedspecified byby thethe AdministrativeAdministrative AgentAgent toto thethe Borrower.Borrower. InIn addition, the BorrowerBorrower agreesagrees toto continuecontinue to to provide provide the the Communications Communications to to the the Administrative Administrative Agent in thethe manner specifiedspecified inin thethe LoanLoan Documents Documents but but only only to to the the extent extent requested requested by by the the Administrative Agent. TheThe Borrower Borrower further further agrees agrees that that the the Administrative Administrative Agent Agent may may make make the the Communications available to the Lenders byby postingposting thethe CommunicationsCommunications onon IntraLinksIntraLinks oror aa substantially similarsimilar electronicelectronic transmissiontransmission system system (the (the "Platform").
(c) THE PLATFORM IS PROVIDED "AS"AS IS"IS" ANDAND "AS"AS AVAILABLE".AVAILABLE". THE AGENT PARTIES (AS DEFINED BELOW)BELOW) DODO NOTNOT WARRANTWARRANT THETHE ACCURACYACCURACY OR COMPLETENESS OF THE COMMUNICATIONS,COMMUNICATIONS, OROR THETHE ADEQUACYADEQUACY OFOF THETHE PLATFORM AND EXPRESSLY DISCLAIMDISCLAIM LIABILITYLIABILITY FORFOR ERRORSERRORS OROR OMISSIONS OMISSIONS ININ THE COMMUNICATIONS. NONO WARRANTY WARRANTY OF OF ANY ANY K1ND, KIND, EXPRESS,EXPRESS, IMPLIEDIMPLIED OROR STATUTORY, INCLUDING, WITHOUT LIMITATION,LIMITATION, ANYANY WARRANTYWARRANTY OFOF MERCHANTABILITY, FITNESS FOR AA PARTICULARPARTICULAR PURPOSE,PURPOSE, NON-INFRINGEMENTNON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROMFROM VIRUSESVIRUSES OROR OTHEROTHER CODECODE DEFECTS, IS MADE BY THE AGENT PARTIESPARTIES ININ CONNECTIONCONNECTION WITHWITH THETHE COMMUNICATIONSCOMMUNICA TIONS OR THE PLATFORM. ININ NONO EVENTEVENT SHALLSHALL THETHE ADMINISTRATIVE AGENT OR ANYANY OFOF ITSITS AFFILIATESAFFILIATES OROR ANYANY OFOF THEIRTHEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,EMPLOYEES, AGENTS,AGENTS, ADVISORSADVISORS OROR REPRESENTATIVES (COLLECTIVELY,(COLLECTNELY, "AGENT "AGENT PARTIES") PARTIES") HAVE HAVE ANY ANY LIABILITY LIABILITY TOTO THE BORROWER, ANY LENDER PARTYPARTY OROR ANYANY OTHEROTHER PERSONPERSON OROR ENTITYENTITY FORFOR DAMAGES OF ANY KIND, INCLUDING, WITHOUTWITHOUT LIMITATION,LIMITATION, DIRECTDIRECT OROR 1NDIRECT,INDIRECT, SPECIAL, INCIDENTAL OROR CONSEQUENTIALCONSEQUENTIAL DAMAGES,DAMAGES, LOSSES LOSSES OR OR EXPENSES (WHETHER IN TORT, CONTRACTCONTRACT OROR OTHERWISE)OTHERWISE) ARISINGARISING OUTOUT OFOF THETHE BORROWER'S OROR THETHE ADMINISTRATIVEADMINISTRATIVE AGENT'SAGENT'S TRANSMISSIONTRANSMISSION OFOF COMMUNICATIONS THROUGH THETHE INTERNET,INTERNET, EXCEPTEXCEPT TOTO THETHE EXTENTEXTENT THETHE LIABILITY OF ANY AGENT PARTY ISIS FOUNDFOUND ININ AA FINALFINAL NON-APPEALABLENON-APPEALABLE JUDGMENT BY A COURT OF COMPETENTCOMPETENT JURISDICTIONJURISDICTION TOTO HAVEHAVE RESULTEDRESULTED PRIMARILYPRIMARIL Y FROM SUCHSUCH AGENT PARTY'SPARTY'S GROSS GROSS NEGLIGENCE NEGLIGENCE OR OR WILLFUL WILLFUL MISCONDUCT.
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(d) The Administrative Agent agreesagrees thatthat thethe receiptreceipt of of the the CommunicationsCommunications by the Administrative AgentAgent atat itsits e-maile-mail addressaddress set set forth forth above above shall shall constitute constitute effective effective delivery of the CommunicationsCommunications toto thethe AdministrativeAdministrative Agent Agent for for purposes purposes of of the the Loan Loan Documents. EachEach Lender Lender agrees agrees (i) (i) that that notice notice to to it it (as (as provided provided in in the the next next sentence) sentence) specifying specifying that the Communications havehave beenbeen posted toto thethe PlatformPlatform shallshall constituteconstitute effectiveeffective deliverydelivery ofof the Communications toto suchsuch LenderLender forfor purposespurposes ofof the the LoanLoan Documents.Documents. EachEach Lender Lender agrees agrees to notify thethe Administrative AgentAgent in in writingwriting (including (including by by electronic electronic communication) communication) from from time time to time of such Lender's e-mail e-mail addressaddress toto whichwhich the the foregoing foregoing notice notice may may be be sentsent by by electronic electronic transmission and (ii)(ii) thatthat thethe foregoingforegoing noticenotice maymay bebe sentsent toto suchsuch e-maile-mail address.address. NothingNothing herein shall prejudice thethe rightright ofof the the AdministrativeAdministrative Agent Agent or or any any Lender Lender to to give give any any notice notice or or other communication pursuantpursuant toto anyany LoanLoan DocumentDocument in in any any other other manner manner specified specified in in such such Loan Document.
SECTION 8.03. NoNo Waiver;Waiver; Remedies.Remedies. NoNo failure failure on on the the part part of of any any Lender Lender or or the Administrative AgentAgent toto exercise,exercise, andand no no delay delay in in exercising, exercising, any any right right hereunder hereunder or or under under any Note or any otherother LoanLoan DocumentDocument shallshall operateoperate as as a a waiver waiver thereof; thereof; nor nor shall shall any any single single or or partial exercise ofof any any suchsuch rightright precludepreclude any any other other or or further further exercise exercise thereof thereof or or the the exercise exercise of of any other right. TheThe remedies remedies herein herein provided provided are are cumulative cumulative and and not not exclusive exclusive of of any any remedies remedies provided by law.law.
