20111101Compliance Filing Exhibit A.pdf

RECEiVEDø_
An IDACORP Company
IDAHO POWER COMPANY
P.O. BOX 70
BOISE, IDAHO 83707
zon OCT 31 PM 4: 51
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¡ ITIUI Pi- S í ,\ FVi in I ;:,,,.:lhJ, .,_r. PATRICK A. HARNGTON
Corporate Secretary
Ms. Jean D. Jewell
Secretary
Idaho Public Utilties Commission
Statehouse
Boise, Idaho 83720
October 31,2011
Re: In the Matter of the Application of Idaho Power Company for an
Order Authorizing up to $450,000,000 Aggregate Principal Amount
at any One Time Outstanding of Short-Term Borrowings
Case No. IPC-E-11-12
Dear Ms. Jewell:
Enclosed for filing with the Idaho Public Utilities Commission as Exhibit A in the
above referenced case are four (4) copies of Idaho Power's Credit Agreement dated
October 26, 2011. Please feel free to contact me at pharrngton~idahopower.com or
388-2878 or at if you have any questions regarding ths filing.
Sincerely,
c: Ter Carlock fa 1111
(00062267.DOC; 1)
Telephone [phone], Fax [phone]
pharrington(gdahopower.eom
.
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CUSIP Number: Deal #
Revolving Loans CUSIP #
2011 OCT 31 PL'~ 4: 51 Execution Version
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and LC Issuer
and
KEYBANK NA TIONAL ASSOCIATION
and
UNION BANK, N.A.,
as Documentation Agents
$300,000,000 Senior Credit Facilities
WELLS FARGO SECURITIES, LLC,
J,P. MORGAN SECURITIES INC.,
KEYBANC CAPITAL MARTS
and
UNION BANK, N.A.,
as Joint Lead Arangers and Joint Book Runners
Dated as of October 26, 2011
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..
TABLE OF CONTENTS
Page
ARTICLE i
DEFINITIONS
1 .1 Definitions.......................................................................................................................... 1
1.2 Other Interpretive Provisions ....................................................... ................ .................... 19
1.3 Accounting Terms............................................................................................................ 20
ARTICLE 2
THE CREDITS
2.1 Commitments...................................................................................................................21
2.2 Required Payments; Termination .................................................................................... 22
2.3 Types of Advances; Minimum Amount of Each Advance.............................................. 22
2.4 Fees ..................................................................................................................................22
2.5 Reduction or Termination of Aggregate Commitment................................................... 22
2.6 Optional Principal Payments............................................................................................23
2.7 Requesting Advances....................................................................................................... 23
2.8 Conversion and Continuation of Outstanding Advances................................................. 25
2.9 Changes in Interest Rate, etc............................................................................................ 26
2.10 Rates Applicable After Default.............. ........................................ ...... ................. ........... 26
2.11 Method of Payment....................................................... ...................................................26
2.12 Noteless Agreement; Evidence ofIndebtedness ............................ ........ ............... ........... 27
2.13 Telephonic Notices .......................................................................................................... 27
2.14 Interest Payment Dates; Interest and Fee Basis; Maximum Rate.................................... 28
2.15 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions......... .... .... ........ ......... ............... .......... ...... ..... ...... ....... ............. .............. .......... 29
2.16 Lending Installations........................................................................................................29
2.17 Non-Receipt of Funds by the Administrative Agent ....................................................... 29
2.18 Facility LCs......................................................................................................................30
2.19 Replacement of Lender...... ....... ................ ............................ ...... ................. ........... ......... 34
2.20 Increase in Commitments ................................................................................................ 35
2.21 Extension of Facility Termination Date........................................................................... 36
2.22 Defaulting Lenders...........................................................................................................37
2.23 Changed Circumstances...................................................................................................41
ARTICLE 3
YIELD PROTECTION; TAXES
3.1 Increased Costs ................................................................................................................42
3.2 Capital Requirements....................................................................................................... 42
3.3 Compensation ........................................................................................................:.........43
3.4 Delay in Requests ............................................................................................................43
3.5 Taxes ................................................................................................................................44
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1-
TABLE OF CONTENTS
(continued)
Page
3.6 Designation of a Different Lending Installation .............................................................. 47
ARTICLE 4
CONDITIONS PRECEDENT
4.1 Initial Credit Extension .................................................................................................... 48
4.2 Each Credit Extension. ..... .............. .... ........ .................. ...... .................. ...... ... ....... ............ 49
ARTICLES
REPRESENTATIONS AND WARTIES
5.1 Existence and Standing....................................................................................................50
5.2 Authorization and Validity .............................................................................................. 50
5.3 No Conflict; Governent Consent ..................................................................................50
5.4 Financial Statements ........................................................................................................ 51
5.5 Material Adverse Change ................................................................................................ 51
5.6 Taxes................................................................................................................................51
5.7 Litigation and Contingent Obligations............................................................................. 51
5.8 Subsidiaries......................................................................................................................51
5.9 ERISA..............................................................................................................................51
5.10 Labor Relations................................................................................................................ 52
5.11 Accuracy of Information.................................................................................................. 52
5.12 Regulation U .................................................................................................................... 52
5.13 Material Agreements........................................................................................................52
5.14 Compliance With Laws.................................................................................................... 53
5.15 Ownership of Properties .................................................................................................. 53
5.16 Plan Assets; Prohibited Transactions............................................................................... 53
5.17 Environmental Matters.....................................................................................................53
5.18 Investment Company Act ................................................................................................ 53
5.19 OFAC; PATRIOT Act..................................................................................................... 53
ARTICLE 6
COVENANTS
6.1 Financial Reporting.. .......... ........ ...... ..................... .............................. ............................. 54
6.2 Use of Proceeds............................................. ...................................................................55
6.3 Notice of Default, etc....................................................................................................... 55
6.4 Conduct of Business ........................................................................................................ 55
6.5 Taxes ................................................................................................................................ 55
6.6 Insurance .......................................................................................................................... 56
6.7 Compliance with Laws .............. ...... ............. ....... ...... ........... ........... ...................... .......... 56
6.8 Maintenance of Properties ............................................................................................... 56
6.9 Inspection.........................................................................................................................56
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11-
TABLE OF CONTENTS
(continued)
Page
6.10 Merger and Sale of Assets ............................................................................................... 56
6.11 Liens.................................................................................................................................56
6.12 Leverage Ratio.................................................................................................................58
6.13 Investments and Acquisitions .......................................................................................... 58
6.14 Subsidiary Dividend Restrctions .................................................................................... 59
6.15 Affiliates .... ....................... ......................................... ...................................................... 59
6.16 OFAC, PATRIOT Act Compliance................................................................................. 59
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration; Facility LC Collateral Account ................................................................. 62
8.2 Amendments ....................................................................................................................63
8.3 Preservation of Rights............................................... ....................................................... 64
ARTICLE 9
GENERA PROVISIONS
9. 1 Survival of Representations............................................................................................. 64
9.2 Governental Regulation................................................................................................ 64
9.3 Entire Agreement.............................................................................................................65
9.4 Several Obligations; Benefits of this Agreement............................................................ 65
9.5 Expenses; Indemnification............................................................................................... 65
9.6 Numbers of Documents ...................................................................................................66
9.7 Accounting.......................................................................................................................67
9.8 Severability of Provisions ................................................................................................ 67
9.9 Nonliability of Lenders .................................................................................................... 67
9.10 Confidentiality .................................................................................................................67
9.11 Nonreliance...................................................................................................................... 68
9.12 Disclosure........................................................................................................................ 68
9.13 PATRIOT Act Notice ......................................................................................................68
9.14 Counterpars..................................................................................................................... 68
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment; Nature of Relationship.................................................................... .......... 68
10.2 Powers..............................................................................................................................69
10.3 General Immunity.... ................ ................. .......... ............... .................. ........ ......... ........... 69
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11-
TABLE OF CONTENTS
(continued)
Page
10.4 No Responsibility for Loans, Recitals, etc....................................................................... 69
10.5 Action on Instrctions of Lenders................................................................................ ....69
10.6 Employment of Administrative Agents, Counsel, Accountants, and Other Experts ....... 70
10.7 Reliance on Documents; Counsel.................................................................................... 70
10.8 Administrative Agent's Reimbursement and Indemnification ........................................70
10.9 Notice ofDefault..............................................................................................................71
10.10 Rights as a Lender............................................................................................................71
10.11 Lender Credit Decision.................................................................................................... 71
10.12 Successor Administrative Agent..................................................................................... 71
10.13 Administrative Agent and Joint Lead Aranger Fees ...................................................... 72
10.14 Delegation to Affiliates.................................................................................................... 72
10.15 Other Agents ....................................................................................................................72
10.16 LC Issuer and Swing1ine Lender...................................................................................... 73
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1 Setoff.............................................................................................................................. .. 73
11.2 Ratable Payments.............................................................................................................73
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns.................................................................................................... 74
12.2 Participations....................................................................................................................74
12.3 Assignments.....................................................................................................................75
12.4 Dissemination of Information............................................................................ .............. 77
12.5 Tax Treatment..................................................................................................................77
ARTICLE 13
NOTICES
13.1 Notices.............................................................................................................................77
13.2 Change of Address...........................................................................................................78
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.1 CHOICE OF LAW...................................................................... ....................................78
14.2 CONSENT TO mRISDICTION..................................................................................... 79
14.3 WAIVER OF mRY TRIAL............................................................................................ 79
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IV-
Schedule I
Schedule II
Schedule 5.8
Schedule 5.12
Schedule 5.14
Schedule 13.i
EXHIBIT A
EXHIBITB
EXHIBITC
EXHIBITD
EXHIBITE-1
EXHIBITE-2
EXHIBITF
EXHIBIT G-l
EXHIBITG-2
EXHIBITG-3
EXHIBITG-4
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TABLE OF CONTENTS
(continued)
Page
Pricing Schedule
Commitments
List of Subsidiares
Agreements which restrct Subsidiar Dividends or which could reasonably
be expected to have a Material Adverse Effect
Indebtedness and Liens
Notice Addresses
Form of Opinion
Form of Compliance Certificate
Form of Assignent Agreement
Form of Loan/Credit Related Money Transfer Instructions
Form of Revolving Note
Form of Swingline Note
Form of Joinder Agreement
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not
Partnerships For U.S. Federal Income Tax Puroses)
Form of U.S. Tax Compliance Certificate (For Foreign Paricipants That Are
Not Partnerships For U.S. Federal Income Tax Puroses)
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are
Parterships For U.S. Federal Income Tax Puroses)
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Parterships For U.S. Federal Income Tax Purposes)
v-
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement, dated as of October 26, 2011, is
made among Idaho Power Company, an Idaho corporation, the Lenders, and Wells Fargo Bank,
National Association, as Administrative Agent for the Lenders.
RECITALS
A. Idaho Power Company, certain banks and other financial institutions, and Wells
Fargo Bank, National Association, as administrative agent, are parties to a certain Amended and
Restated Credit Agreement dated as of April 25, 2007 (the "Existing Credit Agreement").
B. The parties hereto have agreed to amend and restate the Existing Credit
Agreement on the terms and conditions set forth herein, it being the intention of the paries
hereto that this Second Amended and Restated Credit Agreement and the Loan Documents
executed in connection herewith shall not effect the novation of the obligations of Idaho Power
Company thereunder but be merely a restatement and, where applicable, an amendment of and
substitution for the terms governing such obligations hereafter.
C. The Lenders are wiling to make available to Idaho Power Company the credit
facilities provided for herein subject to and on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration ofthe mutual provisions, covenants and
agreements herein contained, the paries hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement:
"Acquisition" means any transaction, or any series of related transactions, consumated
on or after the Closing Date, by which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm, corporation or limited liabilty
company, or division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series
of transactions) at least a majority (in number of votes) of the securties of a corporation which
have ordinary voting power for the election of directors (other than securties having such power
only by reason of the happening of a contingency) or a majority (by percentage or voting power)
of the outstanding ownership interests of a partership or limited liability company.
"Administrative Agent" means Wells Fargo Bank, National Association in its capacity as
administrative agent (i.e., contractual representative) of the Lenders pursuant to Article 10, and
not in its individual capacity as a Lender, and any successor Administrative Agent appointed
pursuant to Article 10.
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"Administrative Fee Letter" means the letter agreement, dated September 16,2011,
among Borrower, the Parent, and Wells Fargo.
"Administrative Questionnaire" means an administrative questionnaire in a form supplied
by the Administrative Agent.
"Advance" means a borrowing hereunder, (i) made by the Lenders (or the Swingline
Lender in the case of a Swingline Loan) on the same Borrowing Date, or (ii) converted or
continued by the Lenders on the same date of conversion or continuation and, in either case,
consisting of Revolving Loans of the same Type (or a Swingline Loan made by the Swingline
Lender) and, in the case of Eurodollar Advances, for the same Interest Period.
"Affected Lender" is defined in Section 2.19.
"Affiliate" of any Person means any other Person directly or indirectly controllng,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction ofthe management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all the Lenders,
as reduced or increased from time to time pursuant to the terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate ofthe
Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Second Amended and Restated Credit Agreement.
"Agreement Accounting Principles" means generally accepted accounting principles as in
effect from time to time applied in a manner consistent with that used in preparing financial
statements referred to in Section S.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum equal to the
highest of (i) the Prime Rate for such day, (ii) the sum of the Federal Funds Effective Rate for
such day plus 1/2%, and (iii) the Eurodollar Base Rate for an Interest Period of one month plus
1 %; each change in the Alternate Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate, the Federal Funds Effective Rate or
Eurodollar Rate.
"Applicable Margin" means, with respect to Revolving Loans of any Type at any time,
the percentage rate per annum which is applicable at such time with respect to Revolving Loans
of such Type as set forth in the Pricing Schedule.
"Assuming Lender" is defined in Section 2.20(a).
"Authorized Officer" means any of the Chief Executive Offcer, President, Chief
Financial Offcer, Vice President or Treasurer of the Borrower, acting singly.
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"Available Aggregate Commitment" means, at any time, the Aggregate Commitment
then in effect minus the Aggregate Outstanding Credit Exposure at such time.
"Borrower" means Idaho Power Company, an Idaho corporation.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.7.
"Business Day" means (i) for all puroses other than as set forth in clause (b) below, any
day other than a Saturday, Sunday or legal holiday on which banks in Charlotte, North Carolina
and New York, New York, are open for the conduct of their commercial banking business, and
(ii) with respect to all notices and determinations in connection with, and payments of principal
and interest on, any Eurodollar Rate Advance, or any Floating Rate Advance as to which the
interest rate is determined by reference to the Eurodollar Rate, any day that is a Business Day
described in clause (i) and that is also a day for trading by and between banks in Dollar deposits
in the London interbank market.
"Capitalized Lease" of a Person means any lease of Property by such Person as lessee,
which would be capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Cash Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of one or more of the LC Issuers or Lenders, as collateral for LC
Obligations or obligations of Lenders to fud paricipations in respect ofLC Obligations, cash or
deposit account balances or, if the Administrative Agent and the applicable LC Issuer shall agree
in their sole discretion, other credit support, in each case pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the applicable LC Issuer. "Cash
Collateral" shall have a meaning correlative to the foregoing and shall include the proceeds of
such cash collateral and other credit support.
"Cash Equivalent Investments" means (i) short-term obligations of, or fully guaranteed
by, the United States of America, (ii) commercial paper rated A-lor better by S&P or Fitch or
P-l or better by Moody's, (iii) demand deposit accounts maintained in the ordinary course of
business, and (iv) certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surlus in excess of $100,000,000; provided in
each case that the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the payment of principal
or interest.
"Change in Control" means (i) the acquisition by any "person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan) of beneficial
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ownership (within the meaning of Rule 13d-3 and 13d-5 under the Securties Exchange Act of
1934) of 20% or more of the outstanding shares of voting stock of the Parent entitled to vote for
members of the board of directors of the Parent on a fully-diluted basis (and taking into account
all such securties that such person or group has the right to acquire pursuant to any option right)
or (ii) during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Parent cease to be composed of individuals
(A) who were members of that board on the first day of such period, (B) whose election or
nomination to that board was approved by individuals referred to in clause (A) above
constituting at the time of such election or nomination at least a majority of that board or
(C) whose election or nomination to that board was approved by individuals referred to in
clauses (A) and (B) above constituting at the time of such election or nomination at least a
majority of that board (excluding, in the case of both clause (B) and clause (C), any individual
whose initial nomination for, or assumption of offce as, a member of that board occurs as a
result of an actual or threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the election of one or
more directors by or on behalf of the board of directors).
"Change in Law" means the occurence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governental
Authority; provided that notwithstanding anything herein to the contrar, (x) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel II, shall in each case be deemed to be a "Change in
Law", regardless of the date enacted, adopted or issued.
"Closing Date" means the first date all the conditions precedent in Section 4.1 are
satisfied or waived in accordance with the terms of this Agreement.
"Code" means the Internal Revenue Code of 1986.
"Collateral Shortfall Amount" is defined in Section 8.1(a).
"Commitment" means, for each Lender, the obligation of such Lender to make Revolving
Loans to the Borrower and to participate in the Swingline Loans and Facility LCs issued upon
the application of the Borrower, in an aggregate amount not exceeding the amount set forth
opposite its name on Schedule II, or, if such Lender has entered into one or more assignments
that has become effective pursuant to Section 12.3(a) or is an Increasing Lender or Assuming
Lender, the amount set forth for such Lender at such time in the Register maintained by the
Administrative Agent, in either case, as such amount may be reduced or increased from time to
time pursuant to the terms hereof.
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3076306v5 18445.00013
"Commitment Increase" and "Commitment Increase Date" are defined in Section
2.20(a).
"Condemnation" is defined in Section 7(i).
"Connection Income Taxes" means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or branch profits
Taxes.
"Consent Date" is defined in Section 2.21(a).
"Consenting Lender" is defined in Section 2.21(a).
"Consolidated Indebtedness" means at any time the Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time; provided, however that (i) the
aggregate outstanding Indebtedness attributed to any Hybrid Security shall be deemed equal to
the portion of such Hybrid Security that is deemed to constitute indebtedness, as determined in
accordance with Standard & Poor's methodology at such time and (ii) all Hybrid Securties shall
be included to the extent that the total book value of such Hybrid Securities exceeds 15% of
Consolidated Total Capitalization as of such time.
"Consolidated Net Worth" means at any time the consolidated stockholders' equity of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
"Consolidated Total Capitalization" means at any time, without duplication, the sum of
(i) Consolidated Indebtedness, (ii) Consolidated Net Worth and (iii) the aggregate outstanding
amount of Hybrid Securties, each calculated as of such time.
"Contingent Obligation" of a Person means any agreement, undertaking or arangement
by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including any comfort letter, operating agreement, take or pay contract or the
obligations of any such Person as general partner of a partership with respect to the liabilities of
the partership; provided, however, that the obligation of the Borrower or its Subsidiaries to
guarantee the performance of mine reclamation activities, if and to the extent the Borrower, one
or more of its Subsidiaries, or a third pary (without an obligation of reimbursement by the
Borrower or one or more Subsidiaries) shall have placed in trst or escrow fuds specifically
designated for the purpose of satisfying such reclamation obligations, shall be excluded
therefrom.
"Conversion/Continuation Notice" is defined in Section 2.8.
"Controlled Group" means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated) under common
control which, together with the Borrower or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
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3076306v5 18445.00013
"Credit Extension" means the making of an Advance or the issuance of a Facility LC.
"Credit Extension Date" means the Borrowing Date for an Advance or the issuance date
for a Facility LC.
"Debtor Relief Laws" means the Banptcy Code of the United States of America, and
all other liquidation, conservatorship, bankptcy, assignent 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.
"Default" means an event described in Article 7.
"Defaulting Lender" means, subject to Section 2.22, any Lender that (i) has failed to
(A) fud all or any portion of its Loans within two Business Days of the date such Loans were
required to be funded hereunder unless such Lender notifies the Administrative Agent and the
Borrower in writing that such failure is the result of such Lender's determination that one or
more conditions precedent to fuding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in such writing) has not been satisfied, or
(B) pay to the Administrative Agent, any LC Issuer, the Swingline Lender or any other Lender
any other amount required to be paid by it hereunder (including in respect of its participation in
Facility LCs or Swingline Loans) within two Business Days of the date when due, (ii) has
notified the Borrower, the Administrative Agent or any LC Issuer or the Swingline Lender in
wrting that it does not intend to comply with its fuding obligations hereunder, or has made a
public statement to that effect (unless such writing or public statement relates to such Lender's
obligation to fud a Loan hereunder and states that such position is based on such Lender's
determination that a condition precedent to fuding (which condition precedent, together with
any applicable default, shall be specifically identified in such wrting or public statement) cannot
be satisfied), (iii) has failed, within three Business Days after wrtten request by the
Administrative Agent or the Borrower, to confirm in wrting to the Administrative Agent and the
Borrower that it wil comply with its prospective fuding obligations hereunder (provided that
such Lender shall cease to be a Defaulting Lender pursuant to this clause (iü) upon receipt of
such written confirmation by the Administrative Agent and the Borrower), or (iv) has, or has a
direct or indirect parent company that has, (A) become the subject of a proceeding under any
Debtor Relief Law, or (B) had appointed for it a receiver, custodian, conservator, trstee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or
any other state or federal regulatory authority acting in such a capacity; provided that a Lender
shall not be a Defaulting Lender solely by virte of the ownership or acquisition of any equity
interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jursdiction of cours within the United States or from the enforcement of
judgments or writs of attchment on its assets or permit such Lender (or such Governmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender
under anyone or more of clauses (i) through (iv) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section
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3076306v5 18445.00013
2.22) upon delivery of written notice of such determination to the Borrower, each Issuing Bank,
each Swingline Lender and each Lender.
"Dollars" or "i" means, unless otherwise qualified, dollars in lawful curency of the
United States.
"Eligible Replacement Lender" is defined in Section 2.21(b).
"Environmental Laws" means any and all applicable federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other
governental restrictions relating to (i) the protection of the environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surace water, ground water or land, or (iv) the manufactue,
processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurodollar Advance" means a Revolving Loan which, except as otherwise provided in
Section 2.10, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means:
(i) for any interest rate calculation with respect to a Eurodollar Advance, the
rate of interest per annum determined on the basis of the rate for deposits in Dollars for a
period equal to the applicable Interest Period which appears on Reuters Screen LIBOROI
Page (or any applicable successor page) at approximately 11 :00 a.m. (London time) two
(2) Business Days prior to the first day of the applicable Interest Period (rounded upward,
if necessary, to the nearest 1I100th of 1 %). If, for any reason, such rate does not appear
on Reuters Screen LIB ORO 1 Page (or any applicable successor page), then the Eurodollar
Base Rate shall be determined by the Administrative Agent to be the arithmetic average
of the rate per annum at which deposits in Dollars in minimum amounts of at least
$5,000,000 would be offered by first class banks in the London interbank market to the
Administrative Agent at approximately 11 :00 a.m. (London time) two (2) Business Days
prior to the first day of the applicable Interest Period for a period equal to such Interest
Period.
(ii) for any interest rate calculation with respect to a Floating Rate Advance,
the rate of interest per annum determined on the basis of the rate for deposits in Dollars in
minimum amounts of at least $5,000,000 for a period equal to one month (commencing
on the date of determination of such interest rate) which appears on the Reuters Screen
LIB ORO 1 Page (or any applicable successor page) at approximately 11 :00 a.m. (London
time) on such date of determination, or, if such date is not a Business Day, then the
immediately preceding Business Day (rounded upward, if necessary, to the nearest
1I100th of 1 %). If, for any reason, such rate does not appear on Reuters Screen
LIBOROI Page (or any applicable successor page) then the Eurodollar Base Rate for such
Floating Rate Advance shall be determined by the Administrative Agent to be the
7
3076306v5 18445.00013
arthmetic average of the rate per anum at which deposits in Dollars in minimum
amounts of at least $5,000,000 would be offered by first class banks in the London
interbank market to the Administrative Agent at approximately 11 :00 a.m. (London time)
on such date of determination for a period equal to one month commencing on such date
of determination.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest
Period, divided by (b) 1.00 minus the Reserve Requirement (expressed as a decimal) applicable
to such Interest Period, plus (ii) the Applicable Margin.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Taxes" means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient, (i) Taxes
imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (A) imposed as a result of such Recipient being organized under the
laws of, or having its principal offce or, in the case of any Lender, its applicable Lending
Installation located in, the jurisdiction imposing such Tax (or any political subdivision thereof)
or (B) that are Other Connection Taxes, (ii) in the case of a Foreign Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account of such Lender with
respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date
on which (A) such Lender acquires such interest in the Loan or Commitment (other than
pursuant to an assignent request by the Borrower under Section 2.19) or (B) such Lender
changes its Lending Installation, except in each case to the extent that, pursuant to Section 3.S,
amounts with respect to such Taxes were payable either to such Lender's assignor immediately
before such Lender became a party hereto or to such Lender immediately before it changed its
Lending Installation, (iii) Taxes attributable to such Recipient's failure to comply with Section
3.S(g) and (iv) any u.s. federal withholding Taxes imposed under F ATCA.
"Extension Date" is defined in Section 2.21(a).
"Extension Notice" is defined in Section 2.21(a).
"Facilty Fee" is defined in Section 2.4(b).
"Facility LC" is defined in Section 2.18(a).
"Facility LC Application" is defined in Section 2.18(c).
"Facilty LC Collateral Account" is defined in Section 2.18(i).
"Facility LC Matuity Date" is defined in Section 2.18(a).
"Facilty Termination Date" means the earlier to occur of (i) October _,2016 (as such
date may be extended from time to time pursuant to Section 2.21) or (ii) any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the
terms hereof.
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"FATCA" means Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with) and any current or future regulations or official
interpretations thereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of one percentage point) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal fuds brokers on such day, as published for such day (or, if
such day is not a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations at approximately 10:00 a.m. on such day on such transactions
received by the Administrative Agent from three Federal funds brokers of recognized standing
selected in good faith by the Administrative Agent.
"Fee Letters" mean, collectively, (i) the Senior Lead Arangers Fee Letter, (ii) the Senior
Arangers Fee Letter and (iii) the Administrative Fee Letter.
"First Mortgage" means that certain Mortgage and Deed of Trust, dated as of October 1,
1937, as supplemented, under which the Borrower is Mortgagor and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company) and R.G. Page (Stanley Burg
successor individual trstee) are Trustees, as it may from time to time be fuher amended,
supplemented or otherwise modified.
"Fitch" means Fitch Rating Services, Inc.
"Floating Rate" means, for any day, a rate per annum equal to the sum of (i) the Alternate
Base Rate for such day plus (ii) the Applicable Margin, in each case changing when and as the
Alternate Base Rate changes.
"Floating Rate Advance" means a Revolving Loan which, except as otherwise provided
in Section 2.10, bears interest at the Floating Rate.
