HomeMy WebLinkAbout20151120Exhibit A Credit Agreement.pdftE C il 1,,/ h. i)
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PATRICK A" HARRINGTON
Corponte Secretery
Ms. Jean D. Jewell
Secretary
Idaho Public Utilities Commission
Statehouse
Boise,Idatro 83720
November 18,2015
Re: IN THE MATTER OF IDAHO POWER COMPANY'S
APPLICATION FOR AUTHORITY TO INCUR SHORT-TERM
DEBT IN AN AGGREGATE PRINCIPAL AMOUNT OF UP TO
$450,000,000 AT AI.IY ONE TIME
Case No. IPC-E-I5-23
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 Agreernent dated
November 6,2015. Please feel free to contact me at pharrington@idahopower.com or
388-2878 or at if you have any questions regarding this filing.
Sincerely,M#W
c: Terri Cadock
{00180351.D(rc; U
Telephone (208) 388-2878, Fax (208) 388-6936
p h anin gto n@)d a ho p ow er. c o m
CUSIP Number: Deal #
Revolving Loans CUSIP #
EXECUTION VERSION
CREDIT AGREEMENT
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED I{EREIN,
WELLS FARGO BANK, NATIONAL ASSOCIATION
ad Administrative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and LC lssuer
and
KEYBANK NATIONAL AS SOCIATION
and
MT.JFG TJNION BANK, N.A.,
as Documentation Agents and LC lssuers
$300,000,000 Senior Credit Facility
WELLS FARGO SECURITIES, LLC
J.P. MORGAN SECURITIES LLC
KEYBANC CAPITAL MARKETS INC.
and
MUFG TJNION BANK, N.A.,
as Joint Lead Arrangers and Joint Book Runners
Dated as of November 6,2015
7922114v22474O.OOO24
1.1
1.2
1.3
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
Definitions. ....... I
other Interpretive P';;i;i;;;:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::.............. rq
Accounting Terms........ .....20
ARTICLE 2
TIIE CREDITS
2.1 Commitments................. ......................212.2 Required Payments; Termination ........222.3 Types of Advances; Minimum Amount of Each Advance.... .......................222.4 Fees........... .....222.5 Reduction or Termination of Aggregate Commitment........ ......222.6 Optional Principal Payments... .............232.7 Requesting Advances... .....232.8 Conversion and Continuation of Outstanding Advances... ........252.9 Changes in Interest Rate, etc..... ...........26
2.10 Rates Applicable After Default....... .....262.ll Method of Payment ...........26
2.12 Noteless Agreement; Evidence of Indebtedness............ ............27
2.13 Telephonic Notices ...........28
2.14 Interest Payment Dates; Interest and Fee Basis; Maximum Rate........... ......28
2.15 Notification of Advances, Interest Rates, Prepayments and CommitmentReductions. .....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... .....................35
2.20 Increase in Commitments........... .........36
2.21 Extension ofFacility Termination Date........... .......37
2.22 Defaulting Lenders...... ......38
2.23 Changed Circumstances............. ..........42
ARTICLE 3
YIELD PROTECTION; TAXES
3.1 Increased Costs......... ........433.2 Capital Requirements................. ..........443.3 Compensation.............. .....443.4 Delay in Requests .............443.5 Ta<es......... .....45
7922114v224740.ffiO24
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3.6
TABLE OF CONTENTS
(continued)
Page
Designation of a Different Lending Installation .....48
ARTICLE 4
CONDITIONS PRECEDENT
Effectiveness............... ......49
Each Credit Extension .......50
ARTICLE 5
REPRE SENTATIONS AI\D WARRANTIES
5.1 Existence and Standin9................ ........51
5.2 Authorization and Validity ..................51
5.3 No Conflict; Government Consent ......51
5.4 Financial Statements .........52
5.5 Material Adverse Change ....................52
5.6 Taxes........ ......525.7 Litigation and Contingent Obligations............. .......525.8 Subsidiaries................. ......525.9 ERISA ............53
5.10 Labor Relations... ..............535.1I Accuracy of Information............. ......... 53
5.12 Regulation U............... ......53
5.13 Material Agreements .........53
5.14 Compliance With Laws. .......................54
5.15 Ownership of Properties................ ......54
5.16 Environmental Matters ......54
5.17 Investment Company Act ............ ........ 54
5.18 Designated Persons; Sanctions; Anti-Comrption Laws; PATRIOT Act.........................54
ARTICLE 6
COVENAI\TS
6.1 Financial Reporting.. .........556.2 Use of Proceeds............ .....56
6.3 Notice of Default, etc.............. .............56
6.4 Conduct of Business .........57
6.5 Taxes........ ......576.6 Insurance ........576.7 Compliance with Laws .....576.8 Maintenance of Properties............. ......576.9 Inspection. ......57
6.10 Merger and Sale of Assets ...................57
4.1
4.2
7922114v224740.00024
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TABLE OF CONTENTS
(continued)
Page
6.1I Liens.......... ..... 586.12 Leverage Ratio.......... ........596.13 Investments and Acquisitions......... ..... 596.14 Subsidiary Dividend Restrictions ........606.15 Afliliates ........60
6.16 OFAC, PATRIOT Act Compliance........... .............60
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WATVBRS, AMENDMENTS AI\D REMEDIES
8.1 Acceleration; Facility LC Collateral Account ........638.2 Amendments............... ......648.3 Preservation of Rights.... ......................65
ARTICLE 9
GENERAL PROVISIONS
9.1 Survival of Representations .................669.2 Governmental Regu1ation................ ....................... 669.3 Entire Agreement. .............669.4 Several Obligations; Benefits of this Agreement. ......................669.5 Expenses; Indemnification............. ......669.6 Numbers of Documents............... ........689.7 Accounting .....689.8 Severability of Provisions................. ......................689.9 Nonliability of Lenders. .......................68
9.10 Confidentiality............. .....699.1I Nonreliance ....................... 69
9.12 Disclosure ......69
9.13 PATRIOT Act Notice .......70
9.14 Counterparts................. .....70
ARTICLE 10
THE ADMINISTRATTVE AGENT
l0.l Appointment and Authority.............. ...................... 7010.2 Rights as a Lender .............7010.3 Exculpatory Provisions .....70
10.4 Reliance by Administrative Agent......... .................72
7922114v224740.@024
ill-
TABLE OF CONTENTS
(continued)
Page
10.5 Delegation of Duties .........72
10.6 Resignation of Administrative Agent .....................72
10.7 Non-Reliance on Administrative Agent and Other Lenders...... ...................73
10.8 No Other Duties, etc ............. ...............73
10.9 Administrative Agent May File Proofs of Claim.... ...................74
10.10 Administrative Agent's Reimbursement and lndemnification............. ........74
l0.l I LC Issuer and Swingline Lender. .........75
ARTICLE 11
SETOFF; RATABLE PAYMENTS
I l.l Setoff........ ......75ll.2 Ratable Payments... ...........75
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
l2.l Successors and Assigns .....76
12.2 Participations................. ....................... 76
12.3 Assignments................. .....78
12.4 Dissemination of Information.......... .......................79
12.5 Tax Treatment............. ......79
ARTICLE 13
NOTICES
13.1 Notices ...........80
13.2 Change ofAddress. ...........81
ARTICLE 14
CIIOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
r4.t cHorcE oF LAw ...........81
t4.2 CONSENT TO JURTSDICTION..... ....................... 81
14.3 WATVER OF JURY TRIAL....... ......... 82
79221r4y224740.@,024
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TABLE OF CONTENTS
(continued)
Page
Schedule I Pricing Schedule
Schedule II Commitments
Schedule 5.8 List of Subsidiaries
Schedule 5.12 Agreements which restrict Subsidiary Dividends or which could reasonably
be expected to have a Material Adverse Effect
Schedule 5.14 lndebtedness and Liens
Schedule l3.l Notice Addresses
EXHIBIT A Form of Compliance Certificate
EXHIBIT B Form of Assignment Agreement
EXHIBIT C Form of Loan/Credit Related Money Transfer lnstructions
EXHIBIT D-l Form of Revolving Note
EXHIBIT D-2 Form of Swingline Note
EXHIBIT E Form of Joinder Agreement
EXHIBIT F-l Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not
Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT F-2 Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are
Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT F-3 Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are
Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT F-4 Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Partnerships For U.S. Federal Income Tax Purposes)
7922114v224740.@024
CREDIT AGREEMENT
This Credit Agleement, dated as ofNovember 6,2015, is made among Idaho Power
Company, an Idaho corporation, the Lenders, and Wells Fargo Bank, National Association, as
Administrative Agent for the Lenders.
BACKGROUND STATEMENT
The Borrower has requested, and subject to the terms and conditions set forth in this
Agreement, the Lenders have agreed to extend certain credit to the Borrower.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants and
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
l.l Definitions. As used in this Agreement:
"Agqgisilion" means any transaction, or any series of related transactions, consummated
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 liability
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 securities of a corporation which
have ordinary voting power for the election of directors (other than securities 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 partnership 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.
"Administrative Fee L 'means the letter agreement, dated October 14,2015, among
Borrower, the Parent, and Wells Fargo.
..@,meansanadminishativequestionnaireinaformsupplied
by the Administrative Agent.
"AdE!g" 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.
7922114v2 24740.00024
"1![fi!i41!9" of any Person means any other Person directly or indirectly controlling,
conholled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns l0% 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 of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
"Aggregate Commitmed'means the aggregate of the Commitments of all the Lenders,
as reduced or increased from time to time pursuant to the terms hereof.
"Aggregate Outstandi " means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.
"Aglgemen!" means this Credit Agreement.
"Agreement Accounting '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 5.4, but subject to Section 1.3.
"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 1/2Yo, (iii) the Eurodollar Base Rate for an lnterest Period of one month plus l%
and (iv) 0%o; eachchange in the Altemate Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate, the Federal Funds Effective Rate or
Eurodollar Rate.
"Anti-Corruption Laws" means the Foreign Comrpt Practices Act and all other federal or
state laws, rules, and regulations ofthe United States and any national laws, rules and regulations
of any foreign country, in each case applicable to the Borrower and its Subsidiaries conceming
or relating to bribery or comrption.
"Applicable MAfgin" 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 ofthe Chief Executive Officer, President, Chief
Financial Officer, Vice President or Treasurer of the Borrower, acting singly.
"Available Aggreeate '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.
"Borrowine Notice" is defined in Section 2.7.
7922114v224740.N024
"Buglne5! !iI" means (i) for all purposes 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 oftheir 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.
"eapilelizgd_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 O 'of a Person means the amount ofthe 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.
"eash 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 fund participations in respect of LC 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 lssuer. "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 In 'means (i) short-term obligations of, or fully guaranteed
by, the United States of America, (ii) commercial paper rated A-1 or beffer 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 surplus in excess of $100,000,000; ryislgsl 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.
"ehange in Conhol" means (i) the acquisition by any "person" or "group" (as such terms
are used in Sections 13(d) and l4(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
capaclty as trustee, agent or other fiduciary or administrator of any such plan) of beneficial
ownership (within the meaning of Rule 13d-3 and 13d-5 under the Securities Exchange Act of
1934) of 20olo 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 securities 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 ofthat board on the first day of such period, @) whose election or
nomination to that board was approved by individuals referred to in clause (A) above
7922114v224740.0(l{l24
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.
"Cha4ee in Law" means the occurrence, 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 Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Govemmental
Authority; provided that notwithsknding anything herein to the conffary, (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 [[I, shall in each case be deemed to be a "Change in
Law", regardless ofthe date enacted, adopted or issued.
"elosine 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.
'6Cods" means the [nternal Revenue Code of 1986.
"Collateral Shortfall '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.
"Commitment lncrease" and "@" are defined in Section
2.20(a).
"Conc!emna!!on,'is defined in Section 7(i).
"Connection Incom ' means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or branch profits
Taxes.
"Consen1!-p41te,'is defined in Section 2.21(a).
"Consgnting_Lencler" is defined in Section 2.21(t).
7922114v2 24740.00024
"Consolidated Indeb " means at any time the Indebtedness ofthe Borrower and its
Subsidiaries calculated on a consolidated basis as of such time; orovided. 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 Securities shall
be included to the extent that the total book value of such Hybrid Securities exceeds l5o/o of
Consolidated Total Capitalization as of such time.
"Consolidated Net Woff'means atany time the consolidated stockholders' equity of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
"Consolidated Total " means at any time, without duplication, the sum of
(i) Consolidated Indebtedness (but excluding any Indebtedness athibuted to Hybrid Securities),
(ii) Consolidated Net Worth and (iii) the aggregate outstanding amount of Hybrid Securities,
each calculated as of such time.
"Contineent Obligd 'of a Person means any agreement, undertaking or arrangement
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 partnership with respect to the liabilities of
the partnership; provlded 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 party (without an obligation of reimbursement by the
Borrower or one or more Subsidiaries) shall have placed in trust or escrow funds specifically
designated for the purpose of satisfuing such reclamation obligations, shall be excluded
therefrom.
"Conversion/Continu ' is defined in Section 2.8.
"@Extension" means the making of an Advance or the issuance or Modification 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 Bankruptcy Code of the United States of America, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangemenL receivership, insolvency, reorganization, or similar debtor relief
laws ofthe United States or other applicable jurisdictions from time to time in effect.
"ft1Qg!1''means an event described in Article 7.
"Dgfau[ine Lender" means, subject to Section 2.22(a)(i), any Lender that (i) has failed
to (A) fund 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
7922114v224740.0O024
Borrower in writing that such failure is the result of such Lender's determination that one or
more conditions precedent to funding (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 Issuero 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 ofthe date when due, (ii) has
notified the Borrower, the Administrative Agent or any LC Issuer or the Swingline Lender in
writing that it does not intend to comply with its funding obligations hereunder, or has made a
public statement to that effect (unless such writing or public statement relates to such Lender's
obligation to fund a Loan hereunder and states that such position is based on such Lender's
determination that a condition precedent to funding (which condition precedent, together with
any applicable default, shall be specifically identified in such writing or public statement) cannot
be satisfied), (iii) has failed, within three Business Days after written request by the
Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the
Borrower that it will comply with its prospective funding obligations hereunder (ryiSled that
such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) 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, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit lnsurance Corporation or
any other state or federal regulatory authority acting in such a capacity; orovided that a Lender
shall not be a Defaulting Lender solely by virtue 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 jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority) to reject, repudiate, disavow or disaffrrm any contracts or agreements made with such
Lender. Any determination by the Adminishative Agent that a Lender is a Defaulting Lender
under any one 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
2.22(a)(vi)) upon delivery of written notice of such determination to the Borrower, each LC
Issuer, each Swingline Lender and each Lender.
"Degienated.Person" means any Person listed on a Sanctions List.
"Dgl!AE" or "$" means, unless otherwise qualified, dollars in lawful currency of the
United States.
"Eligible Replacem " 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
governmental restrictions relating to (i) the protection ofthe environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacfure,
7922114,r224740.00,024
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 lncome Security Act of 1974, as amended.