SECTION 8.04. CostsCosts andand Expenses. (a)(a) OtherOther than than with with respect respect to to OtherOther Taxes Taxes which are governed solelysolely byby SectionSection 2.11,2.11, thethe BorrowerBorrower agrees agrees to to pay pay on on demand demand (i) (i) all all costs costs and expenses ofof the AdministrativeAdministrative AgentAgent inin connectionconnection with with the the preparation, preparation, execution, execution, delivery, administrati~n,administration, modificationmodification andand amendmentamendment of, of, or or any any consent consent or or waiver waiver under, under, the the Loan Documents (including,(including, withoutwithout limitation,limitation, (A) (A) all all due due diligence, diligence, collateral collateral review, review, syndication, transportation, computer,computer, duplication,duplication, appraisal,appraisal, audit, audit, insurance, insurance, consultant, consultant, search, search, filing and recording feesfees andand expensesexpenses andand (B)(B) thethe reasonable reasonable fees fees and and expenses expenses of of counsel counsel for for the Administrative AgentAgent withwith respectrespect thereto, thereto, with with respect respect to to advising advising the the Administrative Administrative Agent Agent as to its rights and responsibilities,responsibilities, oror the the perfection,perfection, protection protection or or preservation preservation of of rights rights or or interests, under the Loan Documents,Documents, withwith respectrespect toto negotiationsnegotiations with with the the Borrower Borrower or or with with other creditors ofof the BorrowerBorrower oror anyany ofof its its SubsidiariesSubsidiaries arising arising out out of of any any Default Default or or any any events events or circumstances that maymay givegive riserise toto aa DefaultDefault and and with with respect respect to to presenting presenting claims claims in in or or otherwise participating inin oror monitoringmonitoring anyany bankruptcy,bankruptcy, insolvency insolvency or or other other similar similar proceeding proceeding involving creditors' rightsrights generallygenerally andand anyany proceedingproceeding ancillary ancillary thereto)thereto) andand (ii)(ii) allall costscosts andand expenses of the Administrative AgentAgent andand eacheach Lender Lender in in connection connection with with the the enforcement enforcement of of the the Loan Documents, whetherwhether inin anyany action,action, suitsuit or or litigation, litigation, or or any any bankruptcy, bankruptcy, insolvency insolvency or or other other similar proceeding affecting creditors' rightsrights generallygenerally (including,(including, without without limitation, limitation, thethe reasonable fees and expensesexpenses ofof counsel counsel forfor the the AdministrativeAdministrative Agent Agent and and each each Lender Lender with with respect thereto).
(b) The Borrower agrees toto indemnify,indemnify, defenddefend and and savesave andand holdhold harmless harmless the the Administrative Agent, eacheach LenderLender and and eacheach of of their their Affiliates Affiliates and and their their respective respective officers, officers, directors, employees, agents,agents, trusteestrustees andand advisorsadvisors (each,(each, anan"Indemnified "Indemnified Party"} Party") from and against, and shall pay onon demand,demand, anyany andand allall claims,claims, damages,damages, losses, losses, liabilities liabilities and and related related expenses (including, withoutwithout limitation,limitation, reasonablereasonable fees fees andand expenses expenses of of counsel) counsel) that that may may be be incurred by or asserted oror awardedawarded againstagainst anyany IndemnifiedIndemnified Party, Party, in in each each case case arising arising out out of of or or in connection with or by reasonreason ofof (including, (including, withoutwithout limitation, limitation, in in connection connection with with any any
EBG Holdings LLC 67O7 Credit Agreement NY ]1:#3437976v :#3437976v 11 I I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 487 of 510
investigation, litigationlitigation oror proceedingproceeding oror preparation preparation of of a a defense defense in in connection connection therewith) therewith) (i) (i) the the actual or proposed useuse ofof the the proceedsproceeds ofof the the Loans,Loans, the the Transaction Transaction Documents Documents or or any any of of the the transactions contemplatedcontemplated therebythereby (including,(including, without without limitation, limitation, the the Transaction) Transaction) or or (ii) (ii) the the actual or alleged presencepresence ofof Hazardous Hazardous MaterialsMaterials on on any any property property of of the the Borrower Borrower or or any any of of its its Subsidiaries or any Environmental Action relatingrelating inin anyany wayway toto thethe BorrowerBorrower oror anyany ofof its its Subsidiaries, except to the extent such claim, damage,damage, loss,loss, liabilityliability oror expenseexpense (x)(x) isis foundfound inin aa final, non-appealable judgmentjudgment byby aa courtcourt of of competent competent jurisdiction jurisdiction to to have have resulted resulted from from such such Indemnified Party's grossgross negligence or willful misconduct oror (y)(y) inin thethe casecase ofof clause clause (i) i above, above, is a tax. InIn thethe casecase of of an an investigation, investigation, litigation litigation or or other other proceeding proceeding to to which which the the indemnity indemnity in in this Section 8.04(b) applies,applies, suchsuch indemnityindemnity shallshall bebe effectiveeffective whetherwhether oror notnot suchsuch investigation,investigation, litigation or proceeding isis broughtbrought byby thethe Borrower,Borrower, its its directors, directors, shareholders shareholders or or creditors, creditors, any any Indemnified Party oror anyany otherother Person,Person, whetherwhether or or not not any any Indemnified Indemnified Party Party is is otherwise otherwise a aparty party thereto and whether oror notnot thethe TransactionTransaction isis consummated.consummated. TheThe Borrower Borrower also also agrees agrees not not to to assert any claim againstagainst thethe AdministrativeAdministrative Agent, Agent, any any Lender Lender or or any any of oftheir their Affiliates, Affiliates, or or any any of their respective officers,officers, directors,directors, employees,employees, agents,agents, trusteestrustees andand advisors,advisors, onon anyany theorytheory ofof liability, for special,special, indirect,indirect, consequentialconsequential or or punitive punitive damages damages arising arising out out of of or or otherwise otherwise relating to the actualactual oror proposedproposed useuse ofof the the proceedsproceeds of of the the Loans, Loans, the the Transaction Transaction Documents Documents or or any of the transactions contemplatedcontemplated byby thethe TransactionTransaction Documents. Documents.
(c) If any payment of principal of,of, oror ConversionConversion of,of, anyany Eurodollar Eurodollar Rate Rate Loan is made byby thethe BorrowerBorrower toto oror for for thethe accountaccount of of a a Lender Lender other other than than on on the the last last day day of of the the Interest Period forfor suchsuch LoanLoan asas aa resultresult of of a a payment payment or or Conversion Conversion pursuant pursuant to to Section Section 2.05, 2.05, 2.08(b)(i)2.08 b i or or 2.09(d), 2.09(d), acceleration acceleration of of the the maturity maturity of of the the Loans Loans pursuant pursuant to to Section Section 6.01 6.01 oror for for any other reason, oror ifif the the BorrowerBorrower failsfails toto makemake any any payment payment or or prepayment prepayment of of an an Loan Loan for for which a notice ofof prepayment prepayment hashas beenbeen givengiven oror thatthat isis otherwiseotherwise requiredrequired toto bebe made,made, whetherwhether pursuant to SectionSection 2.04,2.04, 2.052.05 oror Section Section 6.01 6.01 oror otherwise, otherwise, the the Borrower Borrower shall, shall, upon upon demand demand by by such Lender (with(with aa copycopy ofof such such demanddemand toto thethe AdministrativeAdministrative Agent), Agent), pay pay to to the the Administrative AgentAgent forfor thethe accountaccount of of such such Lender Lender any any amounts amounts required required to to compensate compensate such such Lender for any additional losses,losses, costs oror expensesexpenses thatthat itit maymay reasonablyreasonably incurincur asas aa resultresult ofof such payment oror ConversionConversion oror suchsuch failurefailure toto paypayor or prepay, prepay, as as the the case case may may be, be, including, including, without limitation,limitation, anyany lossloss (but(but excludingexcluding loss loss of of anticipated anticipated profits), profits), cost cost or or expense expense incurred incurred by reason ofof the liquidationliquidation oror reemploymentreemployment of of deposits deposits or or other other funds funds acquired acquired by by any any Lender Lender to fund or maintainmaintain suchsuch Loan.Loan.