"Foreign Lender" means a Lender that is not a U.S. Person.
"Fronting Exposure" means, at any time there is a Defaulting Lender, (i) with respect to
any LC Issuer, such Defaulting Lender's Pro Rata Share of the outstanding LC Obligations with
respect to Letters of Credit issued by such LC Issuer other than LC Obligations as to which such
Defaulting Lender's participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (ii) with respect to the Swingline Lender,
such Defaulting Lender's Pro Rata Share of outstanding Swingline Loans made by such
Swingline Lender other than Swingline Loans as to which such Defaulting Lender's participation
obligation has been reallocated to other Lenders.
"Governental Authority" means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
9
3076306v5 18445.00013
pertaining to governent (including any supranational bodies such as the European Union or the
European Central Bank).
"Hybrid Securities" shall mean any hybrid securties afforded equity benefit to the issuer
thereof (under the procedures and guidelines of Standard & Poor's), including any trst preferred
securities, deferrable interest subordinated debt securties, mandatory convertible debt securties
or other hybrid securties issued by the Borrower or any Subsidiar or financing vehicle of the
Borrower that (i) have an original matuty of at least twenty (20) years, (ii) require, absent an
event of default with respect to such securties, no repayments or prepayments and no mandatory
redemptions or repurchases, in each case, prior to the date which is ninety-one (91) days after the
occurence of the Facility Termination Date and (iii) permit the Borrower or any such Subsidiary
or any such financing vehicle of the Borrower, respectively, at its option, to defer certain
scheduled interest payments.
"Increasing Lender" is defined in Section 2.20(a).
"Indebtedness" of a Person means such Person's (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of Property or services (other than
accounts payable arising in the ordinar course of such Person's business payable on terms
customar in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, bonds, acceptances, or other similar
instrments, (v) obligations of such Person to purchase securities or other Property arsing out of
or in connection with the sale of the same or substantially similar securities or Property,
(vi) Capitalized Lease Obligations, (vii) Contingent Obligations, (vii) obligations in respect of
Letters of Credit, (ix) Rate Management Obligations, (x) preferred stock which is required by the
terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed
date, (xi) Off-Balance Sheet Liabilities, (xii) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person and (xiii) amounts
outstanding under a Permitted Receivables Securitization.
"Indemnified Taxes" means (i) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrower under any Loan
Document and (ii) to the extent not otherwise described in (i), Other Taxes.
"Indemnitee" is defined in Section 9.S(b).
"Interest Period" means, with respect to a Eurodollar Advance, the period commencing
on the date such Eurodollar Advance is disbursed or converted to or continued as a Eurodollar
Advance and ending on the date one, two, three or six months thereafter, as selected by the
Borrower pursuant to this Agreement, provided that:
(i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;
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3076306v5 18445.00013
(ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Facility Termination Date.
"Investment" of a Person means any loan, advance (other than commission, travel and
similar advances to offcers and employees made in the ordinary course of business), extension
of credit (other than accounts receivable arising in the ordinary course of business on terms
customar in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partership interests, notes, debentures or other securities owned by such Person; and strctured
notes, derivative financial instruments and other similar instrments or contracts owned by such
Person. The term "Investment" shall exclude any direct expenditue by the Borrower in
property, plant, fixtues, equipment and capital expenditues ofthe Borrower and its
Subsidiaries.
"IRS" means the United States Internal Revenue Service.
"Joinder Agreement" means a wrtten agreement substantially in the form of Exhibit F
hereto.
"Joint Lead Arangers" means Wells Fargo Securities, JPMorgan, KBCM, and Union, in
their capacity as joint lead arrangers and joint book runners.
"JPMCB" means JPMorgan Chase Bank, N.A.
"JPMorgan" means J.P. Morgan Securties Inc.
"KBCM" means Keybanc Capital Markets.
"KeyBank" means KeyBank National Association.
"LC Commitment" shall mean, with respect to each LC Issuer, the commitment of such
LC Issuer to issue Facility LCs as set forth in this Agreement in the aggregate face amount not to
exceed the amount set forth opposite such LC Issuer's name on Schedule II or in the agreement
by which such LC Issuer agrees to become an LC Issuer hereunder and to be bound by the terms
hereof applicable to LC Issuers.
"LC Fee" is defined in Section 2.18(d).
"LC Issuer" means each of Wells Fargo or JPMCB (or any subsidiary or Affiliate of such
Lender designated by such Lender) and any other Lender approved by the Borrower and the
Administrative Agent (which approval shall not be unreasonably withheld), in each case in its
capacity as issuer of Facility LCs hereunder.
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3076306v5 18445.00013
"LC Obligations" means, at any time, the sum, without duplication, of (i) the aggregate
undrawn stated amount under all Facility LCs outstading at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.18(e).
"LC Subcommitment" means $300 milion or, if less, the Aggregate Commitment at the
time of determination, as such amount may be reduced at or prior to such time pursuant to the
terms hereof.
"Lenders" means the lending institutions listed on the signatue pages of this Agreement
and any other Person that shall have become a Lender party hereto pursuant to the terms hereof;
provided, that unless the context otherwise requires, each reference herein to the Lenders shall be
deemed to include the Swingline Lender in such capacity.
"Lending Installation" means, with respect to a Lender or the Administrative Agent, the
offce, branch, subsidiary or Affiliate of such Lender or the Administrative Agent specified in its
Administrative Questionnaire or otherwise selected by such Lender or the Administrative Agent
puruant to Section 2.16 or Section 3.6.
"Letter of Credit" of a Person means a letter of credit or similar instrment which is
issued upon the application of such Person or upon which such Person is an account part or for
which such Person is in any way liable.
"LIBOR Market Index Rate" means, for any day, the sum of (i) the rate of interest for
one month U.S. dollar deposits appearing on Reuters Screen LIB ORO 1 (or any successor page)
determined as of 11 :00 a.m. (London time), for such day, or if such day is not a London Business
Day, then the immediately preceding London Business Day (or if not so reported, then as
determined by the Administrative Agent from another recognized source or interbank quotation)
plus (ii) the Applicable Margin in effect for a Eurodollar Advance from time to time.
"LIB OR Market Index Rate Advance" means a Swingline Loan which, except as
otherwise provided in Section 2.10, bears interest at the LIB OR Market Index Rate.
"Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or .other title retention agreement).
"Loans" means the Revolving Loans and the Swingline Loans.
"Loan Documents" means this Agreement, the Facility LC Applications, the Joinder
Agreements, any Notes issued pursuant to Section 2.12, the Fee Letters, and all other
agreements, instruents, documents and certificates now or hereafter executed and delivered to
the Administrative Agent or any Lender by or on behalf of the Borrower or any of its
Subsidiaries with respect to this Agreement.
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3076306v5 18445.00013
"London Business Day" means a day (other than Satuday or Sunday) on which banks
generally are open in London, England for the conduct of substantially all of their commercial
lending activities and dealings are carred on in the London interbank market.
"Material Adverse Effect" means a material adverse effect on (i) the business, Propert,
condition (financial or otherwise), results of operations, or prospects of the Borrower and its
Subsidiares taken as a whole, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Administrative Agent, the LC Issuers or the Lenders thereunder.
"Material Indebtedness" means Indebtedness (other than Obligations) of the Borrower or
any of its Subsidiaries, in an aggregate principal amount exceeding $25,000,000 (or its
equivalent in any other curency). For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any of its Subsidiaries in respect of any
Rate Management Obligation at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiar would be required to pay if such
Rate Management Obligation were terminated at such time of determination.
"Material Subsidiary" of the Borrower means, at any date of determination, any
Subsidiary (a) whose annual gross revenues (on a consolidated basis with its subsidiaries) exceed
10% of the consolidated annual gross revenue of the Borrower and all its Subsidiaries, in each
case for the most recently ended fiscal year for which financial statements are available, or (b)
whose gross assets (on a consolidated basis with its subsidiaries) exceed 10% of the consolidated
gross assets of the Borrower and all its Subsidiaries as ofthe last day of the Borrower's most
recently ended fiscal year for which financial statements are available.
"Minimum Collateral Amount" means, at any time, with respect to Cash Collateral
consisting of cash or deposit account balances, an amount equal to 103% of the Fronting
Exposure of all LC Issuers with respect to Facility LCs issued and outstanding at such time.
"Modify" and "Modification" are defined in Section 2.18(a).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective bargaining
agreement or any other arrangement to which the Borrower or any member of the Controlled
Group is a pary to which more than one employer is obligated to make contributions.
"Non-Consenting Lender" is defined in Section 2.21(a).
"Non-Defaulting Lender" means, at any time, each Lender that is not a Defaulting Lender
at such time.
"Non-U.S. Person" means any Person that is not a "United States Person" as defined in
Section 7701(a)(30) of the Code.
"Notes" means any or all of the Revolving Notes and the Swingline Note.
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"Obligations" means all unpaid principal of and accrued and unpaid interest (including
interest accruing after the filing of any banptcy or similar petition) on the Loans, all
Reimbursement Obligations, all accrued and unpaid fees (including attorneys' fees) and all
expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or
to any Lender, the Administrative Agent, the Swingline Lender, any LC Issuer or any
indemnified party arising under the Loan Documents.
"OFAC" means the U.S. Department of the Treasury's Office of Foreign Assets Control.
"Off-Balance Sheet Liability" of a Person means, without duplication, (i) any repurchase
obligation or liability of such Person with respect to accounts or notes receivable sold by such
Person, (ii) any liability under any Sale and Leaseback Transaction which is not a Capitalized
Lease, (iii) any liability under any so-called "synthetic lease" transaction entered into by such
Person, or (iv) any obligation arising with respect to any other transaction which is the fuctional
equivalent of or takes the place of borrowing but which does not constitute a liabilty on the
balance sheets of such Person, but excluding from this clause (iv) all Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a Capitalized
Lease) by such Person as lessee, which has an original term (including any required renewals and
any renewals effective at the option of the lessor) of one year or more.
"Other Connection Taxes" means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing
such Tax (other than connections arsing from such Recipient having executed, delivered,
become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant to or enforced any
Loan Document, or sold or assigned an interest in any Loan or Loan Document).
"Other Taxes" means all present or future stamp, cour or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignent (other than an assignent made
pursuant to Section 2.19 or Section 3.6).
"Outstanding Credit Exposure" means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of all Loans made by such Lender outstanding at such time, (ii) such
Lender's Pro Rata Share of the LC Obligations at such time and (iii) such Lender's (other than
the Swingline Lender's) Pro Rata Share ofthe Swingline Loans outstanding at such time.
"Parent" means IDACORP, Inc., an Idaho corporation.
"Paricipant" is defined in Section 12.2(a).
"Participant Register" is defined in Section 12.2( d).
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3076306v5 18445.00013
"PATRIOT Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act, Title III
of Pub. L. 107-56 (signed into law October 26,2001)).
"Payment Date" means the last Business Day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Receivables Securitization" means a limited recourse or non-recourse sale,
assignment or contribution of accounts receivable and related records, collateral and rights ofthe
Borrower and/or one or more of its Subsidiaries to one or more special purpose entities, in
connection with the issuance of obligations by any such special purose entity secured by such
assets, the proceeds of the issuance of which obligations shall be made available, directly or
indirectly, to the Borrower and/or the applicable Subsidiaries.
"Person" means any natural person, corporation, firm, joint ventue, partership, limited
liability company, association, enterprise, trst or other entity or organization, or any
Governental Authority.
"Plan" means an "employee pension benefit plan" within the meaning of Section 3(2) of
Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code
as to which the Borrower or any member of the Controlled Group may have any liability.
"PP A 2006 Effective Date" means, with respect to any Plan, except as hereinafter
provided, the first day of the first plan year beginning on or after Januar 1,2008, However,
solely with respect to a Plan maintained pursuant to one or more collective bargaining
agreements between employee representatives and one or more employers ratified before
Januar 1,2008, such term means the first day of the first Plan year beginning on or after the
earlier of (A) and (B), where (A) is the later of (x) the date on which the last collective
bargaining agreement relating to the Plan terminates (determined without regard to any extension
thereof agreed to after August 17,2006), or (y) the first day of the first plan year beginning on or
after January 1, 2008; and (B) is January 1,2010.
"Pricing Level" is defined in the Pricing Schedule.
"Pricing Schedule" means Schedule I attached hereto identified as such.
"Prime Rate" means the per annum interest rate publicly announced from time to time by
Wells Fargo to be its prime rate (which may not necessarily be its lowest or best lending rate), as
adjusted to conform to changes as of the opening of business on the date of any such change in
such prime rate.
"Prior Termination Date" is defined in Section 2.21(b).
"Property" of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
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"Pro Rata Share" means, with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender's Commitment and the denominator of which is the
Aggregate Commitment (or, if the Commitments have been terminated, a portion equal to a
fraction (i) the numerator of which is equal to such Lender's Outstanding Credit Exposure and
(ii) the denominator of which is the Aggregate Outstanding Credit Exposure).
"Purchasers" means any bank or other Person to which a Lender assigns all or any par of
its rights and obligations under the Loan Documents pursuant to Section 12.3 , provided neither
(a) the Parent, the Borrower or any of their respective Affiliates or Subsidiaries, nor (b) any
Defaulting Lender or any of its Subsidiaries or any Person who, upon becoming a Lender
hereunder, would constitute any ofthe foregoing Persons described in this clause (b) shall be
permitted to be a Purchaser.
"Rate Management Obligations" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management Transactions, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignents of any Rate Management
Transactions.
"Rate Management Transaction" means any transaction (including an agreement with
respect thereto, a "Rate Management Agreement") now existing or hereafter entered into by the
Borrower or the Parent which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction,
curency option or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more interest rates,
foreign currencies, commodity prices, equity prices or other financial measures.
"Recipient" means (i) the Administrative Agent, (ii) any Lender and (iii) any LC Issuer,
as applicable.
"Refunded Swingline Loans" is defined in Section 2.7(c).
"Register" is defined in Section 12.3( d).
"Regulation D" means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit by banks for the
purose of purchasing or carring margin stocks applicable to member banks of the Federal
Reserve System.
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"Reimbursement Obligations" means, at any time, the aggregate of all obligations of the
Borrower then outstanding under Section 2.18 to reimburse the LC Issuers for amounts paid by
the LC Issuers in respect of anyone or more drawings under Facility LCs.
"Related Parties" means, with respect to any Person, such Person's Affliates and the
parters, directors, offcers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Person's Affliates.
"Reportable Event" means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section, with respect to a Plan, excluding, however, such events
as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within thirty (30) days of the occurrence of such event.
"Reports" is defined in Section 9.S.
"Required Lenders" means Lenders in the aggregate having at least a majority of the
Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least a majority of the Aggregate Outstanding Credit Exposure, provided
that the Commitment and Outstanding Credit Exposure of any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Reserve Requirement" means, with respect to an Interest Period, the reserve percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1 %) in
effect from time to time during such Interest Period, as prescribed by the Board of Governors of
the Federal Reserve System, applied for determining the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves), which is imposed
under Regulation D on eurocurency liabilities or under any similar or successor regulation with
respect to eurocurrency liabilities or eurocurency funding.
"Revolving Loans" is defined in Section 2.1(a).
"Revolving Note" means a promissory note issued at the request of a Lender pursuant to
Section 2.12(d), in substantially the form of Exhibit E-l hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving Loans made by such
Lender.
"S&P" means Standard and Poor's Ratings Services, a division of The McGraw Hil
Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of Propert by any
Person with the intent to lease such Property as lessee.
"Sanctioned Country" means a country subject to a sanctions program identified on the list
maintained by OF AC and available at htt://ww.treas.gov/offces/enforcementlofaclprogrms/, or as
otherwise published from time to time.
"Sanctioned Person" means (i) a Person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at htt://ww.treas.gov/-
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offces/enforcement/ofac/sdnindex.shtml, or as otherwise published from time to time, or
(ii) (A) an agency of the government ofa Sanctioned Countr, (B) an organization controlled by
a Sanctioned Country, or (C) a Person resident in a Sanctioned Countr, to the extent subject to a
sanctions program administered by OF AC.
"Senior Arangers Fee Letter" means the letter agreement, dated September 16,2011,
among Borrower, the Parent, KeyBan, KBCM and Union.
"Senior Lead Arangers Fee Letter" means the letter agreement, dated September 16,
2011, among Borrower, the Parent, Wells Fargo, Wells Fargo Securties, JPMCB, and
JPMorgan.
"Single Employer Plan" means a Plan maintained by the Borrower or any member of the
Controlled Group for employees of the Borrower or any member of the Controlled Group.
"Subsidiar" of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries, or (ii) any parership, limited liability company, association,
joint ventue or similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower and its
Subsidiaries, Propert which (i) represents more than 10% of the consolidated assets of the
Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as of the beginning of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries as
reflected in the financial statements referred to in clause (i) above.
"Swingline Borrowing Notice" is defined in Section 2.7(b).
"Swingline Commitment" shall mean $30,000,000 or, if less, the Aggregate Commitment
at the time of determination, as such amount may be reduced.
"Swingline Lender" shall mean Wells Fargo in its capacity as maker of Swing line Loans,
and its successors in such capacity.
"Swingline Loans" is defined in Section 2.1(c).
"Swingline Note" means a promissory note issued at the request of the Swingline Lender
pursuant to Section 2.12( d), in substantially the form of Exhibit E-2 hereto, evidencing the
aggregate indebtedness of the Borrower to the Swingline Lender resulting from Swingline Loans
made by the Swingline Lender.
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"Taxes" means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governental Authority, including any interest, additions to tax or penalties applicable thereto.
"Transferee" is defined in Section 12.4.
"~" refers to whether an Advance is a Eurodollar Advance, Floating Rate Advance or
LIBOR Market Index Rate Advance.
"Unfunded Liabilities" means the amount (if any) by which the present value of all
vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market
value of all such Plan assets allocable to such benefits, all determined as ofthe then most recent
valuation date for such Plans using PBGC actuarial assumptions for single employer plan
terminations.
"Union" means Union Bank, N.A. and its successors and assigns.
"Unmatured Default" means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
"Unutilized Swingline Commitment" means, with respect to the Swingline Lender at any
time, the Swingline Commitment at such time less the aggregate principal amount of all
Swingline Loans that are outstanding at such time.
"Wells Fargo" means Wells Fargo Bank, National Association.
"Wells Fargo Securities" means Wells Fargo Securities, LLC.
"Withholding Agent" means the Borrower, the Parent and the Administrative Agent.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any partership, limited liability
company, association, joint venture or similar business organization 100% of the ownership
interests having ordinary voting power of which shall at the time be so owned or controlled.
1.2 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation." The word ''wil''
shall be construed to have the same meaning and effect as the word "shalL." Unless the context
requires otherwise, (i) any definition of or reference to any agreement, instrument or other
document shall be construed as referring to such agreement, instruent or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrctions on
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such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be constred to include such Person's
successors and assigns, (iii) the words "herein," "hereof' and "hereunder," and words of similar
import when used in any Loan Document, shall be constred to refer to such Loan Document in
its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to
Aricles, Sections, Exhibits and Schedules shall be constred to refer to Articles and Sections of,
and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property" shall be constred to
have the same meaning and effect and to refer to any and all tagible and intangible assets and
properties, including cash, securties, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including;" the words "to" and "until" each mean "to but
excluding;" and the word "through" means "to and including."
(c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.
(d) Unless otherwise expressly specified, all references herein to a paricular time
shall mean Charlotte, North Carolina time.
(e) All references to the Lenders or any of them shall be deemed to include the
Swingline Lender and LC Issuers unless specifically provided otherwise or unless the context
otherwise requires.
1.3 Accounting Terms. All accounting terms not specifically or completely defined
herein shall be constred in conformity with, and all financial data (including financial ratios and
other financial calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with Agreement Accounting Principles, applied on a consistent basis, as
in effect from time to time and in a manner consistent with that used in preparing the audited
financial statements required by Section 6.1, except as otherwise specifically prescribed herein.
Notwithstanding the foregoing, for purposes of determining compliance with any covenant
(including the computation of any financial covenant) contained herein, Indebtedness of the
Borrower and its Subsidiaries shall be deemed to be carred at 100% of the outstanding principal
amount thereof, and the effects ofFASB ASC 825 and FASB ASC 470-20 on financial liabilities
shall be disregarded. If at any time any change in Agreement Accounting Principles would
affect the computation of any financial ratio or requirement set forth in any Loan Document, and
either the Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in Agreement Accounting Principles
(subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with Agreement Accounting
Principles prior to such change therein and (ii) the Borrower shall provide to the Administrative
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Agent and the Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in Agreement
Accounting Principles.
ARTICLE 2
THE CREDITS
2.1 Commitments.
(a) From and including the Closing Date to but excluding the Facility Termination
Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to
make loans to the Borrower (each such loan, a "Revolving Loan" and collectively, the
"Revolving Loans") in an amount equal to its Pro Rata Share of all Revolving Loans requested
by the Borrower, provided that after giving effect to the making of each Revolving Loan (and to
any concurrent repayment of Swing line Loans with proceeds of Revolving Loans made pursuant
to such Advance), such Lender's Outstanding Credit Exposure shall not exceed its Commitment.
Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any time prior to the Facility Termination Date.
(b) From and including the Closing Date to but excluding the Facility Termination
Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to
paricipate in Facility LCs issued upon the request of the Borrower, provided that after giving
effect to the issuance of each such Facility LC, such Lender's Outstanding Credit Exposure shall
not exceed its Commitment. The LC Issuers wil issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.18.
(c) From and including the Closing Date to but excluding the Facility Termination
Date, the Swingline Lender agrees, on the terms and conditions hereinafter set forth, to make
loans to the Borrower (each, a "Swingline Loan," and collectively, the "Swingline Loans"), in an
aggregate principal amount at any time outstanding not exceeding the Swingline Commitment.
Swingline Loans may be made even if the Swingline Lender's Outstanding Credit Exposure
would exceed its Commitment at such time, provided that no Advance of Swingline Loans shall
be made if, immediately after giving effect thereto, the Aggregate Outstanding Credit Exposure
would exceed the Aggregate Commitments at such time, and provided fuher that the Swingline
Lender shall not make any Swingline Loan if any Lender is at that time a Defaulting Lender,
unless the Swingline Lender has entered into arrangements, including the delivery of Cash
Collateral, satisfactory to the Swingline Lender (in its sole discretion) with the Borrower or such
Lender to eliminate the Swingline Lender's actual or potential Fronting Exposure (after giving
effect to Section 2.22(a)(iv)) with respect to the Defaulting Lender arising from either the
Swingline Loan then proposed to be made or that Swingline Loan and all other Swingline Loans
as to which the Swingline Lender has actual or potential Fronting Exposure, as it may elect in its
sole discretion. Subject to and on the terms and conditions of this Agreement, the Borrower may
borrow, repay (including by means of an Advance of Revolving Loans pursuant to Section
2.7(c)) and reborrow Swingline Loans at any time prior to the Facilty Termination Date,
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provided that the Borrower may not borrow Swingline Loans the proceeds of which are used to
repay outstanding Swingline Loans.
2.2 Required Payments; Termination.
(a) Except to the extent due or paid sooner pursuant to the provisions of this
Agreement, the Borrower shall repay to the Lenders the aggregate outstanding principal amount
of each Revolving Loan on the Facility Termination Date.
(b) Except to the extent due or paid sooner pursuant to the provisions of this
Agreement, the Borrower shall repay to the Swingline Lender the aggregate outstanding
principal amount of each Swingline Loan on the earlier to occur of (i) fourteen (14) days after
the Borrowing Date of each such Swingline Loan, and (ii) the Facility Termination Date.
2.3 Types of Advances; Minimum Amount of Each Advance. Subject to Section
2.23, the Revolving Loans may be Floating Rate Advances or Eurodollar Advances selected by
the Borrower in accordance with Sections 2.7 and 2.8. Each Eurodollar Advance shall be in the
amount of $5,000,000 or a higher integral multiple of $100,000, and each Floating Rate Advance
shall be in the amount of $5,000,000 or a higher integral multiple of $100,000, provided that any
Floating Rate Advance may be in the amount of the Available Aggregate Commitment. The
Swingline Loans may be Floating Rate Advances or LIB OR Market Index Rate Advances.
2.4 Fees. In addition to certain fees described in Section 2.18(d):
(a) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender an upfront fee in an amount agreed to in the Senior Lead Arangers Fee Letter, payable
on the date of execution of this Agreement.
(b) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a facility fee (each a "Facility Fee") at a percentage rate
per annum applicable at such time as set forth in the Pricing Schedule on the average daily
Aggregate Commitment from the date hereofto the Facility Termination Date (and, if applicable,
thereafter on the Aggregate Outstanding Credit Exposure until no Credit Extensions remain
outstanding), payable in arears on each Payment Date hereafter and on the Facility Termination
Date (and, if applicable, thereafter on demand).
(c) The Borrower shall pay to the Joint Lead Arangers and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the Fee
Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
2.5 Reduction or Termination of Aggregate Commitment. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in par ratably among the Lenders
in integral multiples of $ 10,000,000, upon at least five (5) Business Days' written notice to the
Administrative Agent, which notice shall specify the amount of any such reduction, provided
that the amount of the Aggregate Commitment may not be reduced below the Aggregate
Outstanding Credit Exposure. All accrued Facility Fees shall be payable on the effective date of
any termination of the Aggregate Commitments.
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2.6 Optional Principal Payments. The Borrower may, upon notice to the
Administrative Agent, from time to time pay, without penalty or premium, all outstanding
Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $ 100,000;
provided that such notice must be received by the Administrative Agent not later than 11 :00 a.m.
(A) three Business Days prior to any date of prepayment of Eurodollar Rate Advances and
(B) on the date of prepayment of Floating Rate Advances. Any prepayment of a Eurodollar Rate
Advance shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.3. Each such prepayment shall be applied to
the Loans of the Lenders in accordance with their respective Pro Rata Shares.
2.7 Requesting Advances.
( a) In order to obtain an Advance (other than (x) Advances of Swingline Loans,
which shall be made pursuant to Section 2.7(b), (y) Advances for the purpose of repaying
Refunded Swingline Loans, which shall be made pursuant to Section 2.7(c), or (z) conversions
of outstanding Revolving Loans made puruant to Section 2.8), the Borrower shall give the
Administrative Agent irrevocable notice (a "Borrowing Notice") not later than 11 :00 a.m. on the
Borrowing Date of each Floating Rate Advance and three (3) Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period applicable
thereto.
Not later than 1 :00 p.m. on each Borrowing Date, each Lender shall make available its Pro Rata
Share of the Revolving Loan or Revolving Loans in funds immediately available to the
Administrative Agent at its address specified pursuant to Article 13. Upon satisfaction of the
applicable conditions set forth in Section 4.2 (and, if such Advance is the initial Credit
Extension, Section 4.1), the Administrative Agent wil make the funds so received from the
Lenders available to the Borrower at the Administrative Agent's aforesaid address.