"EBISA Affiliate" means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as (i) a single employer under Section 414(b), (c), (m) or
(o) of the Code or (ii) a member of the same controlled group under Section a001(a)(14) of
ERISA.
"EBISA Event" means any of the following: (i) a "reportable event" as defined in
Section 4043(c) of ERISA with respect to a Plan or, if the Borrower or any ERISA Affiliate has
received notice, a Multiemployer Plan, for which the requirement to give notice has not been
waived by the PBGC (provided, however, that a failure to meet the minimum funding standard
of Section 412 of the Code shall be considered a "reportable event" regardless of the issuance of
any waiver), (ii) the application by the Borrower or any ERISA Affiliate for a funding waiver
pursuant to Section 412 of the Code, (iii) the incurrence by the Borrower or any ERISA Affiliate
of any Withdrawal Liability, or the receipt by the Borrower or any ERISA Afliliate of notice
from a Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA or that it
intends to terminate or has terminated under Section 4041A of ERISA, (iv) the distribution by
the Borrower or any ERISA Affiliate under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the taking of any action to terminate any Plan, (v) the commencement of
proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the receipt by the Borrower or any ERISA
Affiliate of a notice from any Multiemployer Plan that such action has been taken by the PBGC
with respect to such Multiemployer Plan, (vi) the institution of a proceeding by any fiduciary of
any Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce Section 515 of
ERISA, which proceeding is not dismissed within 30 days, (vii) the imposition upon the
Borrower or any ERISA Affiliate of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, or the imposition or threatened
imposition of any Lien upon any assets of the Borrower or any ERISA Afliliate as a result of any
alleged failure to comply with the Code or ERISA with respect to any Plan, or (viii) the
Borrower's engaging in a Prohibited Transaction with respect to any Plan.
"EuroclqllAlA!re," means a Revolving Loan which, except as otherwise provided in
Section 2.10, bears interest at the applicable Eurodollar Rate.
..@,means,foranyinterestratecalculationwithrespecttoa
Eurodollar Advance (or a Floating Rate Advance as to which the interest rate is determined with
reference to the Eurodollar Base Rate), the rate of interest per annum equal to the London
Interbank Offered Rate C'LIEQB:') (or if such LIBOR rate is unavailable, a comparable or
successor rate, which rate is reasonably approved by the Administrative Agent), as published on
the applicable Reuters screen page (or such other commercially available source providing
quotations of LIBOR as may be designated by the Administrative Agent from time to time) for
deposits in Dollars for an amount substantially equal to the amount of such Advance and for a
period equal to the applicable Interest Period at approximately I l:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period (rounded upward, if
7922114v2 24740.00024
necessary, to the nearest l/100th of lo/o). If, for any reason, such rate is not available at such
time for any reason, 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 in an
amount substantially equal to the amount of such Advance would be offered by first class banks
in the London interbank market to the Administrative Agent at approximately l1:00 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. Notwithstanding the foregoing, at no time shall the
Eurodollar Base Rate be less than 0o/o.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the relevant lnterest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest
Period, divided bV (b) 1.00 minus the Reserve Requirement (expressed as a decimal) applicable
to such lnterest Period, plus (ii) the Applicable Margin.
"Exchgn€e Ac!" means the Securities Exchange Act of 1934.
"Excluded lfaxes" 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 office 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 assignment 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 3.5,
amounts with respect to such Taxes were payable either to such Lender's assignor immediately
before such Lender became apafty hereto or to such Lender immediately before it changed its
Lending Installation, (iii) Taxes athibutable to such Recipient's failure to comply with Section
3.5(g) and (iv) any U.S. federal withholding Taxes imposed under FATCA.
"Existins Credit Agrc 'means that certain Second Amended and Restated Credit
Agreement dated as of October 26,2011, between the Borrower, certain banks and other
financial institutions, and Wells Fargo, as administrative agent.
"Extension Date" is defined in Section 2.21(t).
"Extension Notice" is defined in Section 2.21(a).
"EAgility Fee" is defined in Section 2.4O).
"Facility LC" is defined in Section 2.18(a).
"Facility LC Applicdh" is defined in Section 2.18(c).
"W' is defined in Section 2.18(i).
7922114v2 24740.NO24
"Facilitv LC Maturity Ddd'is defined in Section 2.18(a).
"Facilitv Termination ' means the earlier to occur of (i) November 6, 2020 (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.
"FATCA" means Sections l47l 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 and any agreements entered into pursuant to Section l47l(bX1) of the
Code.
"Federal Funds Effectiv '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, 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. Notwithstanding the foregoing, at no time shall the Federal Funds
Effective Rate be less than 0%.
"Eeg_@'mean, collectively, (i) the Senior Lead Arrangers Fee Lefier, (ii) the Senior
Arrangers Fee Letter and (iii) the Administrative Fee Letter.
"Ei6!-Mortg4&" 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 trustee) are Trustees, as it may from time to time be further amended,
supplemented or otherwise modified.
'6rch" means Fitch Rating Services, [nc,
"EloatinglBa!9" 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
Altemate 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.
"Eoreigu-Lender" means a Lender that is not a U.S. Person.
"Fro4tigg_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 Facility LCs 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
7922114v224740.O0024
Collateralized in accordance with the terms hereof, and (ii) with respect to the Swingline Lender,
such Defaulting Lender's ho 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.
"Governmental Authorfu" 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
pertaining to government (including any supranational bodies such as the European Union or the
European Central Bank).
"Flybrid Securitieg" shall mean any hybrid securities afforded equity benefit to the issuer
thereof (under the procedures and guidelines of Standard & Poor's), including any trust prefened
securities, deferrable interest subordinated debt securities, mandatory convertible debt securities
or other hybrid securities issued by the Borrower or any Subsidiary or financing vehicle of the
Borrower that (i) have an original maturity of at least twenty (20) years, (ii) require, absent an
event of default with respect to such securities, 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
occurrence 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.
"Iucreasing Lencler" is defined in Section 2.20(a).
"Indebtednesg" of a Person means such Person's (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price ofProperty or services (other than
accounts payable arising in the ordinary course of such Person's business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out ofthe 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
instruments, (v) obligations of such Person to purchase securities or other Property arising out of
or in connection with the sale of the same or substantially similar securities or Property,
(vi) Capitalized Lease Obligations, (vii) Contingent Obligations, (viii) 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.
"lndemnitee" is defined in Section 9.5(b).
7922114v224740.00024
l0
"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, orovided 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;
(iD 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 lnterest Period; and
(iii) no Interest Period shall extend beyond the Facility Termination Date.
"Investmen[" of a Person means any loan, advance (other than commission, travel and
similar advances to officers 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
customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person; and strucfured
notes, derivative financial instruments and other similar instruments or contracts owned by such
Person. The term "Investment" shall exclude any direct or indirect expenditure by the Borrower
in property, plant, fixtures, equipment and capital expenditures of the Borrower and its
Subsidiaries.
'6IN" means the United States Internal Revenue Service.
"Joigdgr Aggemegl'o means a written agreement substantially in the form of Exhibit E
hereto.
"Joint Lead Arrangers" means Wells Fargo Securities, JPMorgan, KBCM, and MUFG, in
their capacity as joint lead arrangers and joint book runners.
..JPMCB" means JPMorgan Chase Bank, N.A.
"JL&J'ean" means J.P. Morgan Securities LLC
"KBCM" means Keybanc Capital Markets Inc.
"KgyBank" means KeyBank National Association.
"LC Commitment" shall mean, with respect to each LC lssuer, the commifinent of such
LC [ssuer 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 lssuer agrees to become an LC Issuer hereunder and to be bound by the terms
hereof applicable to LC Issuers.
ll
7922114v224740.NA4
(LC Fee' is defined in Section 2.18(d).
"LC Issuer" means each of Wells Fargo, JPMCB, KeyBank or MUFG (or any subsidiary
or Affiliate of any 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.
"Le.-Qbli&!ons" means, at any time, the sum, without duplication, of (i) the aggregate
undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
"Le JAp1!-Da!g" is defined in Section 2.18(e).
"LC_S.UbcommiImen!" means $100 million 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.
"@!S" means the lending institutions listed on the signature pages of this Agreement
and any other Person that shall have become a Lender party hereto pursuant to the terms hereof;
ry4!g!, that unless the context otherwise requires, each reference herein to the Lenders shall be
deemed to include the Swingline Lender in such capacity.
"LenrlinglnstAllation" means, with respect to a Lender or the Adminishative Agent, the
office, 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
pursuant to Section 2.16 or Section 3.6.
"Letter of Credit" of a Person means a leffer of credit or similar instrument which is
issued upon the application ofsuch Person or upon which such Person is an account party 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 the applicable Reuters screen page (or any
successor page) determined as of l1:00 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), provided, however, that at no time shall such rate of interest be less than
0olo, plus (ii) the Applicable Margin in effect for a Eurodollar Advance from time to time.
"LIBOR Market Index Rate A 'means a Swingline Loan which, except as
otherwise provided in Section 2.10, bears interest at the LIBOR Market Index Rate.
36!!en" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, 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).
66loans" means the Revolving Loans and the Swingline Loans.
7922114v224740.@024
t2
"Loan Documents" means this Agreement, the Facility LC Applications, the Joinder
Agreements, any Notes issued pursuant to Section 2.l2,the Fee Lefiers, and all other
agreements, instruments, 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.
"London Business Dd'means a day (other than Saturday 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 carried on in the London interbank market.
"Material Adverse E 'means a material adverse effect on (i) the business, Property,
condition (financial or otherwise), results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (iD 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 lndebted 'means lndebtedness (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 currency). 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 Subsidiary would be required to pay if such
Rate Management Obligation were terminated at such time of determination.
"Material Subgidigry" 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 l0% of the consolidated
gross assets of the Borrower and all its Subsidiaries as of the last day of the Borrower's most
recently ended fiscal year for which financial statements are available.
"Minimum Collatera '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.
"Mod!&" and "Mod!figation" are defined in Section 2.f8(a).
"Mgpg!y!," means Moody's Investors Service,Inc.
"MJre," means MUFG Union Bank, N.A.
"Mu[iga[plo@'means any "multiemployer plan" within the meaning of Section
a001(a)(3) of ERISA to which the Borrower or any ERISA Afliliate makes or is obligated to
make contributions or has, within the last six years, made or been obligated to make
contributions.
"Non-Consenting Le 'is defined in Section 2.21(a).
7922114v224740.O0024
l3
"Non-Defaulting Lenfu" means, at any time, each Lender that is not a Defaulting Lender
at such time.
6'No1tes" means any or all ofthe Revolving Notes and the Swingline Note.
"Qbligations" means all unpaid principal of and accrued and unpaid interest (including
interest and fees accruing after the filing of any bankruptcy 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.
(6OFAC" means the U.S. Department of the Treasury's Office of Foreign Assets Control.
"OfLBalance Sheet Lia '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 functional
equivalent of or takes the place of borrowing but which does not constitute a liability on the
balance sheets of such Person, but excluding from this clause (iv) all Operating Leases.
"QpIatiue 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 d'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 Tar (other than connections arising 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, court or documentary, intangible,
recording, filing or similar Tares 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 assignment (other than an assignment made
pursuant to Section 2.19 or Section 3.6).
"Outstandine Credit Ery " 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.
'6ParenI" means IDACORP, Inc., an Idaho corporation.
"Eartig!@" is defined in Section 12.2(t).
7922114v2 24740.0O024
t4
"Participgqt_Bggis!9t" is defined in Section 12.2(d).
"PAlIRIgf Ac!" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Tenorism (USA PATRIOT Act, Title [II
of Pub. L.107-56 (signed into law October 26,2001)).
"Pgymenl-Date" means the last Business Day of each March, June, September and
December.
"Erc." means the Pension Benefit Guaranty Corporation.
"Permitted Receivables 'means a limited recourse or non-recourse sale,
assignment or contribution of accounts receivable and related records, collateral and rights of the
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 purpose 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 venfure, partnership, limited
liability company, association, enterprise, trust or other entity or organization, or any
Governmental Authority.
(Plan" means an "employee pension benefit plan" within the meaning of Section 3(2) of
ERISA that is subject to Title IV of ERISA (other than a Multiemployer Plan) and as to which
the Borrower or any ERISA Affiliate may have any liability.
"Pricing_Leve!" is defined in the Pricing Schedule.
"Edging-Schedule" means Schedule I attached hereto identified as such.
"Edme 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 ofthe opening ofbusiness on the date ofany such change in
such prime rate.
"Prior Termination Date" is defined in Section 2.21(b).
..@,meansanytransactiondescribedin(i)Section406ofENSA
that is not exempt by reason of Section 408 of ERISA or by reason of a Department of Labor
prohibited transaction individual or class exemption or (ii) Section a975(c) of the Code that is
not exempt by reason of Section 4975(c)(2) or 4975(d) of the Code or by reason of a Department
of Labor prohibited transaction individual or class exemption.
"PfgEI[," 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.
"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
7922114v224?40 000.24
l5
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).
"Eulghasers" means any bank or other Person to which a Lender assigns all or any part 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, (b) any
Defaulting Lender or any of its Subsidiaries or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this clause (b), nor (c) any
natural Person (or a holding company, investment vehicle or trust for, or owned and operated for
the primary benefit of, a natural Person) shall be permitted to be a Purchaser.
"Rate Manaeement Oblis '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 assignments of any Rate Management
Transactions.
"Rate Management Trans " means any transaction (including an agreement with
respect thereto, a "Rate Management Agree ") 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-curency rate swap transaction,
currency 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 curencies, commodity prices, equity prices or other financial measures.
"Bgg!@!" means (i) the Administrative Agent, (ii) any Lender and (iii) any LC Issuer,
as applicable.
"@' is defined in Section 2.7(c).
o'Bgg!g!91" is defined in Section 12.3(d).
"Bggulation D" means Regulation D ofthe Board of Governors ofthe 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.
"Rggulation U" means Regulation U of the Board of Governors ofthe 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
purpose of purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System.
7922114v2 24740.0O024
L6
"Reimbursement Ob 'means, at any time, the aggregate of all obligations ofthe
Borrower then outstanding under Section 2.18 to reimburse the LC Issuers for amounts paid by
the LC lssuers in respect of any one or more drawings under Facility LCs.
"Related_Parties" means, with respect to any Person, such Person's Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Person's Affiliates.
"Bgport5," is defined in Section 9.5.
"Bgguired 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 (i) the Commitment and Outstanding Credit Exposure of any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders and (ii) the amount of any
participation in any Swingline Loan and Facility LC of any Defaulting Lender that has not been
reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the
Swingline Lender or LlC lssuer, as the case may be, in making such determination.
"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 l/100d'of l%) 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 eurocurrency liabilities or under any similar or successor regulation with
respect to eurocurrency liabilities or eurocurency funding.
"Resienation Effectiv 'has the meaning given to such term in Section 10.6(a).
"Bevolv.iug-Loans" is defined in Section 2.1(a).
"Revolving_lr{@" means a promissory note issued at the request of a Lender pursuant to
Section 2.12(d), in substantially the form of Exhibit D-l hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving Loans made by such
Lender.
