20191230Exhibit A First Amendment.pdf

3Effi*lDAHO POWER COMPANY
P.0 sox 70
BOISE, IDAHO 83707
RECEIVED
;0l9OEC 30 pfi Zz2B
An IDACORP Company
PATRICKI
Corporit€goN
Ms. Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
I l33l W. Chinden Blvd.
Building 8, Suite 201-A
Boise, ID 83714
Decernber 27, 2019
Re:In the Matter of the Application of Idaho Power Company for an Order
Authorizing up to $450,000,000 Aggregate Principal Amount at any one
time outstanding of Short to Mid-Term Borrowings
Casc No. IPC-E- 19-33
Dear Ms. Hanian:
Enclosed for filing with the Idaho Public Utilities Commission as Exhibit A to Idaho
Power's Application in the above referenced case are seven (7) copies of ldaho Power's First
Amendment to Credit Agreement dated December 6,2019.
Please feel free to contact me at [e-mail] or [phone] or at if
you have any questions regarding this filing.
Sincerely.
fr^@^t
c: Terri Carlock
{0026s3jE.LXrc; t}
Telephone (208) 38E-2878, Fox (208) 3EE-6936
p h a r i n gt o n@.i d q h o p owe r. c o tn
Execution Version
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "A4endm!n!"), dated
as of December 6, 2019, is entered into by and among IDAHO POWER COMPANY, an Idaho
corporation (the ''ES.ES-w9f), the Lenders (as hereinafter defined) party hereto. and WELLS
FARGO BANK NATIONAL ASSOCIATION, as Administrative Agent lor the Lenders.
RECITALS
A. The Borrower, the several lenders from time to time party thereto (the "Lenders"),
and the Administrative Agent are party to the Credit Agreement, dated as of Novcmber 6, 2015
(as amended, amended and restated, supplemented or otherwise modified from time to time prior
to the date hereof, the "Credit Asreement"). Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Credit Agreement as amended by this
Amendment.
B. The Borrower has requested that the Lenders amend the Credit Agreement and the
Lenders are willing to consent to such amendments to the Credit Agreement on the terms and
subject to conditions set lorth herein.
STATEMENT OF AGREENIENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which arc hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
Ll Effective upon the Fint Amendment Ellective Date (as hereinafter defined), the
Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same
manner as the following example: ++rciter++.ix+) and to add the doublrunderlined text (indicated
textually in the same manner as the following example: ilSubl!.-!ljl!'rli[!! r9_!) as set forth in
the conformed copy ofthe Credit Agreement attached hereto as Exhibit A.
1.2 Effective upon the First Amendment Effective Date, Schedule I anached to the
Credit Agreement is hcreby replaced with Schedule I attached hereto.
1,3 Effective upon the First Amendment Effective Date, Schedule II attached to the
Credit Agreement is hereby replaced with Schedule II attached hereto.
1.4 Effective upon the First Amendment Effective Date, Schedule 13.1 attached to the
Credit Agreement is hereby replaced with Schedule l3.l attached hereto.
1.5 Effective upon the First Amendment Effective Date, Schedulc 5.8 attached to the
Credit Agreement is hereby replaced with Schedule 5.8 attached hereto.
l2&l I7l7v4
1.6 Effective upon the First Amendment Effective Date, Schedule 5.13 attached to the
Credit Agreement is hereby replaced *'ith Schedule 5.13 attached hereto.
1.7 Effective upon the First Amendment Effective Date, Schedule 5,15 attached to the
Credit Agreement is hereby replaced with Schedule 5.15 attached hereto.
ARTICLE II
CONDITIONS OF EFFECTIVENESS
2.I The amendments set forth in ARTICLE I shall become effective as of the date
(he "First Amendment Effective Date") when, and only when, each ofthe following conditions
preccdent shall have been satisfied:
(a) The Administrative Agent shall have reccived each ofthe following, each in form
and substance satisfactory to the Administrative Agent and each of the Lcnders:
(t) An executed counterpart of this Amendment from each of the Borrower
and each ofthe Lenders.
(ir) Copies of the articles or certificate of incorporation of the Borrower,
together with all amendments thereto, and a certificate of good standing, each certihed by
the appropriate governmental officer in its jurisdiction of incorporation.
(iii) Copies, certified by the Secretary or Assistant Secretary ofthe Borrower,
of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of
any other body authorizing the execution ofthe Loan Documents.
(iv) An incumbency certificate, executed by the Secretary or Assistant
Secretary ofthe Borrower, which shall identify by name and title and bear the signatures
of the Authorized Officers and any other offrcers 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 ofany change in writing by the Borrower.