(b) In order to obtain an Advance of a Swing1ine Loan, the Borrower shall give the
Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the
Administrative Agent) irrevocable notice (a "Swingline Borrowing Notice") not later than
11 :00 a.m. on the Borrowing Date of each Swingline Loan, specifying the aggregate amount of
such Swingline Loan (which shall not be less than $1,000,000 and, if greater, shall be in an
integral multiple of $500,000 in excess thereof (or, if less, in the amount of the Unutilized
Swingline Commitment)) and (ii) the Type of Advance selected. Not later than 4:00 p.m. on the
Borrowing Date, the Swingline Lender shall make available an amount equal to the amount of
the requested Swingline Loan in funds immediately available to the Administrative Agent at its
address specified pursuant to Article 13. The Administrative Agent wil make the funds so
received from the Swingline Lender available to the Borrower at the Administrative Agent's
aforesaid address.
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(c) With respect to any outstanding Swingline Loans, the Swingline Lender may at
any time (whether or not a Default has occurred and is continuing, other than a Default under
Sections 7(g) or 7(h)) in its sole and absolute discretion, and is hereby authorized and
empowered by the Borrower to, cause an Advance of Revolving Loans to be made for the
purose of repaying such Swingline Loans by delivering to the Administrative Agent (if the
Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and
with a copy to, the Borrower), not later than 11:00 a.m. on the day of the proposed Borrowing
Date therefor, a notice (which shall be deemed to be a Borrowing Notice given by the Borrower)
requesting the Lenders to make Revolving Loans (which shall be made initially as Floating Rate
Advances) on the Borrowing Date in an aggregate amount equal to the amount of such Swingline
Loans (the "Refuded Swingline Loans") outstading on the date such notice is given that the
Swingline Lender requests to be repaid. Not later than 1 :00 p.m. on the requested Borrowing
Date, each Lender (other than the Swingline Lender) shall make available its Pro Rata Share of
the Refunded Swingline Loans in fuds immediately available to the Administrative Agent at its
address specified pursuant to Artcle 13. To the extent the Lenders have made such amounts
available to the Administrative Agent as provided hereinabove, the Administrative Agent wil
make the aggregate of such amounts available to the Swingline Lender in like funds as received
by the Administrative Agent, which shall apply such amounts in repayment of the Refuded
Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the
relevant Borrowing Date, the Refuded Swingline Loans shall be deemed to be repaid with the
proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed
to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be
so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as
Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the
Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender
in any bankptcy, insolvency or similar proceeding or otherwise, the loss of the amount so
recovered shall be shared ratably among all the Lenders in the manner contemplated by Section
11.2.
(d) If, for any reason, Revolving Loans are not made pursuant to Section 2.7(c) in an
amount sufficient to repay any amounts owed to the Swingline Lender in respect of any
outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason
from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline
Lender shall be deemed to have sold without recourse, representation or warranty, and each
Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such
outstanding Swingline Loans in an amount equal to its Pro Rata Share of the unpaid amount
thereof together with accrued interest thereon. Upon one (1) Business Day's prior notice from
the Swingline Lender, each Lender (other than the Swingline Lender) shall make available to the
Administrative Agent at its address specified pursuant to Article 13 an amount, in immediately
available funds, equal to its respective participation. To the extent the Lenders have made such
amounts available to the Administrative Agent as provided hereinabove, the Administrative
Agent wil make the aggregate of such amounts available to the Swingline Lender in like funds
as received by the Administrative Agent.
(e) In the event any such Lender fails to make available to the Administrative Agent
for the account of the Swingline Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.7, the Swingline Lender shall be entitled to recover
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such amount on demand from such Lender, together with interest thereon for each day from the
date such amount is required to be made available for the account of the Swingline Lender until
the date such amount is made available to the Swingline Lender at the Federal Funds Effective
. Rate for the first three (3) Business Days and thereafter at the Floating Rate applicable to
Revolving Loans. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender's Revolving Loan included in the relevant Advance
or funded participation in the relevant Swingline Loan, as the case may be. Promptly following
its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the
Swingline Lender wil pay to each Lender that has acquired a participation therein such Lender's
Pro Rata Share of such payment in accordance with Section 2.11.
(f) Notwithstanding any provision of this Agreement to the contrar, the obligation
of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of
repaying any Refunded Swingline Loans pursuant to Section 2.7(c) and each such Lender's
obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.7(d)
shall be absolute and unconditional and shall not be affected by any circumstance or event
whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or
other right that such Lender may have against the Swingline Lender, the Administrative Agent,
the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance
of any Unmatued Default or Default, or (iii) the failure of the amount of such Advance of
Revolving Loans to meet the minimum borrowing amount specified in Section 2.3.
2.8 Conversion and Continuation of Outstanding Advances. Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances pursuant to this Section 2.8 or are repaid in accordance with
Section 2.6. Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of
the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with Section 2.6 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at
the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. Subject to Section 2.3, the Borrower may elect from time to
time to convert all or any part of a Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Administrative Agent irrevocable notice (a "Conversion/Continuation
Notice") of each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 11 :00 a.m. at least three (3) Business Days
prior to the date of the requested conversion or continuation, specifyng:
(i) the requested date, which shall be a Business Day, of such conversion or
continuation,
(ii) the aggregate amount and Type of the Advance which is to be converted
or continued, and
(iii) the amount of such Advance, which is to be converted into or continued as
a Eurodollar Advance and the duration of the Interest Period applicable thereto.
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2.9 Changes in Interest Rate. etc.
(a) Each Floating Rate Advance shall bear interest on the outstanding principal
amount thereof, for each day from the date such Floating Rate Advance is made or is
automatically converted from a Eurodollar Advance into a Floating Rate Advance pursuant to
Section 2.8, to the date it is paid or is converted into a Eurodollar Advance pursuant to
Section 2.8, at a rate per annum equal to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Revolving Loan maintained as a Floating Rate Advance wil take
effect simultaneously with each change in the Alternate Base Rate.
(b) Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from the first day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower's selections under Sections 2.7
and 2.8 and otherwise in accordance with the terms hereof. No Interest Period may end after the
Facility Termination Date.
(c) Each LIB OR Market Index Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from the date such LIBOR Market Index Rate Advance is
made to the date it is paid at a rate per annum equal to the LIBOR Market Index Rate for such
day.
2.10 Rates Applicable After Default. Notwithstanding anything to the contrary
contained in Sections 2.7, 2.8 or 2.9, durng the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrower, declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. Durng the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar
Advance shall bear interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum, (ii) each Floating Rate Advance
shall bear interest at a rate per annum equal to the Floating Rate in effect from time to time plus
2% per annum (iii) each LIB OR Market Index Rate Advance shall bear interest at a rate per
annum equal to the LIBOR Market Index Rate in effect from time to time plus 2% per annum,
and (iv) the LC Fee shall be increased by 2% per annum, provided that during the continuance of
a Default under Sections 7(g) or 7(h), the interest rates set forth in clauses (i), (ii) and (ii) above
and the increase in the LC Fee set forth in clause (iv) above shall be applicable to all Credit
Extensions without any election or action on the part of the Administrative Agent or any Lender.
2.11 Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available fuds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article 13, or at any other
Lending Installation of the Administrative Agent specified in writing by the Administrative
Agent to the Borrower, by 12:00 noon on the date when due and shall (except for payments of
Reimbursement Obligations for which the applicable LC Issuer has not received payments from
the Lenders or as otherwise specifically required hereunder) be applied ratably by the
Administrative Agent among the Lenders. Each payment delivered to the Administrative Agent
for the account of any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at its address specified
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pursuant to Article 13 or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is hereby authorized to
charge any account of the Borrower maintained with Wells Fargo for each payment of principal,
interest, Reimbursement Obligations and fees as it becomes due hereunder. Each reference to
the Administrative Agent in this Section 2.11 shall also be deemed to refer, and shall apply
equally, (i) to the Swingline Lender, in the case of payments required to be made by the
Borrower to the Swingline Lender and (ii) to the applicable LC Issuer, in the case of payments
required to be made by the Borrower to such LC Issuer.
2.12 Noteless Agreement; Evidence of Indebtedness.
(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
made by such Lender from time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall also maintain the Register pursuant to Section
12.3(d) and subaccounts for each Lender in which (taken together) it wil record (a) the amount
of each Loan made hereunder, the Type thereof and the Interest Period (if any) with respect
thereto, (b) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder, (c) the original stated amount of each Facilty LC
and the amount of LC Obligations outstanding at any time, and (d) the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(c) The entries maintained in the accounts, Register and subaccounts maintained
pursuant to Sections 2.12(a) and (b) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided that the failure of the Administrative
Agent or any Lender to maintain such accounts, such Register or such subaccount, as applicable,
or any error therein shall not in any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(d) The Loans made by each Lender shall, if requested by the applicable Lender
(which request shall be made to the Administrative Agent), be evidenced (i) in the case of
Revolving Loans, by a Revolving Note, and (ii) in the case of the Swingline Loans, by a
Swingline Note, in each case appropriately completed and executed by the Borrower and payable
to the order of such Lender. Each Note shall be entitled to all of the benefits of this Agreement
and the other Loan Documents and shall be subject to the provisions hereof and thereof.
2.13 Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is specifically intended to allow
Borrowing Notices, Swingline Borrowing Notices and Conversion/Continuation Notices to be
given telephonically. The Borrower agrees to deliver promptly to the Administrative Agent a
wrtten confirmation, if such confirmation is requested by the Administrative Agent or any
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Lender, of each telephonic notice signed by an Authorized Offcer. If the written confirmation
differs in any material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest
error.
2.14 Interest Payment Dates; Interest and Fee Basis; Maximum Rate.
(a) Interest accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof, on any date on which
such Floating Rate Advance is prepaid, whether due to acceleration or otherwise, and at the
Facility Termination Date. Interest accrued on that portion of the outstanding principal amount
of any Floating Rate Advance converted into a Eurodollar Advance on a day other than a
Payment Date shall be payable on the date of conversion.
(b) Interest accrued on each Eurodollar Advance shall be payable on the last day of
its applicable Interest Period, on any date on which the Eurodollar Advance is prepaid, whether
by acceleration or otherwise, and at the Facilty Termination Date. Interest accrued on each
Eurodollar Advance having an Interest Period longer than three months shall also be payable on
the last day of each three-month interval durg such Interest Period.
(c) Interest accrued on each LIB OR Market Rate Advance shall be payable on any
date on which such LIB OR Market Rate Advance is paid in full, whether due to acceleration or
otherwise, and on the date such LIBOR Market Index Rate Advance shall become due and
payable pursuant to Section 2.2(b).
(d) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(e) Interest hereunder shall be due and payable in accordance with the terms hereof
before and after judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.
(f) Interest on Floating Rate Advances bearing interest at the Prime Rate shall be
calculated for actual days elapsed on the basis of a 365, or when appropriate, 366 day year. All
other interest and all fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 12:00 noon at the place of payment.
If any payment of principal of or interest on an Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business Day (except for
interest payments in respect of Eurodollar Advances whose Interest Period ends on a day which
is not a Business Day, and the next succeeding Business Day falls in a new calendar month, in
which case interest accrued on such Eurodollar Advance shall be payable on the immediately
preceding Business Day) and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
(g) In no contingency or event whatsoever shall the aggregate of all amounts deemed
interest under this Agreement charged or collected pursuant to the terms of this Agreement
exceed the highest rate permissible under any applicable law which a cour of competent
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jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court
determines that the Lenders have charged or received interest hereunder in excess of the highest
applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate
permitted by applicable law and the Lenders shall at the Administrative Agent's option
(i) promptly refund to the Borrower any interest received by the Lenders in excess of the
maximum lawful rate or (ii) apply such excess to the principal balance of the Obligations on a
pro rata basis. It is the intent hereof that the Borrower not payor contract to pay, and that neither
the Administrative Agent nor any Lender receive or contract to receive, directly or indirectly in
any manner whatsoever, interest in excess of that which may be paid by the Borrower under
applicable law.
2.15 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent wil notify each Lender of
the contents of each Aggregate Commitment reduction notice, Borrowing Notice (including
Borrowing Notices received from the Swingline Lender in accordance with Section 2.7(c)),
Swingline Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. Promptly after notice from any LC Issuer, the Administrative Agent wil notify
each Lender of the contents of each request for issuance of a Facility LC hereunder. The
Administrative Agent wil notify each Lender of the interest rate applicable to each Eurodollar
Advance and each LIBOR Market Index Rate Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.16 Lending Installations. Each Lender may book its Loans, its participations in any
outstanding Swingline Loans, and its paricipation in any LC Obligations and any LC Issuer may
book the Facility LCs at any Lending Installation selected by such Lender or such LC Issuer, as
the case may be, and may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Loans, Facility LCs,
paricipations in outstanding Swingline Loans, participations in LC Obligations and any Notes
issued hereunder shall be deemed held by each Lender or each LC Issuer, as the case may be, for
the benefit of any such Lending Installation. Each Lender and each LC Issuer may, by written
notice to the Administrative Agent and the Borrower in accordance with Article 13, designate
replacement or additional Lending Installations through which Loans wil be made by it or
Facility LCs wil be issued by it and for whose account Loan payments or payments with respect
to Facility LCs are to be made.
2.17 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is
scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such payment
available to the intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made available by the
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Administrative Agent until the date the Administrative Agent recovers such amount at a rate per
annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for
such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant
Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant
Loan.
2.18 Facility LCs.
(a) Each LC Issuer hereby agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.18, on the terms and conditions set forth in this Agreement, to issue letters
of credit (each, a "Facility LC") and to renew, extend, increase, decrease or otherwise modify
each Facility LC ("Modify," and each such action a "Modification"), from time to time from the
Closing Date and prior to the fifth Business Day prior to the Facility Termination Date upon the
request of the Borrower; provided that immediately after each such Facility LC is issued or
Modified, (i) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment, (ii) the sum of the aggregate undrawn face amount of all Facility LCs outstanding
at such time issued by the LC Issuers and the Reimbursement Obligations shall not exceed the
LC Subcommitment, (iii) the sum of the aggregate undrawn face amount of all Facility LCs
issued by any LC Issuer and the Reimbursement Obligations owed to such LC Issuer shall not
exceed such LC Issuer's LC Commitment, and (iv) no Lender shall be a Defaulting Lender,
unless the LC Issuer has entered into an arangement, including the delivery of Cash Collateral,
satisfactory to such LC Issuer (in its sole discretion), with the Borrower or such Lender to
eliminate the LC Issuer's actual or potential Fronting Exposure (after giving effect to Section
2.22(a)(iv)) with respect to the Defaulting Lender arising from either the Facility LC then
proposed to be issued or that Facility LC and the Outstanding Credit Exposure as to which such
LC Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion. No
Facility LC shall have an expiry date later than the earlier of (A) the fifth Business Day prior to
the Facility Termination Date and (B) one year after its issuance (the "Facility LC Matuity
Date"), provided that any Facility LC with a one-year tenor may provide for the renewal thereof
for additional one-year periods (but in no event beyond the date referred to in clause (A) above).
Notwithstanding the foregoing, no LC Issuer shall be under any obligation to issue any Facility
LC if (x) any order, judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the LC Issuer from issuing such Facility LC, or any law
applicable to such LC Issuer or (y) any request or directive (whether or not having the force of
law) from any Governental Authority with jursdiction over the LC Issuer shall (1) prohibit, or
request that the LC Issuer refrain from, the issuance of letters of credit generally or such Facility
LC in particular or (2) impose upon the LC Issuer with respect to such Facility LC any
restrction, reserve or capital requirement (for which the LC Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date or shall impose upon the LC Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date, in each case
under this clause (y)(2) which the LlC Issuer in good faith deems material to it, unless the
Borrower agrees in wrting to indemnify the LC Issuer for any such costs.
(b) Upon the issuance or Modification by any LC Issuer of a Facility LC in
accordance with this Section 2.18, such LC Issuer shall be deemed, without fuher action by any
part hereto, to have unconditionally and irrevocably sold to each Lender, and each Lender shall
be deemed, without fuher action by any party hereto, to have unconditionally and irrevocably
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purchased from such LC Issuer without recourse or warranty, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to its Pro Rata
Share. Notwithstanding anything herein to the contrary, effective upon any increase or reduction
of the Aggregate Commitments pursuant to the terms hereunder, each Lender's participation in
any Facilty LC outstanding on such date shall be adjusted to reflect its Pro Rata Share after
giving effect to such increase or reduction, as the case may be.
(c) Subject to Section 2.18(a), the Borrower shall give the applicable LC Issuer
notice prior to 11 :00 a.m. at least three (3) Business Days (or such shorter period as is acceptable
to the LC Issuer in any given case) prior to the proposed date of issuance or Modification of each
Facility LC, specifying the beneficiary, the proposed date of issuance (or Modification) and the
expiry date of such Facility LC, and describing the proposed terms of such Facility LC and the
natue of the transactions proposed to be supported thereby. Upon receipt of such notice, the
applicable LC Issuer shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify each Lender, of the contents thereof and of the amount of such
Lender's participation in such proposed Facility LC. The issuance or Modification by any LC
Issuer of any Facility LC shall, in addition to the conditions precedent set forth in Artcle 4 (the
satisfaction of which the LC Issuer shall have no duty to ascertain), be subject to the conditions
precedent that such Facility LC shall be satisfactory to such LC Issuer, acting reasonably, and
that the Borrower shall have executed and delivered such application agreement and/or such
other instrments and agreements relating to such Facility LC as such LC Issuer shall have
reasonably requested (each, a "Facility LC Application"). In the event of any conflct between
the terms of this Agreement and the terms of any Facility LC Application, the terms of this
Agreement shall control.
(d) The Borrower shall pay to the Administrative Agent, for the account of the
Lenders in accordance with their respective Pro Rata Shares, with respect to each Facility LC
issued hereunder, a letter of credit fee at a per annum rate equal to the Applicable Margin for
Eurodollar Advances in effect from time to time on the average daily undrawn stated amount
under such standby Facility LC, such fee to be payable in arrears on each Payment Date, on the
Facility LC Maturity Date and thereafter on demand (each such fee described in this sentence an
"LC Fee"), provided, however, that any LC Fees otherwise payable for the account of a
Defaulting Lender with respect to any Facility LC as to which such Defaulting Lender has not
provided Cash Collateral satisfactory to the LC Issuer pursuant to Section 2.22(c) shall be
payable, to the maximum extent permitted by applicable law, to the other Lenders in accordance
with the upward adjustments in their respective Pro Rata Shares allocable to such Facility LC,
with the balance of such fee, if any, payable to the LC Issuer for its own account; provided
further, that so long as no Unmatued Default or Default exists, notwithstanding the Pricing
Level otherwise applicable to the Advances, Facility LCs and Facility Fee, the Borrower shall be
required to pay an LC Fee on any portion of any Facility LC that the Borrower has Cash
Collateralized at a rate equal to the Applicable Margin for LIBOR Loans corresponding to
Pricing Level i. The Borrower shall also pay to the applicable LC Issuer for its own account (x)
a fronting fee at the per annum rate set forth in the Senior Lead Arrangers Fee Letter or as
separately agreed with such LC Issuer on the average daily undrawn stated amount under each
Facility LC issued hereunder, such fee to be payable in arrears on each Payment Date, and (y)
documentary and processing charges in connection with the issuance or Modification of and
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draws under Facility LCs in accordance with the applicable LC Issuer's standard schedule for
such charges as in effect from time to time.
(e) Upon receipt from the beneficiar of any Facility LC of any demand for payment
under such Facility LC, the applicable LC Issuer shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Borrower and each other Lender as to the amount
to be paid by such LC Issuer as a result of such demand and the proposed payment date (the "LC
Payment Date"). The responsibilty of such LC Issuer to the Borrower and each Lender shall be
only to determine that the documents (including each demand for payment) delivered under each
Facility LC in connection with such presentment shall be in conformity in all material respects
with such Facility LC. Each LC Issuer shall endeavor to exercise the same care in the issuance
and administration of the Facilty LCs as it does with respect to letters of credit in which no
participations are granted. Each Lender's obligation to reimbure each LC Issuer for its Pro Rata
Share of the amount drawn under each Facility LCs to the extent such amount is not reimbursed
by the Borrower pursuant to Section 2.18(1) below shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the LC Issuer, the Borrower or any
other Person for any reason whatsoever; (B) the occurence or continuance of a Default or
Unmatured Default, or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing. If any Lender fails to make available to the Administrative Agent for the
account of the applicable LC Issuer any amount required to be paid by such Lender pursuant to
this foregoing provisions of this Section 2.18(e), such LC Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the LC Payment Date to the date on which such payment is
immediately available to the LC Issuer at a rate per annum equal to the Federal Funds Effective
Rate for the first three (3) days and, thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
(t) The Borrower shall be irrevocably and unconditionally obligated to reimburse any
LC Issuer on the applicable LC Payment Date for any amounts to be paid by such LC Issuer
upon any drawing under any Facility LC, without presentment, demand, protest or other
formalities of any kind; provided that, subject to Section 2.18(h), the Borrower shall not be
precluded from asserting any claim for direct (but not consequential) damages suffered by the
Borrower to the extent, but only to the extent, caused by (i) the wilful misconduct or gross
negligence of such LC Issuer in determining whether a request presented under any Facility LC
issued by it complied with the terms of such Facility LC or (ii) such LC Issuer's failure to pay
under any Facility LC issued by it after the presentation to it of a request strictly complying with
the terms and conditions of such Facility LC. All such amounts paid by such LC Issuer and
remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to (x) the rate applicable to Floating Rate Advances for such day if
such day falls on or before the applicable LC Payment Date and (y) the sum of2% plus the rate
applicable to Floating Rate Advances for such day if such day falls after such LC Payment Date.
The applicable LC Issuer wil pay to each Lender ratably in accordance with its Pro Rata Share
all amounts received by it from the Borrower for application in payment, in whole or in part, of
the Reimbursement Obligation in respect of any Facility LC issued by such LC Issuer, but only
to the extent such Lender has made payment to such LC Issuer in respect of such Facility LC
puruant to Section 2.18(e). Subject to the terms and conditions of this Agreement (including
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the submission of a Borrowing Notice in compliance with Section 2.7 and the satisfaction of the
applicable conditions precedent set forth in Article 4), the Borrower may request an Advance
hereunder for the purpose of satisfying any Reimbursement Obligation.
(g) The Borrower's obligations to reimburse each LC Issuer for each drawing under
each Facility LC shall be absolute, unconditional and irrevocable, and shall be paid strctly in
accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Facility LC, this Agreement, or any other Loan
Document; (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of such Facility LC (or
any Person for whom any such beneficiary or any such transferee may be acting), the LC Issuer
or any other Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Facility LC or any agreement or instrment relating thereto, or any unrelated
transaction; (iii) any draft, demand, certificate or other document presented under such Facility
LC proving to be forged, fraudulent, invalid or insuffcient in any respect or any statement
therein being untre or inaccurate in any respect; (iv) any payment by the applicable LC Issuer
under such Facility LC against presentation of a draft or certificate that does not strctly comply
with the terms of such Facility LC; or any payment made by the LC Issuer under such Facilty
LC to any Person purporting to be a trstee in bankrptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; (v) any dispute between or among the Borrower, any
of its Affiliates, the beneficiary of any Facility LC or any financing institution or other party to
whom any Facilty LC may be transferred; (vi) any claims or defenses whatsoever of the
Borrower or of any of its Affliates against the beneficiary of any Facility LC or any such
transferee; or (vii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower. No LC Issuer shall be liable for any error,
omission, interrption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Facility LC. The Borrower agrees that any action
taken or omitted by any LC Issuer or any Lender under or in connection with each Facility LC
and the related drafts and documents, if done without gross negligence or wilful misconduct,
shall be binding upon the Borrower and shall not put any LC Issuer or any Lender under any
liability to the Borrower. Nothing in this Section 2.18(g) is intended to limit the right of the
Borrower to make a claim against any LC Issuer for damages as contemplated by
Section 2.18(h).
(h) Each Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, the applicable LC Issuer shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the applicable Facility LC)
or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document, provided that at all times the LC Issuer
shall be acting in good faith. None of the LC Issuers, the Administrative Agent, any oftheir
respective Related Parties nor any correspondent, participant or assignee of any LC Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken
or omitted in the absence of gross negligence or wilful misconduct; or (iii) the due execution,
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effectiveness, validity or enforceability of any document or instrument related to any Facility
LC. Notwithstanding any other provision ofthis Section 2.18, each LC Issuer shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement in accordance
with a request of the Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and any futue holders of a participation in
any Facility LC. None of the LC Issuers, the Administrative Agent, any of their respective
Related Parties nor any correspondent, paricipant or assignee of any LC Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (m) of Section 2.18(g);
provided, however, that anything in such clauses to the contrry notwithstanding, the Borrower
may have a claim against any LC Issuer, and such LC Issuer may be liable to the Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which a court of competent jurisdiction determines in a final
nonappealable judgment to have resulted from such LC Issuer's wilful misconduct or gross
negligence or the LC Issuer's failure to pay under any Facility LC after the presentation to it by
the beneficiar of a sight draft and certificate(s) strictly complying with the terms and conditions
of such Facility LC.
(i) The Borrower agrees that it wil, upon the request of the Administrative Agent or
the Required Lenders (i) when a Default exists and until the final expiration date of any Facility
LC and thereafter as long as any amount is payable to any LC Issuer or the Lenders in respect of
any Facility LC or (ii) if, as ofthe Facilty Termination Date, any LC Obligation for any reason
remains outstanding, maintain a special collateral account pursuant to arrangements satisfactory
to the Administrative Agent (the "Facility LC Collateral Account") at the Administrative Agent's
offce at the address specified pursuant to Article 13, in the name of such Borrower but under the
sole dominion and control of the Administrative Agent, for the benefit of the Lenders and in
which such Borrower shall have no interest other than as set forth in Section 8.1. The Borrower
hereby pledges, assigns and grants to the Administrative Agent, on behalf of and for the ratable
benefit of the Lenders and the LC Issuers, a security interest in all of the Borrower's right, title
and interest in and to all funds which may from time to time be on deposit in the Facility LC
Collateral Account to secure the prompt and complete payment and performance of the LC
Obligations. Amounts in the Facility LC Collateral Account shall not bear interest.
G) In its capacity as a Lender, each LC Issuer shall have the same rights and
obligations as any other Lender.