'69&P" means Standard and Poor's Financial Services LLC,a subsidiary of The McGraw
Hill Companies,Inc.
" 'means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.
..Sg[gI9E@,means,atanytime,aregion,acountryorterritorywhichisitself
the subject or target of any Sanctions (which, as of the date of this Agreement, is Cuba, Iran,
North Koreq Sudan, Syria and the Crimea region of Ukraine).
"Sanctions" means (a) economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by the United States govemment, including those
7922114v2 24740.00024
t7
administered or enforced by OFAC, the United Nations Security Council, the European Union or
Her Majesty's Treasury of the United Kingdom, and (b) economic or financial sanctions
imposed, administered or enforced from time to time by the United States State Department, the
United States Department of Commerce or the United States Department of the Treasury.
"Sanctions List" means any of the lists of specifically designated nationals or designated
Persons published (and accessible to the public) by the U.S. government and administered by
OFAC, the United States State Department, the United States Department of Commerce or the
United States Department of the Treasury or the United Nations Security Council or any similar
list maintained by the European Union, any other EU Member State or any other U.S.
Govemmental Authority, in each case as the same may be amended, supplemented or substituted
from time to time.
"Senior Arrangers Fee 'means the letter agreement, dated October 14,2015,
among Borrower, the Parent, KeyBank, KBCM and MUFG.
"Senior Lead Arrange 'means the letter agreement dated October 14,2015,
among Borrower, the Parent, Wells Fargo, Wells Fargo Securities, JPMCB, and JPMorgan.
"SgbsldiAry" of a Person means (i) any corporation more than 50% ofthe 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 partnership, limited liability company, association,
joint venture 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, Property 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 l0% 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 Borrowin 'is defined in Section 2.7(b).
"Swineline Commit 'shall mean $30,000,000 or, if less, the Aggregate Commitment
at the time of determination, as such amount may be reduced.
"Swingllle Len<!g[" shall mean Wells Fargo in its capacity as maker of Swingline 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 D-2 hereto, evidencing the
7922114v224740.C0,024
l8
aggregate indebtedness of the Borrower to the Swingline Lender resulting from Swingline Loans
made by the Swingline Lender.
65h" means all present or future til<es, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
"Trans:[eree,'is defined in Section 12.4.
"J;p" refers to whether an Advance is a Eurodollar Advance, Floating Rate Advance or
LIBOR Market Index Rate Advance.
"Unmatured_-Defagt" means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
"Unutilized Swing " 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.
"U.S. Person" means any Person that is a "United States Person" as defined in Section
7701(a)(30) of the Code.
"Wells Fargo" means Wells Fargo Bank, National Association.
"@'means Wells Fargo Securities, LLC.
"Withdrawal LiabilU' means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
"UiIEg.!diIg_@!" 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 partnership, limited liability
company, association, joint venture or similar business organization l00Yo 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 ofterms 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 6(i@" "i@'and
"inc!g1lin.91" shall be deemed to be followed by the phrase "without limitation." The word "wi!!"
shall be construed to have the same meaning and effect as the word "gha!!." Unless the context
requires otherwise, (i) any definition of or reference to any agreement, instrument or other
7922114v224740.00024
t9
document shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such Person's
successors and assigns, (iii) the words "@iq," "hereo|'and "hereundel" and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision thereof (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed 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 66ry!" and "plopertv" shall be construed to
have the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) [n the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including;" the words "!q" and "UIil" each mean "to but
excludingf'and the word "ft1gggh" means "@@inpl."
(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 particular 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 lssuers 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 construed 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 carried at l00Yo of the outstanding principal
amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities
and any other accounting rule to the contrary 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);
7922114v2 24740.00O24
20
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 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 oonditions set forth in this Agreement, to
make loans to the Borrower (each such loan, a "Revolyige LoAg" and collectively, the
"BwolviUs 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 Swingline 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
participate 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 will 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 "Slvingline_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, ryLlgd 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 ry4lg1[ further 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
2t
7922114v224740.00024
2.7(c)) and reborrow Swingline Loans at any time prior to the Facility Termination Date,
provided that the Borrower may not borrow Swingline Loans the proceeds of which are used to
repay outstanding Swingline Loans.
2.2 RequiredPayments;Termination.
(a) Except to the extent due or paid sooner pursuant to the provisions ofthis
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 ofthis
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 and2.8. 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, ry[1!9d that any
Floating Rate Advance may be in the amount of the Available Aggregate Commitment. The
Swingline Loans may be Floating Rate Advances or LIBOR Market lndex 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 Arrangers 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 "Eag.!li@,") 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 hereof to the Facility Termination Date (and, if applicable,
thereafter on the Aggregate Outstanding Credit Exposure until no Credit Extensions remain
outstanding), payable in arrears 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 Anangers 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 Aegresate Commitment. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably ilmong 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 specifr the amount of any such reduction, prwiided
that the amount of the Aggregate Commitment may not be reduced below the Aggregate
7922114v224740.N024
22
Outstanding Credit Exposure. All accrued Facility Fees shall be payable on the effective date of
any termination of the Aggregate Commitments.
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 Adminishative Agent not later than l1:00 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 Requestine Advances.
(a) In order to obtain an Advance (other than (x) Advances of Swingline Loans,
which shall be made pursuant to Section 2.7@), (y) Advances for the purpose of repaying
Refunded Swingline Loans, which shall be made pursuant to Section2.T(c), or (z) conversions
of outstanding Revolving Loans made pursuant to Section 2.8), the Borrower shall give the
Administrative Agent irrevocable notice (a "Bonowing_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, specifuing:
(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 l: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,the Administrative Agent will 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 Swingline 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 Borrowin ') not later than
l1:00 a.m. on the Borrowing Date of each Swingline Loan, specifuing 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
7922114v2 24740.0O024
23
address specified pursuant to Article 13. The Administrative Agent will make the funds so
received from the Swingline Lender available to the Borrower at the Administrative Agent's
aforesaid address. lmmediately upon the making of a Swingline Loan, the Swingline Lender
shall be deemed, without further action by any party hereto, to have unconditionally and
irrevocably sold to each Lender, and each Lender shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably purchased from the Swingline Lender
without recourse or warranty, a participation in such Swingline Loan in an amount equal to its
Pro Rata Share thereof. Noturithstanding 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 Swingline Loan 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) 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
purpose 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 I l: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 "Refunded Swinelin ') outstanding on the date such notice is given that the
Swingline Lender requests to be repaid. Not later than l: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 funds immediately available to the Administrative Agent at its
address specified pursuant to Article 13. To the extent the Lenders have made such amounts
available to the Administrative Agent as provided hereinabove, the Adminishative Agent will
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 Refunded
Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the
relevant Borrowing Date, the Refunded 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 ofthe Borrower from the Swingline Lender
in any bankruptcy, insolvency or similar proceeding or otherwise, the loss ofthe 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 sufftcient to repay any amounts owed to the Swingline Lender in respect of any
outstanding Swingline Loans, or ifthe Swingline Lender is otherwise precluded for any reason
from giving a notice on behalf of the Borrower as provided for hereinabove, each Lender shall
fund its risk participation in such outstanding Swingline Loans. Upon one (l) Business Day's
prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) shall
7922114v2 24740.00024
24
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 will 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
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 will 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.
(0 Notwithstanding any provision ofthis Agreement to the contrary, 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 fund its risk 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 Unmatured Default or Default, or (iii) the failure of the amount of such Advance of
Revolving Loans to meet the minimum bonowing 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 lnterest 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 [nterest 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 "Conversiott/Contin
Notice") of each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than I l:00 a.m. at least three (3) Business Days
prior to the date of the requested conversion or continuation, specifting:
7922114v224740.00024
25
(D the requested date, which shall be a Business Day, of such conversion or
continuation,
(iD 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 lnterest Period applicable thereto.
2.9 Chanees 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 will 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 lnterest 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 LIBOR 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 atarate per annum equal to the LIBOR Market lndex 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, during 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. During 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 lnterest Period at the rate
otherwise applicable to such Interest Period plus?Yo per annum, (ii) each Floating Rate Advance
shall bear interest at arate per annum equal to the Floating Rate in effect from time to time plus
ZYoper annum (iii) each LIBOR 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%oper annum,
and (iv) the LC Fee shall be increased by 2o/o per annum, provided that during the continuance of
a Default under Sections 7(g) or 7@), the interest rates set forth in clauses (r), (ir) and (iii) 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.ll Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds to the Adminishative
7922114v224740.00024
26
Agent at the Administrative Agent's address specified pursuant to Article 13, or at any other
Lending Installation of the Administrative Agent specihed 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
pursuant to Articte 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 Aereement: 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 will 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 Facility LC
and the amount of LC Obligations outstanding atany 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, ifrequested 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 ofthe 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,
7922114v224?40.OOO24
27
2.13 Telenhonic Notices. The Bonower 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
written confirmation, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. [f 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 ofthe 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 Facility Termination Date. lnterest accrued on each
Eurodollar Advance having an lnterest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest Period.
(c) Interest accrued on each LIBOR Market Rate Advance shall be payable on any
date on which such LIBOR 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) lnterest 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 ofa 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
7922114v224740.O0024
28
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) [n 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 court of competent
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
permiued 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 ofthe Obligations on a
pro rata basis. [t is the intent hereof that the Borrower not pay or 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 will 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 lssuer, the Administrative Agent will notiff
each Lender ofthe contents ofeach request for issuance ofa Facility LC hereunder. The
Administrative Agent will 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 Lendins Installations. Each Lender may book its Loans, its participations in any
outstanding Swingline Loans, and its participation in any LC Obligations and any LC lssuer 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 [nstallation and the Loans, Facility LCs,
participations 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 will be made by it or
Facility LCs will 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 Aeent. 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
7922114v224740.00,O24
29
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
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 Facilitv 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
standby and commercial letters of credit denominated in U.S. Dollars (each, a "Facility LC") and
to renew, extend, increase, decrease or otherwise modifr each Facility LC C'Modi&," 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 applicable LC Issuer
has entered into an arrangement, 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 Maturi& '), ry[glgl 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 or Modiff 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 [ssuer 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
Governmental Authority with jurisdiction over the LC lssuer shall (l) prohibit, or request that
the LC lssuer 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 restriction,
?922114v22474O.00024
30
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 (VX2)
which theLlC Issuer in good faith deems material to it, unless the Borrower agrees in writing to
indemnifr 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 further action by any
party hereto, to have unconditionally and irrevocably sold to each Lender, and each Lender shall
be deemed, without further action by any party hereto, to have unconditionally and irrevocably
purchased from such LC lssuer 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 Facility 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 a
notice prior to I l: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, speciffing the beneficiary, the amount ofthe proposed issuance (or Modification),
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 nature 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 notift 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 lssuer of any Facility LC shall,
in addition to the conditions precedent set forth in Article 4 (the satisfaction ofwhich 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 instruments and
agreements relating to such Facility LC as such LC [ssuer shall have reasonably requested (each,
a "Facility LC ApolicdM'). In the event of any conflict 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 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 "re,
F@,"), 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 applicable LC Issuer for its own account; orovided
3l
7922114v2 2474O.OOO24
further. that so long as no Unmatured Default or Default exists, notwithstanding the Pricing
Level otherwise applicable to the Advances, Facility LCs and Facility Fee, the Borrower shall be
re{uired 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 Eurodollar Advance 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
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 beneficiary of any Facility LC of any demand for payment
under such Facility LC, the applicable LC [ssuer shall notifr 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 responsibility of such LC lssuer 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 Facility LCs as it does with respect to letters of credit in which no
participations are granted. Each Lender's obligation to reimburse each LC lssuer 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(0 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 occurrence 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 lssuer 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.
(f) 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 lssuer
upon any drawing under any Facility LC, without presentment, demand, protest or other
formalities of any kind; ryidecl 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 willful 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 lssuer'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
7922114v2 24740.00024
32
remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid
at arate 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 of 2o/o plus the rate
applicable to Floating Rate Advances for such day if such day falls after such LC Payment Date.
The applicable LC lssuer will 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
pursuant to Section 2.18(e). Subject to the terms and conditions of this Agreement (including
the submission of a Borrowing Notice in compliance with Section 2.7 andthe satisfaction ofthe
applicable conditions precedent set forth in Article 4), the Borrower may request an Advance
hereunder for the purpose of satisfring any Reimbursement Obligation.
(g) The Borrower's obligations to reimburse each LC lssuer for each drawing under
each Facility LC shall be absolute, unconditional and irrevocable, and shall be paid strictly 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 instrument 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 insufficient in any respect or any statement
therein being untrue 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 strictly comply
with the terms of such Facility LC; or any payment made by the LC Issuer under such Facility
LC to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit ofcreditors, liquidator, receiver or other representative ofor successor to any beneficiary
or any transferee of such Facility LC, including any arising in connection with any proceeding
under any Debtor Relief Law; (v) any dispute between or among the Borrower, any of its
Affrliates, the beneficiary of any Facility LC or any financing institution or other party to whom
any Facility LC may be transferred; (vi) any claims or defenses whatsoever of the Borrower or of
any of its Affiliates 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 [ssuer shall be liable for any error, omission, intemrption 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 willful misconduct, shall be binding upon the
Borrower and shall not put any LC Issuer or any Lender under any liability to the Borower.
Nothing in this Section 2.f8G) is intended to limit the right of the Borrower to make a claim
against any LC lssuer for damages as contemplated by Section 2.18(h).
(h) Each Lender and the Borrower agree that, in paying any drawing under a Facility
LC, the applicable LC Issuer shall not have any responsibility to obtain any document (other than
7922114v2 24740.00024
33
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 ofany 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 willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Facility
LC. Notwithstanding any other provision of this 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 future holders of a participation in
any Facility LC. None of the LC lssuers, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of any LC lssuer shall be liable or
responsible for any of the matters described in clauses (i) through (vii) of Section 2.18(9);
revided, however, that anything in such clauses to the contrary 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 [ssuer's willful misconduct or gross
negligence or the LC Issuer's failure to pay under any Facility LC after the presentation to it by
the beneficiary of a sight draft and certificate(s) shictly complying with the terms and conditions
of such Facility LC.
(D The Borrower agrees that it will, 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) i[ as of the Facility 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 Collate ") at the Administrative Agent's
office 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.
0) In its capacity as a Lender, each LC Issuer shall have the same rights and
obligations as any other Lender.
(k) The Borrower, the LC Issuers and the Lenders agree that, as of the Closing Date,
each letter of credit issued by Wells Fargo or JPMCB for the account of the Borrower under the
Existing Credit Agreement shall be deemed issued by Wells Fargo or JPMCB, as applicable, for
the account of the Borrower under this Agreement as a Facility LC.