(d) If the Borrower fails toto pay whenwhen duedue anyany costs,costs, expensesexpenses oror other other amounts payable byby itit underunder anyany LoanLoan Document,Document, including, including, without without limitation, limitation, fees fees and and expenses of counsel andand indemnities,indemnities, suchsuch amountamount may may be be paid paid on on behalf behalf of of the the Borrower Borrower by by the the Administrative Agent oror anyany Lender, inin itsits solesole discretion.discretion.
(e) Without prejudice to the survivalsurvival ofof any any otherother agreement agreement ofof the the BorrowerBorrower hereunder or underunder anyany otherother Loan Loan Document,Document, the the agreements agreements and and obligations obligations of of the the Borrower Borrower contained in this SectionSection 8.048.04 shallshall survivesurvive thethe paymentpayment in in full full of of principal, principal, interest interest and and all all other other amounts payable hereunderhereunder andand underunder anyany ofof the the other other Loan Loan Documents. Documents.
EBG Holdings LLC 686$ Credit Agreement NY1:#3437976vllNY 1:#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 488 of 510
SECTION 8.05. RightRight ofof Set-of£ Set-off. UponUpon (a) (a) the the occurrence occurrence and and during during the the continuance of anyany EventEvent ofof Default Default and and (b)(b) the the making making of of the the request request or or the the granting granting of of the the consent specifiedspecified byby SectionSection 6.016.01 toto authorizeauthorize the the Administrative Administrative Agent Agent to to declare declare the the Loans Loans due due and payable pursuant toto thethe provisionsprovisions of of Section Section 6.01, 6.01, the the Administrative Administrative Agent Agent and and each each Lender and eacheach ofof their respectiverespective AffiliatesAffiliates is is hereby hereby authorized authorized at at any any time time and and from from time time to to time, toto thethe fullestfullest extentextent permittedpermitted by by law, law, to to set set off off and and otherwise otherwise apply apply any any and and all all deposits deposits (general or special, timetime oror demand,demand, provisionalprovisional oror final) final) at at any any time time held held and and other other indebtedness indebtedness at any time owingowing byby thethe AdministrativeAdministrative Agent, Agent, such such Lender Lender or or such such Affiliate Affiliate to to or or for for the the credit credit or the account of the BorrowerBorrower againstagainst any any and and allall ofof the the Obligations Obligations of of the the Borrower Borrower now now or or hereafter existing underunder thethe LoanLoan Documents,Documents, irrespective irrespective of of whether whether the the Administrative Administrative Agent Agent or such Lender shallshall havehave mademade anyany demanddemand under under this this Agreement Agreement and and although although such such Obligations may be unmatured. TheThe Administrative Administrative Agent Agent and and each each Lender Lender agrees agrees promptly promptly to to notify the Borrower afterafter anyany suchsuch set-offset-off and and application; application; provided, however,however, that the failurefailure toto give such notice shall not affect the validity ofof such such set-offset-off and and application.application. TheThe rights rights of of the the Administrative AgentAgent andand eacheach LenderLender and and their their respective respective Affiliates Affiliates under under this this Section Section are are in in addition to other rights and remedies (including,(including, withoutwithout limitation,limitation, otherother rightsrights ofof set-of~ set-oft) thatthat the Administrative Agent,Agent, suchsuch LenderLender and and their their respective respective Affiliates Affiliates may may have. have.
SECTION 8.06. Bindin~Binding Effect.Effect. ThisThis Agreement Agreement shall shall become become effective effective whenwhen itit shall have been executed byby thethe BorrowerBorrower and and the the Administrative Administrative Agent Agent and and the the Administrative Administrative Agent shall havehave beenbeen notifiednotified byby eacheach Initial Initial Lender Lender that that such such Initial Initial Lender Lender has has executed executed it it and and thereafter shallshall bebe bindingbinding uponupon andand inureinure to to the the benefit benefit of of the the Borrower, Borrower, the the Administrative Administrative Agent andand eacheach LenderLender andand theirtheir respective respective successors successors and and assigns, assigns, except except that that the the Borrower Borrower shall not have the rightright toto assignassign itsits rightsrights hereunder hereunder or or any any interest interest herein herein without without the the prior prior written consent ofof each each Lender.Lender.
SECTION 8.07. Assi~nmentsAssignments andand Participations. (a)(a) Each Each Lender Lender may may assign assign to to one or more Eligible AssigneesAssignees allall oror a a portionportion of of its its rights rights and and obligations obligations under under this this Agreement Agreement (including, without limitation,limitation, allall oror a a portionportion of of the the Loans Loans owing owing to to it it and and the the Note Note or or Notes Notes held by it);it); provided, however,however, that (i) except inin thethe casecase ofof an an assignmentassignment to to aa PersonPerson that, that, immediately prior toto suchsuch assignment,assignment, waswas a a Lender,Lender, anan Affiliate Affiliate of of any any Lender Lender or or an an Approved Approved Fund ofof any any LenderLender or or an an assi~nment assignment of of all all of of a~~~dex's a L~nder's cxghts rights and and obli~atic~ns obligations und~r under this this Agreement, thethe aggregateaggregate amountamount of of the the Commitments Commitments being being assigned assigned to to such such Eligible Eligible Assignee Assignee pursuant to such assignmentassignment (determined(determined as as of of the the date date of of the the Assignment Assignment and and Acceptance Acceptance with with respect toto suchsuch assignment)assignment) shallshall inin nono event event be be less less than than $1,000,000 $1 ,000,000 (or (or such such lesser lesser amount amount as as shall be approved byby thethe AdministrativeAdministrative AgentAgent and, and, soso longlong as as no no Event Event of of Default Default has has occurred occurred and is