2.19 Replacement of Lender. If any Lender requests compensation under Sections 3.1
or 3.2, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.S
and, in each case, such Lender has declined or is unable to designate a different Lending
Installation in accordance with Section 3.6, or if any Lender is a Defaulting Lender or a Non-
Consenting Lender or in connection with any proposed amendment, modification, waiver or
consent with respect to any of the provisions hereof as contemplated by Section 8.2(i) or (ii), the
consent of the Required Lenders shall have been obtained but the consent of one or more of such
other Lenders whose consent is required shall not have been obtained, in each case, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 12.3), all of its
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interests, rights (other than its existing rights to payments pursuant to Sections 3.1 or 3.2 or
Section 3.5) and obligations under this Agreement and the related Loan Documents to an
Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that:
(i) no Unmatued Default or Default shall have occurred or be continuing;
(ii) the Administrative Agent shall have received the assignent fee (if any)
specified in Section 12.3;
(iii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and funded participations in LC Obligations, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under Section 3.3) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);
(iv) in the case of any such assignent resulting from a claim for
compensation under Sections 3.1 or 3.2 or payments required to be made pursuant to
Section 3.S, such assignment wil result in a reduction in such compensation or payments
thereafter;
(v) such assignent does not conflct with applicable law; and
(vi) in the case of any assignment resulting from a Lender becoming a Non-
Consenting Lender, the applicable assignee shall have consented to the applicable
amendment, waiver or consent.
A Lender shall not be required to make any such assignent or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignent and delegation cease to apply.
2.20 Increase in Commitments.
(a) The Borrower shall have the right at any time and from time to time after the
Closing Date and prior to the date that is thirty (30) days prior to the Facilty Termination Date to
increase the Aggregate Commitment (each such proposed increase being a "Commitment
Increase"), either by having a Lender increase its Commitment then in effect (each an
"Increasing Lender") or by adding as a Lender with a new Commitment hereunder a Person
which is not then a Lender (each an "Assuming Lender"), in each case with the approval of the
Administrative Agent (such approval not to be unreasonably withheld), which notice shall
specify the name of each Increasing Lender and/or Assuming Lender, as applicable, the amount
of the Commitment Increase and the portion thereof being assumed by each such Increasing
Lender or Assuming Lender, and the date on which such increase is to be effective (the
"Commitment Increase Date"), which shall be a Business Day at least three (3) Business Days
after delivery of such notice; provided that no Lender shall have any obligation hereunder to
become an Increasing Lender and any election to do so shall be in the sole discretion of each
Lender; provided further that: (i) any such request for a Commitment Increase shall be in a
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minimum amount of $25,000,000 or a higher integral multiple of $1,000,000; (ii) immediately
after giving effect to any Commitment Increase, the Aggregate Commitment shall not exceed
$450,000,000 and the aggregate amount of all Commitment Increases shall not exceed
$150,000,000; (iii) the sum of the increases in Commitments of the Increasing Lenders and the
new Commitments of the Assuming Lenders shall not exceed the requested Commitment
Increase; (iv) no Default or Unmatued Default shall have occurred and be continuing on the
applicable Commitment Increase Date or shall result from any Commitment Increase; and (v) the
representations and warranties contained in Article 5 (other than in Section S.5) shall be true on
and as of the Commitment Increase Date as if made on and as of such date (or, if any such
representation and warranty is expressly stated to have been made as of a specified date, as of
such specific date).
(b) Each Commitment Increase (and the increase of the Commitment of each
Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable,
resulting therefrom) shall become effective as ofthe Commitment Increase Date; provided that:
(i) the Administrative Agent shall have received on or prior to 10:00 a.m. on such Commitment
Increase Date a certificate of an Authorized Officer stating that each of the applicable conditions
to such Commitment Increase set forth in Section 2.20(a) has been satisfied and attaching the
resolutions adopted by the Borrower approving or consenting to such Commitment Increase;
(ii) with respect to each Assuming Lender, the Administrative Agent shall have received, on or
prior to 10:00 a.m. on such Commitment Increase Date, a Joinder Agreement among the
Assuming Lender, the Borrower and the Administrative Agent; and (iii) each Increasing Lender
shall have delivered to the Administrative Agent, on or prior to 10:00 a.m. on such Commitment
Increase Date, confirmation in writing satisfactory to the Administrative Agent as to its increased
Commitment, with a copy of such confirmation to the Borrower.
(c) On each Commitment Increase Date upon such time as the applicable conditions
set forth in Sections 2.20(a) and 2.20(b) have been satisfied, the Borrower shall (i) prepay the
then outstanding Advances (if any) in full prior to giving effect to such Commitment Increase,
(ii) if the Borrower shall so request, request new Advances from the Lenders (including any
Assuming Lender) in an aggregate amount at least equal to such prepayment, so that, after giving
effect thereto, the Advances are held ratably by the Lenders in accordance with their respective
Commitments (after giving effect to such Commitment Increase) and (iii) pay to the Lenders any
fuding indemnification amounts required by Section 3.3.
2.21 Extension of Facility Termination Date.
(a) So long as no Unmatued Default or Default has occurred and is continuing and
subject to the conditions set forth in Section 2.21(c), the Borrower may, not more than two (2)
times during the term of this Agreement, no earlier than sixty (60) days and no later than thirty
(30) days prior to each anniversary of the Closing Date (such anniversary, an "Extension Date")
request through written notice to the Administrative Agent (the "Extension Notice"), that the
Lenders extend the then existing Facility Termination Date for an additional one-year period.
Each Lender, acting in its sole discretion, shall, by notice to the Administrative Agent no later
than the applicable Extension Date (except in the year in which the then existing Facility
Termination Date shall occur, in which case such written notice shall be delivered by the Lenders
no later than fifteen (15) days prior to the then existing Facility Termination Date) (such date, the
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"Consent Date"), advise the Administrative Agent in wrting of its desire to extend (any such
Lender, a "Consenting Lender") or not to so extend (any such Lender, a "Non-Consenting
Lender") such date. Any Lender that does not advise the Administrative Agent by the Consent
Date shall be deemed to be a Non-Consenting Lender. No Lender shall be under any obligation
or commitment to extend the then existing Facility Termination Date. The election of any
Lender to agree to such extension shall not obligate any other Lender to agree to such extension.
(b) On the Consent Date, if Lenders holding Commitments that aggregate more than
50% of the Aggregate Commitments shall have agreed to such extension, then the then existing
Facility Termination Date applicable to the Consenting Lenders shall be extended to the date that
is one (1) year after the then existing Facility Termination Date. All Advances of each Non-
Consenting Lender shall be subject to the then existing Facility Termination Date, without giving
effect to such extension (such date, the "Prior Termination Date"). In the event of an extension
of the then existing Facility Termination Date pursuant to this Section 2.21, the Borrower shall
have the right, at its own expense, to solicit commitments from existing Lenders and/or other
banks or financial institutions reasonably acceptable to the Administrative Agent and the LC
Issuer (each, an "Eligible Replacement Lender") to replace the Commitment of any Non-
Consenting Lenders for the remaining duration of this Agreement. Any Eligible Replacement
Lender (if not already a Lender hereunder) shall become a party to this Agreement as a Lender
by delivering an executed Joinder Agreement to the Administrative Agent and the Borrower.
The Commitment of each Non-Consenting Lender shall terminate on the Prior Termination Date,
all Advances and other amounts payable hereunder to such Non-Consenting Lenders shall be
subject to the Prior Termination Date and, to the extent such Non-Consenting Lender's
Commitment is not replaced as provided above, the Commitments hereunder shall be reduced by
the amount of the Commitment of each such Non-Consenting Lender so terminated on the Prior
Termination Date. Notwithstanding anything to the contrary in this Section 2.21, the Facility
Termination Date shall not be extended unless the aggregate Commitments of the Consenting
Lenders and any Eligible Replacement Lenders joining this Agreement pursuant to this Section
2.21(b) are greater than or equal to the Aggregate Outstanding Credit Exposure as of each Prior
Termination Date.
(c) An extension of the Facility Termination Date pursuant to this Section 2.21 shall
only become effective upon the receipt by the Administrative Agent of a certificate (the
statements contained in which shall be true) of a duly authorized offcer of the Borrower stating
that both before and after giving effect to such extension of the Facility Termination Date (i) no
Default has occured and is continuing and (ii) all representations and warranties contained in
Article 5 are tre and correct in all material respects on and as of the date such extension is
made, except for such representations or waranties which by their terms are made as of a
specified date, which shall be tre and correct as of such specified date.
(d) Effective on and after the Prior Termination Date, (i) each ofthe Non-Consenting
Lenders shall be automatically released from their respective LC Obligations and (ii) the LC
Obligations of each Lender (other than the Non-Consenting Lenders) shall be automatically
adjusted to equal such Lender's Pro Rata Share of such LC Obligations.
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2.22 Defaulting Lenders.
(a) Notwithstanding anything to the contrar contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a
Defaulting Lender, to the extent permitted by applicable law:
(i) Such Defaulting Lender's right to approve or disapprove any amendment,
waiver or consent with respect to this Agreement shall be restrcted as set forth in the
definition of Required Lenders.
(ii) Any payment of principal, interest, fees or other amounts received by the
Administrative Agent for the account of such Defaulting Lender (whether voluntar or
mandatory, at matuity, pursuant to Artcle 7 or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 11.1 shall be applied
at such time or times as may be determined by the Administrative Agent as follows: first,
to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by
such Defaulting Lender to any LC Issuer or Swing1ine Lender hereunder; third, to Cash
Collateralize the LC Issuers' Fronting Exposure with respect to such Defaulting Lender
in accordance with Section 2.22(c); fourh, as the Borrower may request (so long as no
Default or Unmatued Default exists), to the fuding of any Loan in respect of which
such Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a deposit account and released pro
rata in order to (x) satisfy such Defaulting Lender's potential futue fuding obligations
with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers'
futue Fronting Exposure with respect to such Defaulting Lender with respect to future
Facility LCs issued under this Agreement, in accordance with Section 2.22(c); sixth, to
the payment of any amounts owing to the Lenders, the LC Issuers or Swingline Lenders
as a result of any judgment of a cour of competent jursdiction obtained by any Lender,
the LC Issuers or Swingline Lenders against such Defaulting Lender as a result of such
Defaulting Lender's breach of its obligations under this Agreement; seventh, so long as
no Default or Unmatued Default exists, to the payment of any amounts owing to the
Borrower as a result of any judgment of a cour of competent jurisdiction obtained by the
Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach
of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a cour of competent jurisdiction; provided that if (x) such payment
is a payment of the principal amount of any Loans or LC Obligations in respect of which
such Defaulting Lender has not fully fuded its appropriate share, and (y) such Loans
were made or the related Facility LCs were issued at a time when the conditions set forth
in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the
Loans of, and LC Obligations owed to, all Non-Defaulting Lenders on a pro rata basis
prior to being applied to the payment of any Loans of, or LC Obligations owed to, such
Defaulting Lender until such time as all Loans and funded and unfuded participations in
LC Obligations and Swingline Loans are held by the Lenders pro rata in accordance with
the Commitments under the applicable Facility without giving effect to Section
2.22(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting
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Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post
Cash Collateral pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) (A) Each Defaulting Lender shall be entitled to receive a Facility Fee
for any period during which that Lender is a Defaulting Lender only to extent allocable to
the sum of (1) the outstanding principal amount of the Revolving Loans funded by it, and
(2) its Pro Rata Share of the stated amount of Facility LCs for which it has provided Cash
Collateral pursuant to Section 2.22(c).
(B) Each Defaulting Lender shall be entitled to receive LC Fees for
any period during which that Lender is a Defaulting Lender only to the extent
allocable to its Pro Rata Share of the stated amount of Facility LCs for which it
has provided Cash Collateral pursuant to Section 2.22(c).
(C) With respect to any Facility Fee or LC Fee not required to be paid
to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall
(x) pay to each Non-Defaulting Lender that portion of any such fee otherwise
payable to such Defaulting Lender with respect to such Defaulting Lender's
participation in LC Obligations or Swingline Loans that has been reallocated to
such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each LC
Issuer and Swingline Lender, as applicable, the amount of any such fee otherwise
payable to such Defaulting Lender to the extent allocable to such LC Issuer's or
Swingline Lender's Fronting Exposure to such Defaulting Lender, and (z) not be
required to pay the remaining amount of any such fee. Notwithstanding the
foregoing, so long as no Unmatued Default or Default exists, notwithstanding the
Pricing Level otherwise applicable to the Advances, Facility LCs and Facility
Fee, the Borrower shall be required to pay an LC Fee on any portion of any
Facility LC that the Borrower has Cash Collateralized at a rate equal to the
Applicable Margin for LIBOR Loans corresponding to Pricing Level i.
(iv) All or any part of such Defaulting Lender's participation in LC
Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders
in accordance with their respective Pro Rata Shares (calculated without regard to such
Defaulting Lender's Commitment) but only to the extent that (x) the conditions set forth
in Section 4.2 are satisfied at the time of such reallocation (and, unless the Borrower
shall have otherwise notified the Administrative Agent at such time, the Borrower shall
be deemed to have represented and warranted that such conditions are satisfied at such
time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure
of any Non-Defaulting Lender to exceed such Non-Defaultng Lender's Commitment. No
reallocation hereunder shall constitute a waiver or release of any claim of any party
hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting Lender's increased exposure following such reallocation.
(v) If the reallocation described in clause (iv) above cannot, or can only
partially, be effected, the Borrower shall, without prejudice to any right or remedy
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available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount
equal to the Swingline Lenders' Fronting Exposure and (y) second, Cash Collateralize the
LC Issuers' Fronting Exposure in accordace with the procedures set forth in Section
2.22(c).
(vi) Ifthe Borrower, the Administrative Agent, the Swingline Lender and each
LC Issuer agree in wrting that a Lender is no longer a Defaulting Lender, the
Administrative Agent wil so notify the paries hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may
include arangements with respect to any Cash Collateral), that Lender wil, to the extent
applicable, purchase at par that portion of outstanding Loans of the other Lenders or take
such other actions as the Administrative Agent may determine to be necessary to cause
each Lender to hold its Pro Rata Share of the Loans and funded and unfuded
participations in Facility LCs and Swingline Loans (without giving effect to Section
2.22(a)(iv)), whereupon such Lender wil cease to be a Defaulting Lender; provided that
no adjustments wil be made retroactively with respect to fees accrued or payments made
by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided, fuer, that except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Lender to Lender wil constitute a waiver
or release of any claim of any pary hereunder arising from that Lender's having been a
Defaulting Lender.
(b) So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not
be required to fund any Swingline Loans unless it is reasonably satisfied that it wil have no
Fronting Exposure after giving effect to such Swingline Loan and (ii) no LC Issuer shall be
required to issue, extend, renew or increase any Facility LC unless it is satisfied that it wil have
no Fronting Exposure after giving effect thereto.
(c) At any time that there shall exist a Defaulting Lender, within two (2) Business
Day following the written request of the Administrative Agent or any LC Issuer (with a copy to
the Administrative Agent) the Borrower shall Cash Collateralize the LC Issuer's Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section
2.22(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less
than the Minimum Collateral Amount.
(i) The Borrower, and to the extent provided by any Defaulting Lender, such
Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the LC
Issuers, and agrees to maintain, a first priority securty interest in all such Cash Collateral
as securty for the Defaulting Lenders' obligation to fud participations in respect ofLC
Obligations, to be applied pursuant to clause (b) below. If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any Person other
than the Administrative Agent and the LC Issuers as herein provided (other than liens
permitted pursuant to Section 6.11), or that the total amount of such Cash Collateral is
less than the Minimum Collateral Amount, the Borrower wil, promptly upon demand by
the Administrative Agent, payor provide to the Administrative Agent additional Cash
Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any
Cash Collateral provided by the Defaulting Lender).
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(ii) Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under this Section 2.22 in respect of Facility LCs shall be
applied to the satisfaction ofthe Defaulting Lender's obligation to fund participations in
respect of LC Obligations (including, as to Cash Collateral provided by a Defaulting
Lender, any interest accrued on such obligation) for which the Cash Collateral was so
provided, prior to any other application of such property as may otherwise be provided
for herein.
(iii) Cash Collateral (or the appropriate portion thereof) provided to reduce any
LC Issuer's Fronting Exposure shall no longer be required to be held as Cash Collateral
pursuant to this Section 2.22 following (i) the elimination of the applicable Fronting
Exposure (including by the termination of Defaulting Lender status of the applicable
Lender), or (ii) the determination by the Administrative Agent and each LC Issuer that
there exists excess Cash Collateral; provided that, subject to this Section 2.22 the Person
providing Cash Collateral and each LC Issuer may agree that Cash Collateral shall be
held to support future anticipated Fronting Exposure or other obligations.
2.23 Changed Circumstances.
(a) In connection with any request for a Eurodollar Rate Advance (or a Floating Rate
Advance as to which the interest rate is determined with reference to the Eurodollar Base Rate)
or a conversion to or continuation thereof, if for any reason (i) the Administrative Agent shall
determine (which determination shall be conclusive and binding absent manifest error) that
Dollar deposits are not being offered to bans in the London interbank Eurodollar market for the
applicable amount and Interest Period of such Advance, (ii) the Administrative Agent shall
determine (which determination shall be conclusive and binding absent manifest error) that
reasonable and adequate means do not exist for the ascertaining the Eurodollar Base Rate for
such Interest Period with respect to a proposed Eurodollar Rate Advance (or a Floating Rate
Advance as to which the interest rate is determined with reference to the Eurodollar Base Rate)
or (iii) the Required Lenders shall determine (which determination shall be conclusive and
binding absent manifest error) that the Eurodollar Base Rate does not adequately and fairly
reflect the cost to such Lenders of making or maintaining such Advances durng such Interest
Period, then the Administrative Agent shall promptly give notice thereof to the Borrower.
Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no
longer exist (which notice the Administrative Agent shall promptly deliver to the Borrower), the
obligation of the Lenders to make a Eurodollar Rate Advance (or a Floating Rate Advance as to
which the interest rate is determined with reference to the Eurodollar Base Rate) and the right of
the Borrower to convert any Loan to or continue any Loan as a Eurodollar Rate Advance (or a
Floating Rate Advance as to which the interest rate is determined with reference to the
Eurodollar Base Rate) shall be suspended, and (x) in the case of Eurodollar Rate Advances, the
Borrower shall either (A) repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such Eurodollar Rate Advance together with accrued interest thereon
(subject to Section 3.3), on the last day of the then current Interest Period applicable to such
Eurodollar Rate Advance; or (B) convert the then outstanding principal amount of each such
Eurodollar Rate Advance to a Floating Rate (as to which the interest rate is not determined by
reference to the Eurodollar Base Rate) as of the last day of such Interest Period; or (y) in the case
of Floating Rate Advances as to which the interest rate is determined by reference to the
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Eurodollar Base Rate, the Borrower shall convert the then outstanding principal amount of each
such Advance to a Floating Rate Advance as to which the interest rate is not determined by
reference to the Eurodollar Base Rate as of the last day of such Interest Period.
(b) If, after the date hereof, the introduction of, or any change in, any applicable law
or any change in the interpretation or administration thereof by any Governental Authority
charged with the interpretation or administration thereof, or compliance by any of the Lenders
(or any of their respective Lending Installations) with any request or directive (whether or not
having the force of law) of any such Governental Authority shall make it unlawful or
impossible for any of the Lenders (or any of their respective Lending Installations) to honor its
obligations hereunder to make or maintain any Eurodollar Rate Advances (or any Floating Rate
Advance as to which the interest rate is determined by reference to the Eurodollar Base Rate),
such Lender shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrower and the other Lenders.
Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no
longer exist (which notice the Administrative Agent shall promptly deliver to the Borrower after
receiving notice thereof from such affected Lender), (i) the obligations of such Lenders to make
Eurodollar Rate Advances (or Floating Rate Advances as to which the interest rate is determined
by reference to the Eurodollar Base Rate), and the right of the Borrower to convert any Advance
to a Eurodollar Rate Advance or continue any Advance as an Eurodollar Rate Advance with
respect to such Lenders (or a Floating Rate Advance as to which the interest rate is determined
by reference to the Eurodollar Base Rate) shall be suspended and thereafter the Borrower may,
with respect to such Lenders, select only Floating Rate Advances (as to which the interest rate is
not determined by reference to the Eurodollar Base Rate, (ii) all Floating Rate Advances made
by such Lenders shall cease to be determined by reference to the Eurodollar Base Rate and (iii) if
any ofthe Lenders may not lawfully continue to maintain a Eurodollar Rate Advances to the end
of the then curent Interest Period applicable thereto, the applicable Loan shall immediately be
converted to a Floating Rate Advance (as to which the interest rate is not determined by
reference to the Eurodollar Base Rate) for the remainder of such Interest Period.
ARTICLE 3
YIELD PROTECTION; TAXS
3.1 Increased Costs. If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, assessment, special deposit,
compulsory loan, insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or paricipated in by, any Lender (except any reserve
requirement reflected in the Eurodollar Rate) or any LC Issuer;
(b) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes
described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection
Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or
its deposits, reserves, other liabilties or capital attributable thereto; or
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(c) impose on any Lender or any LC Issuer or the London interbank market any other
condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such
Lender or any Facility LC or participation therein, or reduce any amount receivable by any
Lender or any LC Issuer in connection with this Agreement or Loans made by such Lender or
any Facility LC or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such LC Issuer or such
other Recipient of participating in, issuing or maintaining any Facility LC (or of maintaining its
obligation to participate in or to issue any Facility LC), or to reduce the retu or the amount of
any sum received or receivable by such Lender, LC Issuer or other Recipient hereunder (whether
of principal, interest or any other amount) then, upon request of such Lender, LC Issuer or other
Recipient, the Borrower shall pay to such Lender, LC Issuer or other Recipient, as the case may
be, such additional amount or amounts as wil compensate such Lender, LC Issuer or other
Recipient, as the case may be, for such additional costs incured or reduction suffered.
3.2 Capital Requirements. If any Lender or LC Issuer determines that any Change in
Law affecting such Lender or LC Issuer or any Lending Installation of such Lender or such
Lender's or LC Issuer's holding company, if any, regarding capital or liquidity requirements, has
or would have the effect of reducing the rate of retu on such Lender's or LC Issuer's capital or
on the capital of such Lender's or LC Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Facility
LCs or Swingline Loans held by, such Lender, or the Facility LCs issued by any LC Issuer, to a
level below that which such Lender or LC Issuer or such Lender's or LC Issuer's holding
company could have achieved but for such Change in Law (taking into consideration such
Lender's or LC Issuer's policies and the policies of such Lender's or LC Issuer's holding
company with respect to capital adequacy), then within fifteen (15) days of demand by such
Lender or LC Issuer the Borrower wil pay to such Lender or LC Issuer, as the case may be, such
additional amount or amounts as wil compensate such Lender or LC Issuer or such Lender's or
LC Issuer's holding company for any such reduction suffered.
3.3 Compensation. The Borrower wil compensate each Lender upon demand for all
losses, expenses and liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund or maintain Eurodollar Advances) that such Lender may incur or sustain
(i) if for any reason (other than a default by such Lender) an Advance or continuation of, or
conversion into, a Eurodollar Advance does not occur on a date specified therefor in a Borrowing
Notice or Conversion/Continuation Notice, (ii) if any repayment, prepayment or conversion of
any Eurodollar Advance occurs on a date other than the last day of an Interest Period applicable
thereto (including as a consequence of any assignment made pursuant to Section 2.19 or any
acceleration of the maturity of the Loans pursuant to Section 8.1), (iii) if any prepayment of any
Eurodollar Advance is not made on any date specified in a notice of prepayment given by the
Borrower or (iv) as a consequence of any other failure by the Borrower to make any payments
with respect to any Eurodollar Advance when due hereunder. Calculation of all amounts payable
to a Lender under this Section 3.3 shall be made as though such Lender had actually funded its
relevant Eurodollar Advance through the purchase of a deposit bearing interest at the Eurodollar
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Rate in an amount equal to the amount of such Eurodollar Advance, having a maturity
comparable to the relevant Interest Period; provided, however, that each Lender may fund its
Eurodollar Advances in any manner it sees fit and the foregoing assumption shall be utilized
only for the calculation of amounts payable under this Section 3.3. A certificate (which shall be
in reasonable detail) showing the bases for the determinations set forth in this Section 3.3 by any
Lender as to any additional amounts payable puruant to this Section 3.3 shall be submitted by
such Lender to the Borrower either directly or through the Administrtive Agent.
Determinations set forth in any such certificate made in good faith for purposes of this Section
3.3 of any such losses, expenses or liabilties shall be conclusive absent manifest error.
3.4 Delay in Requests. Failure or delay on the part of any Lender or LC Issuer to
demand compensation pursuant to this Section shall not constitute a waiver of such Lender's or
LC Issuer's right to demand such compensation; provided that the Borrower shall not be required
to compensate a Lender or LC Issuer puruant to this Section 3.4 for any increased costs
incured or reductions suffered more than nine months prior to the date that such Lender or LC
Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions, and of such Lender's or LC Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
3.5 Taxes.
(a) For puroses of this Section 3.S, the term "Lender" includes any LC Issuer.
(b) Any and all payments by or on account of any obligation of the Borrower under
any Loan Document shall be made without deduction or withholding for any Taxes, except as
required by applicable law. If any applicable law (as determined in the good faith discretion of
an applicable Withholding Agent) requires the deduction or withholding of any Tax from any
such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled
to make such deduction or withholding and shall timely pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with applicable law and, if such
Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary
so that after such deduction or withholding has been made (including such deductions and
withholdings applicable to additional sums payable under this Section 3.5) the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or
withholding been made.
(c) The Borrower shall timely pay to the relevant Governental Authority in
accordance with applicable law, or at the option of the Administrative Agent timely reimburse it
for the payment of, any Other Taxes.
(d) The Borrower shall indemnify each Recipient, within ten (l0) days after demand
therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section 3.5) payable or paid by such
Recipient or required to be withheld or deducted from a payment to such Recipient and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
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Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or
on behalf of a Lender, shall be conclusive absent manifest error.
(e) Each Lender shall severally indemnify the Administrative Agent, within ten (10)
days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to
the extent that the Borrower has not already indemnified the Administrative Agent for such
Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes
attributable to such Lender's failure to comply with the provisions of Section 12.2 relating to the
maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender,
in each case, that are payable or paid by the Administrative Agent in connection with any Loan
Document, and any reasonable expenses arsing therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender under any Loan Document or otherwise payable by the Administrative Agent to
the Lender from any other source against any amount due to the Administrative Agent under this
clause (e).