7922114v2 24740.0f024
34
(l) Unless otherwise agreed by the Administrative Agent, each LC Issuer shall report
in writing to the Administrative Agent (who shall promptly provide notice to the Lenders ofthe
contents thereof) (i) on or prior to each Business Day on which such LC Issuer issues, amends,
renews or extends any Facility LC, the date of such issuance, amendment, renewal or extension,
and the aggregate face amount of the Facility LCs issued, amended, renewed or extended by it
and outstanding after giving effect to such issuance, amendment, renewal or extension (and
whether the amount thereof shall have changed), it being undeistood that such LC Issuer shall
not effect any issuance, renewal, extension or amendment resulting in an increase in the
aggregate amount ofthe Facility LCs issued by it without first obtaining written confirmation
from the Administrative Agent that such increase is then permitted under this Agreement, (ii) on
each Business Day on which such LC Issuer makes any payment on a Facility LC, the date and
amount of such disbursement, (iii) on any Business Day on which the Borrower fails to
reimburse any payment required to be reimbursed to such LC lssuer on such day, the date of
such failure and the amount of such disbursement and (iv) on any other Business Day, such other
information as the Administrative Agent shall reasonably request as to the Facility LCs issued by
such LC Issuer.
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 3.5
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 ofits
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); plov!!g9! that:
(D no Unmatured Default or Default shall have occurred or be continuing;
(iD the Administrative Agent shall have received the assignment 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);
7922114v224740.0AO24
35
(iv) in the case of any such assignment resulting from a claim for
compensation under Sections 3.1 or 3.2 or payments required to be made pursuant to
Section 3.5, such assignment will result in a reduction in such compensation or payments
thereafter;
(v) such assignment does not conflict with applicable law; and
(vi) in the case of any assignment resulting from a Lender becoming a Non-
Consenting Lender or a Lender that has not consented to any proposed amendment,
modification, waiver or consent which requires the consent of all Lenders (or the Lenders
directly affected thereby) and with respect to which the Required Lenders have consented
to such amendment, waiver or consent, the applicable assignee shall have consented to
the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
2.20 lncrease in Commitments.
(a) The Bonower 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 Facility Termination Date to
increasetheAggregateCommitment(eachsuchproposedincreasebeinga..@,
I@"), either by having a Lender increase its Commitment then in effect (each an
"Increasinglgnder") or by adding as a Lender with a new Commitment hereunder a Person
which is not then a Lender (each an "Assumi4g [.endgl"), in each case with the approval of the
Administrative Agent, each LC Issuer and the Swingline Lender (such approval not to be
unreasonably withheld), which notice shall specifu 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 Increas '), which shall be a Business Day at
least three (3) Business Days after delivery of such notice; orovided 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
lncrease shall be in a 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 ofthe Assuming Lenders shall not exceed the
requested Commitment Increase; (iv) no Default or Unmatured Default shall have occurred and
be continuing on the applicable Commitment Increase Date or shall result from any Commitment
lncrease; and (v) the representations and warranties contained in Article 5 (other than in Section
5.5) shall be true on and as ofthe 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 ofsuch specific date).
7922114v2 24740.O0024
36
(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 of the Commitment Increase Date; ryi{g! 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 [ncrease 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 l0:00 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) and2.20(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 lncrease) and (iii) pay to the Lenders any
funding indemnification amounts required by Section 3.3.
2.21 Extension of Facilitv Termination Date.
(a) So long as no Unmatured Default or Default has occured 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 Dg!g,")
request through written notice to the Adminishative Agent (the "ExtenSlon 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
"Consent_Date"), advise the Administrative Agent in writing of its desire to extend (any such
Lender, a "eplsenti4g Lender") or not to so extend (any such Lender, a "&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 (l) 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
7922114v2 24740.00,024
37
effect to such extension (such date, the "Prior Termination Date"). [n the event of an extension
of the then existing Facility Termination Date pursuant to this Section 2.2l,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, the LC lssuers
and the Swingline Lender (each, an "Elieible Replacem ') 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 Adminishative Agent of a certificate (the
statements contained in which shall be hue) of a duly authorized officer of the Borrower stating
that both before and after giving effect to such extension of the Facility Termination Date (i) no
Default has occurred and is continuing and (ii) all representations and warranties contained in
Article 5 are true and correct in all material respects on and as of the date such extension is
made, except for such representations or warranties which by their terms are made as of a
specified date, which shall be true and correct as of such specified date.
(d) Effective on and after the Prior Termination Date, (i) each of the 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.
2.22 DefaultineLenders.
(a) Notwithstanding anything to the contrary 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:
(D Such Defaulting Lender's right to approve or disapprove any amendment,
waiver or consent with respect to this Agreement shall be restricted 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 voluntary or
mandatory, at maturity, pursuant to Article 7 or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 11.1 shall be applied
7922114v2 24740.OOO24
38
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 Swingline Lender hereunder; third. to Cash
Collateralize the LC Issuers' Fronting Exposure with respect to such Defaulting Lender
in accordance with Section 2.22(c); fourth. as the Borrower may request (so long as no
Default or Unmatured Default exists), to the funding 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) satisfr such Defaulting Lender's potential future funding obligations
with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers'
future Fronting Exposure with respect to such Defaulting Lender with respect to future
Facility LCs issued under this Agreement, in accordance with Section2.22(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 court of competent jurisdiction obtained by any Lender,
the LC [ssuers 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 Unmafured Default exists, to the payment of any amounts owing to the
Borrower as a result of any judgment of a court 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 eiehth. to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; orovided 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 funded 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 unfunded 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
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(t)(ii) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iiD (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 (l) the outstanding principal amount ofthe Revolving Loans funded by it, and
(2) its Pro Rata Share ofthe 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).
7922114v224740.OOO24
39
(C) With respect to any Facility Fee or LC Fee not required to be paid
to any Defaulting Lender pursuant to clause (A) or @) 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 Unmatured 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 Eurodollar Advances 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 such reallocation does not
cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed
such Non-Defaulting 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
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 lssuers' Fronting Exposure in accordance with the procedures set forth in Section
2.22(c).
(vi) If the Borrower, the Administrative Agent, the Swingline Lender and each
LC Issuer agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notifu the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may
include arrangements with respect to any Cash Collateral), that Lender will, 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 unfunded
participations in Facility LCs and Swingline Loans (without giving effect to Section
2.22(r)(iv)\, whereupon such Lender will cease to be a Defaulting Lender; provided that
no adjustments will 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. further. that except to the extent otherwise expressly agreed by the affected
7922114v22474O.00,024
40
parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver
or release of any claim of any pmty 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 will have no
Fronting Exposure after giving effect to such Swingline Loan and (ii) no LC Issuer shall be
required to issue or Modiff any Facility LC unless it is satisfied that it will 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 lssuer (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.
(D 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 agtees to maintain, a first priority security interest in all such Cash Collateral
as security for the Defaulting Lenders' obligation to fund participations in respect of LC
Obligations, to be applied pursuant to clause (ii) below. [f 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 will, promptly upon demand by
the Administrative Agent, pay or 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).
(iD Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under this Section 2.22 inrespect 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.
7922114v2 2474O.OOO24
4l
2.23 ChansedCircumstances.
(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 banks in the London interbank Eurodollar market for the
applicable amount and Interest Period of such Advance, (ii) the Adminishative 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 during 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 curent 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 lnterest Period; or (y) in the case
of Floating Rate Advances as to which the interest rate is determined by reference to the
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 lnterest 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 Governmental Authority
charged with the interpretation or administration thereof, or compliance by any of the Lenders
(or any of their respective Lending Installaticins) with any request or directive (whether or not
having the force of law) of any such Governmental 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, maintain, fund or charge interest with respect to 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 Adminisffative Agent shall promptly deliver to
the Borrower after receiving notice thereof from such affected Lender), (i) the obligations of
7922114v224740.N024
42
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 of the Lenders may not lawfully continue to maintain a
Eurodollar Rate Advances to the end of the then current lnterest 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 lnterest Period.
ARTICLE 3
YTELD PROTECTION; TAXES
3.1 Increased Costs. If any Change in Law shall:
(a) impose, modifr 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 participated 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 (ii) through (i9 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 liabilities or capital athibutable thereto; or
(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 return or the amount of
any sum received or receivable by such Lender, LC lssuer 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 will compensate such Lender, LC Issuer or other
Recipient, as the case may be, for such additional costs incurred or reduction suffered.
7922114v2 24740.0OO24
43
3.2 Capital Requirements. If any Lender or LC lssuer 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 lssuer's holding company, if any, regarding capital or liquidity requirements, has
or would have the effect of reducing the rate of return 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 [ssuer's holding
company with respect to capital adequacy), then within fifteen (15) days of demand by such
Lender or LC Issuer the Borrower will pay to such Lender or LC lssuer, as the case may be, such
additional amount or amounts as will compensate such Lender or LC Issuer or such Lender's or
LC lssuer's holding company for any such reduction suffered.
3.3 Compensation. The Borrower will 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 Bonowing
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 lnterest Period applicable
thereto (including as a consequence of any assignment made pursuant to Section2.l9 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
Rate in an amount equal to the amount of such Eurodollar Advance, having a maturity
comparable to the relevant Interest Period; ryided, 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 pursuant to this Section 3.3 shall be submitted by
such Lender to the Borrower either directly or through the Administrative 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 liabilities shall be conclusive absent manifest error.
3.4 Delay in Requests. Failure or delay on the part of any Lender or LC lssuer to
demand compensation pursuant to Sections 3.1 or 3.2 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 pursuant to Sections 3.1 or 3.2 for any
increased costs incurred 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 ofthe Change in Law giving rise
to such increased costs or reductions, and of such Lender's or LC Issuer's intention to claim
7922114v224740.0OO24
44
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 ofretroactive effect thereof).
3.5 Taxes.
(a) For purposes of this Section 3.5, the term "Lender" includes any LC Issuer and
the term "applicable law" includes FATCA.
(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 [ndemnified 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 Govemmental 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 Bonower shall indemnifu each Recipient, within ten (10) days after demand
therefor, for the full amount of any Indemnified Taxes (including lndemnified 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 lndemnified
Taxes were correctly or legally imposed or asserted by the relevant Govemmental 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 indemniff the Administrative Agent, within ten (10)
days after demand therefor, for (i) any Indemnified Taxes athibutable to such Lender (but only to
the extent that the Borrower has not already indemnified the Administrative Agent for such
lndemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Ta<es
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 arising therefrom or with respect thereto, whether or not
such Taxes were corectly 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
7922114v224740.00024
45
authorizes the Administrative Agent to set off and apply any and all amounts atany 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
Governmental Authority pursuant to this Section 3.5, the Borrower shall deliver to the
Adminishative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the retum 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 will 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 will 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(gXiiXA), (iiXB) and (ii)@) 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,
(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 copies
of IRS Form W-9 certifuing 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:
(D 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
7922114v2 24740.@024
46
payments of interest under any Loan Document, executed copies of IRS
Form W-8BEN establishing an exemption from, or reduction o[ U.S.
federal withholding Tax pursuant to the o'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 heaty;
(iD executed copies of IRS Form W-8ECI;
(iiD 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 F-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(cX3XB) of the Code, or a "controlled
foreign corporation" described in Section 881(cX3)(C) of the Code (a
"U.S. Tax Compliance Certificate") and (y) executed copies of IRS Form
W-8BEN; or
(iv) to the extent a Foreign Lender is not the beneficial owner,
executed copies 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 F-2 or Exhibit F-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 partners 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 ofExhibit F-4 on behalf
ofeach such direct and indirect partner;
(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 copies of any other form presoibed 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 of FATCA
(including those contained in Section 1471(b) or 1472(b) ofthe Code, as
applicable), such Lender shall deliver to the Borrower and the Administrative
7922114v2 2474O.0OO24
47
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(bX3XC)(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 FATCA and to
determine that such Lender has complied with such Lender's obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), "FATCA" shall include any amendments
made to FATCA 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 notiff the Borrower and the Administrative Agent in writing of its legal
inability to do so.
(h) If any party 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 3.5
(including by the payment of additional amounts pursuant to this Section 3.5), it shall pay to the
indemnifting 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 refund), 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 indemnifying party, upon the request of such indemnified party, shall repay to
such indemnified party the amount paid over pursuant to this Section 3.5(h) (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in the event that such
indemnified party is required to repay such refund to such Govemmental Authority.
Notwithstanding anything to the contrary in this Section 3.5(h), in no event will the indemnified
party be required to pay any amount to an indemniffing party pursuant to this Section 3.5(h) the
payment of which would place the indemnified party in a less favorable net after-Tax position
than the indemnified pa(y would have been in if the indemnification payments or additional
amounts giving rise to such refund had never been paid. This clause @) shall not be construed
to require any indemnified parly 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.
(D Each party's obligations under this Section 3.5 shall survive the resignation or
replacement of the Administrative Agent or any assignment 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 lnstallation. [f 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 Governmental Authority for the account of any
Lender pursuant to Section 3.5, 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 offices, branches or
afftliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
7922114v2 24740.00024
48
or reduce amounts payable pursuant to Sections 3.1,3.2, or 3.5, as the case may be, in the future,
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 incurred by any Lender in connection with any such designation or
assignment.
ARTICLE 4
CONDITIONS PRBCEDENT
4.1 Effectiveness. This Agreement shall not become effective until the following
conditions precedent have been satisfied:
(a) The Administrative Agent shall have received each ofthe 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 governmental officer in its jurisdiction of incorporation.
(iD Copies, certified by the Secretary or Assistant Secretary 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 identiff by name and title and bear the signatures
of the Authorized Offrcers 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 writing by the Borrower.
(iv) A certificate, signed by an Authorized Officer, stating that on the Closing
Date (A) no Default or Unmatured Default has occurred and is continuing and (B) the
representations and warranties of the Borrower contained in Article 5 shall be true and
correct on and as of the Closing Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct
as ofsuch 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
form and substance satisfactory to the Administrative Agent.
(vi) Any Notes requested by a Lender pursuant to Section 2.12 payable to the
order ofeach such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
Exhibit C, addressed to the Administrative Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations as the Adminishative
Agent may have reasonably requested.
7 9221 I 4v2 24'1 4O.OOO24
49
(viii) Such other documents as any Lender or its counsel may have reasonably
requested.
(b) The Borrower shall have paid (i) to the Joint Lead Arrangers, 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 thereot (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 Arrangers, 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, 2014, both immediately before and after giving effect to the
consummation of this Agreement, there shall not have occurred 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) Concurrently with the Closing Date, (i) all amounts outstanding under the
Existing Credit Agreement shall be repaid and satisfied in full, (ii) all commitments to extend
credit under the Existing Credit Agreement shall be terminated and (iii) any letters of credit
outstanding under the Existing Credit Agreement issued by Wells Fargo or JPMCB shall be
deemed issued hereunder by Wells Fargo or JPMCB, as applicable, as of the Closing Date); and
the Administrative Agent shall have received evidence of the foregoing satisfactory to it,
including a payoffletter executed by the parties to the Existing Credit Agreement.
(e) The Administrative Agent shall have received from the Borrower all
documentation and other information requested by the Administrative Agent that is required to
satisff 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 10.3, 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
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 specifuing its objection thereto.
4.2 Each Credit Extension. The obligation of each Lender to make any Credit
Extension hereundeE including any Credit Extension made on the Closing Date (but excluding
Revolving Loans made for the purpose of repaying Refunded Swingline Loans pursuant to
Section 2.7(c) or for the purpose of paying unpaid reimbursement obligations ofthe Borrower
pursuant to Section 2.18(e)), is subject to the satisfaction of the following conditions precedent
on the applicable Credit Extension Date:
(D No Default or Unmatured Default exists.