continuing, thethe Borrower),Borrower), provided that simultaneous assignmentsassignments byby twotwo oror moremore Related Funds shallshall bebe treatedtreated asas oneone assignmentassignment for for purposes purposes of of the the minimum minimum assignment assignment requirement, (ii)(ii) eacheach suchsuch assignmentassignment shallshall bebe to to anan Eligible Eligible Assignee, Assignee, and and to to the the extent extent such such assignment is to anyany EligibleEligible AssigneeAssignee that,that, immediatelyimmediately prior prior to to such such assignment, assignment, was was not not a a Lender, anan Affiliate ofof a a LenderLender or or an an ApprovedApproved Fund, Fund, the the Administrative Administrative Agent Agent shall shall have have consented to such assignmentassignment (in(in eacheach casecase such such consent consent not not to to be be unreasonably unreasonably withheld withheld or or delayed), (iii)(iii) eacheach suchsuch assignmentassignment mademade asas a a result result of of a a demand demand by by the the Borrower Borrower pursuant pursuant to to Section S.O18.01 shallshall bebe arranged by the Borrower afterafter consultationconsultation with with the the Administrative Administrative Agent Agent and shall be eithereither anan assignmentassignment ofof all all ofof the the rights rights and and obligations obligations of of the the assigning assigning Lender Lender under this Agreement oror anan assignmentassignment of of a a portion portion of of such such rights rights and and obligations obligations made made concurrently with anotheranother suchsuch assignmentassignment or or other other such such assignments assignments that that together together cover cover all all of of
EBG Holdings LLC 69 Credit Agreement NYl:#3437976vllNY1:#3437976v1( 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 489 of 510
the rights and obligationsobligations ofof the the assigningassigning LenderLender underunder thisthis Agreement,Agreement, (iv)(iv) nono LenderLender shall shall be be obligated to make anyany suchsuch assignmentassignment asas aa resultresult ofof a a demanddemand byby thethe BorrowerBorrower pursuant pursuant to to Section 2.16 or Section 8.018.01 unlessunless andand untiluntil suchsuch LenderLender shallshall havehave receivedreceived oneone oror moremore payments from eithereither thethe BorrowerBorrower oror oneone oror moremore EligibleEligible AssigneesAssignees inin anan aggregateaggregate amountamount at at least equal toto thethe aggregateaggregate outstandingoutstanding principal principal amount amount of of the the Advances Advances owing owing to to such such Lender, Lender, together with accruedaccrued interestinterest thereonthereon toto thethe datedate ofof payment payment of of such such principalprincipal amountamount and and all all other amounts payable toto suchsuch LenderLender underunder thisthis Agreement,Agreement, (v)(v) nono suchsuch assignmentsassignments shallshall bebe permitted without thethe consentconsent ofof the the AdministrativeAdministrative AgentAgent until until thethe AdministrativeAdministrative AgentAgent shall shall have notified the Lender thatthat syndicationsyndication ofof the the CommitmentsCommitments hereunder hereunder hashas beenbeen completedcompleted andand (vi) the parties toto eacheach suchsuch assignmentassignment shall shall execute execute and and deliver deliver to to the the Administrative Administrative Agent, Agent, for its acceptance andand recordingrecording in in thethe Register, Register, an an Assignment Assignment and and Acceptance Acceptance via via an an electronic electronic settlement system acceptable toto thethe AdministrativeAdministrative AgentAgent (ar,(or, ifif previously previously agreed agreed withwith the the Administrative Agent, manually),manually), togethertogether withwith (A)(A) anyany NoteNote aror Notes Notes (if (if any) any) subjectsubject to to such such assignment (B) anan administrativeadministrative questionnairequestionnaire andand taxtax forms,forms, ifif applicable applicable andand (C)(C) aa processingprocessing and recordation feefee ofof$3,500 $3,500 (which (which fee fee maymay be be waived waived or or reduced reduced in in the the sole sole discretion discretion of of the the Administrative Agent); provided, however,however, that only one suchsuch feefee shallshall bebe payablepayable with respectrespect to simultaneoussimultaneous assignmentsassignments byby oror toto oneone oror moremore RelatedRelated Funds;Funds; provided further that for each such assignment made asas aa resultresult toto aa demanddemand byby thethe BorrowerBorrower pursuantpursuant toto SectionSection 2.162.16 oror Section 8.01, the BorrowerBorrower shallshall paypay to to thethe AdministrativeAdministrative Agent Agent the the applicable applicable processing processing and and recordation fee.fee.
(b) Upon such execution, delivery,delivery, acceptanceacceptance andand recording,recording, fromfrom and and after after the effective datedate specifiedspecified in in suchsuch Assignment Assignment and and Acceptance, Acceptance, (i) (i) the the assignee assignee thereunder thereunder shall shall be a party heretohereto and,and, toto thethe extentextent that that rights rights and and obligations obligations hereunder hereunder have have been been assigned assigned to to it it pursuant to suchsuch AssignmentAssignment andand Acceptance,Acceptance, havehave thethe rightsrights andand obligationsobligations ofof a a LenderLender hereunder and (ii)(ii) thethe LenderLender assignor assignor thereunder thereunder shall, shall, to to the the extent extent that that rights rights and and obligations obligations hereunder have beenbeen assignedassigned byby itit pursuantpursuant toto suchsuch AssignmentAssignment andand Acceptance,Acceptance, relinquishrelinquish itsits rights (other thanthan itsits rightsrights underunder SectionsSections 2.09,2.09, 2.112.11 andand 8.048.04 toto thethe extentextent any any claimclaim thereunderthereunder relates to an event arisingarising priorprior toto suchsuch assignment)assignment) andand bebe releasedreleased fromfrom itsits obligationsobligations underunder this Agreement (and,(and, inin thethe casecase ofof an an Assignment Assignment and and Acceptance Acceptance covering covering all all of of the the remaining remaining portion of an assigning Lender'sLender's rights rights and and obligations obligations under under this this Agreement, Agreement, such such Lender Lender shall shall cease to be aa partyparty hereto).hereto).