(f) As soon as practicable after any payment of Taxes by the Borrower to a
Governental Authority pursuant to this Section 3.5, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governental
Authority evidencing such payment, a copy of the retu reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) (i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed documentation
reasonably requested by the Borrower or the Administrative Agent as wil permit such payments
to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if
reasonably requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as wil enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such documentation set
forth in this Section 3.S(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the
Lender's reasonable judgment such completion, execution or submission would subject such
Lender to any material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the
Borrower is a u.s. Borrower,
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(A) any Lender that is a U.S. Person shall deliver to the Borrower and
the Administrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed
originals of IRS Form W-9 certifying that such Lender is exempt from U.S.
federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an
income tax treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, executed originals of IRS
Form W-8BEN establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the "interest" article of such tax treaty
and (y) with respect to any other applicable payments under any Loan
Document, IRS Form W-8BEN establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the "business
profits" or "other income" article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit G-l to the effect that such
Foreign Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, a "10 percent shareholder" of the Borrower
within the meaning of Section 881 (c )(3 )(B) of the Code, or a "controlled
foreign corporation" described in Section 881(c)(3)(C) ofthe Code (a
"U.S. Tax Compliance Certificate") and (y) executed originals of IRS
Form W-8BEN; or
(iv) to the extent a Foreign Lender is not the beneficial owner,
executed originals of IRS Form W-8IMY, accompanied by IRS Form W-
8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9,
and/or other certification documents from each beneficial owner, as
applicable; provided that if the Foreign Lender is a partnership and one or
more direct or indirect parters of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a U.S. Tax
Compliance Certificate substantially in the form of Exhibit G-4 on behalf
of each such direct and indirect partner;
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(C) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed originals of any other form prescribed by applicable law as a
basis for claiming exemption from or a reduction in U.S. federal withholding Tax,
duly completed, together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would
be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements ofFATCA
(including those contained in Section 14 71 (b) or 14 n(b) of the Code, as
applicable), such Lender shall deliver to the Borrower and the Administrative
Agent at the time or times prescribed by law and at such time or times reasonably
requested by the Borrower or the Administrative Agent such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i)
of the Code) and such additional documentation reasonably requested by the
Borrower or the Administrative Agent as may be necessary for the Borrower and
the Administrative Agent to comply with their obligations under F ATCA and to
determine that such Lender has complied with such Lender's obligations under
F ATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), "F ATCA" shall include any amendments
made to FA TCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires
or becomes obsolete or inaccurate in any respect, it shall update such form or certification
or promptly notify the Borrower and the Administrative Agent in wrting of its legal
inability to do so.
(h) If any part determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.S
(including by the payment of additional amounts pursuant to this Section 3.S), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section 3.5 with respect to the Taxes giving rise to such refud), net
of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such
refund). Such indemnifyng part, upon the request of such indemnified party, shall repay to
such indemnified party the amount paid over pursuant to this Section 3.S(h) (plus any penalties,
interest or other charges imposed by the relevant Governental Authority) in the event that such
indemnified party is required to repay such refund to such Governental Authority.
Notwithstanding anything to the contrary in this Section 3.5(h), in no event wil the indemnified
party be required to pay any amount to an indemnifying part pursuant to this Section 3.S(h) the
payment of which would place the indemnified part in a less favorable net after-Tax position
than the indemnified party would have been in if the indemnification payments or additional
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amounts giving rise to such refund had never been paid. This clause (h) shall not be constred
to require any indemnified par to make available its Tax returns (or any other information
relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Each party's obligations under this Section 3.5 shall surive the resignation or
replacement of the Administrative Agent or any assignent of rights by, or the replacement of, a
Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all
obligations under any Loan Document.
3.6 Designation of a Different Lending Installation. If any Lender requests
compensation under Sections 3.1 or 3.2, or requires the Borrower to pay any Indemnified Taxes
or additional amounts to any Lender or any Governental Authority for the account of any
Lender pursuant to Section 3.S, then such Lender shall (at the request of the Borrower) use
reasonable efforts to designate a different Lending Installation for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offces, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Sections 3.1, 3.2, or 3.S, as the case may be, in the futue,
and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incured by any Lender in connection with any such designation or
assignment.
ARTICLE 4
CONDITIONS PRECEDENT
4.1 Initial Credit Extension. The obligation of each Lender to make Loans in
connection with the initial Credit Extension hereunder, and the obligation of the LC Issuers to
issue Facility LCs hereunder on the Closing Date, is subject to the satisfaction of the following
conditions precedent:
(a) The Administrative Agent shall have received each of the following, each in form
and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) Copies of the articles or certificate of incorporation of the Borrower,
together with all amendments, and a certificate of good standing, each certified by the
appropriate governental offcer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretar of the Borrower,
of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of
any other body authorizing the execution of the Loan Documents.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower, which shall identify by name and title and bear the signatures
of the Authorized Officers and any other officers of the Borrower authorized to sign the
Loan Documents, upon which certificate the Administrative Agent and the Lenders shall
be entitled to rely until informed of any change in wrting by the Borrower.
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(iv) A certificate, signed by an Authorized Officer, stating that on the Closing
Date (A) no Default or Unmatured Default has occured and is continuing and (B) the
representations and warranties of the Borrower contained in Article 5 shall be tre and
correct on and as of the Closing Date, except to the extent that such representations and
waranties specifically refer to an earlier date, in which case they shall be true and correct
as of such earlier date.
(v) A written opinion of the Borrower's counsel, addressed to the
Administrative Agent, the Lenders, and the LC Issuers, dated as of the Closing Date, in
substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.12 payable to the
order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations as the Administrative
Agent may have reasonably requested.
(viii) Such other documents as any Lender or its counsel may have reasonably
requested.
(b) The Borrower shall have paid (i) to any lender part to the Existing Credit
Agreement but not a Lender under this Agreement, all obligations owing to such lender under the
Existing Credit Agreement, (ii) to the Joint Lead Arangers, the fees required under the Fee
Letters to be paid to them on the Closing Date, in the amounts due and payable on the Closing
Date as required by the terms thereof, (iii) to the Administrative Agent, the initial payment of the
annual administrative fee described in the Administrative Fee Letter, and (iv) all other fees and
reasonable expenses of the Joint Lead Arangers, the Administrative Agent and the Lenders
required hereunder or under any other Loan Document to be paid on or prior to the Closing Date
(including reasonable fees and expenses of counsel) in connection with this Agreement and the
other Loan Documents.
(c) Since December 31, 2010, both immediately before and after giving effect to the
consummation of this Agreement, there shall not have occured a (i) Material Adverse Effect or
(ii) an event, condition or state of facts that could reasonably be expected to have a Material
Adverse Effect.
(d) The Administrative Agent shall have received from the Parent and the Borrower
all documentation and other information requested by the Administrative Agent that is required
to satisfy applicable "know your customer" and anti-money laundering rules and regulations,
including without limitation the PATRIOT Act.
Without limiting the generality of the provisions of Section 10.4, for purposes of
determining compliance with the conditions specified in this Section 4.1, each Lender that has
signed this Agreement 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
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by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifyng its objection thereto.
4.2 Each Credit Extension. The obligation of each Lender to make any Credit
Extension hereunder, including the initial Credit Extension (but excluding Revolving Loans
made for the purpose of repaying Refunded Swingline Loans pursuant to Section 2.7(c) or for
the purose of paying unpaid reimbursement obligations of the Borrower pursuant to Section
2.18(e)), is subject to the satisfaction of the following conditions precedent on the applicable
Credit Extension Date:
(i) No Default or Unmatued Default exists.
(ii) The representations and warranties contained in Artcle S (other than,
after the Closing Date, in Section 5.5) are true and correct as of such Credit Extension
Date except to the extent any such representation or waranty is stated to relate solely to
an earlier date, in which case such representation or warranty shall have been tre and
correct on and as of such earlier date.
(iii) All legal matters incident to the making of such Credit Extension shall be
satisfactory to the Lenders and their counseL.
Each Borrowing Notice, Swingline Borrowing Notice or request for issuance of a Facility LC
with respect to each such Credit Extension shall constitute a representation and waranty by the
Borrower that the conditions contained in Sections 4.2(i) and (ii) have been satisfied. Any
Lender may require a duly completed compliance certificate in substantially the form of
Exhibit B as a condition to making a Credit Extension.
ARTICLES
REPRESENTATIONS AND WARTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.1 Existence and Standing. Each of the Borrower and its Subsidiares is a
corporation, partnership (in the case of Subsidiaries only) or limited liability company duly and
properly incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation
or organization and has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
5.2 Authorization and Validity. The Borrower has the power and authority and legal
right to execute and deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan
Documents constitute legal, valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their terms, except as enforceability may be limited by
bankptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally.
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5.3 No Conflct; Governent Consent. Neither the execution and delivery by the
Borrower of the Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof wil violate, except to the extent that
such violation, alone or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiares or (ii) the Borrower's or any Subsidiary's
articles or certificate of incorporation, partnership agreement, certificate of partership, articles
or certificate of organization, bylaws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to which the Borrower
or any of its Subsidiaries is a party or is subject, or by which it, or its Propert, is bound, or
conflct with or constitute a default thereunder, or result in, or require, the creation or imposition
of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any
such indentue, instruent or agreement. No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with, or exemption by, or other
action in respect of any governental or public body or authority, or any subdivision thereof,
which has not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiares in connection with the execution and delivery
of the Loan Documents, the borrowings under this Agreement, the payment 'and performance by
the Borrower of the Obligations or the legality, validity, binding effect or enforceability of any of
the Loan Documents.
5.4 Financial Statements. The December 31,2010 consolidated financial statements
of the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with the Agreement Accounting Principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and operations of the Borrower
and its Subsidiaries at such date and the consolidated results of their operations for the period
then ended.
5.5 Material Adverse Change. Since December 31,2010, there has been no change in
the business, Property, condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all material U.S. federal tax
returns and all other tax retus which are required to be fied and have paid all taxes due
pursuant to said returns or pursuant to any assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting Principles. No
tax liens have been fied and no claims are being asserted with respect to any such taxes claimed
to be due and payable that would, if adversely determined, have a Material Adverse Effect. The
charges, accruals and reserves for taxes on the books of the Borrower and its Subsidiaries (to the
extent in excess of $5,000,000) are adequate under Agreement Accounting Principles.
Notwithstanding any provision in this Agreement to the contrary, the only representations and
warranties made by the Borrower with respect to matters relating to taxes shall be the
representations and warranties set forth in this Section S.6, and this Agreement shall not be
interpreted in any manner that is contrary hereto.
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5.7 Litigation and Contingent Obligations. Except as set forth in the most recent
consolidated financial statements provided to the Administrative Agent pursuant to Section 5.4
or Section 6.1, respectively, there is no litigation, arbitration, governental investigation,
proceeding or inquiry pending or, to the knowledge of any of their offcers, threatened against or
affecting the Borrower or any of its Subsidiares which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the makng of any Credit
Extensions. Other than any liability incident to any litigation, arbitration or proceeding, which, if
decided adversely, would not reasonably be expected to have a Material Adverse Effect, the
Borrower has no material contingent liabilities or obligations not provided for or disclosed in the
most recent consolidated financial statements provided to the Administrative Agent pursuant to
Section 5.4 or Section 6.1, respectively.
5.8 Subsidiaries. Schedule S.8 contains an accurate list of all Subsidiaries of the
Borrower as of the Closing Date, setting forth their respective jurisdictions of organization and
the percentage of their respective capital stock or other ownership interests owned by the
Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully paid and
nonassessable.
5.9 ERISA. Neither the Borrower nor any other member of the Controlled Group has
incurred, or is reasonably expected to incur, any withdrawal liability to Multiemployer Plans in
excess of $25,000,000 in the aggregate. Each Plan complies in all material respects with all
applicable requirements of law and regulations. No Reportable Event has occurred with respect
to any Plan. Neither the Borrower nor any other member of the Controlled Group has withdrwn
from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate
any Plan. Neither the Borrower nor any member ofthe Controlled Group has (i) failed to meet
the minimum funding standard of Section 412(a) ofthe Code or Section 302(a) of ERISA with
respect to any Plan, or (ii) sought or been granted a fuding waiver under Section 412(c) of the
Code or Section 302(c) of ERISA with respect to any Plan.
5.10 Labor Relations. As of the Closing Date, there is (i) no unfair labor practice
complaint before the National Labor Relations Board, or grievance or arbitration proceeding
arising out of or under any collective bargaining agreement, pending or, to the knowledge of the
Borrower, threatened, against it, (ii) no strke, lock-out, slowdown, stoppage, walkout or other
labor dispute pending or, to the knowledge of the Borrower, threatened, against it, and (ii) to the
knowledge of the Borrower, no petition for certification or union election or union organizing
activities taking place with respect to it. As of the Closing Date, there are no collective
bargaining agreements or Multiemployer Plans covering the employees of the Borrower.
5.11 Accuracy of Information. No information, exhibit or report furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent, the Joint Lead Arangers or to
any Lender in connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading. As of the Closing Date,
there is no fact known to the Borrower that has, or could reasonably be expected to have, a
Material Adverse Effect, which fact has not been set forth herein, in the financial statements of
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the Borrower and its Subsidiaries fuished to the Administrative Agent and/or the Lenders, or in
any certificate, opinion or other written statement made or furnished by the Borrower to the
Administrative Agent and/or the Lenders.
5.12 Regulation U. Margin stock (as defined in Regulation U) constitutes less than
25% of the value of those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
5.13 Material Agreements. Except as provided by applicable law or as set forth in
Schedule S.13, neither the Borrower nor any Subsidiary is a party to any agreement or
instrment or subject to any charter or other corporate restriction (a) which either prohibits or
restricts the ability of any Subsidiary of Borrower to declare or pay dividends to the Borrower, or
(b) which could reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in (i) any agreement to which it is a part, which
default could reasonably be expected to have a Material Adverse Effect or (ii) any agreement or
instruent evidencing or governing Material Indebtedness, which default could reasonably be
expected to have a Material Adverse Effect.
5.14 Compliance With Laws. The Borrower and its Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrctions of any domestic or foreign
governent or any instrmentality or agency thereof having jursdiction over the conduct of their
respective businesses or the ownership of their respective Property except for any failure to
comply with any of the foregoing which could not reasonably be expected to have a Material
Adverse Effect.
5.15 Ownership of Properties. Except as set forth on Schedule S.IS, as of the Closing
Date, the Borrower and its Subsidiares wil have good title, free of all Liens other than those
permitted by Section 6.11, to all of the Property and assets reflected in the Borrower's most
recent consolidated financial statements provided to the Administrative Agent as owned by the
Borrower and its Subsidiaries.
5.16 Plan Assets; Prohibited Transactions. The Borrower is not an entity deemed to
hold "plan assets" within the meaning of29 C.F.R. § 2510.3-101 of an employee benefit plan (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the
meaning of Section 4975 of the Code), and neither the execution of this Agreement nor the
making of Credit Extensions hereunder gives rise to a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
5.17 Environmental Matters. In the ordinar course of its business, the Borrower
considers the effect of Environmental Laws on the business of the Borrower and its Subsidiaries,
in the course of which it identifies and evaluates potential risks and liabilities accruing to the
Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that the potential risks and liabilities accruing to the Borrower due to Environmental
Laws could not reasonably be expected to have a Material Adverse Effect, other than the matters
described in reports fied by the Borrower with the U.S. Securties and Exchange Commission
pursuant to the Exchange Act. Other than as described in reports fied by the Borrower with the
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u.s. Securties and Exchange Commission pursuant to the Exchange Act, neither the Borrower
nor any Subsidiar has received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is needed to respond to
a release of any toxic or hazardous waste or substance into the environment, which
noncompliance or remedial action could reasonably be expected to have a Material Adverse
Effect.
5.18 Investment Company Act. The Borrower is not an "investment company" or a
company "controlled" by an "investment company", within the meaning ofthe Investment
Company Act of 1940.
5.19 OFAC; PATRIOT Act.
(a) Neither the Borrower nor any of its Subsidiaries is a Sanctioned Person or does
business in a Sanctioned Country or with a Sanctioned Person in violation of the economic
sanctions of the United States administered by OFAC.
(b) Each of the Borrower and its Subsidiaries is in compliance in all material respects
with the PATRIOT Act. No part of the proceeds of the Loans hereunder wil be used, directly or
indirectly, for any payments to any governental offcial or employee, political party, offcial of
a political pary, candidate for political office, or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrpt Practices Act of 1977.
ARTICLE 6
COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Facility LC shall remain
outstanding:
6.1 Financial Reporting. The Borrower wil maintain, for itself and each Subsidiary,
a system of accounting established and administered in accordance with the Agreement
AccountingPrinciples, and fuish to the Administrative Agent in sufficient copies for each of
the Lenders:
(i) Within one hundred twenty (120) days after the close of each of its fiscal
years (or, if earlier, within thirty (30) days after the Borrower is required to file its
Annual Report on Form 10-K with the Securties and Exchange Commission for such
fiscal year), an unqualified (except for qualifications relating to changes in Agreement
Accounting Principles or practices reflecting changes in Agreement Accounting
Principles and required or approved by the Borrower's independent certified public
accountants) audit report certified by independent certified public accountants reasonably
acceptable to the Lenders, prepared in accordance with the Agreement Accounting
Principles on a consolidated and consolidating basis (consolidating statements need not
be certified by such accountants) for itself and its Subsidiaries, including balance sheets
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as of the end of such period, related profit and loss and reconciliation of surlus
statements, and a statement of cash flows. Delivery by the Borrower to the
Administrative Agent of copies of the Parent's Annual Report on Form lO-K filed with
the Securities and Exchange Commission for any year shall satisfy the Borrower's
obligation under this clause (i) with respect to such year.
(ii) Within sixty (60) days after the close of the first three (3) quarterly period
of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is
required to fie its Quarterly Report on Form lO-Q for with the Securities and Exchange
Commission for such period), consolidated and consolidating unaudited balance sheets as
at the close of each the first three (3) quarterly periods of each of its fiscal years, for itself
and its Subsidiaries and consolidated and consolidating profit and loss and reconciliation
of surlus statements and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarer, all certified by an Authorized Offcer.
Delivery by the Borrower to the Administrative Agent of copies of the Borrower's
Quarerly Report on Form 10-Q fied with the Securties and Exchange Commission for
any quarter shall satisfy the Borrower's obligation under this clause (ii) with respect to
such quarter.
(iii) Together with the financial statements required under Sections 6.1(i) and
(ii), (A) a compliance certificate in substantially the form of Exhibit B signed by an
Authorized Officer showing the calculations necessar to determine compliance with this
Agreement and stating that no Default or Unmatued Default exists, or if any Default or
Unmatued Default exists, stating the natue and status thereof and (B) a calculation of
the Indebtedness secured by Liens permitted under Section 6.11(xii) in such form as is
reasonably satisfactory to the Administrative Agent.
(iv) As soon as practicable and in any event within ten (10) days after the
Borrower knows that any Reportable Event has occured with respect to any Plan, a
statement, signed by an Authorized Officer, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto.
(v) As soon as practicable and in any event within ten (10) days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the Borrower or any of
its Subsidiaries, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
(vi) Promptly upon the fuishing thereof to the shareholders of the Borrower,
copies of all financial statements and reports so furnished.
(vii) Promptly upon the fiing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission.
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(viii) Such other information (including nonfinancial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
6.2 Use of Proceeds. The Borrower wil, and wil cause each Subsidiary to, use the
proceeds of the Credit Extensions for general corporate purposes and commercial paper back-up.
6.3 Notice of Default, etc. The Borrower wil, and wil cause each Subsidiary to, give
prompt notice in wrting to the Lenders of the occurence of (i) any Default or Unmatued
Default and (ii) the commencement of or any ruling in any litigation, or any other development,
financial or otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower wil, and wil cause each Material Subsidiary
to, carr on and conduct its business in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted and do all things necessary to remain duly
incorporated or organized, validly existing and (to the extent such concept applies to such entity)
in good standing as a domestic corporation, partership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jursdiction in which its business is conducted, except
where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.5 Taxes. The Borrower wil, and wil cause each Subsidiary to, timely file complete
and correct U.S. federal and applicable foreign, state and local tax retus required by law and
pay when due all taxes, assessments and governental charges and levies upon it or its income,
profits or Property, except those which are being contested in good faith by appropriate
proceedings and with respectto which adequate reserves have been set aside in accordance with
Agreement Accounting Principles.
6.6 Insurance. The Borrower wil, and wil cause each Subsidiar to, maintain with
financially sound and reputable insurance companies insurance on all their Property in such
amounts and covering such risks as is consistent with sound business practice, and the Borrower
wil fuish to any Lender upon request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower wil, and wil cause each Subsidiary to,
comply in all material respects with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including all Environmental Laws.
6.8 Maintenance of Properties. The Borrower wil, and wil cause each Subsidiary to,
do all things necessary to maintain, preserve, protect and keep its Property in good repair,
working order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carred on in connection therewith may be properly conducted
at all times.
6.9 Inspection. The Borrower wil, and wil cause each Subsidiary to, permit the
Administrative Agent and the Lenders, by their respective representatives and agents, to inspect
any of the Property, books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of the Borrower
and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each
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Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Administrative Agent or any Lender may designate.
6.10 Merger and Sale of Assets. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower wil not, nor wil it permit
any Material Subsidiary to, merge or consolidate with or into any other Person, or sell or
otherwise dispose of all or substantially all of its Property to another Person except that (i) a
Material Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiar, (ii) a Material
Subsidiar may dispose of all or substantially all of its Property to the Borrower or a Wholly-
Owned Subsidiar, or (iii) the Borrower or any Subsidiary may sell, transfer, contrbute, convey
or dispose of accounts, general intangibles and/or chattel paper (each as defined in Aricle 9 of
the Uniform Commercial Code) and associated collateral, lockbox and other collection accounts,
records and/or proceeds in connection with a Permitted Receivables Securitization.
6.11 Liens. The Borrower wil not, nor wil it permit any Material Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any Material
Subsidiary, except:
(i) Liens for taxes, assessments or governental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings and for
which adequate reserves in accordance with Agreement Accounting Principles shall have
been set aside on its books;
(ii) Liens imposed by law, such as carrers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of business which secure
payment of obligations not more than sixty (60) days past due or which are being
contested in good faith by appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;
(iv) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of the Borrower
or its Subsidiaries;
(v) Liens existing on the date hereof and described in Schedule S.IS;
(vi) Liens on Property of the Borrower or any of its Material Subsidiaries
created solely for the purpose of securing Indebtedness incurred to fund the purchase
price of Property, provided that no such Lien shall extend to or cover any other Property
of the Borrower or its Material Subsidiaries other than the Property so acquired (and the
proceeds therefrom) and the original principal amount of the Indebtedness so secured by
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any such Lien shall not exceed the original purchase price and costs related to the
purchase, transporttion, and installation of the Propert so acquired;
(vii) The Lien created by the First Mortgage and any Lien described in any
deeds or other instruments under which property has been conveyed to the Borrower and
to which the Lien of the First Mortgage is expressly made subject;
(viii) Any Lien existing on any property or asset prior to the Acquisition thereof
by the Borrower or any Material Subsidiar provided that the Acquisition is permitted
under Section 6.13 and such Lien is not created in contemplation of or in connection with
such Acquisition;
(ix) Liens arising under a Permitted Receivables Securitization;
(x) Liens arising by operation of law with respect to any deposit, securties
and commodity account; provided that (a) the right ofthe Borrower or the applicable
Material Subsidiary to withdraw assets from such account shall not be restricted other
than by customar rules of general application (such as restrictions on withdrawals during
the time required for a check to clear); and (b) such account is not intended by the
Borrower or any Material Subsidiary to provide collateral to the applicable depository
institution, securties intermediar or commodities intermediar;
(xi) Liens in favor of the Administrative Agent hereunder;
(xii) Any Lien arsing out of the refmancing, extension, or renewal of any
Indebtedness secured by any Lien permitted by clause (v) of this Section 6.11; provided
that such Indebtedness is not increased and is not secured by any additional assets; and
(xiii) (A) Liens incurred by the Borrower or the Parent in connection with Rate
Management Transactions entered into by either the Borrower or the Parent in the
ordinary course of business and not for speculation and in accordance with its established
risk management policies, and (B) other Liens incured by the Borrower or the Parent in
the ordinar course of business, provided that the aggregate principal amount of the
Indebtedness secured by the Liens permitted under this clause (xii) shall not exceed
$50,000,000 at anyone time outstanding. The "principal amount" of the Indebtedness of
the Borrower or the Parent in respect of any Rate Management Obligation at any time
shall be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or the Parent would be required to pay if such Rate Management Obligation
were terminated at such time of determination.
6.12 Leverage Ratio. The Borrower wil not permit the ratio, as of the last day of any
of its fiscal quarters, of (i) Consolidated Indebtedness to (ii) Consolidated Total Capitalization to
be greater than 0.65 to 1.0.
6.13 Investments and Acquisitions. Without the prior written consent of the Required
Lenders (such consent not to be uneasonably withheld), the Borrower wil not, nor wil it permit
any Subsidiary to, make or suffer to exist any Investments (including loans and advances to, and
other Investments in, Subsidiaries, or commitments therefor, or to create any Subsidiary or to
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become or remain a parter in any partership or joint venture), or to make any Acquisition of
any Person, except:
(i) Cash Equivalent Investments and Investments permitted by the investment
policies approved from time to time by the board of directors of the Borrower or the
relevant Subsidiary, as applicable;
(ii) Investments in, and loans and advances to, Subsidiaries existing as ofthe
date hereof and other Investments existing as of the date hereof;
(iii) Investments by Subsidiaries in securties of the Borrower and Investments
by the Borrower and its Subsidiaries in any business trst controlled, directly or
indirectly, by the Borrower to the extent such business trst purchases securities of the
Borrower;
(iv) In addition to Investments otherwise permitted hereunder, Investments and
Acquisitions related to the energy business of the Borrower and its Subsidiaries made
after the date hereof in an aggregate amount not exceeding $750,000,000 at anyone time
outstanding; and
(v) Investments by the Borrower or a Subsidiary in connection with a
Permitted Receivables Securtization.
6.14 Subsidiary Dividend Restrctions. The Borrower wil not, nor wil it permit any
Material Subsidiary to, become a party to any agreement prohibiting or restrcting the abilty of
such Material Subsidiar to declare or pay dividends to the Borrower, except as disclosed in
Schedule S.13, other than prohibitions or restrctions in connection with a Permitted Receivables
Securitization.
6.15 Affliates. The Borrower wil not, and wil not permit any Subsidiar to, enter
into any transaction (including the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate that is not a Subsidiary except in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction.
6.16 OF AC, PATRIOT Act Compliance. The Borrower wil, and wil cause each of its
Subsidiaries to, (i) refrain from doing business in a Sanctioned Country or, to the best of the
Borrower's knowledge, with a Sanctioned Person in violation of the economic sanctions of the
United States administered by OF AC, and (ii) provide, to the extent commercially reasonable,
such information and take such actions as are reasonably requested by the Administrative Agent
or any Lender in order to assist the Administrative Agent and the Lenders in maintaining
compliance with the PATRIOT Act.
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ARTICLE 7
DEFAULTS
The occurrence of anyone or more of the following events shall constitute a Default:
(a) Any representation or warranty made (or deemed made pursuant to Section 4.2)
by or on behalf of the Borrower or any of its Subsidiares to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Credit Extension, or any report,
certificate, financial statement or other information delivered in connection with this Agreement
or any other Loan Document shall be incorrect or misleading in any material respect when so
made, deemed made or delivered.