(iD The representations and warranties contained in Article 5 (other than,
after the Closing Date, in Section 5.5) are true and correct as of such Credit Extension
7922114v224740.00024
50
Date except to the extent any such representation or wilranty is stated to relate solely to
an earlier date, in which case such representation or warranty shall have been true and
correct on and as ofsuch 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 warranty 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 A as a condition to making a Credit Extension.
ARTICLE 5
REPRESENTATIONS AI\D WARRANTIE S
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.1 Existence and Standing. Each ofthe Borrower and its Subsidiaries 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 Borower 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
bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally.
5.3 No Conflict: Govemment 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 will 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, wrig judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's or any Subsidiary's
articles or certificate of incorporation, partnership agreement, certificate of partnership, 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 Property, is bound, or
conflict 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 indenture, instrument or agreement. No order, consent, adjudication, approval, license,
7922114v2 24740.OO024
5l
authorization, or validation of, or filing, recording or registration with, or exemption by, or other
action in respect of any governmental 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 Subsidiaries 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 31,2014 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 31,2014, 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 material tax retums which are required to be filed and have paid all taxes
due pursuant to said returns or pursuant to any assessment received by the Borrower or any of its
Subsidiarieq 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 filed 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 5.6, and this Agreement shall not be
interpreted in any manner that is contrary hereto.
5.7 Litigation and Contineent Oblieations. 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, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their offrcers, threatened against or
affecting the Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making 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 5.8 contains an accurate list of all Subsidiaries of the
Borrower as of the Closing Date, setting forth their respective jurisdictions of organization and
7922114v224740.00024
52
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. Each of the Borrower and its ERISA Affiliates is in compliance with the
applicable provisions of ERISA, and each Plan is and has been administered in compliance with
all applicable law, including the applicable provisions of ERISA and the Code, in each case
except where the failure so to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. No ERISA Event that could reasonably be expected
to have a Material Adverse Effect (i) has occurred within the five-year period prior to the
Closing Date, (ii) has occurred and is continuing, or (iii) to the knowledge of the Borrower, is
reasonably expected to occur with respect to any Plan. Except as could not reasonably be
expected to have a Material Adverse Effect, no Plan is in "at-risk status" under Section 430(D(4)
of the Code or Section 303(iX4) of ERISA.
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 strike, lock-out, slowdown, stoppage, walkout or other
labor dispute pending or, to the knowledge of the Borrower, threatened, against it, and (iii) 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 Accuracv of lnformation. No information, exhibit or report furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent, the Joint Lead Arrangers 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 ofthe 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
the Borrower and its Subsidiaries furnished 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 Reeulation U. Margin stock (as defined in Regulation U) constitutes less than
25Yo 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 Aereements. Except as provided by applicable law or as set forth
Schedule 5.13, neither the Borrower nor any Subsidiary is a party to any agreement or
instrument 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 perfonnance, observance or fulfillment of any ofthe
7922114v2 24740.00,O24
53
obligations, covenants or conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect or (ii) any agreement or
instrument 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 restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property except for any failure to
comply with any ofthe foregoing which could not reasonably be expected to have a Material
Adverse Effect.
5.15 Ownership of Properties. Except as set forth on Schedule 5.15, as of the Closing
Date, the Borrower and its Subsidiaries will 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 Environmental Matters. In the ordinary 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 filed by the Borrower with the U.S. Securities and Exchange Commission
pursuant to the Exchange Act. Other than as described in reports filed by the Borrower with the
U.S. Securities and Exchange Commission pursuant to the Exchange Act, neither the Borrower
nor any Subsidiary 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.
5.17 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.
5.18 Desienated Persons: Sanctions: Anti-Corruption Laws: PATRIOT Act.
(a) Neither the Borrower nor any of its Subsidiaries, and to the Borrower's
knowledge, none of their respective directors, officers, employees or affiliates (i) is a Designated
Person, (ii) is a Person that is owned or controlled by a Designated Person, (iii) is located,
organized or resident in a Sanctioned Country or (iv) has taken any action, directly or indirectly,
that would result in a violation by such Persons of any Anti-Comrption Laws. The Borrower has
implemented and maintains in effect policies and procedures designed to ensure compliance in
7922114v2 24740.00O24
54
all material respects by the Borrower and its Subsidiaries with applicable Sanctions and Anti-
Comrption Laws.
(b) Neither the Borrower nor its Subsidiaries, and to the Borrower's knowledge, none
of their respective directors, officers or employees is now, directly or indirectly engaged in any
material dealings or transactions (i) with any Designated Person, (ii) in any Sanctioned Country
or (iii) otherwise in violation of Sanctions.
(c) Each of the Borrower and its Subsidiaries is in compliance in all material respects
with the PATRIOT Act.
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 Reoortine. The Borrower will maintain, for itself and each Subsidiary,
a system of accounting established and administered in accordance with the Agreement
Accounting Principles, and furnish to the Administrative Agent in sufficient copies for each of
the Lenders:
(D Within one hundred twenty (120) days after the close of each of its fiscal
years (or, if earlier, within thirly (30) days after the Borrower is required to file its
Annual Report on Form lO-K with the Securities 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
as of the end of such period, related profit and loss and reconciliation of surplus
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 satisff 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 file its Quarterly Report on Form l0-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 surplus statements and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified by an Authorized Officer.
7922114v2 24740.0OO24
55
Delivery by the Borrower to the Administrative Agent of copies of the Borrower's
Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission for
any quarter shall satisff the Borrower's obligation under this clause (ii) with respect to
such quarter.
(iiD Together with the financial statements required under Sections 6.1(i) and
(ii), (A) a compliance certificate in substantially the form of Exhibit A signed by an
Authorized Officer showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof and (B) a calculation of
the Indebtedness secured by Liens permitted under Section 6.11(xiii) 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
Bonower knows of the occurrence of any ERISA Event that could reasonably be
expected to have a Material Adverse Effect (x) a written statement of an Authorized
Officer of the Borrower specifying the details of such ERISA Event and the action that
the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto,
(y) a copy of any notice with respect to such ERISA Event that may be required to be
filed with the PBGC and (z) a copy of any notice delivered by the PBGC to the Borrower
or an ERISA Afliliate with respect to such ERISA Event.
(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 furnishing thereof to the shareholders of the Borrower,
copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all regishation statements and
annual, quarterly, monthly or other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission.
(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 will, and will 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 will, and will cause each Subsidiary to, give
prompt notice in writing to the Lenders of the occurrence of (i) any Default or Unmatured
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.
7922114v2 24740.00024
56
6.4 Conduct of Business. The Borrower will, and will cause each Material Subsidiary
to, carry 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, partnership 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 jurisdiction 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 will, and will cause each Subsidiary to, timely file complete
and correct U.S. federal and applicable foreign, state and local tax returns required by law and
pay when due all taxes, assessments and governmental 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 respect to which adequate reserves have been set aside in accordance with
Agreement Accounting Principles.
6.6 Insurance. The Borrower will, and will cause each Subsidiary 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
will fumish to any Lender upon request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will 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 will, and will 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 carried on in connection therewith may be properly conducted
at all times.
6.9 Inspection. The Borrower will, and will 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 ofthe 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
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 Mereer and Sale of Assets. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will 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 Subsidiary, (ii) a Material
Subsidiary may dispose of all or substantially all of its Property to the Borrower or a Wholly-
Owned Subsidiary, or (iii) the Borrower or any Subsidiary may sell, transfer, contribute, convey
or dispose of accounts, general intangibles and/or chattel paper (each as defined in Article 9 of
7922114v224740.000.24
57
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 will not, nor will 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 governmental 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 carriers', 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 (other than any Lien imposed by ERISA, the creation or
incurrence of which would result in a Default under Section 7(k));
(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 5.15;
(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 lndebtedness so secured by
any such Lien shall not exceed the original purchase price and costs related to the
purchase, transportation, and installation of the Properly 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 Subsidiary 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;
7922114v2 24740.00024
58
(ix) Liens arising under a Permitted Receivables Securitization;
(x) Liens arising by operation of law with respect to any deposit, securities
and commodity account; orovided that (a) the right of the Borrower or the applicable
Material Subsidiary to withdraw assets from such account shall not be restricted other
than by customary 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, securities intermediary or commodities intermediary;
(xi) Liens in favor of the Administrative Agent hereunder;
(xii) Any Lien arising out of the refinancing, 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 incurred by the Borrower or the Parent in
the ordinary course of business, provided that the aggregate principal amount of the
Indebtedness secured by the Liens permitted under this clause (xiii) shall not exceed
$50,000,000 at any one time outstanding. The "principal amount" ofthe lndebtedness 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 Leveraee Ratio. The Bonower will 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 unreasonably withheld), the Borrower will not, nor will 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
become or remain a partner in any partnership or joint venture), or to make any Acquisition of
any Person, except:
(D Cash Equivalent Investments and lnvestments permitted by the investment
policies approved from time to time by the board of directors of the Borrower or the
relevant Subsidiary, as applicable;
(iD Investments in, and loans and advances to, Subsidiaries existing as of the
date hereof and other Investments existing as of the date hereof;
(iii) Investments by Subsidiaries in securities of the Borrower and Investments
by the Borrower and its Subsidiaries in any business trust controlled, directly or
7922114v2 24740.OO024
59
indirectly, by the Borrower to the extent such business trust purchases securities of the
Borrower;
(iv) [n addition to lnvestments 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 any one time
outstanding; and
(v) Investments by the Borrower or a Subsidiary in connection with a
Permitted Receivables Securitization.
6.14 Subsidiary Dividend Restrictions. the Borrower will not, nor will it permit any
Material Subsidiary to, become a party to any agreement prohibiting or restricting the ability of
such Material Subsidiary to declare or pay dividends to the Borrower, except as disclosed in
Schedule 5.13, other than prohibitions or restrictions in connection with a Permitted Receivables
Securitization.
6.15 Affiliates. The Borrower will not, and will not permit any Subsidiary 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 OFAC. PATRIOT Act Compliance.
(a) The Borrower will, and will cause each of its Subsidiaries to, (i) comply in all
material respects with Sanctions requirements (including laws applicable to transactions of or
with any Designated Person or in any Sanctioned Country), (ii) in the event of a violation of
Sanctions requirements, terminate no later than required by applicable law, or if applicable law
does not provide any time for termination, then promptly upon obtaining knowledge thereof, any
funding financing or facilitating by the Borrower or its Subsidiaries of any activities, business or
hansaction of or with any Designated Person or in any Sanctioned Country or otherwise in
violation of Sanctions, as such Sanctions Lists or Sanctions are in effect from time to time, and
(iii) 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.
(b) No part of the proceeds of any Credit Extension hereunder will be used directly,
or to the knowledge of the Borrower indirectly, (i) for any payments to any governmental offrcial
or employee, political party, official of a politicalparty, 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 Anti-Comrption Laws or (ii) (A) to fund, or to lend, or to
contribute such proceeds to any other Person to fund, any activities or business of or with any
Person, or in any country or tenitory, that, at the time of such funding or issuance, is, or whose
govemment is, the subject of Sanctions, or @) in any other manner that would result in a
violation of Sanctions by any Person party hereto.
7922114v2 24740.00024
60
ARTICLE 7
DEFAULTS
The occurrence of any one or more ofthe 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 Subsidiaries 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 (l) 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 arising 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.
(0 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 maturity; or any Material Indebtedness of the
Borrower or any of its Subsidiaries shall, after the occurrence 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 maturity thereof; or
7922114v224740.00024
6l
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 Subsidiaries 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, trustee, 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 bankruptcy
laws as now or hereafter in effect or seeking to adjudicate it a bankrupt 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 partnership
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 of the 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 Properly, 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.
(D Any court government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of (each, a "Condemnation"), all or any portion of the
Property of the Borrower and its Subsidiaries which, when taken together with all other Property
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 grid operator.
0) 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 currencies 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, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good faith.
(k) Any ERISA Event shall occur with respect to any Plan or Multiemployer Plan
that, when taken together with all other ERISA Events that have occurred, has or could
reasonably be expected to result in a Material Adverse Effect.
(l) The Borrower or any of its Subsidiaries 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
7922114v2 24740.00024
62
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 Borower.
(o) 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 (ptoviaed 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.
ACCELERATIoN, *-#X;:-rENrs AND REMEDIEs
8.1 Acceleration: Facilitv 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
ofthe LC Issuers to issue and Modiff 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 lssuer or any Lender, and the Borrower will 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 of LC 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 Am '). 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
and the obligation and power of the LC Issuers to issue and Modifr 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
Agreemen! make demand on the Borrower to pay, and the Borrower will, forthwith upon such
demand and without any further notice or act, pay to the Administrative Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC Collateral Account.
7922114v2 24740.N024
63
(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 Borower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the Adminishative
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 funds are
deposited in the Facility LC Collateral Account, apply such funds 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 funds
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 funds 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 court of competent
jurisdiction.
(e) If within fourteen (14) days after acceleration of the maturity of the Obligations
or termination of the obligations ofthe Lenders to make Loans and the obligation and power of
the LC Issuers to issue and Modiff 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
agteement 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 (proviaed that only the consent of the Required Lenders
shall be required to waive the applicability of any post-default increase in interest rates),
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 Facility
LC beyond the Facility LC Maturity 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 maturity thereof;
7922114v22474O.00024
64
(ii) unless agreed to by all ofthe Lenders, (A) modifu 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, as applicable, no such agreement shall (A) amend, modiff or
otherwise affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent, (B) amend, modiff or otherwise affect
the rights or duties of the Swingline Lender hereunder without the prior wriffen consent
of the Swingline Lender, or (C) amend, modifr 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 party 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 parties 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 bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of
Section ll26(c) of the United States Bankruptcy 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) ifthe Administrative Agent and the Borrower shall have jointly identified (each in its
sole discretion) an obvious error or omission of a technical or immaterial nafure, 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
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 of the 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 construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the existence of a
7922114v22474O.C0O24
65
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 further 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 writing. 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
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of the Borrower
contained in this Agreement shall survive the making ofthe Credit Extensions herein
contemplated.
9.2 Governmental Reeulation. 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 Asreement. 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 notjoint and no Lender shall be the partner or agent ofany
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 9.5 or any other provision of this Agreement, and their
respective successors and assigns, provided that the parties hereto expressly agree that each Joint
Lead Arranger shall enjoy the benefits of the provisions of Sections 9.5, 9.9 and 10.8 to the
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 party to this Agreement.