(c) By executing and delivering anan AssignmentAssignment and and Acceptance, Acceptance, each each Lender Lender assignor thereunder andand eacheach assigneeassignee thereunderthereunder confirm confirm to to and and agree agree with with each each other other and and the the other parties thereto andand heretohereto asas follows:follows: (i)(i) other other than than as as provided provided in in such such Assignment Assignment and and Acceptance, suchsuch assigningassigning Lender Lender makes makes no no representation representation or or warranty warranty and and assumes assumes no no responsibility withwith respectrespect toto anyany statements, statements, warranties warranties or or representations representations made made in in or or in in connection withwith anyany LoanLoan DocumentDocument or or the the execution,execution, legality, legality, validity, validity, enforceability, enforceability, genuineness, sufficiencysufficiency oror value value of,of, oror the the perfectionperfection or or priority priority of of any any lien lien or or security security interest interest created or purported toto bebe createdcreated underunder or or in in connection connection with, with, any any Loan Loan Document Document or or any any other other instrument or documentdocument furnishedfurnished pursuantpursuant thereto; thereto; (ii) (ii) such such assigning assigning Lender Lender makes makes no no representation oror warrantywarranty andand assumesassumes no no responsibility responsibility with with respect respect to to the the financial financial condition condition of the Borrower oror thethe performanceperformance oror observance observance by by the the Borrower Borrower of of any any of of its its obligations obligations under any Loan DocumentDocument or or anyany other other instrument instrument or or document document furnished furnished pursuant pursuant thereto; thereto; (iii) such assignee confirmsconfirms thatthat itit hashas receivedreceived aa copycopy ofof this this Agreement,Agreement, togethertogether withwith copiescopies ofof the financial statementsstatements referredreferred toto in in SectionSection 4.01 4.01 andand such such other other documents documents and and information information as as
EBG Holdings LLC 707~ CreditCrediC AgreementAgreement NY1:#3437976vllNYI:#3437976v11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 490 of 510
it has deemed appropriate toto makemake itsits ownown creditcredit analysisanalysis andand decisiondecision toto enterenter into into suchsuch Assignment andand Acceptance;Acceptance; (iv)(iv) suchsuch assigneeassignee will,will, independentlyindependently andand without without reliance reliance upon upon the Administrative Agent,Agent, suchsuch assigningassigning LenderLender or or any any otherother Lender Lender and and based based on on such such documents and information asas itit shallshall deemdeem appropriateappropriate atat thethe time,time, continuecontinue toto makemake itsits ownown credit decisions inin taking oror notnot taking actionaction underunder thisthis Agreement;Agreement; (v)(v) suchsuch assigneeassignee confirmsconfirms that itit isis an Eligible Assignee;Assignee; (vi)(vi) suchsuch assigneeassignee appointsappoints andand authorizesauthorizes thethe AdministrativeAdministrative Agent to take suchsuch actionaction asas agentagent onon itsits behalfbehalf and and toto exerciseexercise suchsuch powers powers and and discretion discretion under under the Loan Documents asas areare delegateddelegated toto thethe AdministrativeAdministrative AgentAgent by by thethe terms terms hereof hereof and and thereof, togethertogether with suchsuch powerspowers andand discretiondiscretion asas are are reasonably reasonably incidentalincidental thereto; thereto; andand (vii) (vii) such assignee agrees that itit will performperform inin accordanceaccordance withwith theirtheir termsterms allall ofof the the obligationsobligations thatthat by the terms ofof this Agreement areare requiredrequired toto bebe performed performed byby itit asas aa Lender.Lender.
(d) The Administrative Agent, actingacting for this purposepurpose (but(but onlyonly forfor thisthis purpose) asas thethe agentagent ofofthe the Borrower,Borrower, shallshall maintainmaintain atat its its addressaddress referredreferred to to inin SectionSection 8.02 8.02 aa copy of each AssignmentAssignment andand AcceptanceAcceptance delivered delivered to to and and accepted accepted by by it itand and a aregister register for for the the recordation of the names andand addressesaddresses ofof the the LendersLenders andand principalprincipal amountamount of ofthe the Loans Loans owing owing to each Lender fromfrom timetime toto timetime (the(the "Register"). The entries in the Register shallshall bebe conclusive and binding for allall purposes, absentabsent manifestmanifest error,error, andand thethe Borrower,Borrower, thethe Administrative Agent andand thethe LendersLenders shallshall treattreat each each PersonPerson whosewhose name name is is recordedrecorded in in thethe Register as a Lender hereunderhereunder forfor allall purposespurposes ofof this this Agreement.Agreement. TheThe Register Register shall shall be be available for inspection by the BorrowerBorrower oror thethe AdministrativeAdministrative AgentAgent or or any any LenderLender at at anyany reasonable time andand fromfrom timetime toto timetime uponupon reasonablereasonable priorprior notice.notice.
(e) Upon its receipt ofof an an AssignmentAssignment and and Acceptance Acceptance executed executed by by an an assigning Lender and anan assignee, togethertogether withwith anyany NoteNote oror NotesNotes (if(if any) any) subjectsubject to to suchsuch assignment, the Administrative AgentAgent shall,shall, ifif such such AssignmentAssignment andand Acceptance Acceptance has has been been completed and isis inin substantiallysubstantially thethe formform ofof Exhibit Exhibit CC hereto,hereto, (i)(i) acceptaccept such such Assignment Assignment and and Acceptance, (ii)(ii) recordrecord thethe informationinformation containedcontained thereintherein inin thethe RegisterRegister and and (iii)(iii) give give promptprompt notice thereof to the Borrower.Borrower. IfIfrequested, requested, in in the the case case of of any any assignment assignment by by a aLender, Lender, within within 10 Business Days after itsits receiptreceipt ofof such such notice,notice, the the Borrower, Borrower, at at its its own own expense, expense, shall shall execute execute and deliver toto thethe AdministrativeAdministrative Agent Agent in in exchange exchange for for the the surrendered surrendered Note Note or or Notes Notes (if (if any) any) an amended andand restated restated Note Note (wk~ich (which shall bebe markedmarked "Amended and Restated")Restated') to the account of such Eligible AssigneeAssignee inin anan amountamount equalequal toto thethe CommitmentCommitment assumedassumed byby it it under under thethe Facility pursuant to suchsuch Assignment andand AcceptanceAcceptance and,and, ifif any any assigningassigning LenderLender that that had had aa Note oror Notes priorprior toto suchsuch assignmentassignment hashas retainedretained aa CommitmentCommitment hereunder hereunder under under the the Facility, Facility, an amended andand restatedrestated NoteNote to to thethe account account of of such such assigning assigning Lender Lender in in an an amount amount equal equal to to the the Commitment retained byby itit hereunder. SuchSuch amended amended and and restated restated Note Note or or Notes Notes shall shall be be dated dated the effective datedate ofof such such AssignmentAssignment andand AcceptanceAcceptance andand shallshall otherwiseotherwise be be inin substantiallysubstantially the the form of ExhibitE~ibit AA hereto.
(f)( fl Each Lender maymay sellsell participationsparticipations toto oneone or or more more Persons Persons (other (other than than the the Borrower oror anyany ofof its its Subsidiaries)Subsidiaries) inin oror toto allall oror a a portionportion ofof its its rightsrights andand obligationsobligations underunder this Agreement (including,(including, withoutwithout limitation,limitation, allall oror a a portionportion ofof the the LoansLoans owing owing to to itit and and thethe Note oror Notes (if(if any) any) heldheld byby it);it); provided, however,however, that (i) such Lender's obligationsobligations underunder this Agreement shallshall remainremain unchanged,unchanged, (ii)(ii) suchsuch Lender Lender shall shaH remainremain solelysolely responsible responsible toto thethe other parties heretohereto forfor thethe performanceperformance of of such such obligations, obligations, (iii) (iii) such such Lender Lender shall shall remain remain the the holder ofof anyany suchsuch Note forfor allall purposespurposes ofof this this Agreement,Agreement, (iv)(iv) thethe Borrower,Borrower, the the
EBG Holdings LLC 71 Credit Agreement NYl:#3437976vllNY 1:#3437976v 1 I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 491 of 510
Administrative Agent andand thethe otherother LenderLender shall shall continuecontinue to to deal deal solely solely and and directly directly with with such such Lender in connection with such Lender's rightsrights andand obligationsobligations underunder this this AgreementAgreement andand (v)(v) nono participant under anyany suchsuch participationparticipation shallshall havehave any any rightright to to approve approve any any amendment amendment or or waiver of any provision ofof any any LoanLoan Document,Document, oror any any consentconsent to to any any departure departure by by the the Borrower Borrower therefrom, except toto thethe extentextent thatthat suchsuch amendment,amendment, waiver waiver or or consent consent would would reduce reduce the the principal of, or interestinterest on,on, thethe LoansLoans oror any any feesfees oror other other amounts amounts payable payable hereunder, hereunder, in in each each case to the extent subjectsubject toto suchsuch participation,participation, postponepostpone any any date date fixed fixed for for any any payment payment of of principal of, or interestinterest on,on, thethe LoansLoans oror anyany feesfees oror other other amounts amounts payable payable hereunder, hereunder, in in each each case to the extent subjectsubject toto suchsuch participation.participation.