(b) Nonpayment of principal of any Loan when due; or nonpayment of any
Reimbursement Obligation within one (1) Business Day after the same becomes due; or
nonpayment of interest on any Loan, any fee payable by the Borrower hereunder or any other
obligation under any of the Loan Documents within five (5) days after the same becomes due.
(c) The breach by the Borrower of any of the terms or provisions of Section 6.2,
6.3(i) (and (i) in the case of failure to deliver notice of a Default arising under Section 7( d), five
(5) days shall have elapsed after an Authorized Officer obtained knowledge of such Default and
(ii) in the case of failure to deliver notice of a Default arsing under Section 7( e), twenty (20)
days shall have elapsed after an Authorized Officer obtained knowledge of such Default), 6.10,
6.11, 6.12 or 6.13.
(d) The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or provisions of Section 6.9 or 6.14
which is not remedied within five (5) days after written notice from the Administrative Agent or
any Lender.
(e) The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or provisions of this Agreement
which is not remedied within twenty (20) days after written notice from the Administrative
Agent or any Lender; or any default by the Borrower shall occur with respect to any payment
obligations under any Rate Management Agreement that is not remedied by the later of (i) the
expiration of any cure period provided in such Rate Management Agreement and (ii) three (3)
Business Days after the same shall become due and payable.
(f) Failure of the Borrower or any of its Subsidiaries to pay when due (after the
expiration of any applicable cure period) any Material Indebtedness; or the default by the
Borrower or any of its Subsidiaries in the performance of any other term, provision or condition
contained in any agreement under which any such Material Indebtedness was created or is
governed, or any other event shall occur or condition exist, the effect of which default or event is
to cause, or to permit the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated matuity; or any Material Indebtedness of the
Borrower or any of its Subsidiaries shall, after the occurence of a default thereunder, be
declared to be due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment or mandatory prepayment) prior to the stated matuity thereof; or
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the Borrower or any of its Subsidiaries shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.
(g) The Borrower or any of its Material Subsidiares shall (i) have an order for relief
entered with respect to it under any Debtor Relief Law, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trstee, examiner, liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the federal banptcy
laws as now or hereafter in effect or seeking to adjudicate it a bankpt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any Debtor Relief Law or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take any corporate or partership
action to authorize or effect any of the foregoing actions set forth in this Section 7(g) or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7(h).
(h) Without the application, approval or consent ofthe Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the
Borrower or any of its Material Subsidiaries or any Substantial Portion of its Propert, or a
proceeding described in Section 7(g) shall be instituted against the Borrower or any of its
Material Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.
(i) Any cour, government or governental agency shall condemn, seize or otherwise
appropriate, or take custody or control of (each, a "Condemnation"), all or any portion of the
Propert of the Borrower and its Subsidiares which, when taken together with all other Propert
of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion and such event would reasonably be expected to
constitute a Material Adverse Effect; provided that the term "Condemnation" shall not include
any voluntary transfer by the Borrower or any of its Subsidiaries of its electronic transmission
line facilities, or any interest therein, to a regional independent grd operator.
G) The Borrower or any of its Subsidiaries shall fail within thirty (30) days to pay,
bond or otherwise discharge one or more (i) judgments or orders for the payment of money in
excess of $25,000,000 (or the equivalent thereof in curencies other than U.S. Dollars) in the
aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, whichjudgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good faith.
(k) Any Reportable Event shall occur in connection with any Plan, or the Borrower or
any other member of the Controlled Group shall have been notified by the sponsor of a
Multiemployer Plan that it has incured withdrawal liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $25,000,000; the Borrower or any
member of the Controlled Group has failed to meet the minimum funding standard of Section
412(a) of the Code or Section 302(a) of ERISA with respect to any Plan, or sought or been
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granted a fuding waiver under Section 412( c) of the Code or Section 302( c) of ERISA with
respect to any Plan; or the Borrower or any member of the Controlled Group has provided to
affected parties a notice of intent to terminate a Plan under Section 4041 of ERISA or has
received notice from the PBGC that the PBGC has instituted or intends to institute proceedings
under Section 4042 of ERISA to terminate or appoint a trstee to administer any Plan, and the
Unfunded Liabilities with respect to such Plan exceed $75,000,000.
(1) The Borrower or any of its Subsidiares shall (i) be the subject of any proceeding
or investigation pertaining to the release by the Borrower, any of its Subsidiaries or any other
Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) or clause (ii), could
reasonably be expected to have a Material Adverse Effect.
(m) Any Change in Control shall occur.
(n) The Parent shall cease to own, free and clear of all Liens, 100% of the outstanding
shares of voting stock of the Borrower.
(0) Any provision of any Loan Document, at any time after its execution and delivery
and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in
full of all the Obligations, ceases to be in full force and effect (provided that the cessation of the
effect of such provision could have a material impact on the practical benefits realized by the
Lenders and each LC Issuer hereunder); or the Borrower contests in any manner the validity or
enforceability of any provision of any Loan Document (provided that the invalidity or
unenforceability of such provision could have a material impact on the practical benefits realized
by the Lenders and each LC Issuer hereunder); or the Borrower denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any
provision of any Loan Document.
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration; Facility LC Collateral Account.
(a) If any Default described in Sections 7(g) or 7(h) occurs with respect to the
Borrower, the obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuers to issue Facility LCs shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of the
Administrative Agent, any LC Issuer or any Lender, and the Borrower wil be and become
thereby unconditionally obligated, without any further notice, act or demand, to pay to the
Administrative Agent an amount in immediately available funds, which funds shall be held in the
Facility LC Collateral Account, equal to the difference of (x) the amount ofLC Obligations at
such time, less (y) the amount on deposit in the Facility LC Collateral Account at such time
which is free and clear of all rights and claims of third parties and has not been applied against
the Obligations (such difference, the "Collateral Shortfall Amount"). If any other Default
occurs, the Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) may (a) terminate or suspend the obligations of the Lenders to make Loans hereunder
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and the obligation and power of the LC Issuers to issue Facility LCs, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives, and (b) upon notice to the Borrower and in addition to the continuing
right to demand payment of all amounts payable under this Agreement, make demand on the
Borrower to pay, and the Borrower wil, forthwith upon such demand and without any further
notice or act, pay to the Administrative Agent the Collateral Shortfall Amount, which fuds shall
be deposited in the Facility LC Collateral Account.
(b) If at any time while any Default is continuing, the Administrative Agent
determines that the Collateral Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrower to pay, and the Borrower wil,
forthwith upon such demand and without any fuher notice or act, pay to the Administrative
Agent the Collateral Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account.
(c) The Administrative Agent may at any time or from time to time after fuds are
deposited in the Facility LC Collateral Account, apply such fuds to the payment of the
Obligations and any other amounts as shall from time to time have become due and payable by
the Borrower to the Lenders or any LC Issuer under the Loan Documents.
(d) At any time while any Default is continuing, neither the Borrower nor any Person
claiming on behalf of or through the Borrower shall have any right to withdraw any of the fuds
held in the Facility LC Collateral Account. After all of the Obligations have been indefeasibly
paid in full and the Aggregate Commitment has been terminated, any fuds remaining in the
Facility LC Collateral Account shall be returned by the Administrative Agent to the Borrower or
paid to whomever may be legally entitled thereto at such time as ordered by a cour of competent
jurisdiction.
(e) If, within fourteen (14) days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans and the obligation and power of
the LC Issuers to issue Facility LCs hereunder as a result of any Default (other than any Default
as described in Sections 7(g) or 7(h) with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Administrative Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
8.2 Amendments. Neither this Agreement or any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required Lenders (or
by the Administrative Agent at the direction or with the consent of the Required Lenders);
provided, however, that no such agreement shall:
(i) unless agreed to by each Lender directly affected thereby, (i) reduce or
forgive the principal amount of any Loan or Reimbursement Obligation, reduce the rate
of or forgive any interest thereon (provided that only the consent of the Required Lenders
shall be required to waive the applicability of any post-default increase in interest rates),
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or reduce or forgive any fees hereunder, (ii) extend the scheduled date for the payment of
any principal of or interest on any Loan (including any scheduled date for the mandatory
reduction or termination of any Commitments), extend the time of payment of any
Reimbursement Obligation or any interest thereon, extend the expiry date of any Facilty
LC beyond the Facility LC Matuty Date, or extend the time of payment of any fees
hereunder, or (iii) increase any Commitment of any such Lender over the amount thereof
in effect or extend the matuty thereof;
(ii) unless agreed to by all ofthe Lenders, (A) modify the definitions of the
terms "Required Lenders" or "Pro Rata Share", or (B) change or waive any provision of
Section 11.2, any other provision of this Agreement or any other Loan Document
requiring pro rata treatment of any Lenders, or this Section 8.2;
(iii) unless agreed to by the applicable LC Issuer, the Swingline Lender or the
Administrative Agent, no such agreement shall (A) amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written consent
of the Administrative Agent, (B) amend, modify or otherwise affect the rights or duties of
the Swingline Lender hereunder without the prior written consent of the Swingline
Lender, or (C) amend, modify or otherwise affect the rights or duties of any LC Issuer
hereunder without the prior written consent of such LC Issuer; and
(iv) unless agreed to by each par to any Rate Management Agreement
affected thereby in its capacity as such amend any provision regarding priority of
payments in this Agreement or any other Loan Document (other than as may be
otherwise specifically provided in this Agreement or in any other Loan Document);
and provided further that the Fee Letters may be amended or modified, and any rights thereunder
waived, in a writing signed by the paries thereto.
Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as
set forth above, each Lender is entitled to vote as such Lender sees fit on any bankptcy
reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the United States Bankptcy Code supersedes the unanimous consent
provisions set forth herein.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment,
waiver or consent which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting Lenders),
except that (x) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Lender and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender
more adversely than other affected Lenders shall require the consent of such Defaulting Lender
and (ii) if the Administrative Agent and the Borrower shall have jointly identified (each in its
sole discretion) an obvious error or omission of a technical or immaterial natue, in each case, in
any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be
permitted to amend such provision and such amendment shall become effective without any
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further action or consent of any other party to any Loan Document if the same is not objected to
in writing by the Required Lenders within five (5) Business Days following the posting of such
amendment to the Lenders.
8.3 Preservation of Rights. No delay or omission ofthe Lenders, the Swingline
Lender, the LC Issuers or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be constred to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions precedent to such Credit
Extension shall not constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or fuher exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant
to Section 8.2, and then only to the extent specifically set forth in such wrting. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders
until the Obligations have been paid in full.
ARTICLE 9
GENERA PROVISIONS
9.1 Surival of Representations. All representations and waranties of the Borrower
contained in this Agreement shall surive the making of the Credit Extensions herein
contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, neither the LC Issuers, the Swingline Lender nor any Lender shall be obligated
to extend credit to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Entire Aireement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, the LC Issuers, the Swingline
Lender and the Lenders and supersede all prior agreements and understandings among the
Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders
relating to the subject matter thereof other than the Fee Letters.
9.4 Several Obligations; Benefits of this Agreement. The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this Agreement and any
Person indemnified under Section 9.S or any other provision of this Agreement, and their
respective successors and assigns, provided that the parties hereto expressly agree that each Joint
Lead Aranger shall enjoy the benefits of the provisions of Sections 9.S, 9.9 and 10.11 to the
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extent specifically set forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a pary to this Agreement.
9.5 Expenses; Indemnification.
(a) The Borrower shall reimburse the Administrative Agent and each Joint Lead
Aranger for any reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Administrative Agent and Wells
Fargo Securties, which attorneys may be employees ofthe Administrative Agent and/or Wells
Fargo Securities, but excluding attorneys' fees other than those incured by the Administrative
Agent and/or Wells Fargo Securties) paid or incurred by the Administrative Agent or such Joint
Lead Aranger in connection with the preparation, negotiation, execution, delivery, syndication,
distribution (including via the internet), review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the Administrative Agent, each
Joint Lead Aranger, each LC Issuer, the Swingline Lender and the Lenders for any reasonable
costs, internal charges and out-of-pocket expenses (including reasonable attorneys' fees and time
charges of attorneys for the Administrative Agent, each Joint Lead Aranger, each LC Issuer, the
Swingline Lender and the Lenders, which attorneys may be employees of the Administrative
Agent, a Joint Lead Aranger, an LC Issuer, the Swingline Lender or a Lender) paid or incured
by the Administrtive Agent, any Joint Lead Aranger, any LC Issuer, the Swingline Lender or
any Lender in connection with the collection and enforcement of the Loan Documents. The
Borrower also agrees to pay any civil penalty or fine assessed by OF AC against, and all
reasonable costs and expenses (including counsel fees and disbursements) incured in connection
with defense thereof by, the Administrative Agent or any Lender as a result of conduct of the
Borrower that violates a sanction enforced by OF AC.
(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), each LC Issuer, each Lender, and each Related Par of the foregoing persons (each
such person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrment contemplated hereby or thereby, the performance by the paries hereto
of their respective obligations hereunder or thereunder or the consummation ofthe transactions
contemplated hereby or thereby, (ii) any Loan or Facility LC or the use or proposed use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment
under a Facility LC if the documents presented in connection with such demand do not strictly
comply with the terms of such Facility LC), (iii) any claim under Environmental Laws related in
any way to the Borrower, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by
a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee or (y) result from a claim brought by
the Borrower against an Indemnitee for breach in bad faith of such Indemnitee's obligations
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hereunder or under any other Loan Document, if the Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined by a cour of competent
jurisdiction.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any
amount required under Section 9.S(a) or Section 9.5(b) to be paid by it to the Administrative
Agent (or any sub-agent thereof), any LC Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), each
LC Issuer or such Related Party, as the case may be, such Lender's proportion (based on the
percentages as used in determining the Required Lenders as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liabilty or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent (or any such sub-
agent) or such LC Issuer in its capacity as such, or against any Related Pary of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or such LC Issuer in
connection with such capacity. The obligations of the Lenders under this Section 9.5(c) are
subject to the provisions of Section 9.4.
(d) All amounts due under this Section shall be payable by the Borrower upon
demand therefor.
(e) The obligations of the Borrower under this Section 9.S shall surive the
termination of this Agreement.
9.6 Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be fuished to the Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.
9.7 Accounting. Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.
9.8 Severability of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jursdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jursdiction or the operation, enforceability, or validity of that provision in any other jurisdiction,
and to this end the provisions of all Loan Documents are declared to be severable. Without
limiting the foregoing provisions of this Section 9.8, if and to the extent that the enforceability of
any provisions in this Agreement relating to Defaultng Lenders shall be limited by applicable
bankptcy, insolvency or similar law, as determined in good faith by the Administrative Agent,
the LC Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be
in effect only to the extent not so limited.
9.9 Nonliability of Lenders. The relationship between the Borrower on the one hand
and the Lenders, the Swingline Lender, the LC Issuers and the Administrative Agent on the other
hand shall be solely that of borrower and lender. None of the Administrative Agent, any Joint
Lead Aranger, any LC Issuer, the Swingline Lender or any Lender shall have any fiduciary
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responsibilities to the Borrower. None of the Administrative Agent, any Joint Lead Aranger,
any LC Issuer, the Swingline Lender or any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that no Indemnitee shall have liability
to the Borrower (whether sounding in tort, contrct or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted from the gross negligence
or wilful misconduct ofthe pary from which recovery is sought. No Indemnitee shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, (i)
any special, indirect, consequential or punitive damages suffered by the Borrower in connection
with, arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby, and (ii) any damages arsing from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby. The provisions of this Section
9.9 shall surive the termination of this Agreement.
9.10 Confidentiality. Each Lender agrees to hold any confidential information which it
may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates and to other Lenders and their respective Affliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee, (iii) to regulatory
offcials having jursdiction over such Lender or any of its Affiliates, (iv) as required by law,
regulation, or legal process, (v) as required in connection with any legal proceeding to which
such Lender is a pary, (vi) to such Lender's direct or indirect contractual counterparties in Rate
Management Transactions or to legal counsel, accountants and other professional advisors to
such counterparties, (vii) permitted by Section 12.4 and (viii) in connection with the exercise of
rights or remedies hereunder or under any Loan Document or Rate Management Agreement or
any action or proceeding relating to the enforcement of rights hereunder or thereunder. In the
case of any disclosure pursuant to clause (i), (ii), (vi) or (vii) above, each Person to whom such
disclosure is made wil be informed of the confidential natue of such information and instructed
to keep such information confidentiaL. In the case of any requested disclosure pursuant to clause
(iv) or (v) above, the applicable Lender wil give prompt notice of the request to the Borrower
(unless prohibited by the terms of the applicable law, regulation, subpoena or other legal process
or proceeding) so that the Borrower may endeavor to obtain a protective order or other assurance
of confidential treatment.
9.11 N onreliance. Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U of the Board of Govemors of the Federal Reserve
System) for the repayment of the Credit Extensions provided for herein.
9.12 Disclosure. The Borrower and each Lender hereby acknowledge and agree that
Wells Fargo and/or its Affiliates from time to time may hold investments in, make other loans to
or have other relationships with the Borrower and its Affliates.
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9.l3 PATRIOT Act Notice. Each Lender that is subject to the PATRIOT Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that wil allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the PATRIOT Act.
9.14 Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any ofthe parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be effective
when it has been executed by the Borrower, the Administrative Agent, the LC Issuers, the
Swingline Lender and the Lenders as of the Closing Date and each pary has notified the
Administrative Agent by facsimile transmission or telephone that it has taken such action.
Delivery of an executed counterpart of a signatue page of this Agreement by facsimile or other
electronic transmission wil be effective as delivery of a manually executed counterpart thereof.
ARTICLE 10
THE ADMINISTRATIV AGENT
10.1 Appointment; Nature of Relationship. Wells Fargo Bank, National Association is
hereby appointed by each of the Lenders as its contractual representative (herein referred to as
the "Administrative Agent") hereunder and under each other Loan Document, and each of the
Lenders (for purposes of this Aricle, references to Lenders shall also mean each LC Issuer and
the Swingline Lender) irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article 10. Notwithstanding the use
of the defined term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Administrative Agent is merely acting
as the contractual representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any fiduciar duties to any
of the Lenders, (ii) is a "representative" of the Lenders within the meaning of Section 9-105 of
the Uniform Commercial Code and (iii) is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the Administrative
Agent on any agency theory or any other theory of liability for breach of fiduciar duty, all of
which claims each Lender hereby waives.
10.2 Powers. The Administrative Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Administrative Agent by the terms
of each thereof, together with such powers as are reasonably incidental thereto. The
Administrative Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by the Loan
Documents to be taken by the Administrative Agent.
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10.3 General Immunity. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other Loan Document or
in connection herewith or therewith except to the extent such action or inaction is determined in
a final non-appealable judgment by a cour of competent jurisdiction to have arisen from the
gross negligence or wilful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection
with any Loan Document or any borrowing hereunder; (b) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document, including any
agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of
any condition specified in Article 4, except receipt of items required to be delivered solely to the
Administrative Agent; (d) the existence or possible existence of any Default or Unmatued
Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or wrting fuished in connection therewith; (f) the value,
suffciency, creation, perfection or priority of any Lien in any collateral securty; or (g) the
financial condition of the Borrower or any gurator of any of the Obligations or of any of the
Borrower's or any such guarantor's respective Subsidiares. Except as set forth herein and in the
Loan Documents, the Administrative Agent shall have no duty to disclose to the Lenders
information relating to the Borrower or any of its Affliates that is communicated to or obtained
by the Person serving as the Administrative Agent or any of its Affiiates in any capacity.
10.5 Action on Instructions of Lenders. The Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instrctions signed by the Required Lenders, and such
instrctions and any action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty
to take any discretionar action permitted to be taen by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested in wrting to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it shall first be indemnified to
its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6 Employment of Administrative Agents, CounseL, Accountants, and Other Experts.
The Administrative Agent may execute any of its duties as Administrative Agent hereunder and
under any other Loan Document by or through employees, agents, and attorneys-in-fact and shall
not be answerable to the Lenders (except as to money or securities received by it or its
authorized agents) for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Administrative Agent may consult with legal counsel (who may
be counsel for the Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
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10.7 Reliance on Documents; CounseL. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons. The Administrative Agent also
may rely upon any statement made to it orally or by telephone and reasonably believed by it to
have been made by the proper Person, and shall not incur any liabilty for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance
of a Facility LC, that by its terms must be fulfilled to the satisfaction of a Lender or the LC
Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender
or the LC Issuer unless the Administrative Agent shall have received notice to the contrary from
such Lender or the LC Issuer prior to the making of such Loan or the issuance of such Facility
LC.
10.8 Administrative Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Administrative Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower
under the Loan Documents, (ii) for any other expenses incured by the Administrative Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including for any expenses incurred by the Administrative
Agent in connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and natue
whatsoever which may be imposed on, incured by or asserted against the Administrative Agent
in any way relating to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including for any such amounts
incurred by or asserted against the Administrative Agent in connection with any dispute between
the Administrative Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other documents,
provided that (x) no Lender shall be liable for any of the foregoing to the extent any ofthe
foregoing is found in a final non-appealable judgment by a cour of competent jurisdiction to
have resulted from the gross negligence or wilful misconduct of the Administrative Agent and
(y) any indemnification required pursuant to Section 3.S(e) shall, notwithstanding the provisions
of this Section 10.8, be paid by the relevant Lender in accordance with the provisions thereof.
The obligations ofthe Lenders under this Section 10.8 shall survive payment of the Obligations
and termination of this Agreement.
10.9 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower referrng to this
Agreement, describing such Default or Unmatued Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
1 0.1 0 Rights as a Lender. In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers hereunder and under any other Loan
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Document with respect to its Commitment and its Loans as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
at any time when the Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative Agent and its
Affiiates may accept deposits from, lend money to, and generally engage in any kind of trst,
debt, equity or other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Subsidiaries in which the Borrower or
such Subsidiary without any duty to account therefore to the Lenders. The Administrative
Agent, in its individual capacity, is not obligated to remain a Lender.
10.11 Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, any Joint Lead Aranger or any other
Lender and based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender also
acknowledges that it wil, independently and without reliance upon the Administrative Agent,
any Joint Lead Aranger 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 and the other Loan Documents.
10.12 Successor Administrative Agent. The Administrative Agent may resign at any
time by giving wrtten notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, fort-five (45) days after the retiring Administrative
Agent gives notice of its intention to resign. The Administrative Agent may be removed at any
time with or without cause by wrtten notice received by the Administrative Agent from the
Required Lenders, such removal to be effective on the date specified by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders within thirty (30)
days after the resigning Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding the previous sentence, the Administrative
Agent may at any time without the consent of the Borrower or any Lender, appoint any of its
Affliates, which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor Administrative Agent has
been appointed, the Lenders may perform all the duties of the Administrative Agent hereunder
and the Borrower shall make all payments in respect of the Obligations to the applicable Lender
and for all other puroses shall deal directly with the Lenders. No successor Administrative
Agent shall be deemed to be appointed hereunder until such successor Administrative Agent has
accepted the appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earings of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning or removed Administrative Agent. Upon the
effectiveness of the resignation or removal of the Administrative Agent, the resigning or
removed Administrative Agent shall be discharged from its duties and obligations hereunder and
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under the Loan Documents. After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this Artcle 10 shall continue in effect for the benefit of
such Administrative Agent in respect of any actions taken or omitted to be taken by it while it
was acting as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the Administrative
Agent assigns its duties and obligations to an Affliate pursuant to this Section 10.12, then the
term "Prime Rate" as used in this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Administrative Agent.
10.13 Administrative Agent and Joint Lead Aranger Fees. The Borrower agrees to pay
to the Administrative Agent and each Joint Lead Aranger, for their accounts, the fees agreed to
by the Borrower, the Administrative Agent and/or such Joint Lead Arrangers pursuant to the Fee
Letters.
10.14 Delegation to Affiiates. The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to anyone or more
sub-agents. The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Affliates (and such sub-
agent's directors, offcers, agents and employees). Any such sub-agent which performs duties in
connection with this Agreement shall be entitled to the same benefits of the indemnification,
waiver and other protective provisions to which the Administrative Agent is entitled under
Article 9 and Article 10.
10.15 Other Agents. No Lender identified on the cover page, the signatue pages or
otherwise in this Agreement, or in any document related hereto, as being the "Syndication
Agent," a "Documentation Agent" or a "Book Runner" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement in such capacity other than those applicable
to all Lenders. Each Lender acknowledges that it has not relied, and wil not rely, on any Person
so identified in deciding to enter into this Agreement or in taking or refraining from taking any
action hereunder or pursuant hereto.
10.16 LC Issuer and Swingline Lender. The provisions of this Article 10 (other than
Section 10.10) shall apply to each LC Issuer and the Swingline Lender mutatis mutandis to the
same extent as such provisions apply to the Administrative Agent.
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1 Setoff. If a Default shall have occured and be continuing, each Lender, each LC
Issuer, and each of their respective Affiiates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held,
and other obligations (in whatever curency) at any time owing, by such Lender, such LC Issuer
or any such Affliate, 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 this Agreement or any other Loan
Document to such Lender or such LC Issuer or their respective Affiliates, irrespective of whether
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or not such Lender, LC Issuer or Affiliate shall have made any demand under this Agreement or
any other Loan Document and although such obligations ofthe Borrower may be contingent or
unmatued or are owed to a branch, offce or Affiliate of such Lender or such LC Issuer different
from the branch, offce or Affiliate holding such deposit or obligated on such indebtedness;
provided that in the event that any Defaulting Lender shall exercise any such right of setoff,
(x) all amounts so set off shall be paid over immediately to the Administrative Agent for fuher
application in accordance with the provisions of Section 2.22 and, pending such payment, shall
be segregated by such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrtive Agent a statement describing in reasonable
detail the Obligations owing to such Defaulting Lender as to which it exercised such right of
setoff. The rights of each Lender, each LC Issuer and their respective Affliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, such LC Issuer or their respective Affiiates may have. Each Lender and LC Issuer
agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of such
setoff and application.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has payment
made to it upon its Outstanding Credit Exposure (other than payments received pursuant to
Sections 3.1, 3.2, 3.3 or 3.S) in a greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding
Credit Exposure held by the other Lenders so that after such purchase each Lender wil hold its
Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action necessar such that all Lenders
share in the benefits of such collateral ratably in proportion to their respective Pro Rata Share of
the Aggregate Outstanding Credit Exposure. In case any such payment is distubed by legal
process, or otherwise, appropriate further adjustments shall be made. If an amount to be setoff is
to be applied to Indebtedness of the Borrower to a Lender other than Indebtedness comprised of
the Outstanding Credit Exposure of such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness comprised of such Outstanding Credit Exposure.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan Documents shall
be binding upon and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns, except that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignent by any Lender must be made in
compliance with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of the
foregoing sentence relates only to absolute assignments and does not prohibit assignents
creating security interests, including (x) any pledge or assignent by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the
case of a Lender which is a fund, any pledge or assignent of all or any portion of its rights
74
3076306v5 18445.00013
under this Agreement and any Note to its trustee in support of its obligations to its trstee;
provided that no such pledge or assignment creating a securty interest shall release the transferor
Lender from its obligations hereunder unless and until the parties thereto have complied with the
provisions of Section 12.3. The Administrative Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3; provided that the Administrative Agent may in its discretion
(but shall not be required to) follow instrctions from the Person which made any Loan or which
holds any Note to direct payments relating to such Loan or Note to another Person. Any
assignee of the rights to any Loan or any Note agrees by acceptance of such assignent to be
bound by all the terms and provisions of the Loan Documents. Any request, authority or consent
of any Person, who at the time of making such request or giving such authority or consent is the
owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan.