9.5 Expenses: Indemnification.
(a) The Borrower shall reimburse the Administrative Agent and each Joint Lead
Arranger for any reasonable costs, intemal charges and out-of-pocket expenses (including
reasonable aftorneys' fees and time charges of attorneys for the Administrative Agent and Wells
Fargo Securities, which attorneys may be employees of the Administrative Agent and/or Wells
Fargo Securities, but excluding attorneys' fees other than those incurred by the Administrative
7922114v224740.O0024
66
Agent and/or Wells Fargo Securities) paid or incuned by the Administrative Agent or such Joint
Lead Arranger 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 each LC Issuer for all reasonable
out-of-pocket expenses incurred by such LC lssuer in connection with the issuance or
Modification of any Facility LC or any demand for payment thereunder. The Borrower also
agrees to reimburse the Administrative Agent, each Joint Lead Arranger, each LC lssuer, 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 attomeys for the
Administrative Agent, each Joint Lead Arranger, each LC Issuer, the Swingline Lender and the
Lenders, which attomeys may be employees of the Administrative Agent, a Joint Lead Arranger,
an LC Issuer, the Swingline Lender or a Lender) paid or incurred by the Administrative Agent,
any Joint Lead Arranger, 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 OFAC against, and all reasonable costs and expenses (including
counsel fees and disbursements) incurred 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 OFAC.
(b) The Borrower shall indemnifr the Administrative Agent (and any sub-agent
thereof), each LC lssuer, each Lender, and each Related Party ofthe foregoing persons (each
suchpersonbeingcalledan..I@,)againstandholdeachIndemniteeharmlessfrom,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 instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder or the consummation of the 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 LC Issuer to honor a demand for payment
under a Facility LC ifthe 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 willful misconduct of such lndemnitee or (y) result from a claim brought by
the Borrower against an Indemnitee for breach in bad faith of such Indemnitee's obligations
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 court of competent
jurisdiction.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any
amount required under Section 9.5(a) or Section 9.5(b) to be paid by it to the Administrative
Agent (or any sub-agent thereof), any LC lssuer, the Swingline Lender or any Related Party of
7922114v2 24740.O0O24
67
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 Pa.ty, 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, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative
Agent (or any such sub-agent), the Swingline Lender in its capacity as such or such LC Issuer in
its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or such LC lssuer 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 9.5 shall survive the
termination of this Agreement.
9.6 Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be furnished 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 Severabilitv of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdictioh, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction 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 Defaulting Lenders shall be limited by applicable
bankruptcy, insolvency or similar law, as determined in good faith by the Administrative Agent,
the LC lssuer 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 Arranger, any LC lssuer, the Swingline Lender or any Lender shall have any fiduciary
responsibilities to the Borrower. None ofthe Adminishative Agent, any Joint Lead Arranger,
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, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the transactions
7922114v224740.0O024
68
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 willful misconduct of the party 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 arising 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 survive the termination ofthis 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 Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials having jurisdiction 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 party, (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 Sectionl2.4, (viii) in connection with the exercise of
rights or remedies hereunder or under any Loan Document or Rate Management Agteement or
any action or proceeding relating to the enforcement of rights hereunder or thereunder, (ix) to the
extent such confidential information becomes publicly available other than as a result of a breach
of this Section 9.10 or becomes available to the disclosing Lender or its Affiliates on a non-
confidential basis from a source other than the Borrower, its Subsidiaries or another Lender or
any of its Affilitates, and (x) on a confidential basis to (l) any rating agency in connection with
the Borrower or its Subsidiaries or the facilities created hereunder or (2) the CUSIP Service
Bureau or any similar agency in connection with the issuance monitoring of CUSP numbers
with respect to the facilities created hereunder. In the case of any disclosure pursuant to clause
(i), (ii), (vi), (vii) or (x) above, each Person to whom such disclosure is made will be informed of
the confidential nature 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 will 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 heatment.
9.1I Nonreliance. Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U ofthe Board of Governors 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 Afliliates from time to time may hold investments in, make other loans to
or have other relationships with the Borrower and its Affiliates.
7922114v2 24740.00024
69
9.13 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, verif, and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will 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 beexecuted in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the 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 party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken such action.
Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other
electronic transmission will be effective as delivery of a manually executed counterpart thereof.
ARTICLE 10
THE ADMINISTRATTYE AGENT
l0.l Appointment and Authority. Each of the Lenders (for purposes of this Article 10,
references to the Lenders shall also mean the LC lssuers and the Swingline Lender) hereby
irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
Except as set forth in Section 10.6, the provisions of this Article 10 are solely for the benefit of
the Administrative Agent and the Lenders, and the Borrower shall have no rights as a third-party
beneficiary of any of such provisions. It is understood and agreed that the use of the term
'oagent" (or any other similar term) herein or in any other Loan Document with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations under agency doctrine of any applicable law. Instead, such term is used as a matter
of market custom, and is intended to create or reflect only an administrative relationship between
contracting parties.
10.2 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as
the financial advisor or in any other advisory capacity for and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
10.3 ExculpatorvProvisions.
7922114v224740.@024
70
(a) The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be
administrative in nature. Without limiting the generality of the foregoing, the Administrative
Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether an Unmatured Default or Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the other Loan
Documents); provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the Administrative
Agent to liability or that is contrary to any Loan Document or applicable law, including,
for the avoidance of doubt, any action that may be in violation of the automatic stay
under any Debtor Relief Law or that may effect a forfeiture, modification or termination
of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iiD shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Affiliates that is communicated to
or obtained by the Person serving as the Administrative Agent or any of its Afliliates in
any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith shall be necessary, under the circumstances as provided in Sections 8.1 and 8.2), or
(ii) in the absence of its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be
deemed not to have knowledge of any Unmatured Default or Default unless and until notice
describing such Unmatured Default or Default is given to the Administrative Agent in writing by
the Borrower or a Lender.
(c) The Adminishative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Unmatured Default or Default,
(iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
7922114v2 24740.0O024
7l
10.4 Reliance bv Administrative Aeent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
internet or intranet website posting or other distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance,
extension, renewal or increase of a Facility LC, that by its terms must be fulfilled to the
satisfaction of a Lender or the LC lssuer, 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, extension, renewal or increase of such Facility LC. 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.
10.5 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. 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 Related Parties. The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication of
the credit facility provided for herein as well as activities as Administrative Agent. The
Adminishative Agent shall not be responsible for the negligence or misconduct of any sub-agent
except to the extent that a court of competent jurisdiction determines in a final and
nonappealable judgment that the Administrative Agent acted with gross negligence or willful
misconduct in the selection of such sub-agent.
10.6 Resisnation of Administrative Aeent.
(a) The Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an offrce in the
United States. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders)
(the "Resignation Effectiv '), then the retiring Administrative Agent may (but shall not be
obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above. Regardless of whether a successor has been appointed or has
accepted such appointment, such resignation shall become effective in accordance with such note
on the Resignation Effective Date.
7922114v2 24740.0{J024
72
(b) With effect from the Resignation Effective Date, (i) the retiring Adminishative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the Administrative Agent
on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (ii) except for any indemnity payments owed to the retiring
Administrative Agent, all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender directly,
until such time, if any, as the Required Lenders appoint a successor Administrative Agent as
provided for in Section (a). Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Administrative Agent (other than any
rights to indemnity payments owed to the retiring Administrative Agent), and the retiring
Administrative Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the retiring Administrative Agent's
resignation hereunder and under the other Loan Documents, the provisions of this Article 10 and
Section 9.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-
agents and their respective Related Parties in respect of any actions taken or omitted to be taken
by any of them while the retiring Administrative Agent was acting as Adminishative Agent.
(c) Any resignation by, or removal of, Wells Fargo as Administrative Agent pursuant
to this Section shall also constitute its resignation as an LC lssuer and Swingline Lender. Upon
the acceptance of a successor's appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring LC Issuer, if in its sole discretion it elects to, and Swingline Lender, (b) the
retiring LC lssuer and Swingline Lender shall be discharged from all of their respective duties
and obligations hereunder or under the other Loan Documents, and (c) the successor LC Issuer,
if in its sole discretion it elects to, shall issue letters of uedit in substitution for the Facility LCs,
if any, issued by the retiring LC lssuer and outstanding at the time of such succession or make
other arrangements satisfactory to the retiring LC Issuer to effectively assume the obligations of
the retiring LC Issuer with respect to such Facility LCs.
10.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or
any other Lender or any oftheir Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on
such documents and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Agreement, any other
Loan Document or any related agreement or any document furnished hereunder or thereunder.
10.8 No Other Duties. etc. Anything herein to the contrary notwithstanding, none of
the Bookrunners, Arrangers, Syndication Agent Documentation Agent or other agents listed on
the cover page hereof shall have any powers, duties or responsibilities under this Agreement or
7922114v2 24740.00024
73
any of the other Loan Documents, except in its capacity, as applicable, as the Administrative
Agent or a Lender hereunder.
10.9 Administrative Asent May File hoofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to the
Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or
Reimbursement Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have made any demand
on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such
proceeding or otherwise (i) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, Reimbursement Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary
advisable in order to have the claims of the Lenders and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders
and the Administrative Agent and their respective agents, sub-agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 2.4 and 9.5) allowed in
such judicial proceeding and (ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same. Any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents, sub-agents and counsel,
and any other amounts due the Administrative Agent under Section 2.4 or 9.5.
10.10 Administrative Aeent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnift 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 incurred 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 Adminishative
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 nature
whatsoever which may be imposed on, incurred 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 Adminisffative 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 of the
foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of the Administrative Agent and
(y) any indemnification required pursuant to Section 3.5(e) shall, notwithstanding the provisions
of this Section 10.10, be paid by the relevant Lender in accordance with the provisions thereof.
7922114v224740.00O24
74
The obligations of the Lenders under this Section 10.10 shall survive payment of the Obligations
and termination of this Agreement.
l0.l I LC lssuer and Swineline Lender. The provisions of this Article 10 (other than
Section 10.2) shall apply to the LC Issuers and the Swingline Lender mutatis mutandis to the
same extent as such provisions apply to the Administrative Agent.
ARTICLE 11
SETOFF; RATABLE PAYMENTS
I1.1 Setoff. If a Default shall have occurred and be continuing, each Lender, each LC
Issuer, and each of their respective Affiliates 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 currency) at any time owing, by such Lender, such LC lssuer
or any such Affrliate, 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
or not such Lender, LC lssuer or Affiliate shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch, office or Affiliate of such Lender or such LC Issuer different
from the branch, office 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 offshall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section2.22 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 lssuers, and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative 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 lssuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, such LC lssuer or their respective Affiliates may have. Each Lender and LC Issuer
agrees to notifu the Borrower and the Administrative Agent promptly after any such setoffand
application; grovided that the failure to give such notice shall not affect the validity of such
setoffand application.
ll.2 Ratable Payments. If any Lender, whether by setoffor 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 3.5) 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 will hold its
Pro Rata Share ofthe Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoffor amounts which might be subject to setoffor otherwise, receives
collateral or other protection for its Obligations or such amounts which may be subject to setofi
such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders
share in the benefits of such collateral ratably in proportion to their respective Pro Rata Share of
7922114v224740.0O024
75
the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal
process, or othenvise, appropriate further adjustments shall be made. If an amount to be setoffis
to be applied to lndebtedness 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 lndebtedness comprised of such Outstanding Credit Exposure.
ARTICLE 12
BENEFIT OF AGRBEMENT; ASSIGNMENTS; PARTICIPATIONS
l2.l Successors and Assisns. 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 assignment 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 assignments
creating security interests, including (x) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve Bank or other
central bank or (y) in the case of a Lender which is a fund, any pledge or assignment of all or any
portion of its rights under this Agreement and any Note to its trustee in support of its obligations
to its tmstee; provided that no such pledge or assignment creating a security 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 Sectionl2.3; provided that the Administrative Agent
may in its discretion (but shall not be required to) follow instructions 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 assignment 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 Participations.
(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 (other than the Borrower,
its Affiliates and Subsidiaries or a natural Person or a holding company, invesfrnent vehicle or
trust for, or owned and operated for the primary benefit of, a natural Person) ("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 Participant,
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 purposes under the Loan Documents, and the
7922114v2 24740.00024
76
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 Participant shall be entitled to the benefits of
Sections 3.1,3.2,3.3 and 3.5 (subject to the requirements and limitations therein, including the
requirements under Section 3.5(g) (it being understood that the documentation required under
Section 3.5(g) shall be delivered to the participating Lender)) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 12.3; ry4!9g! that such
Participant (A) agrees to be subject to the provisions of Sections 2.19 and 3.6 as if it were an
assignee under Section 12.3; and (B) shall not be entitled to receive any greater payment under
Sections 3.1,3.2 or 3.5, with respect to any participation, than its participating Lender would
have been entitled to receive, except to the extent such entitlement to receive a greater payment
results from a Change in Law that occurs after the Participant acquired the applicable
participation. Each Lender that sells a participation agrees, at the Borrower's request and
expense, to use reasonable efforts to cooperate with the Borrower to effecfuate the provisions of
Section 2.19 with respect to any Participant. The Borrower also agrees that each Participant
shall be deemed to have the right of setoffprovided 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 setoffprovided in Section 11.1 with respect to the
amount of participating interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoffprovided 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 Participant were a
Lender.
(d) Each Lender that sells a participation shall, acting solely for this purpose as a non-
fiduciary 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 Rggig!gt"); plqvided
that no Lender shall have any obligation to disclose all or any portion of the Participant 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 necessary to
establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f,103-l(c) ofthe United States Treasury Regulations. The entries in the
7922114v224740.0OO24
77
Participant Register shall be conclusive absent manifest eror, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes 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 Lender may 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 assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment 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 Assignments.
(a) Any Lender may, 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 B or in such other form as may be
agreed to by the parties thereto. The consent of the Borrower and the Administrative Agent shall
be required prior to an assignment becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate thereof; provided that if a Default has occured and is continuing, the
consent of the Borrower shall not be required; and provided further, that the Borrower shall be
deemed to have consented to any such assignment unless it shall object thereto by written notice
to the Administrative Agent within 5 Business Days after having notice thereof. The consent of
the Swingline Lender and each LC Issuer shall be required prior to an assignment becoming
effective with respect to any Purchaser. Each such consent shall not be unreasonably withheld or
delayed. Each such assignment with respect to a Purchaser which is not a Lender or an Afliliate
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 (ifthe 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 assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for all purposes be a Lender
party 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 party hereto, and no further 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 ofthe Aggregate Commitment and Outstanding Credit Exposure
assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant
7922114v224740.NA4
78
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 assignment.
(c) In connection with any assignment of rights and obligations of any Defaulting
Lender hereunder, no such assignment shall be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignment shall make such additional
payments to the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including funding, 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 satisff in full all payment
liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender
hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Pro
Rata Share of all Loans and panicipations in Facility LCs and Swingline Loans.
Notwithstanding the foregoing, in the event that any assignment 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 assignment
agreement delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments ol and Outstanding Credit Exposure owing to, each Lender
pursuant to the terms hereof from time to time (the "Bsgister"). In addition, the Administrative
Agent shall maintain on the Register information regarding the designationo revocation of
designation, of any Lender as a Defaulting Lender. The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the LC lssuers, 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 lssuer, any
Lender and the Swingline Lender atany 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 oflaw (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries, including any information contained in any Reports; orovided that each Transferee
and prospective Transferee agrees to be bound by Section 9.10 of this Agreement.