(g) Any Lender may,may, inin connectionconnection withwith anyany assignmentassignment or or participation participation or or proposed assignment oror participationparticipation pursuantpursuant to to this this Section Section 8.07, 8.07, disclose disclose to to the the assignee assignee or or participant or proposed assigneeassignee oror participant participant any any information information relating relating to to the the Borrower Borrower furnished to such Lender byby oror onon behalfbehalf of of the the Borrower;Borrower; provided, however,however, that, prior to any such disclosure, the assignee oror participantparticipant oror proposedproposed assignee assignee or or participant participant shall shall agree agree to to preserve the confidentiality ofof any any ConfidentialConfidential Information Information received received by by it it from from such such Lender. Lender.
(h) Notwithstanding anyany otherother provisionprovision setset forth forth inin thisthis Agreement, Agreement, any any Lender may at any timetime createcreate aa securitysecurity interestinterest in in all all or or any any portion portion of of its its rights rights under under this this Agreement (including, withoutwithout limitation,limitation, thethe LoansLoans owing owing to to it it and and the the Note Note or or Notes Notes (if (if any) any) held by it) in favor ofof any any FederalFederal ReserveReserve BankBank in in accordanceaccordance with with Regulation Regulation A A of of the the Board Board of Governors of the FederalFederal ReserveReserve System.System.
(i) Notwithstanding anythinganything toto thethe contrarycontrary containedcontained herein, herein, any any Lender Lender that isis a Fund maymay createcreate aa securitysecurity interestinterest in in allall oror any any portion portion of of the the Loans Loans owing owing to to it it and and any any Note or Notes heldheld byby itit toto thethe trusteetrustee forfor holdersholders of of obligations obligations owed, owed, or or securities securities issued, issued, by by such Fund as securitysecurity forfor suchsuch obligationsobligations oror securities; securities; provided that, unless and until suchsuch trustee actually becomesbecomes aa LenderLender in in compliancecompliance with with the the other other provisions provisions of of this this Section Section 8.07, 8.07, (i) no such pledge shallshall releaserelease thethe pledgingpledging LenderLender from from anyany of of its its obligations obligations under under the the Loan Loan Documents and (ii)(ii) suchsuch trusteetrustee shallshall notnot bebe entitledentitled to to exerciseexercise any any of of the the rights rights of of a a Lender Lender under the Loan Documents eveneven thoughthough suchsuch trusteetrustee may may have have acquired acquired ownership ownership rights rights with with respect to the pledged interestinterest throughthrough foreclosureforeclosure oror otherwise. otherwise.
G)(j) Notwithstanding anythinganything toto thethe contrarycontrary containedcontained herein, herein, anyany LenderLender (a (a "Granting Lender") may grant to aa specialspecial purposepurpose fundingfunding vehiclevehicle identifiedidentified asas suchsuch in in writing writing from time to time byby the GrantingGranting LenderLender toto thethe AdministrativeAdministrative Agent Agent and and the the Borrower Borrower (an (an "SPC')"SPC") the option toto provide allall oror anyany partpart ofof any any LoanLoan that that such such Granting Granting Lender Lender would would otherwise be obligated toto makemake pursuantpursuant toto thisthis Agreement;Agreement; provided that (i) nothing hereinherein shallshall constitute a commitment byby anyany SPCSPC toto fundfund anyany LoanLoan and and (ii) (ii) if if an an SPC SPC elects elects not not to to exercise exercise such option or otherwise failsfails toto makemake allall oror any any partpart of of such such Loan, Loan, the the Granting Granting Lender Lender shall shall be be obligated to make such Loan pursuant to the terms hereof. EachEach party party hereto hereto hereby hereby agrees agrees thatthat (i) no SPC shall be liableliable forfor anyany indemnityindemnity oror similar similar payment payment obligation obligation under under this this Agreement Agreement for which a Lender wouldwould bebe liable,liable, (ii)(ii) nono SPCSPC shallshall bebe entitled entitled to to the the benefits benefits of of Sections Sections 2.09 2.09 and 2.11 (or any otherother increasedincreased costscosts protectionprotection provision)provision) and and (iii) (iii) the the Granting Granting Lender Lender shall shall for all purposes, including,including, withoutwithout limitation,limitation, thethe approvalapproval of of any any amendment amendment or or waiver waiver of of any any provision of any Loan Document, remain the Lender of record hereunder.hereunder. InIn furtherance furtherance of of the the foregoing, each party heretohereto herebyhereby agreesagrees (which(which agreementagreement shall shall survive survive the the termination termination of of this this
EBG Holdings LLC 72~]2, Credit Agreement NY 1:#3437976v1:#3437976v 1 11 I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 492 of 510
Agreement) that,that, priorprior toto thethe datedate thatthat is is one one year year and and one one day day after after the the payment payment in in full full of of all all outstanding commercial paper oror otherother seniorsenior DebtDebt ofof any any SPC,SPC, itit willwill notnot instituteinstitute against,against, oror join anyany otherother personperson inin institutinginstituting against,against, suchsuch SPC SPC any any bankruptcy, bankruptcy, reorganization, reorganization, arrangement, insolvencyinsolvency oror liquidationliquidation proceedingproceeding under under the the laws laws of of the the United United States States or or any any State thereof. NotwithstandingNotwithstanding anything anything to to the the contrary contrary contained contained in in this this Agreement, Agreement, any any SPC SPC may (i) with notice to, but without prior consentconsent of,of, thethe BorrowerBorrower andand thethe AdministrativeAdministrative AgentAgent and with the payment ofof a a processingprocessing fee fee ofof $500, $500, assign assign all all or or any any portion portion of of its its interest interest in in any any Loan to the Granting Lender andand (ii)(ii) disclosedisclose onon aa confidentialconfidential basisbasis anyany non-publicnon-public informationinformation relating to itsits fundingfunding ofof Loans Loans toto anyany ratingrating agency, agency, commercial commercial paper paper dealer dealer or or provider provider of of any any surety or guarantee or credit or liquidityliquidity enhancementenhancement toto suchsuch SPC.SPC. ThisThis subsection subsection (i) (j) may may not not be amended without thethe priorprior written written consentconsent of of each each Granting Granting Lender, Lender, all all or or any any part part of of whose whose Loans are being fundedfunded byby thethe SPCSPC at at the the time time of of such such amendment. amendment.