12.2 Paricipations.
(a) Any Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other entities ("Participants")
participating interests in any Outstanding Credit Exposure of such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests to a Paricipant,
such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Outstanding Credit Exposure and the holder of any
Note issued to it in evidence thereof for all puroses under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such Lender had not
sold such participating interests, and the Borrower and the Administrative Agent shall continue
to deal solely and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
(b) Each Lender shall retain the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any provision of the Loan Documents
other than any amendment, modification or waiver with respect to any Credit Extension or
Commitment in which such Participant has an interest which forgives principal, interest or fees
or reduces the interest rate or fees payable with respect to any such Loan or Commitment,
extends the Facility Termination Date (except as otherwise permitted in accordance with Section
2.21), postpones any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Commitment, or postpones the expiry date of any Facility LC
beyond the Facility Termination Date, releases any guarantor of any such Loan or releases all or
substantially all of the collateral, if any, securing any such Loan.
(c) The Borrower agrees that each Paricipant shall be deemed to have the right of
setoff provided in Section 11.1 in respect of its participating interest in amounts owing under the
Loan Documents to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in Section 11.1 with respect to the amount of participating interests sold
to each Paricipant. The Lenders agree to share with each Participant, and each Participant, by
75
3076306v5 18445.00013
exercising the right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Paricipant were a Lender.
(d) Each Lender that sells a paricipation shall, acting solely for this purpose as an
agent of the Borrower, maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest) of each Participant's interest in the
Loans or other obligations under the Loan Documents (the "Participant Register"); provided that
no Lender shall have any obligation to disclose all or any portion of the Paricipant Register
(including the identity of any Participant or any information relating to a Participant's interest in
any commitments, loans, letters of credit or its other obligations under any Loan Document) to
any Person other than the Borrower except to the extent that such disclosure is necessar to
establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasur Regulations. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Paricipant Register as the owner of such participation for
all puroses of this Agreement notwithstanding any notice to the contrary. For the avoidance of
doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(e) Any Lendermay at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including without
limitation any pledge or assignent to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignent shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
12.3 Assignents.
( a) Any Lender may, in the ordinar course of its business and in accordance with
applicable law, at any time assign to one or more Purchasers all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be substantially in the form of
Exhibit C or in such other form as may be agreed to by the parties thereto. The consent of the
Borrower, the Administrative Agent and each LC Issuer shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or an Affiiate thereof;
provided that if a Default has occurred and is continuing, the consent of the Borrower shall not
be required. Such consent shall not be unreasonably withheld or delayed. Each such assignent
with respect to a Purchaser which is not a Lender or an Affiliate thereof shall (unless each of the
Borrower and the Administrative Agent otherwise consents) be in an amount not less than the
lesser of (i) $10,000,000 or (ii) the remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment) or Outstanding Credit Exposure (if the applicable
Commitment has been terminated).
(b) Upon (i) delivery to the Administrative Agent of an assignment, together with any
consents required by Section 12.3(a), and (ii) payment of a $3,500 fee by the assigning Lender
to the Administrative Agent for processing such assignment (unless such fee is waived by the
Administrative Agent in its sole discretion), such assignment shall become effective on the
effective date specified in such assignment. The assignent shall contain a representation by the
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3076306v5 18445.00013
Purchaser to the effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable assignent agreement
constitutes "plan assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents wil not be "plan assets" under ERISA. On and
after the effective date of such assignent, such Purchaser shall for all puroses be a Lender
pary to this Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original part hereto, and no fuher consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit Exposure
assigned to such Purchaser. Upon the consummation of any assignent to a Puchaser pursuant
to this Section 12.3(a), the transferor Lender, the Administrative Agent and the Borrower shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements so that new Notes or, as appropriate, replacement Notes are issued to
such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective Commitments, as
adjusted pursuant to such assignent.
(c) In connection with any assignent of rights and obligations of any Defaulting
Lender hereunder, no such assignent shall be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignent shall make such additional
payments to the Administrative Agent in an aggregate amount sufficient, upon distrbution
thereof as appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including fuding, with the
consent of the Borrower and the Administrative Agent, the applicable Pro Rata Share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment
liabilties then owed by such Defaulting Lender to the Administrative Agent or any Lender
hereunder (and interest accrued thereon), and (y) acquire (and fud as appropriate) its full Pro
Rata Share of all Loans and participations in Facility LCs and Swingline Loans.
Notwithstanding the foregoing, in the event that any assignent of rights and obligations of any
Defaulting Lender hereunder shall become effective under applicable law without compliance
with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(d) The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at its office referred to in Schedule 13.1 a copy of each assignent
agreement delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and Outstanding Credit Exposure owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). In addition, the Administrative
Agent shall maintain on the Register information regarding the designation, revocation of
designation, of any Lender as a Defaulting Lender. The entres in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender
and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower, any LC Issuer, any
77
3076306v5 18445.00013
Lender and the Swingline Lender at any reasonable time and from time to time upon reasonable
prior notice.
12.4 Dissemination of Information. The Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents
by operation of law (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiares, including any information contained in any Reports; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.10 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee, which is organized under the laws of any jursdiction other than the United States or
any State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 3.S(g)(ü)(B) and such
Transferee shall not be entitled to any additional payments under Section 3.S, (i) unless, and only
to the extent, that the transferor Lender was entitled to amounts under Section 3.S, or (ii) in the
event that payments to the Transferee were not subject to any withholding at the time of transfer
and became subject to withholding as a result of a Change In Law.
ARTICLE 13
NOTICES
13.1 Notices.
(a) Except as otherwise permitted by Section 2.13 with respect to borrowing notices,
all notices, requests and other communications to any pary hereunder shall be in writing
(including electronic transmission, facsimile transmission or similar writing) and shall be given
to such party: (x) in the case of the Borrower or the Administrative Agent, at its address or
facsimile number set forth on Schedule 13.1, (y) in the case of any Lender, at its address or
facsimile number set forth in its Administrative Questionnaire or (z) in the case of any party, at
such other address or facsimile number as such par may hereafter specify for the purose by
notice to the Administrative Agent and the Borrower in accordance with the provisions of this
Section 13.1. Each such notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid, or (iii) if given by
any other means, when delivered at the address specified in this Section; provided that notices to
the Administrative Agent under Article 2 shall not be effective until received. Notices delivered
through electronic communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Notices and other communications to the Lenders hereunder may be delivered or
fuished by electronic communication (including e-mail and internet or intranet websites)
pursuant to procedures approved by the Administrative Agent or as otherwise determined by the
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
pursuant to Article 2 if such Lender has notified the Administrative Agent that it is incapable of
78
3076306v518445.00013
receiving notices under such Section by electronic communication. The Administrative Agent or
the Borrower may, in its respective discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by it or as it
otherwise determines, provided that such determination or approval may be limited to paricular
notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon the sender's
receipt of an acknowledgement from the intended recipient (such as by the "retu receipt
requested" function, as available, return e-mail or other wrtten acknowledgement), provided that
if such notice or other communication is not given durng the normal business hours of the
recipient, such notice or communication shall be deemed to have been given at the opening of
business on the next Business Day for the recipient, and (ii) notices or communications posted to
an internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address therefor.
13.2 Change of Address. The Borrower, the Administrative Agent and any Lender
may each change the address for service of notice upon it by a notice in writing to the other
parties hereto.
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIER OF JURY TRIAL
14.1 CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED IN
ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL
OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES); PROVIDED THAT EACH
FACILITY LC SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OR RULES DESIGNATED IN SUCH FACILITY LC OR APPLICATION
THEREFOR OR, IF NO SUCH LAWS OR RULES AR DESIGNATED, (I) IF SUCH
FACILITY LC IS A STANDBY LETTER OF CREDIT, THE INTERNATIONAL STANDBY
PRACTICES OF THE INTERNATIONAL CHAMBER OF COMMERCE, AS IN EFFECT
FROM TIME TO TIME (THE "ISP") AND (II) IF SUCH FACILITY LC IS A COMMERCIAL
LETTER OF CREDIT, THE RULES OF THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS, AS MOST RECENTLY PUBLISHED BY THE
INTERNATIONAL CHAMBER OF COMMERCE AT THE TIME OF ISSUANCE OF SUCH
COMMERCIAL LETTER OF CREDIT, AND, AS TO MATTERS NOT GOVERNED BY THE
ISP OR THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS,
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER
CHOICE OF LAW AND CONFLICTS OF LAW RULES).
14.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRRVOCABLY SUBMITS FOR ITSELF AND ITS PROPERTY TO THE EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK THE
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3076306v5 18445.00013
COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM AN THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
THE BORROWER HEREBY IRVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEAR AND DETERMINED IN ANY
SUCH COURT AND IRVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LC ISSUER OR AN LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JUISDICTION. ANY JUICIAL PROCEEDING BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT, AN LC ISSUER OR AN LENDER OR AN AFFILIATE
OF THE ADMINISTRATIV AGENT, AN LC ISSUER OR AN LENDER INVOLVING,
DIRCTLY OR INIRECTLY, ANY MATTER IN AN WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN NEW YORK, NEW YORK.
14.3 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT, THE SWINGLINE LENDER, EACH LC ISSUER AND EACH LENDER HEREBY
WAIV TRIAL BY mRY IN ANY JUICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRCTLY, ANY MATTER (WHTHER SOUNING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIV, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
(SIGNATURES FOLLOW)
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3076306v5 18445.00013
IN WITNESS WHEREOF, the Borrower, the Lenders, the Swingline Lender, the LC
Issuers and the Admistrative Agent have executed this Agreement as ofthe date first above
written.
IDAHO POWER COMPANY
By: ~).~/!
NtIe-:/ teven R. Keen
Title: Vice President - Finance and
Treasurer
Idaho Power Company - 2011 Credit Agreement
Idaho Power Company - 2011 Credit Agreement
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender, Swingline Lender,
LC Issuer and as Administrative AgentBy: ~~Narie~BÎiUd~
Title: Vice President
Idaho Power Company - 20/ / Crediiilgreeiieiii
JPMORGAN CHASE BANK, N.A., as
Syndication Agent and as a LenderBy: rLkNai~RZUr
Title: Authorized Offcer
~
Idaho Power Company - 2011 Credit Agreement
KEYBANK NATIONAL ASSOCIATION, as a:;cumenmtion~~
Name: Keven D. Smith
Title: Senior Vice President
Idaho Power Company - 2011 Credit Agreement
UNION BANK, N.A., as a
and as a Lender
By:
Name:
Title:
Idaho Power Company - 2011 Credit Agreement
BAN OF AMRICAt N.A., as a Lender
By: MJ;&ian
Title: Senior Vice President
Idaho Power Company - 2011 Credit Agreement
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:
Holland H. Wi liams
A VP & Portfolio Manager
Idaho Power Company - 2011 Credit Agreement
Thomas Casey
Authorized Signatory
Idaho Power Company - 2011 Credit Agreement
THE BANK OF NEW YORK MELLON, and as
a Lender
iBy: Nmn~~~
Title: Vice President
SCHEDULE I
PRICING SCHEDULE
Pricing
Level
Applicable
Margin for
LIBOR
Loans
0.775%
0.875%
0.95%
1.05%
1.25%
1.45%
Debt Rating
Level I ?,A/ A2/ A
Level II A-/A3/A-
Level III BBB+/Baa1/BBB+
Level iv BBB/Baa2/BBB
Level V BBB-/Baa3/BBB-
Level Vi .:BBB-/Baa3/BBB-
Applicable
Margin for
Base Rate
Loans
0.00%
0.00%
0.00%
0.05%
0.25%
0.45%
Facilty Fee
0.10%
0.125%
0.175%
0.20%
0.25%
0.30%
For the puroses of this Pricing Schedule, the following terms have the following
meanings, subject to the final paragraph of this Pricing Schedule:
"Debt Rating" means, with respect to the Borrower as of any date of determination, the
rating as determined by either S&P, Fitch or Moody's of the Borrower's senior unsecured non-
credit enhanced long-term indebtedness.
"Pricing Level" means, Level I, Level II, Level III, Level IV, Level V, or Level VI in
accordance with the Pricing Schedule based on the Borrower's Debt Rating.
If at any time there is a split among Debt Ratings by S&P, Fitch and Moody's such that
all three Debt Ratings fall in different Pricing Levels, the applicable Pricing Level shall be
determined by the Debt Rating that is neither the highest nor the lowest of the three Debt
Ratings, and if at any time there is a split among Debt Ratings by S&P, Fitch and Moody's such
that two of such Debt Ratings are in one Pricing Level (the "Majority Status") and the third
rating is in a different Pricing Level, the applicable Pricing Level shall be at the Majority Status.
In the event that the Borrower shall maintain Debt Ratings from only two of S&P, Moody's and
Fitch and the Borrower is split-rated and the Debt Ratings differential is one level, the Pricing
Level corresponding to the higher Debt Rating wil apply and if the ratings differential is two
levels or more, the Pricing Level corresponding to one level lower than the higher Debt Rating
wil apply. If at any time the Borrower does not have a Debt Rating from at least one of S&P or
Moody's, the applicable Pricing Level shall be set at Level VI.
3076306v5 18445.00013
SCHEDULE II
COMMITMENTS
Wells Fargo Bank, National Association
JPMorgan Chase Bank, N.A.
Key Bank National Association
Union Bank, N.A.
Bank of America, N.A.
U.S. Bank National Association
Royal Bank of Canada
The Bank of New York Mellon
TOTAL
$46,000,000
$46,000,000
$46,000,000
$46,000,000
$37,000,000
$37,000,000
$21,000,000
$21,000,000
$300,000,000
LC COMMITMENTS
Wells Fargo Bank, National Association
JPMorgan Chase Bank, N.A.
$150,000,000
$150,000,000
TOTAL $300,000,000
11-1
3076306v5 18445.00013
SCHEDULE S.8
SUBSIDIARIES AND OTHER INVESTMENTS
Jursdiction of
Investment In Organization
Idaho Energy Resources Co. Wyoming
Owned By
Idaho Power Company
Schedule 5.8
3076306v5 18445.00013
Percent
Ownership
100%
SCHEDULE S.13
MATERIAL AGREEMENTS
Borrower's Revised Code of Conduct approved by the Idaho Public Utilities Commission
("IPUC") on April 21, 2008, states that the Borrower wil not pay any dividends to its parent
entity that wil reduce Borrower's common equity capital below 35 percent of its total adjusted
capital without IPUC approvaL.
Borrower's articles of incorporation contain restrictions on the payment of dividends on its
common stock if preferred stock dividends are in arrears. The Borrower has no preferred stock
outstanding.
Schedule 5.13
3076306v5 18445.00013
SCHEDULE S.15
INDEBTEDNESS AND LIENS
Following is a list of existing liens of the Borrower and Subsidiares:
Borrower:
Indebtedness Owed To: Bondholders pursuant to that certin Mortgage and Deed of Trust, dated
as of October 1, 1937 between Borrower and Deutsche Bank Trust Company Americas (formerly
Bankers Trust Company) and R.G. Page (Stanley Burg, successor individual trstee), as Trustee,
as supplemented and amended (the "Indenture").
Property Encumbered: The lien of the Indenture constitutes a first mortgage on all the properties
of Borrower, subject only to certain limited exceptions including liens for taxes and assessments
that are not delinquent and minor excepted encumbrances. Certain of the properties of Borrower
are subject to easements, leases, contracts, covenants, workmen's compensation awards, and
similar encumbrances and minor defects and clouds common to properties. The Indenture
creates a lien on the interest of Borrower in propert subsequently acquired, other than excepted
property, subject to limitations in the case of consolidation, merger, or sale of all or substantially
all of the assets of Borrower. .
Amount of Indebtedness: The aggregate principal amount of Idaho Power Company First
Mortgage Bonds outstanding as of December 31, 2010 was $1.415 billon. However, the
Borrower's outstanding pollution control revenue bonds are secured by First Mortgage Bonds,
which increases the total First Mortgage Bonds outstanding at December 31, 2010 to $ 1.581
bilion. The amount of First Mortgage Bonds issuable by Borrower, giving effect to the Forty-
fifth Supplemental Indentue, is limited to a maximum of $2.0 bilion, but subject to increase at
any time and may be further limited by property, earings and other provisions of the Indentue.
Schedule 5.15
3076306v5 18445.00013
SCHEDULE 13.1
NOTICE ADDRESSES
Address for notices for Borrower:
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, ID 83707
Attention: Steven R. Keen, Vice President and Treasurer
Telephone No.: [phone]
Telecopy No.: [phone]
E-mail: skeen(Ðidahopower.com
Address for notices as Administrative Agent:
Wells Fargo Bank, National Association
1525 West W.T. Harris Blvd.
Mail Code: D 11 09-0 19
Charlotte, NC 28262
Attention: Syndication Agency Services
Telephone No.: [phone]
Telecopy No.: [phone]
E-mail: agencyservices.requests~wachovia.com
Address for notices as LC Issuer, Swingline Lender and Credit Contact:
Wells Fargo Bank, National Association
Corporate Banking - Utility and Power Group
1300 SW 5th Avenue, 7th Floor
Mail Code: MAC P6101-076
Portland, OR 97201
Attention: Yann Blindert
Telephone No.: [phone]
Telecopy No.: [phone]
E-mail: yann.blindert(Ðwellsfargo.com
Schedule 13.1
3076306v5 18445.00013
EXHIBITS TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN,
WELLS FARGO BAN, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and LC Issuer
and
KEYBANK NATIONAL ASSOCIATION
and
UNION BANK, N.A.,
as Documentation Agents
$300,000,000 Senior Credit Facilities
WELLS FARGO SECURITIES, LLC,
J.P. MORGAN SECURITIES INC.,
KEYBANC CAPITAL MARTS
and
UNION BANK, N.A.,
as Joint Lead Arangers and Joint Book Runners
Dated as of October 26, 2011
EXHIBIT A
FORM OF OPINION
October 26, 2011
The Lenders party to the Credit Agreement defined below and
Wells Fargo Bank, National Association, as Administrative Agent for such Lenders
1525 West W.T. Hars Blvd.
Mail Code: D 1109-0 19
Charlotte, NC 28262
Attention: Syndication Agency Services
Re: Idaho Power Company Credit Agreement
Ladies and Gentlemen:
We have acted as counsel to Idaho Power Company, an Idaho corporation (the
"Company"), in connection with the Credit Agreement (the "Credit Agreement") dated
October 26,2011 among the Company, as Borrower, Wells Fargo Ban, National Association, as
Administrative Agent (in such capacity, "Administrative Agent"), Swingline Lender and LC
Issuer, JPMorgan Chase Bank, N.A., as Syndication Agent and LC Issuer, Union Bank, N.A. and
KeyBank National Association, as Documentation Agents, and the lenders pary to the Credit
Agreement (collectively, "Lenders"). Except as otherwise indicated herein, capitalized terms
defined in the Credit Agreement are used herein as defined in the Credit Agreement.
A. Documents and Matters Examined
In connection with this opinion letter, we have examined originals or copies of such
documents, records, certificates of public officials and certificates of officers and representatives
of the Company as we have considered necessary to provide a basis for the opinions expressed
herein, including the following:
A-I the Credit Agreement;
A-2 the Note made by the Company payable to U.S. Bank National Association dated
as of October 26, 2011.
The documents listed in A-I and A-2 are collectively referred to herein as the "Transaction
Documents."
As to matters of fact material to the opinions expressed herein, we have relied on
(a) information in public authority documents (and all opinions based on public authority
documents are as of the date of such public authority documents and not as of the date of this
opinion letter), (b) information provided in certificates of offcers/representatives of the
3082319v1 18445.00013
Company and (c) the representations and warranties of the Company in the Transaction
Documents. We have not independently verified the facts so relied on.
B. Assumptions
We have relied, without investigation, on the following assumptions:
B-1 Original documents reviewed by us are authentic, copies of original documents
reviewed by us conform to the originals and all signatues on executed documents are genuine.
B-2 All individuals have suffcient legal capacity to pedorm their fuctions with
respect to the Transaction Documents and the transaction contemplated by the Transaction
Documents (the "Transaction").
B-3 The Transaction Documents and the other documents reviewed by us are valid
and binding obligations of each party thereto, other than the Company, enforceable against it in
accordance with their terms, and each such pary has complied with all legal requirements
pertaining to its status relevant to its right to enforce the Transaction Documents against the
Company.
c. Opinions
Based on the foregoing and subject to the qualifications and exclusions stated below, we
express the following opinions:
C-1 The Company is an Idaho corporation validly existing under Idaho law.
C-2 The Company (a) has the corporate power to execute, deliver and pedorm the
Transaction Documents and to consummate the Transaction, (b) has taken all corporate action
necessary to authorize the execution, delivery and pedormance of the Transaction Documents
and consummation of the Transaction and (c) has duly executed and delivered the Transaction
Documents.
C-3 The Transaction Documents are valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
C-4 The Company's execution, delivery and pedormance of the Transaction Documents and
consummation of the Transaction do not:
(a) violate the laws that we examined in rendering the opinions expressed
herein and that in our experience are typically applicable to agreements similar to the
Transaction Documents and transactions similar to the Transaction (including, without
limitation, Regulation U of the Federal Reserve Board); or
(b) violate the Company's articles of incorporation or bylaws.
3082319v1 18445.00013
C-5 No consent, order, approval, authorization or other action by, or filing with, any
governental authority is required in connection with the execution, delivery or performance by
the Company of the Transaction Documents and consummation of the Transaction, other than
those that have already been obtained or made; provided, however, that with respect to the
payment and performance by the Company on or after the Company's senior-secured bond
ratings drops below investment grade (BBB- or higher by Standard & Poor's Rating Service and
Baa3 by Moody's Investors' Service, Inc., a "Downgrade"), and the legality, validity, binding
effect or enforceability of any of the Transaction Documents on or after a Downgrade, this
opinion is subject to the qualifications that (i) Order No. r 1 ("Idaho Order") of the Idaho
Public Utilities Commission ("Idaho PUC") issued August 30,2011 and Order No. r lof
the Public Utility Commission of Oregon ("Oregon PUC") issued August 26,2011 each provide
that the authority of the Company under such order exists, only until the occurence of a
Downgrade; (ii) the statutes ofthe State of Oregon permit the issuance or renewal of
indebtedness matuing not more than one year after the date of such issue or renewal without the
approval of the Oregon PUC; and (iii) the Idaho Order provides that the Company's authority
wil not terminate but wil continue for a period of 364 days from any Downgrade, durng which
time the Company is authorized to fie a supplemental application with the Idaho PUC requesting
continuation of its original authority to borrow under the Idaho Order notwithstanding the
Downgrade. Notwithstanding the foregoing, any loss of regulatory authority in the States of
Idaho and Oregon resulting from a Downgrade, would not affect the legality, validity, binding
effect or enforceability of any of the Transaction Documents or the obligations incurred
thereunder prior to the Downgrade.
C-6 The Company is not an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended.
D. Qualifications; Exclusions
D-l The opinions expressed herein are subject to banptcy, insolvency and other
similar laws affecting the rights and remedies of creditors generally and general principles of
equity.
D-2 Except to the extent expressly noted to the contrar in this opinion letter, we
express no opinion as to the effect, if any, that one or more of the following matters may have on
the opinions expressed herein:
(a) federal securities laws and regulations administered by the Securities and
Exchange Commission, state "blue sky" laws and regulations, and laws and regulations
relating to commodity (and other) futues and indices and other similar instrents;
(b) federal and state laws and regulations dealing with (i) antitrst and unfair
competition; (ii) filing and notice requirements (e.g., Hart-Scott-Rodino), other than
requirements applicable to charter-related documents such as a certificate of merger;
(iii) environmental matters; (iv) land use and subdivisions; (v) tax; (vi) patents,
copyrights, trademarks and intellectual property; (vii) racketeering; (viii) health and
safety; (ix) labor and employment; (x) national and local emergencies; (xi) possible
judicial deference to acts of sovereign states; (xii) criminal and civil forfeitue;
3082319v1 18445.00013
(xiii) statutes of general application to the extent they provide for criminal prosecution
(e.g., mail frud and wire fraud statutes); and (xiv) regulation oflenders or the conduct of
the business of lenders and that may relate to the Transaction Documents or the
Transaction;
(c) Federal Reserve Board margin regulations as promulgated by the Federal
Reserve Board;
(d) compliance with fiduciary duty requirements;
(e) the statutes and ordinances, the administrative decisions, and the rules and
regulations of counties, cities, towns, municipalities and special political subdivisions
(whether created or enabled through legislative action at the federal, state or regional
level), and judicial decisions to the extent that they deal with any of the foregoing;
(f) fraudulent transfer and fraudulent conveyance laws;
(g) pension and employee benefit laws and regulations; and
(h) the Company's title to or the condition oftitle of any property.
D-3 We express no opinion as to the enforceability of:
(a) provisions related to the waiver of rights, remedies, defenses and
obligations or waivers of good faith and reasonableness, including, without limitation,
attempts to waive applicable statutes of limitations or rights to a jur tral, attempts to
change or waive rules of evidence or to fix the method or quantum of proof;
(b) provisions permitting the pursuit of inconsistent or cumulative remedies;
(c) provisions releasing a party from, or indemnifying a party for, liability for
its own gross negligence, recklessness, wilful misconduct or unlawful conduct or for
securities law liabilities;
(d) provisions establishing or waiving evidentiar standards;
(e) provisions providing for payment of attorneys fees incured in a dispute or
enforcement action to a party other than the prevailing party or purporting to limit
judicial discretion regarding determination of the amount of such fees and related costs;
(f) provisions appointing a party as attorney in fact for another pary;
(g) provisions for penalties, liquidated damages, acceleration of futue
amounts due (other than principal) without appropriate discount to present value,
3082319v1 18445,00013
charging interest on interest, late charges, increased interest after default or maturity or
prepayment premiums;
(h) self-help provisions or rights of set off;
(i) choice oflaw, choice offoru, consent to jurisdictions (both as to
personal jursdiction and subject matter jursdiction) and service of process provisions;
0) provisions that provide for the appointment of a receiver, trstee,
conservator or liquidator in any manner except in compliance with applicable law;
(k) confession of judgment provisions;
(1) provisions that are unconscionable as a matter of law; and
(m) provisions that would permit the exercise of remedies without
consideration of the materiality of (i) the breach by the opinion giver's client, and (ii) the
consequence of the breach to the part seeking enforcement.