12.5 Ta< Treafrnent. If any interest in any Loan Document is transferred to any
Transferee, which is organized under the laws of any jurisdiction other than the United States or
7922114v2 24740.00024
79
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(gXiiXB) and such
Transferee shall not be entitled to any additional payments under Section 3.5, (i) unless, and only
to the extent, that the transferor Lender was entitled to amounts under Section 3.5, 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
l3.l Notices.
(a) Except as otherwise permitted by Section 2.13 with respect to borrowing notices,
all notices, requests and other communications to any party 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 party may hereafter speciff for the purpose 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
furnished 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 Adminishative Agent that it is incapable of
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 particular
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 "return receipt
requested" function, as available, retum e-mail or other written acknowledgement), provided that
if such notice or other communication is not given during 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
7922114v224740.00024
80
recipient at its e-mail address as described in the foregoing clause (i) of notification that such
notice or communication is available and identiffing the website address therefor.
13.2 Chanee 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; WAMR OF Jt RY TRIAL
I4.I CHOICE OF LAW. THIS AGREEMENT AND TTM OTHER LOAN
DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED IN
AI{Y LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED TN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLLJDING SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLTGATIONS 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 DESTGNATED IN SUCH FACILITY LC OR APPLICATION
THEREFOR OR, IF NO SUCH LAWS OR RULES ARE 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 TTME TO TIME (THE "ISP') AND (ID IF SUCH FACILIry LC IS A COMMERCIAL
LETTER OF CREDIT, THE RULES OF THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDTTS, AS MOST RECENTLY PUBLISHED BY THE
INTERNATIONAL CHAMBER OF COMMERCE AT TTIE TTME OF ISSUANCE OF SUCH
COMMERCTAL LETTER OF CREDIT, AND, AS TO MATTERS NOT GOVERNED BY THE
ISP OR THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS,
TIIE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTTIER
cHorcE oF LAw AND CONFLTCTS OF LAW RULES).
14.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS FOR ITSELF AND ITS PROPERTY TO THE EXCLUSIVE
GENERAL ruRISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE
COURTS OF THE LINITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND AI{Y APPELLATE COURT FROM ANTY THEREOF, IN ANY ACTION OR
PROCEEDTNG ARISING OUT OF OR RELATING TO ANTY LOAN DOCTJMENTS AND
THE BORROWER HE,REBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE TIEARD AND DETERMINED IN ANIY
SUCH COURT AND IRREVOCABLY WAIVES ANIY OBJECTION IT MAY NOW OR
TMREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGFIT TN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING I{EREIN SHALL LIMIT THE RIGHT OF TI{E
ADMINISTRATIVE AGENT, ANY LC TSSUER OR A}.IY LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COTJRTS OF A}.IY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
7922114v224740.N024
8l
ADMINISTRATIVE AGENT, A}.IY LC ISSUER OR A}.IY LENDER OR ANY AFFILIATE
OF THE ADMIMSTRATIVE AGENT, ANY LC ISSUER OR A}.IY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN A}.IY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH A}.IY LOAN DOCUMENT SHALL BE BROUGHT
ONLY TN A COURT IN NEW YORK, NEW YORK.
14.3 WATVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATTVE
AGENT, TI{E SWTNGLINE LENDER" EACH LC ISSUER AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN AI.IY ruDICIAL PROCEEDING INTVOLVING, DTRECTLY OR
INDTRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN A}.IY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISI{ED TI{EREUNDER.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORMY OF ANIY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERMSE, 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 TIAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
[Srcxarunrs FoLLow]
7922114v224740.00024
IN WITNESS WHEREOF, the Borower, the Lenders, the Swingline Lender, the LC
lssuers and the Administrative Agent have exeouted this Agreement as of the date first above
written.
IDAEO POWER COMPAI\TY
Title: Senior Vice President, Chief
Financial Officer and Treasurer
Idalro Power Company - 2015 Credit Agreement
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender, Swingline Lender,
an LC Issuer and as Administrative Agent
Name: Gregory R. GredvigTitle: Vice President
By:
Idaho Power Company - 2015 Credit Agreement
JPMORGAI\ CHASE BANK N.A., as an LC
Idaho Power Company - 2015 Credit Agreement
KEYBANK NATIONAL ASSOCIATION, as an
LC Issuer and as a Lender
By:
Name: Keven D SmithTitle: Senior Vice President
Idaho Power Company - 2015 Credit Agreement
MUFG T'NION BANTLasalend€r /
/.'By: D<.rLo
N.A., as
M
an LC Issuer and
Name: Eric Otieno
Title: Vice President
Idatro Power Company - 2015 Credit Agreernent
Name: Sean EdwardsTitle: Senior Vice President
Idaho Power Company -2015 Credit Agreement
U.S. BAI,{K NATIONAL ASSOCIATION, as a
li,*
Holland H. Williams
Vice President
Idaho Power Company - 2015 Credit Agreement
TEE BANK OF NEW YORK MELLON, as a
Lender
By:
Name: Mark W.
Idalro Power Company -2015 Credit Agreement
SCHEDULE I
PRICING SCIMDULE
Applicable Applicable-;:i'"T Debt Rating fflffi,iii .Iffiiilf"l. Faclity Fee
Advances Advances
Level I >NAZ|A 0.775% 0.00% 0.10%
Level II A-lA3lA- 0.875% 0.00yo 0.125%
Level III BBB+/Baa1/BBB+ 0.95% 0.000/o 0.1750/o
Level IV BBB/Baa2/BBB 1.05% 0.05% 0.20%
Level V BBB-/Baa3/BBB- 1.25% 0.25% 0.25%
Level VI <BBB-{Baa3/BBB- 1.45% 0.45% 0.30%
For the purposes of this Pricing Schedule, the following terms have the following
meanings, subject to the final paragraph of this Pricing Schedule:
"Deb!_Rati4g" means, with respect to the Borrower as of any date of determination, the
rating as determined by either S&P, Fitch or Moody's ofthe Borrower's senior unsecured non-
credit enhanced long-term indebtedness; ryi1lggl, that if none of S&P, Fitch and Moody's have
assigned a rating for the Borrower's senior unsecured non-credit enhanced long-term
indebtedness, then the applicable Debt Rating will be determined by reference to the corporate
credit rating assigned to the Borrower by S&P, the long-term issuer rating assigned to the
Borrower by Moody's and the issuer default rating assigned to the Borrower by Fitch (which
ratings shall be deemed the Debt Rating for purposes of determining the Pricing Level).
"Ef_l'cing_Leve!" means, Level [, 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 "Mqiorilv Status") and the third
rating is in a different Pricing Level, the applicable Pricing Level shall be at the Majority Status.
ln 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 will apply and if the ratings differential is two
levels or more, the Pricing Level corresponding to one level lower than the higher Debt Rating
will 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.
7922114v224740.OOO24
I-1
SCHEDTJLE II
COMIIIITMENTS
,,, .. -. - '.i.., :.I$toder rl: {i""i} I :'r :
----:t ' 'i .,t.,;;. ":..i.qf -. i' ,,: .* ;
Wells Fargo Bank, National Association
JPMorgan Chase Banlq N.A.
KeyBank National Association
MUFG Union Banh N.A.
Bank ofAmerica, N.A.
U.S. Bank National Association
The Bank ofNew York Mellon
$49,687,500
$49,687,500
$49,687,500
$49,687,500
$39,375,000
$39,375,000
$22,500,000
TOTAL
LC COMIIIITMENTS
Wells Fargo Bank, National Association
JPMorgan Chase Bank, N.A.
KeyBank National Association
MUFG Union Bank, N.A.
$300,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
792i2114v22474O.C00.24
II-l
SCIIEDT]LE 5.8
SUBSIDIARIES AIYD OTHER II\WESTMENTS
Jurisdiction of Percent
Investment [n Orsanization Owned By Ownership
ldaho Energy Resources Wyoming Idaho Power Company 100%
Companyl
SRV Lands,LLC Idaho Idaho Power Company 100%
I Idatro Energy Resources Company owns one-third of the partrership interests in Bridger Coal Company, a
Wyoming paftrcrship.
Schedule 5.8
7922114v224740.00,024
SCIIEDULE 5.13
MATERIAL AGREEMENTS
Borrower's Revised Policy and Code of Conduct relating to transactions between and among
Borrower, the Parent, and other affiliates, which was approved by the Idaho Public Utilities
Commission ("IPUC") on April 21,2008, provides that Borrower, a subsidiary of the Parent, will
not pay any dividends to the Parent that will 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 arears. As of the Closing Date, Borrower has
no preferred stock outstanding.
Borower must obtain approval of the Oregon Public Utility Commission before it can directly or
indirectly loan funds or issue notes or give credit on its books to the Parent.
The Federal Power Act prohibits the payment of dividends from "capital accounts." The term
"capital accounts" is not defined in the Federal Power Act or its regulations, but Borrower does
not believe the restriction would limit Borrower's ability to pay dividends out of current year
earning or retained earnings.
7922114v224740.ffi024
Schedule 5.13
SCHEDULE 5.15
INDEBTEDIYESS AND LIENS
Following is a list of existing liens of the Borrower and Subsidiaries:
@:
Indebtedness Owed To: Bondholders pursuant to that certain Mortgage and Deed of Trust, dated
as of October 1, 1937 between Idaho Power Company and Deutsche Bank Trust Company
Americas (formerly Bankers Trust Company) and R.G. Page (Stanley Burg, successor individual
trustee), as Trustee, as supplemented and amended (the "[ndenture").
Propertv Encumbered: The lien of the Indenture constitutes a first mortgage on all the properties
of Idaho Power Company, 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 ldaho Power Company are subject to easements, leases, contracts, covenants, workmen's
compensation awards, and similar encumbrances and minor defects and clouds common to
properties. The [ndenture creates a lien on the interest of Idaho Power Company in property
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 ldaho Power Company.
Amount of Indebtedness: The aggregate principal amount of Idaho Power Company First
Mortgage Bonds outstanding as of December 31, 2014 was $1.425 billion. However, Idaho
Power Company's outstanding pollution control revenue bonds are secured by First Mortgage
Bonds, which increased the total First Mortgage Bonds outstanding at December 31,2014 to
$1.595 billion. The amount of First Mortgage Bonds issuable by Idaho Power Company, giving
effect to the Forty-fifth Supplemental Indenture, is limited to a maximum of $2.0 billion, but
subject to increase at any time and may be further limited by property, earnings and other
provisions of the Indenture.
7922114v2 24740.00024
SCIIRDULE 13.1
NOTICE ADDRESSES
Address for notices for Borrower:
ldaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, lD 83707
Attention: Steven R. Keen, Senior Vice President, Chief Financial Officer and Treasurer
Telephone No.: (208) 388-2600
Fax No.: (208) 388-2879
E-mail: skeen@idahopower.com
Address for notices as Administrative Asent:
Wells Fargo Bank, National Association
1525 West W.T. Hanis Blvd.
Mail Code: DI109-019
Charlotte, NC 28262
Attention: Syndication Agency Services
Telephone No.: (704) 590-2706
Fax No.: (704) 590-2790
E-mail: agencyservices.requests@wellsfargo.com
Address for notices as LC Issuer. Swinsline Lender and Credit Contact:
Wells Fargo Bank, National Association
Power & Utilities Group
90 S. Seventh Street, 7tr Floor
Mail Code: MAC N9305-070
Minneapolis, MN 55402
Attention: Gregory R. Gredvig
Telephone No.: (612) 667-4832
Fax No.: (612) 316-0506
E-mail: Gregory.R.Gredvig@wellsfargo.com
7922114v2 24740.00024
Schedule l3.l
DGIIBITS TO
CREDM AGREEMENT
among
IDAHO POWER COMPANY,
as Borrowel
TTIE LENDERS NAMED HEREIN,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and LC Issuer
and
KEYBANK NATIONAL AS S OCIATION
and
MUFG UMON BANK, N.A.,
as Documentation Agents and LC Issuers
$300,000,000 Senior Credit Facility
WELLS FARGO SECURITIES, LLC
J.P. MORGAN SECURITIES LLC
KEYBANC CAPITAL MARKETS INC.
and
MUFG UMON BANK, N.A.,
as Joint Lead Arrangers and Joint Book Runners
Dated as of Novernber 6,2015
7924342v12474o.000'24
EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is fumished pursuant to that certain Credit Agreement dated
as of November 6, 2015 (as amended or otherwise modified from time to time, the "Credit
Asreement") among ldaho Power Company (the "Borrower'), the lenders party thereto and
Wells Fargo Bank, National Associatiog as Administrative Agent. Unless otherwise defined
herein, capitalized terrrs used in this Compliance Certificate (and the attached schedule) have the
meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. Iamthedulyelected 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 staternents;
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 Unmatured
Default during 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 forttr 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 true, ssmplete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the
Borrower has taken, is taking, or proposes to take with respect to each zuch condition or event:
7V24342v1 247q.00024
The foregoing certifications, together with the computations set forth in Schedule I hereto
and the financial statem€nts delivered with this Certificate in support hereof, are made and
delivered this =- day of ,
IDAHO POWER COMPAI\IY
Name:
Title:
7924342v124740.0W24
SCHEDULE I
TO COMPLIANCE CERTIFICATE
PERMITTED LIENS
ls of _----,
-(Section 6.11(xiii) 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.
S
(2)Aggregate principal amount of Indebtedness
secured by Liens incurred by the Borrower
or the Parent in the ordinary course of
business permitted.
$50,000,000
7924342v1 24740.00024
LEYERAGE RATIOasof-r-
(Section 6.12 of the Credit Agreement)
(1) Consolidatedlndebtednessr:
(a) Obligations forborrowed money $
(b) Obligations representing the deferred
purchase price ofProperty or services
(other than accounts payable arising in the
ordinary course of Borrower's and its
Subsidiaries' businesses payable on terms S
customary in the trade)
(c) Obligations, whether or not assumed,
secured by Liens or payable out of the
proceeds orproduction from Property now
or hereafter owned or acquired by the
Borrower and its Subsidiaries $
(d) Obligations which are evidenced by notes,
acceptances, or other instruments S
(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 securities or Property
(D Capitalized Lease Obligations
(g) Contingent Obligations
(h) Obligations in respect of Letters of Credit $
(i) Rate Management Obligations
(,) Preferred stock which is required by the
terrrs thereof to be redeemed, or for which
mandatory sinking fund payments are due,
by a fixed date
I The aggregate outstanding Indebtedness evidenced by Hybrid Securities shall be excluded to the extent that the
total book value of such Hybrid Securities does not exceed l5o/o of Consolidated Total Capitalization as of such
time.