SECTION 8.08. ExecutionExecution inin Counterparts.Counterparts. ThisThis Agreement Agreement may may be be executed executed in in any number ofof counterparts counterparts andand byby different different parties parties hereto hereto in in separate separate counterparts, counterparts, each each of of which when soso executedexecuted shallshall bebe deemeddeemed toto bebe anan originaloriginal andand allall ofof which which takentaken togethertogether shall shall constitute one and the samesame agreement.agreement. ElectronicElectronic delivery delivery (by (by telecopier telecopier or or portable portable document document format (pd(pdf) fl) of an executed counterpart ofof a a signaturesignature page page to to thisthis Agreement Agreement shall shall be be effective effective as delivery ofof an an originaloriginal executedexecuted counterpart counterpart of of this this Agreement. Agreement.
SECTION 8.09. ConfidentialitConfidentiality.y. NeitherNeither the the AdministrativeAdministrative AgentAgent nornor any any Lender shall disclosedisclose anyany ConfidentialConfidential Information Information to to any any Person Person without without the the consent consent of of the the Borrower, other than (a)(a) to thethe AdministrativeAdministrative Agent'sAgent's or or such such Lender's Lender's Affiliates Affiliates and and their their officers, directors, employees,employees, agents,agents, trusteestrustees and and advisors advisors and and to to actual actual or or prospective prospective Eligible Eligible Assignees and participants,participants, andand thenthen only only on on a a confidential confidential basis, basis, (b} (b) as as required required by by any any law, law, rule rule or regulation oror judicial process,process, (c)(c) asas requestedrequested or or required required by by any any state, state, Federal Federal or or foreign foreign authority oror examinerexaminer (including(including thethe NationalNational Association Association of oflnsurance Insurance Commissioners Commissioners or or any any similar organization oror quasi-regulatoryquasi-regulatory authority)authority) regulating regulating such such Lender, Lender, (d) (d) to to any any rating rating agency when requiredrequired byby it,it, provided that, prior toto anyany suchsuch disclosure,disclosure, suchsuch rating rating agencyagency shall shall undertake to preservepreserve thethe confidentialityconfidentiality of of any any Confidential Confidential Information Information relating relating to to the the Borrower received byby itit fromfrom suchsuch Lender, Lender, (e) (e) in in connection connection with with any any litigation litigation or or proceeding proceeding to to which the Administrative AgentAgent oror suchsuch LenderLender oror anyany ofof its its AffiliatesAffiliates maymay bebe aa partyparty oror (f)(fl in connection with thethe exerciseexercise ofof any any rightright or or remedy remedy under under this this Agreement Agreement or or any any other other Loan Loan Document.
SECTION 8.10. PatriotPatriot ActAct Notice.Notice. EachEach Lender Lender and and the the Administrative Administrative AgentAgent (for itself and notnot onon behalfbehalf of of any any Lender)Lender) hereby hereby notifies notifies the the Borrower Borrower that that pursuant pursuant to to the the requirements ofof the the PatriotPatriot Act,Act, itit isis requiredrequired to to obtain, obtain, verify verify and and record record information information that that identifies the Borrower, whichwhich informationinformation includes includes the the name name and and address address of of the the Borrower Borrower and and other information thatthat willwill allowallow suchsuch Lender Lender or or the the Administrative Administrative Agent, Agent, as as applicable, applicable, to to identify the Borrower inin accordance with thethe Patriot Act.Act. TheThe Borrower Borrower shall, shall, and and shall shall cause cause each of its SubsidiariesSubsidiaries to,to, provideprovide suchsuch informationinformation and and take take such such actions actions as as are are reasonably reasonably requested by thethe AdministrativeAdministrative AgentAgent or or any any Lender Lender in in order order to to assist assist the the Administrative Administrative Agent Agent and the Lender inin maintainingmaintaining compliancecompliance with with the the Patriot Patriot Act. Act.
SECTION 8.11.8.11. Jurisdiction, Etc. (a)(a) EachEach of of the the parties parties hereto hereto hereby hereby irrevocably and unconditionallyunconditionally submits,submits, forfor itself itself and and its its property, property, to to the the nonexclusive nonexclusive
EBG Holdings LLC 73 Credit Agreement NY 1:#3437976v 11 I I 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 493 of 510
jurisdictionjurisdiction of of any any NewNew York York State State court court or or Federal Federal court court of of the the United United States States of of America America sitting sitting in New YorkYork City,City, andand anyany appellateappellate court court from from any any thereof, thereof, in in any any action action or or proceeding proceeding arising arising out ofof or or relatingrelating toto thisthis AgreementAgreement or or any any of of the the other other Loan Loan Documents Documents to to which which it itis is a aparty, party, or or for recognition oror enforcementenforcement ofof any any judgment, judgment, and and each each of of the the parties parties hereto hereto hereby hereby irrevocably andand unconditionallyunconditionally agreesagrees that that all all claims claims in in respect respect of of any any such such action action or or proceeding proceeding may be heardheard andand determineddetermined inin any any suchsuch New New York York State State court court or, or, to to the the fullest fullest extent extent permitted permitted by law, inin suchsuch Federal court.court. EachEach of of the the parties parties hereto hereto agrees agrees that that a afinal final judgment judgment in in any any such such action oror proceedingproceeding shallshall bebe conclusive conclusive and and may may be be enforced enforced in in other other jurisdictions jurisdictions by by suit suit on on the the judgmentjudgment oror inin anyany otherother mannermanner providedprovided byby law.law. NothingNothing in in this this Agreement Agreement shall shall affectaffect any any right thatthat anyany partyparty maymay otherwiseotherwise havehave to to bring bring any any action action or or proceeding proceeding relating relating to to this this Agreement oror anyany ofof the the otherother Loan Loan Documents Documents in in the the courts courts of of any any jurisdiction. jurisdiction.
(b) Each of the parties heretohereto irrevocablyirrevocably andand unconditionally unconditionally waives, waives, to to the the fullest extent itit maymay legallylegally andand effectivelyeffectively do do so, so, any any objection objection that that it it may may now now or or hereafter hereafter have have to thethe layinglaying ofof venue venue ofof any any suit,suit, actionaction or or proceeding proceeding arising arising out out of of or or relating relating to to this this Agreement oror anyany ofof the the otherother Loan Loan Documents Documents to to which which it it is is a a party party in in any any New New York York State State or or Federal court. EachEach of of the the parties parties hereto hereto hereby hereby irrevocably irrevocably waives, waives, to to the the fullest fullest extent extent permitted byby law,law, thethe defensedefense ofof an an inconvenientinconvenient forumforum toto thethe maintenancemaintenance ofof such such actionaction oror proceeding inin anyany suchsuch court.court.
SECTION 8.12. Governin~Governing Law.Law. ThisThis Agreement Agreement and and the the Notes Notes shall shall bebe governed by,by, andand construedconstrued inin accordanceaccordance with, with, the the internal internal laws laws of of the the State State of of New New York. York.