D-4 We express no opinion as to the assignability by operation of law or otherwise of
any contract that (a) either (i) contains a provision granting rights that are by their express terms
nonassignable or nontransferable, or (ii) contains a provision prohibiting or restricting the
assignment or transfer of such agreement or rights or obligations thereunder without the prior
consent of the other pary to such agreement, but (b) does not specify whether a merger, transfer
by operation oflaw, change of control or sale of substantially all assets constitutes such an
assignent or transfer.
For purposes of expressing the opinions herein, (a) we have examined the laws of the
states of New York and Idaho, and to the extent applicable, the federal laws of the United States
of America, (b) and we have assumed that those laws govern the construction, interpretation and
enforcement of the Transaction Documents, whether or not any of the Transaction Documents
includes a choice-of-law provision stipulating the application of the laws of some other
jurisdiction and (c) our opinions are limited to such laws. We have not reviewed, nor are our
opinions in any way predicated on an examination of, the laws of any other jursdiction, and we
expressly disclaim responsibility for advising you as to the effect, if any, that the laws of any
other jurisdiction may have on the opinions set forth herein.
The opinions expressed herein (a) are limited to matters expressly stated herein, and no
other opinions may be implied or inferred and (b) are as of the date hereof (except as otherwise
noted above). We disclaim any undertaking or obligation to update these opinions for events and
circumstances occurring after the date hereof or as to facts relating to prior events that are
subsequently brought to our attention.
This opinion letter is rendered only to you and is solely for your benefit and the benefit of
Administrative Agent, LC Issuers, the Swingline Lender and the Lenders and their respective
3082319v1 18445.00013
successors and assigns in connection with the Transaction. Except as noted herein, this opinion
letter may not be used or relied on for any other purpose or by any other person without our prior
written consent. You may refer to and produce a copy of this opinion letter in connection with
the review of the Transaction by a regulatory agency having supervisory authority over you, in
connection with the assertion of a defense as to which this opinion letter is relevant and
necessary and in response to a cour order.
Very trly yours,
3082319v1 18445.00013
EXHIBITB
FORM OF COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is fuished pursuant to that certin Second Amended and
Restated Credit Agreement dated as of October 26, 2011 (as amended or otherwise modified
from time to time, the "Credit Agreement") among Idaho Power Company (the "Borrower"), the
lenders party thereto and Wells Fargo Bank, National Association, as Administrative Agent.
Unless otherwise defined herein, capitalized terms used in this Compliance Certificate (and the
attached schedule) have the meanings ascribed thereto in the Credit Agreement.
THE UNERSIGNED HEREBY CERTIFIES THAT:
1.I am the duly elected of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have made, or have
caused to be made under my supervision, a reasonable review of the transactions and conditions
of the Borrower and its Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes a Default or Unmatued
Default durng or at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations evidencing
the Borrower's compliance with Section 6.12 of the Credit Agreement, all of which data and
computations are tre, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the natue
of the condition or event, the period durng which it has existed and the action which the
Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
3082319v1 18445.00013
The foregoing certifications, together with the computations set forth in Schedule I hereto
and the financial statements delivered with this Certificate in support hereof, are made and
delivered this day of
3082319v1 18445.00013
IDAHO POWER COMPANY
By:
Name:
Title:
SCHEDULE I
TO COMPLIANCE CERTIFICATE
PERMITTED LIENS
as of ,_
(Section 6.11(xii) of the Credit Agreement)
(1 )Aggregate principal amount of Indebtedness
secured by Liens incurred by the Borrower $or the Parent in the ordinary course of
business.
(2)Aggregate principal amount of Indebtedness
secured by Liens incurred by the Borrower
$50,000,000or the Parent in the ordinary course of
business permitted.
3082319v1 18445.00013
LEVERAGE RATIO
as of ,-
(Section 6.12 of the Credit Agreement)
(1)Consolidated Indebtedness 1:
(a)Obligations for borrowed money $
(b)Obligations representing the deferred
purchase price of Propert or services
(other than accounts payable arsing in the
ordinar course of Borrower's and its
Subsidiaries' businesses payable on terms $
customar in the trade)
(c)Obligations, whether or not assumed,
secured by Liens or payable out of the
proceeds or production from Propert now
or hereafter owned or acquired by the
Borrower and its Subsidiaries $
(d)Obligations which are evidenced by notes,
acceptances, or other instrents $
(e)Obligations of Borrower and its
Subsidiaries to purchase securities or other
Property arising out of or in connection
with the sale of the same or substantially
similar securties or Propert $
(f)Capitalized Lease Obligations $
(g)Contingent Obligations $
(h)Obligations in respect of Letters of Credit $
(i)Rate Management Obligations $
(j)Preferred stock which is required by the
terms thereof to be redeemed, or for which
mandatory sinking fud payments are due,
by a fixed date $
i The aggregate outstanding Indebtedness evidenced by Hybrid Securties shall be excluded to the extent that the
total book value of such Hybrid Securities does not exceed 15% of Consolidated Total Capitalization as of such
time,
3082319v1 18445.00013
(k)Off-Balance Sheet Liabilities $
(1)Any other obligation for borrowed money
or other financial accommodation which in
accordance with Agreement Accounting
Principles would be shown as a liability on
the consolidated balance sheet of the
Borrower and its Subsidiaries $
(m)Amounts outstanding under a Permitted
Receivables Securitization $
(n)Total Consolidated Indebtedness
Add Lines 1 (a) through 1 (m)$
(2)Consolidated Total Capitalization:
(a)Consolidated Indebtedness (from Line
l(n) above)$
(b)Consolidated Net Worth $
(c)Aggregate outstanding amount of Hybrid
Securties $
(d)Total Capitalization
Add Lines 2(a) through 2(c)$
(3)Leverage Ratio:
Divide Line 1 (n) by Line 2(d)
(4)Maximum Leverage Ratio permitted by Section
6.12 of the Credit Agreement 0.65 : 1.0
3082319v1 18445.00013
EXHIBITC
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignent Agreement") between
(the "Assignor") and (the "Assignee") is dated as
of , _' The paries hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(as amended or otherwise modified from time to time, the "Credit Agreement") described in Item
1 of Schedule 1 attached hereto ("Schedule 1 "). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attbuted to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement and the other Loan
Documents, such that after giving effect to such assignent the Assignee shall have purchased
pursuant to this Assignent Agreement the percentage interest specified in Item 3 of Schedule 1
of all outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The aggregate Commitment
(or Outstanding Credit Exposure, if the applicable Commitment has been terminated) purchased
by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignent Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule 1 or two Business
Days (or such shorter period agreed to by the Administrative Agent) after this Assignent
Agreement, together with any consents required under the Credit Agreement, are delivered to the
Administrative Agent. In no event wil the Effective Date occur if the payments required to be
made by the Assignee to the Assignor on the Effective Date are not made on the proposed
Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignent of
Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor, on the Effective
Date, the amount agreed to by the Assignor and the Assignee. On and after the Effective Date,
the Assignee shall be entitled to receive from the Administrative Agent all payments of principal,
Reimbursement Obligations, interest and fees with respect to the interest assigned hereby. The
Assignee wil promptly remit to the Assignor any interest on Outstanding Credit Exposure and
fees received from the Administrative Agent which relate to the portion of the Commitment or
Outstanding Credit Exposure assigned to the Assignee hereunder for periods prior to the
Effective Date and not previously paid by the Assignee to the Assignor. In the event that either
party hereto receives any payment to which the other party hereto is entitled under this
Assignment Agreement, then the party receiving such amount shall promptly remit it to the other
party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay one-half of
the recordation fee required to be paid to the Administrative Agent in connection with this
Assignent Agreement unless otherwise specified in Item 6 of Schedule 1.
3082319v1 18445.00013
6. REPRESENTATIONS OF THE ASSIGNOR; LIMIT A TIONS ON THE
ASSIGNOR'S LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such interest is free and clear
of any adverse claim created by the Assignor and (iii) the execution and delivery of this
Assignment Agreement by the Assignor is duly authorized. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor and that the
Assignor makes no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys shall be responsible for
(i) the due execution, legality, validity, enforceability, genuineness, suffciency or collectabilty
of any Loan Document, including documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any representation, waranty or
statement made in or in connection with any of the Loan Documents, (iii) the financial condition
or creditworthiness of the Borrower or any guarantor, (iv) the performance of or compliance with
any of the terms or provisions of any of the Loan Documents, (v) inspecting any of the property,
books or records of the Borrower, (vi) the validity, enforceability, perfection, priority, condition,
value or suffciency of any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in connection with the Loans
or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The
Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies
of the financial statements requested by the Assignee and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into this
Assignent Agreement, (ii) agrees that it wil, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on such documents and
information at it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms that the execution
and delivery of this Assignent Agreement by the Assignee is duly authorized, (v) agrees that it
wil perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender, (vi) agrees that its payment
instrctions and notice instructions are as set forth in the attachment to Schedule 1, (vii) confirms
that none of the fuds, monies, assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents wil not be "plan assets" under ERISA, (viii) agrees
to indemnify and hold the Assignor harless against all losses, costs and expenses (including
reasonable attorneys' fees) and liabilities incurred by the Assignor in connection with or arising
in any manner from the Assignee's nonperformance of the obligations assumed under this
Assignent Agreement, and (ix) if applicable, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assignee is entited to receive payments
under the Loan Documents without deduction or withholding of any United States federal
income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of New York.
3082319v1 18445.00013
9. NOTICES. Notices shall be given under this Assignent Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses of the parties
hereto (until notice of a change is delivered) shall be the address set forth in the attachment to
Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignent Agreement
may be executed in counterpars. Transmission by facsimile of an executed counterpart of this
Assignent Agreement shall be deemed to constitute due and sufficient delivery of such
counterpart and such facsimile shall be deemed to be an original counterpart of this Assignent
Agreement.
IN WITESS WHEREOF, the duly authorized offcers of the parties hereto have
executed this Assignent Agreement by executing Schedule 1 hereto as of the date first above
written.
3082319v1 18445.00013
SCHEDULE 1
to Assignent Agreement
1. Description and Date of Credit Agreement: Second Amended and Restated Credit
Agreement dated as of October 26, 2011 among Idaho Power Company, the Lenders
party thereto and Wells Fargo Bank, National Association, as Administrative Agent.
2. Date of Assignment Agreement:
3. Amounts (As of Date ofItem 2 above):
Facility Facility Facility Facility
1 *2*3*4*
a.Assignee's percentage of
each Facility purchased
under the Assignent
Agreement**%%%%
b.Amount of each Facility
purchased under the
Assignment Agreement* * *$$$$
4.Assignee's Commitment (or
Outstanding Credit Exposure
with respect to terminated
Commitments) purchased
hereunder:$
5.Proposed Effective Date:
6.Non-standard Recordation Fee N/A***
Arangement (Assignorl Assignee
to pay 100% of fee)
(Fee waived by Agent)
Accepted and Agreed:
(NAME OF ASSIGNOR)(NAME OF ASSIGNEE)
By:
Name:
Title:
By:
Name:
Title:
3082319v1 18445.00013
ACCEPTED AND CONSENTED TO BY ACCEPTED AND CONSENTED TO BY
(NAME OF BORROWER)**** (NAME OF AGENT)****
By:
*
**
***
****
By:
Name:
Title:
Name:
Title:
Insert specific facility names per Credit Agreement
Percentage taen to 10 decimal places
If fee is split 50-50, pick N/ A as option
Delete if not required by Credit Agreement
3082319v1 18445.00013
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMTION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
Contact:
Name:
Fax No.:
Telephone No.:
Telex No.:
Answerback:
Payment Information:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instrctions:
Address for Notices for Assignor:
ASSIGNEE INFORMATION
Credit Contact:
Name:
Fax No.:
Telephone No.:
Telex No.:
Answerback:
Key Operations Contacts:
Booking Installation:
Name:
Telephone No.:
Fax No.:
Telex No.:
Answerback:
Booking Installation:
Name:
Telephone No.:
Fax No.:
Telex No.
Answerback:
3082319v1 18445.00013
Payment Information:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instructions:
Address for Notices for Assignee:
WELLS FARGO INFORMATION
Assignee wil be called promptly upon receipt of the signed agreement.
Initial Funding Contact:Subsequent Operations Contact:
Name:
Telephone No.:
Fax No.:
Name:
Telephone No.:
Fax No.:
Initial Funding Standards:
Libor Fund 2 days after rates are set.
Wells Fargo Wire Instructions:Wells Fargo Bank, National Association
Charlotte, North Carolina
ABA Routing No. 053000219
Account Number: 01459670001944
Account Name: Idaho Power Company
Attention: Syndication Agency Services
Telephone: (704) _-_
Telecopy: (704) _-_
Reference: Idaho Power Company
Address for Notices for Wells Fargo:Wells Fargo Bank, National Association
1525 West W.T. Harrs Blvd.
Mail Code: D1109-019
Charlotte, North Carolina 28262
Attention: Syndication Agency Services
Telephone: [phone]
Telecopy: [phone]
E-mail: agencyservices.requestsCiwachovia.com
3082319v1 18445.00013
EXHIBITD
FORM OF ACCOUNT DESIGNATION LETTER
October 26, 2011
Wells Fargo Bank, National Association, as Administrative Agent
1525 West W.T. Harrs Blvd.
Mail Code: DI109-019
Charlotte, North Carolina 28262
Attention: Syndication Agency Services
Telephone: [phone]
Telecopy: [phone]
E-mail: agencyservices.requests(iwachovia.com
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement, dated as of
October 26,2011, among the undersigned, Idaho Power Company, as Borrower, the banks and
other financial institutions parties thereto from time to time, and Wells Fargo Bank, National
Association, as Administrative Agent (as amended, modified or supplemented from time to time,
the "Credit Agreement"). Capitalized terms used but not defined herein shall have the meanings
given to them in the Credit Agreement.
The undersigned hereby authorizes and directs the Administrative Agent to disburse any
and all proceeds of the Loans under the Credit Agreement, as and when made from time to time,
to the following accounts:
Bank Name:
ABA Routing No.:
Account No.:
Account Name:
Very truly yours,
IDAHO POWER COMPANY
By:
Name:
Title:
3082319v1 18445.00013
EXHIBITE-l
FORM OF
REVOLVING NOTE
$,20_
Charlotte, North Carolina
FOR V ALUE RECEIVED, IDAHO POWER COMPAN, an Idaho corporation (the
"Borrower"), hereby promises to pay to the order of (the
"Lender"), at the offces of Wells Fargo Ban, National Association (the "Administrative
Agent") located at One Wells Fargo Center, 301 South College Street, Charlotte, North Carolina
(or at such other place or places as the Administrative Agent may designate), at the times and in
the manner provided in the Second Amended and Restated Credit Agreement, dated as of
October 26, 2011 (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"), among the Borrower, the Lenders from time to time parties thereto, and
Wells Fargo Bank, National Association, as Administrative Agent, the principal sum of
DOLLARS ($ ), or such lesser amount as may
constitute the unpaid principal amount of the Revolving Loans made by the Lender, under the
terms and conditions of this promissory note (this "Revolving Note") and the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same meaning. The
Borrower also promises to pay interest on the aggregate unpaid principal amount of this
Revolving Note at the rates applicable thereto from time to time as provided in the Credit
Agreement.
This Revolving Note is one of a series of Revolving Notes referred to in the Credit
Agreement and is issued to evidence the Revolving Loans made by the Lender pursuant to the
Credit Agreement. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this Revolving Note by reference in the same manner and with the same
effect as if set forth herein at length, and any holder of this Revolving Note is entitled to the
benefits of and remedies provided in the Credit Agreement and the other Credit Documents.
Reference is made to the Credit Agreement for provisions relating to the interest rate, matuty,
payment, prepayment and acceleration of this Revolving Note.
In the event of an acceleration of the maturity of this Revolving Note, this Revolving
Note shall become immediately due and payable, without presentation, demand, protest or notice
of any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of
collection, including reasonable attorneys' fees.
This Revolving Note shall be governed by and constred in accordance with the internal
laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General
Obligations Law, but excluding all other choice of law and conflicts of law rules). The Borrower
hereby submits to the nonexclusive jursdiction and venue of the federal and state cours located
3082319v1 18445.00013
in the state of New York, although the Lender shall not be limited to bringing an action in such
cours.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
executed by its duly authorized corporate officer as of the day and year first above written.
IDAHO POWER COMPANY
By:
Name:
Title:
3082319v1 18445.00013
EXHIBIT E-2
FORM OF
SWINGLINE NOTE
$,20_
Charlotte, North Carolina
FOR V ALUE RECEIVED, IDAHO POWER COMPANY, an Idaho corporation (the
"Borrower"), hereby promises to pay to the order of
WELLS FARGO BANK, NATIONAL ASSOCIATION (the "Swingline Lender"), at
the offices of Wells Fargo Bank, National Association (the "Administrative Agent") located at
One Wells Fargo Center, 301 South College Street, Charlotte, North Carolina (or at such other
place or places as the Administrative Agent may designate), at the times and in the manner
provided in the Second Amended and Restated Credit Agreement, dated as of October 26, 2011
(as amended, modified, restated or supplemented from time to time, the "Credit Agreement"),
among the Borrower, the Lenders from time to time parties thereto, and Wells Fargo Bank,
National Association, as Administrtive Agent, the principal sum of
DOLLARS ($ ), or such lesser amount as may constitute the unpaid principal
amount of the Swingline Loans made by the Swingline Lender, under the terms and conditions of
this promissory note (this "Swingline Note") and the Credit Agreement. The defined terms in
the Credit Agreement are used herein with the same meaning. The Borrower also promises to
pay interest on the aggregate unpaid principal amount of this Swingline Note at the rates
applicable thereto from time to time as provided in the Credit Agreement.
This Swingline Note is issued to evidence the Swingline Loans made by the Swingline
Lender pursuant to the Credit Agreement. All of the terms, conditions and covenants of the
Credit Agreement are expressly made a par of this Swingline Note by reference in the same
manner and with the same effect as if set forth herein at length, and any holder of this Swingline
Note is entitled to the benefits of and remedies provided in the Credit Agreement and the other
Credit Documents. Reference is made to the Credit Agreement for provisions relating to the
interest rate, maturity, payment, prepayment and acceleration of this Swingline Note.
In the event of an acceleration of the matuty of this Swingline Note, this Swingline Note
shall become immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Swingline Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of
collection, including reasonable attorneys' fees.
This Swingline Note shall be governed by and construed in accordance with the internal
laws of the State of New York (including Sections 5;,1401 and 5-1402 of the New York General
Obligations Law, but excluding all other choice oflaw and conflcts oflaw rules). The Borrower
hereby submits to the nonexclusive jurisdiction and venue of the federal and state cours located
3082319v1 18445.00013
in the state of New York, although the Swingline Lender shall not be limited to bringing an
action in such cours.
IN WITNESS WHEREOF, the Borrower has caused this Swingline Note to be executed
by its duly authorized corporate officer as of the day and year first above written.
IDAHO POWER COMPANY
By:
Name:
Title:
3082319v1 18445.00013
EXHIBITF
FORM OF
JOINDER AGREEMENT
This Joinder Agreement (this "Joinder Agreement") is made this _ day of,20_, by , a (the "Assuming
Lender"). Reference is made to the Second Amended and Restated Credit Agreement, dated as
of October 26, 2011 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), among Idaho Power Company (the "Borrower"), the Lenders pary thereto from
time to time paries thereto (the "Lenders"), and Wells Fargo Ban, National Association, as
administrative agent for the Lenders (the "Administrative Agent"). Terms defined in the Credit
Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as
defined therein.
The Assuming Lender hereby agrees as follows:
1. Joinder Agreement. Subject to the terms and conditions hereof and of the Credit
Agreement, the Assuming Lender hereby agrees to become a Lender under the Credit Agreement
with a Commitment of Dollars ($ ). After giving effect to this
Joinder Agreement and the adjustments required under Section 2.20(c) of the Credit Agreement,
the Assuming Lender's Commitment, the aggregate outstanding principal amounts of the Loans
owing to the Assuming Lender and the Assuming Lender's Pro Rata Share percentage of the
aggregate principal amount of all Loans plus all LC Obligations wil be as set forth in Item 4 of
Anex I attached hereto.
2. Assuming Lender Representations. The Assuming Lender (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial statements of the
Borrower delivered to the Administrative Agent pursuant to the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Joinder Agreement, (ii) agrees that it wil, independently and without
reliance upon the Administrative 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 the Credit Agreement, (iii) appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf under the Credit
Documents, and to exercise such powers and to perform such duties, as are specifically delegated
to or required of the Administrative Agent by the terms thereof, together with such other powers
as are reasonably incidental thereto, (iv) agrees that it wil perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender, and (vi) specifies as its address for payments and notices the office
set forth beneath its name on its signature page hereto.2
2 If the Assuming Lender is a Non-U.S. Person, add the following: "and (vii) has delivered the forms required by
Section 3.5(d) of the Credit Agreement."
3082319v1 18445.00013
3. Effective Date. Following the execution of this Joinder Agreement by the
Assuming Lender, an executed original hereof, together with all attachments hereto, shall be
delivered to the Administrative Agent. The effective date of this Joinder Agreement (the
"Effective Date") shall be the date of execution hereof by the Borrower, the Administrative
Agent and the Assuming Lender. As of the Effective Date, the Assuming Lender shall be a pary
to the Credit Agreement and, to the extent provided in this Joinder Agreement, shall have the
rights and obligations of a Lender thereunder and under the other Loan Documents.
4. Governing Law. This Joinder Agreement shall be governed by, and construed in
accordance with, the law of the State of New York (including Sections 5-1401 and 5-1402 of the
New York General Obligations Law, but excluding all other choice oflaw and conflcts oflaw
rules).
5. Entire Agreement. This Joinder Agreement, together with the Credit Agreement
and the other Loan Documents, embody the entire' agreement and understanding between the
parties hereto and supersede all prior agreements and understandings of the paries, verbal or
written, relating to the subject matter hereof.
6. Successors and Assigns. This Joinder Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their successors and assigns.
7. Counterparts. This Joinder Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all of which shall together constitute one and the
same instrent.
(signatures on following page)
3082319v1 18445.00013
IN WITNESS WHEREOF, the parties have caused this Joinder Agreement to be
executed by their duly authorized offcers as of the date first above written.
(INSERT NAME OF ASSUMING
LENDER)
By:
Name:
Title:
Accepted this _ day of'-'
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
Consented and agreed to:
IDAHO POWER COMPANY
By:
Name:
Title:
3082319v1 18445.00013
ANNEX I
1.Borrower:Idaho Power Company
2. Name and Date of Credit Agreement:
Second Amended and Restated Credit Agreement dated as of October 26, 2011 among
Idaho Power Company, the Lenders part thereto and Wells Fargo Bank, National
Association, as Administrative Agent.
3.Date of Joinder Agreement:,20_
4. Amounts (as of date of adjustment pursuant to Section 2.20(c) ofthe Credit Agreement):
Amount of
Commitment /
Loans of
Assuming Lender
Percentage of
Aggregate
Commitment /
Loans / LC
Obligations3
Aggregate Amount
of Commitment /
Loans for all
Lenders
(a)Commitment / Loans $$%
5. Addresses for Payments and Notices:
Assuming Lender: For Funding/Notices:
Telecopy: L)
Reference
For Payments:
Telecopy: L)
Reference:
6.Effective Date:,20_ (in accordance with Section 3).
3 Set forth, to at least 9 decimals, as a percentage of the Commitment / Loans of all
Lenders thereunder.
3082319v1 18445.00013
EXHIBITG-l
FORM OF
u.s. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated
as of October 26, 2011 (the "Credit Agreement") among Idaho Power Company, the Lenders
party thereto and Wells Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.5 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a
ban within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it
is not a controlled foreign corporation related to the Borrower as described in Section
881(c)(3)(C) of the Code.
The undersigned has fuished the Administrative Agent and the Borrower with a
certificate of its Non-U.S. Person status on IRS Form W -8BEN. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times fuished the Borrower and the Administrative Agent with a
properly completed and curently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(NAME OF LENDER)
By:
Name:
Title:
Date: _' 20( )
3082319v1 18445.00013
EXHIBIT G-2
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated
as of October 26, 2011 (the "Credit Agreement") among Idaho Power Company, the Lenders
party thereto and Wells Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.5 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the paricipation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has fuished its participating Lender with a certificate of its Non-U.S.
Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the undersigned shall promptly so
inform such Lender in writing, and (2) the undersigned shall have at all times fuished such
Lender with a properly completed and curently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(NAME OF PARTICIPANT)
By:
Name:
Title:
Date:, 20()
3082319v1 18445.00013
EXHIBITG-3
FORM OF
u.s. TAX COMPLIANCE CERTIFICATE
(For Foreign Partcipants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated
as of October 26, 2011 (the "Credit Agreement") among Idaho Power Company, the Lenders
part thereto and Wells Fargo Ban, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.5 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its direct or indirect parers/members are the sole beneficial
owners of such participation, (iii) with respect such participation, neither the undersigned nor
any of its direct or indirect parers/members is a bank extending credit pursuant to a loan
agreement entered into in the ordinary course of its trade or business within the meaning of
Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect parters/members is a ten
percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and
(v) none of its direct or indirect parers/members is a controlled foreign corporation related to
the Borrower as described in Section 881(c)(3)(C) ofthe Code.
The undersigned has fuished its paricipating Lender with IRS Form W -8IM
accompanied by one of the following forms from each of its parers/members that is claiming
the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY
accompanied by an IRS Form W-8BEN from each of such partner's/member's beneficial owners
that is claiming the portfolio interest exemption. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Lender and (2) the undersigned shall have at all times furnished such
Lender with a properly completed and curently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(NAME OF PARTICIPANT)
By:
Name:
Title:
Date:_,20( )
3082319v1 18445.00013
EXHIBIT G-4
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated
as of October 26, 2011 (the "Credit Agreement") among Idaho Power Company, the Lenders
party thereto and Wells Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.5 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or
indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s)
evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit
Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881 (c )(3)( A) of the Code,
(iv) none of its direct or indirect parters/members is a ten percent shareholder of the Borrower
within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect
parers/members is a controlled foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) ofthe Code.
The undersigned has fuished the Administrative Agent and the Borrower with IRS
Form W-8IMY accompanied by one of the following forms from each of its parers/members
that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form
W-8IMY accompanied by an IRS Form W-8BEN from each of such parer's/member's
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(NAME OF LENDER)
By:
Name:
Title:
Date:_,20( )
3082319v1 18445.00013