7924342v1 247q.O0024
$
$
(k) Off-Balance Sheet Liabilities
0) 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 irc Subsidiaries
(m) Amounts outstanding under a Permitted
Receivables S ecuritization
(n) TotalConsolidatedlndebtedness
Add Lines 1(a) through 1(m)
(2) ConsolidatedTotalCapitalization:
(a) Consolidated Indebtedness (from ftne
1(n) above) minus any Hybrid Securities $
included in Consolidated Indebtedness
(b) Consolidated Net Worth
(c) Aggregate outstanding amount of Hybrid
Securities
(d) Total Capitalization
Add Lines 2(a) through 2(c)
(3) Leverage Ratio:
Divide Line l(n) by Line 2(d)
(4) Maximum lrverage Ratio permitted by Section
6.12 of the Credit Asreement 0.65 : 1,0
1924342v124740.000,24
of
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assienment Asreement") between
(the "/\ssigUq") and (the "AssigeE") is dated as
, _. The parties hereto agree as follows:
l. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(as amended or otherwise modified from time to time, the "eledll_Aereement') described in Item
I of Schedule 1 attached hereto ("Schedule l"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignorhereby 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 assisnment the Assignee shall have purchased
pursuant to this Assignment Agreement the percentage interest specified in Item 3 of Schedule I
of all outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in ltem 3 of Schedule 1. The aggregate Commitment
(or Outstanding Credit Exposure, if the applicable Commifrnent has been tenninated) purchased
by the Assignee hereunder is set forth in Item 4 of Schedule l.
3. EFFECTTVE DATE. The effective date of this Assignment Agreement (the
"Effective Da!g") 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 Assignment
Agreement, together with any consents required under the Credit Agreernent, are delivered to the
Administrative Agent. In no event will 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 assignment 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 Administative Agent all palments ofprincipal,
Reimburserrent Obligations, interest and fees with respect to the interest assigned hereby. The
Assignee will prompfly remit to the Assignor any interest on Outstanding Credit Exposure and
fees received from the Administrative Agent which relate to the portion of the Commitnent 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. ln 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
Assignment Agreement unless otherwise specified in Item 6 of Schedule 1.
7924342v124740.00024
6. REPRESENTATIONS OF THE ASSIGNOR: LIMITATIONS 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, (iii) the execution and delivery of this Assignment
Agreement by the Assignor is duly authorized and (iv) it is not a Defaulting Lender. 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, sufficiency or collectability 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, warranty 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 perfonnance 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 sufficiency of any collateral
securing or purporting to secure the Loans or (vii) any mistake, error ofjudgment, 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 deerned appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement, (ii) agrees that it will, 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) confrms that the execution
and delivery of this Assignment Agreement by the Assignee is duly authorized, (v) agrees that it
will perforrn 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 pa)4nent
instructions and notice instructions are as set forth in the attachment to Schedule 1, (vii) confirms
that none of the funds, 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 will not be "plan assets" under ERISA, (viii) agrees
to indemnify and hold the Assignor harmless 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
Assignment Agreement, and (ix) if applicable, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assignee is entitled to receive paynents
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.
7924342v1 247q.00024
9. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreernent. 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 Assignment Agreement
maybe executed in counterparts. Transmission by facsimile of an executed counterpart of this
Assignment 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 Assignment
Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have
executed this Assignment Agreernent by executing Schedule I hereto as of the date first above
written.
7924342v12474f.00024
l.
SCIIEDT]LE 1
to Assignment Agreement
Description and Date of Credit Agreement: Credit Agreement dated as of November 6,
2015 among Idaho Power Company, the Lenders party thereto and Wells Fargo Bank,
National Association, as Administrative Agent.
Date of Assignment Agreement:
Amounts (As of Date of Item 2 above):
2.
3.
Facility
1{'
Facility
2*
Facility
3*
Facility
4*
a. Assignee's percentage of
each Facility purchased
under the Assignment
Agreement**%o/o %%
b. Amount of each Facility
purchased under the
Assignment Agreement* * *$$$s
4. Assignee's Commitment (or
Outstanding Credit Exposure
with respect to terminated
Commitnents) purchased
hereunder:
5. Proposed Effective Date:
6. Non-standard Recordation Fee
Arrangement
N/A*,r*
IAssignor/Assignee
to pay 100% offeel
[Fee waived by Agent]
Accepted and Agreed:
INAME OF ASSTGNORI INAME OF ASSTGNEEI
By:By:
Name:
Title:
Name:
Title:
7924342v1 24740.00024
ACCEPTED AND CONSENTED
INAME OF BORROWERI****
By:
Name:
Title:
ACCEPTED AND CONSENTED
[NAME OF AGENT]****
Name:
Title:
TO BY TO BY
By:
* Insert specific facility names per Credit Agreement*!r Percentage taken to l0 decimal places*** If fee is split 50-50, pick N/A as option!r*!r* Delete if not required by Credit Agreement
7924342v1 247q.00024
Attachment to SCHEDULE I to ASSIGNMENT AGREEMENT
AD1VIINISTRATTVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
Telephone No.:
Telex No.:
Answerback:
Contact:
Name:
Fax No.:
@:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instnrctions:
Address for Notices for Assignor:
9rss!!!-9sstqst:
Name:
Fax No.:
Booking Installation:
Name:
Telephone No.:
Fax No.:
Telex No.:
Answerback:
ASSIGNEE INFORMATION
Telephone No.:
Te1ex No.:
Answerback:
Booking Installation:
Name:
Telephone No.:
Fax No.:
Telex No.
Answerback:
7924342v1 24740.00024
@:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instnrctions:
Address for Notices for Assisnee:
WELLS FARGO INFORMATION
Assignee will be called promptly upon receipt of the signed agreerrent.
Initial Fundins Contact: Subsequent Operations Contact:
Name: Name:
Telephone No.:
Fax No.:
Telephone No.:
Fax No.:
Initial Funding Standards:
Libor Fund 2 days after rates are set.
Wells Fareo Wire Instructions: [to be provided at time of assignment]
Address for Notices for Wells Fareo: Wells Fargo Bank, National Association
1525 West W.T. Haris Blvd.
Mail Code: D1109-019
Charlotte, North Carolina 28262
Attention: Spdication Agency Serrrices
Telephone: (704) 590 2106
Telecopy: (704) 590 2790
E-mail: aeencyservices.requests@wellsfargo.com
7924342v124740.O0il)24
EXHIBIT C
FORM OF ACCOUNT DESIGNATION LETTER
-2015
Wells Fargo Bank, National Association, as Administrative Agent
1525 West W.T. Haris Blvd.
Mail Code: Dl109-019
Charlotte, North Carolina 28262
Attention: Syndication Agency Services
Telephone: (704) 590 2706
Telecopy: (704) 590 2790
E-mail: asencyservices.requests@wellsfareo.com
Ladies and Gentlemen:
Refere,nce is made to the Credit Agreement, dated as of November 6,2015, 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 amsnded, modified or supplemented from time to time, the "CIgdil_Aerefirent').
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 Administative 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 yorus,
IDAHO POWER COMPAI\TY
Name:
Title:
792434v12414.00024
EXIIIBIT D.l
F'ORM OF'
REVOLYING NOTE
Charlotte, Norlh Carolina
FOR VALT E RECEIVED,IDAHO POWER COMPAIIY, an Idaho corporation (the
"@et''), hereby promises to payto the order of (the
"Lender"), at the offices of Wells Fargo Bank, National Association (the "Administrative
Asent") 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 Credit Agreement, dated as of November 6,2015 (as amended,
modified, restated or supplemented from time to time, the "ercdi!-Aggement"), among the
Borower, the Lenders from time to time parties thereto, and Wells Fargo Bank, National
Association, as Administrative Agent, the principal sum of
DOLLARS (S ), or such lesser amount as may constitute the unpaid principal
arnount 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 Agree'ment are used herein with the sarne 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 Agree,ment 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, maturity,
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 construed in accordance with the intemal
laws of the State of New York. The Borrower hereby submits to the nonexclusive jurisdiction
and venue of the federal and state courts located in the state of New York, although the Lender
shall not be limited to bringing an action in such courts.
20
7924342v1 2474.00024
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.
IDAIIO POWER COMPAI\TY
By:
Name:
Title:
7924342v1 24740.00024
EXHIBIT D.2
FORM OF
SWINGLINE NOTE
.20-
Charlotte, North Carolina
FOR VALUE RECEMD,IDAHO POWER COMPAI\IY, an ldaho corporation (the
"Egrrower'), hereby promises to pay to the order of
WELLS FARGO BANK NATIONAL ASSOCIATION (the "Slvingline Lencler"), at
the oflices of Wells Fargo Bank, National Association (the "A&ninistative Aeent") located at
One Wells Fargo Center, 301 South College Street, Charlotte, North Carolina (or at such other
place orplaces as the Administative Agent may designate), at the times and in the manner
provided in the Credit Agreernent, dated as of November 6, 2015 (as amended, modified,
restated or supplemented from time to time, the "eIgdi!,{greement"), 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
Swingline Loans made by the Swingline Lender, under the terms and conditions of this
promissory note (this "Swilgling_I!q&") 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 tertrls, conditions and covenants of the
Credit Agreement are expressly made a part 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 Agreemurt for provisions relating to the
interest rate, mafurity, payment, prepayment and acceleration of this Swingline Note.
In the event of an acceleration of the maturity 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 attomeys' fees.
This Swingline Note shall be governed by and construed in accordance with the internal
laws of the State of New York. The Borrower hereby submits to the nonexclusive jurisdiction
and venue of the federal and state courts located in the state of New York, although the
Swingline Lender shall not be limited to bringing an action in such courts.
7924342v12474f.00024
IN WITNESS WHEREOF, the Borrowerhas causedthis Swingline Note to be executed
by its duly authorized corporate officer as of the day and year first above written.
IDAHO POWER COMPAI\TY
By:
Name:
Title:
7924342v124740.00024
E)CIIBIT E
FORM OF
JOINDER AGREEMENT
ThisJoinderAgreement(this..Jqirrder@,,)ismadethis-dayof
,20-,bY (the "Assuming
Lender"). Reference is made to the Credit Agreement, dated as of November 6, 2015 (as
amended, modified or supplemented from time to time, the "elsdilAgeement"), among ldaho
Power Company (the "Borrowef'), the Lenders party thereto from time to time parties thereto
(the "Lenders"), and Wells Fargo Bank, National Association, as administrative agent for the
Lenders (the "Administrative Aeent"). 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:
l. 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 Commixngnl6l Dollars (S ). 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 ofthe
aggregate principal amount of all Loans plus all LC Obligations will be as set forth in Item 4 of
Annex I attached hereto.
2. Assumine Lender Representations. The Assuming Lender (i) confirms that it has
received a copy of the Credit Agreernent, 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 will, 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
Adminishative Agent to take such action as Administative 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 otherpowers
as are reasonably incidental thereto, (iv) agrees that it will perforrr 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 oflice
set forth beneath its name on its signature page hereto.2
2If 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,"
7924342v12474o.00024
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 Administative
Agent and the Assuming Lender. As of the Effective Date, the Assuming Lender shall be a party
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 l,oan Documents.
4. Governing Law. This Joinder Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
5. Entire Aseement. This Joinder Agreement, together with the Credit Agreement
and the other Loan Documents, ernbody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings of the parties, 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 Agreernent 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 instrument.
[signatures on following page]
7924342v124740.00024
IN WITNESS WIIEREOF, the parties have caused this Joinder Agreement to be
executed by their duly authorized officers as of the date first above written.
IINSERT NAME OF ASSUMING
LENDER]
By:
Accepted this _ day of
WELLS FARGO BANK, NATIONAL ASSOCIATTON,
as Administrative Agent
Name:
Title:
Consented and agreed to:
IDAIIO POWER COMPANTY
By:
Name:
Title:
Name:
Title:
7{24342v1247&.0OO24
ANNEX I
1. Borrower: Idatro Power Company
2, Name and Date of Credit Agreement:
Credit Agreement dated as of November 6,2015 among Idaho Power Company, the
Lenders party thereto and Wells Fargo Bank, National Association, as Administrative
Agent.
3. Date of Joinder Agreement: , 20-.
4. Amounts (as of date of adjustnent pursuant to Section 2.20(c) of the Credit Agreement):
Percentage of
Aggregate Amount Amount of Aggregate
of Commitment/ Commitrnent/ Commifrnent/
Loans for all Loans of Loans / LCLenders Assumine Lender Obligations3
(a) Commihrent / Loans $
5. Addresses for Paynents and Notices:
AssumingLender: ForFundine/Notices:
Telecopy: ( )
Reference
For Payments:
Telecopy: ( )
Reference:
6. Effective Date:20_(in accordance with Section 3).
3 Set forttr, to at least 9 decimals, as a percentage of the Commituent / Loans of all
Lenders thereunder.
7924342v124740.00024
%
E)CIIBIT F.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 Credit Agreement dated as of Novernber 6, 2015 (the
"Credit Aereement") among ldaho Power Company, the Lenders party thereto and Wells Fargo
Bank, National Association, as Administative 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
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(hX3)(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 furnished 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 fumished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
palment is to be made to the undersig[ed, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, tenns defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDER]
Name:
Title:
Date: __,20[ ]
By:
7924342v1 24740.00024
EXHIBIT F.2
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Refereirce is hereby made to the Credit Agreement dated as of Novenrber 6, 2015 (the
"ergdi! Asreement") among ldaho 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 participation 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
66aning of Section 871(hX3XB) 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 undersigued has furnished 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 shang€s, the undersigned shall promptly so
inform such Lender in writing, and (2) the undersigned shall have at all times fumished such
Lender with a properly completed and currently effective certificate in either the calendar year in
which each palment is to be made to the undersigned, or in either of the two calendar years
preceding such paynents.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to thern in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: _____- 20[ ]
7924342v1 247q.00O24
E)(IIIBIT F.3
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of November 6, 2015 (the
"elgdil_Aereement") among Idatro 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 participation in respect of which it is
providing this certificate, (ii) its direct or indirect partrers/members are the sole beneficial
owners of such participatioq (iir) with respect such participation, neither the undersigned nor
any of its direct or indirect parhrers/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 parbrers/members is a ten
percent shareholder of the Borrower within the meaning of Section 871(hX3XB) of the Code and
(v) none of its dtect or indirect parhrers/members is a controlled foreign corporation related to
the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY
accompanied by one of the following forms from each of its partrers/members that is shiming
the portfolio interest exemption: (i) an IRS Fomr W-8BEN or (ii) an IRS Fonn 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 (l) if the information provided on this certificate changes, the undersigned shall
promptly so inform such knder and (2) the undersigned shall have at all times funrished such
Lender with a properly completed and currently effective certificate in either the calendar year in
which each paynent 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]
Name:
Title:
Date: _ ____-201 )
By:
7924342v124740.00024
EXIIIBIT F.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 Credit Agreement dated as of November 6, 2015 (the
"CreditAgreement") 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 parhrers/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
partnerVmernbers 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 partners/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
parbrers/members is a controlled foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) of the Code.
The undersigned has fumished the Administrative Agent and the Borrower with IRS
Form W-8IMY accompanied by one of the following forms from each of its partrerVmembers
that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form
W-8IMY accompanied by an IRS Fomr 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 (l) 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 funrished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
paynent is to be made to the undersigned, or in either of the two calendar yeani preceding such
paynents.
Unless otherwise defined herein, terms defined in the Credit Agreernent and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDERI
By:
Name:
Title:
Date: _ ____-201 l
7924342v1 24740.00024