SECTION 8_13.8.13. Waiver ofof Ju Jury , ~r~. Trial. Each Each of ofthe the Borrower, Borrower, the the Administrative Administrative Agent and thethe LenderLender irrevocablyirrevocably waives,waives, to to the the fullest fullest extent extent permitted permitted by by applicable applicable law, law, all all right to trial byby juryjury inin anyany action,action, proceedingproceeding or or counterclaim counterclaim (whether (whether based based on on contract, contract, tort tort or or otherwise) arising out ofof oror relating toto anyany ofof the the LoanLoan Documents,Documents, thethe LoansLoans oror thethe actionsactions ofof the Administrative Agent oror anyany LenderLender inin thethe negotiation,negotiation, administration,administration, performanceperformance oror enforcement thereof.thereof.
EBG Holdings LLC 74 Credit Agreement NYl:#3437976vllNY 1:#3437976v 11 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 494 of 510
ININ WITNESS WHEREOF, thethe partiesparties heretohereto havehave causedcaused this this Agreement Agreement to to be be executed by their respective officersofficers thereuntothereunto dulyduly authorized,authorized, as as ofof the the date date first first above above written. written.
EBG HOLDINGS LLC, as Borrower
By:.By: __.....,...... ,~~~~_~-,-- ` __ Name: 1,'1\ ~~ ~ e~ C~- Title: ~,~~;'1>, • ...-... (. '6,
[Signature Page -- EBGEBG HoldingsHoldings CreditCredit Agreement] Agreement] 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 495 of 510
CREDITCREDIT SUISSE, SUISSE, CAYMAN CAYMAN ISLANDSISLANDS BRANCH,BRANCH, asAdm,~as Administrative ' nt BY:By: ___ ~__ -t- ______Name:Name: ::s~-..Sti~.,.< .... ti.~«.,,",,-.u~v,
Title:Title: ~#- v~....,,~V' t)~rc.~ ~;,~.~
BY:By: ___ ..::...... "--+_+- _____ Name:Name: N ~~~ ~N'~`'tZ Title:Title: ~~%~~ ~'`S S
BostonBoston Generating, Generating, LLC LLC EBGEBG Holdings Holdings Credit Credit Agreement Agreement NYNY I :i+3439953v2I :#3439953v2 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 496 of 510
GOLDMANGOLDMAN SACHS CREDITCREDIT PARTNERS,PARTNERS, L.P., asas Initial Len
By- Name: Title: BRUCEBRUCE H. MENUcL;.:llJr1iMcNLc~;~~,r~ ,• AUTHORIZED SIGNATORY
BostonBoston Generating,Generating. LLC LLC EBGEBG HoldingsHoldings CreditCredit AgreementAgreement NYI:#3439953v2NYU3439953v2 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 497 of 510
EXHIBIT H
12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 498 of 510
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12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 499 of 510
~~ Bc►st~.n ~ , Generat%ng, LLC The Schr~(ft Center 529 Mairi:Si~eet, Suife 605 CharlesjrnNri; .MR 02129 Tei: 61:7-381=227Q fax: 6:97=381-2211
Dece~ibec 21, 2006
US Banlc National Association Corporate Trust Department One Federal Street, 3`~ Floor Bos,ton„MA, ,Q2 Z 10
A~tenrion: David Ganss
R~: Closin~ Date Funds Plow Ivlemorandum
Dear Ivlr. Ganss, / ~ ~. ~/ Ttu's certif cate and instr;ucti~n is rielivered to you by Boston Generating; L.LG (the. `Borrower") p~suant to ~eation 322 of the S'ecurity Deposit.Agreement dated . as of December 2.I, . 200b (the~"SecuriiyDeposit A.greement") by and among the Borrower; the.Guarankors frorn titne fo time party`ti~ereto, Credit Suisse; Cayman Islands Branch, as First.Lien Collatera] Agent'aiid :as Second Lien.C~illaYerai Agerit~ and U S. Bank Nafional Association, as' Depositary (ihe "Depositarj~ ).: . An~ capifalized terms appearing herein but not .othenvise expressly defined Iierein,areused i~ith:tl~e meanings'assigned to thqse terms in the Securi_ty Deposit Agreement_
Attached hereto:is ~ true, accurate and complefe cogy of.the Glosing Date:~unds:.Flow Nlernoraudutn_ (the "FF1V1"). Tlie terms of the Closing Date Funds: ~'Iow Meuioraridurn applicalile to the Depositary, including the deposi .ts identifiedthexein to be made:.ta the..Depositary on the.:Gl~sing Date and the.transfers fo be made by the D .epositaryon the. dates~and'in th:e amounts specified in the Closing Date ~unds Elow Memorandum, are as:follows (and'ase'li~nited:fo the following}:
~i): the depos'its~listed on ttie third page (paDe entitled `Bostori. Generating, LLC, Fzsnds Flois~ Memoranrl:vn")~ of fhe FFM will be transferred io tfie`Depositary an the Glnsing: Date;
~ In the EXC£L file, the founfi tali, labeled "Boston Geneiatirig."
/ ~ ~ ~ 12-01879-mew Doc 272-1 Filed 04/03/19 Entered 04/03/19 17:58:34 Exhibit A Third Amended Complaint and Exhibits Pg 500 of 510
~\ \ ~ (ii) tTie disbursementslisted on the third page (page.entitled `Boston'Generating; LLC, Funds F1ow Memorandum")? o.f fhe FFM are to be:disbursed by 1he.Depositary on xhe Closing.Date (the details of such disbursements. for expenses:are more ~u11y descfibeii in (iy) belo.w;
!("iii) the Account ailocations lisfed on the fouith page (page enrit]ed "Boston Generatuig,. I;LC, Cash Calculatiori Worksheet")3 of the FF1yI are to be made by the Deposifary from, t3ie amounts deposited on. the: Closing Date;. and
{iv) the disbursements listed on the ei'gtith ;page under the caption "Boston Generating to . be. paid from.the Funding Accourit at US Bank„ABA# 09:2000022, A/C# 173iO3321092;. Ref; Boston Generating Fundin.g Account, Trust Acct # 126875-053, iinless indicated. as To Be Netted.from..~roceeds" (page entitled `Boston.Generating, LCC J EBG: Holdings; I.I:G; Fees arrd F.a~eiues")4, other than #hose li.sted as Underwriter ~ees: ancl Underwriter _Expenses (which are;indicated as "Ta Be Netted . From Proceeds") ~re to be- disbursed by the Depositary on the Clasing Date from the amounts deposited in the Funding Acconnt. _
The:Depositary. is .heieby authorized:and;ins4rucfed io:accept snch deposits and to make such allocations, transfers ,and paymenfs:in accoriiance ~vith the FFM.
This Certificafe has been.executed;$nd delivered by a dulyauthorized offcer of ttie Borrower.
~ ~ Very truly'yours, \ ~ BOSTON GENERATII~iG, LLC
., ~ey: Title: Nicholas P. Donahue Na~ne: Treasurer
' Iri the EXCEL file,:tlie fourth tab, labeled,`Bostnn Generating." 3 tnthe:EXCEL: file, the fifth iab, labeied "Cash Sweep." a In the. EXCEL file; the ainth . tab, Iabeled"Transaction Fees and Expenses."
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