(") A certificate, signed by an Authonzed Oflicer, stating that on the First
Amendment Effective Date the representations and warranties ofthe Borrower contained
in Article III of this Amendment shall be true and correct on and as of the First
Amendment Effective Date.
(vi) A written opinion ofthe Borrower's counsel, addressed to the
Administrative Agent, the Lenders and the LC Issuers, dated as of the First Amendment
Effective Date, in form and substance satisfactory to the Administrative Agent.
(vii) Any Notes requested by a Lender pursuant to Section 2.12 ofthe Credit
Agreement payable to the order of each such requesting Lender.
(viii) Such other documents as any Lender or its counsel may have reasonably
requ€sted.
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(b) The Administrative Agent and the Lenders shall have received, at least five (5)
Business Days prior to the First Amendment Effective Date, all documentation and other
information requested by the Administrative Agent or any Lender or required by regulatory
authorities in order for the Administrative Agent and the Lcnders to comply with requirements of
any Anti-Money Laundering Laws, including the PATRIOT Act and any applicablc "know your
customer" rules and regulations-
(.) Unless the Borrower qualifies for an express exclusion ftom the ''legal entity
customer" definition under the Beneficial Ownership Regulations, the Borrower shall have
delivered to the Administrative Agent, and directly to any Lender requesting the same, a
Beneficial Ownership Certification in relation to it, in each case at least five (5) Business Days
pnor to the First Amendment Effective Date.
(d) The Borrower shall have paid to (i) Wells Fargo Securities, LLC, the
Administrative Agent and the Lenders any fees required under the Wells Fargo Fee Letter (as
defined below) to be paid to each of them, in the amounts due and payable on the First
Amendment Effective Date as required by the terms thereof, and (ii) JPMorgan Chase Bank,
N.A. ('JBMgfgAl") the fees required under the JPMorgan Fee Letter, in the amount due and
payable on the First Amendment Effective Date as required by the terms thereof. The "Wells
Fargo Fee Lettef ' means that certain lefter from Wells Fargo and Wells Fargo Securities, LLC to
the Borroweq dated November5, 2019, relating to certain fees payable by the Borrower in
respect of the transactions contemplated by this Amendment. The "JPMorgan Fee Lettea' means
that certain letter from JPMorgan to the Borrower, dated November 5, 2019, relating to certain
fees payable by the Borrower in respect of the transactions conternplated by this Amendmort.
(e) Since December 31, 2018, both immcdiately before and after giving effcct to the
this Amendment, there shall not have occurred a (i) Material Adverse Effect or (ii) an cvent,
condition or state of facts that could reasonably be expected to have a Material Adverse Effect.
AR-ilCLE ilt
REPRESENTAI IONS AND WARRAN'I-IES
The Borrower hereby represents and warrants, on and as of the First Amendment
Effective Date, that (i) the representations and warranties contained in the Credit Agreement and
the other Loan Documents are true and correct, both immediately before and after giving effect
to this Amendment (except to the extent any such representation or warranty is expressly stated
to have been made as ofa specific date, in which case such representation or warranty is true and
correct only on and as of such specific date), (ii) this Amendment has been duly authorized,
executed and delivered by the Borrower and constitutes the legal, valid and binding obligation of
thc Borrower enforceable against it in accordance with its terms, except as enforceability may be
limited by banlruptcy, insolvency, reorganization, moratorium or other similar laws af'fecting
creditors' rights generally, by general equitable principles or by principles of good faith and fair
dealing (regardless of whether enforcement is sought in equity or at law), (iii) no Default or
Unmahrred Default has occurred and is continuing on the First Amendment Effective Date, both
immediately before and immediately after giving effect to this Amendment and the amendments
contemplated hereby and (iv) the information included in any Beneficial Ownership
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12641117\4
Certification, ifdelivered pursuant to Section 2.1(c) of this Amcndment, is true and correct in all
respects.
ARTICLE IV
ACKNOWLEDGEI}IENT AND CONFIRMATION
Each party to this Amendment hereby confirms and agrees that, after giving effect to this
Amendment and the amendments contemplated hereby, and except as expressly modified
hereby, the Credit Agreement and the other Loan Documents to which it is a party remain in full
force and effect and enforceable against such party in accordance with their respective terms and
shall not be discharged, diminished, limited or otherwise affected in any respect.
ARTICLE V
NIISCELLANEOUS
5.1 GoveminA fuw. This Amendment shall be govemed by and construed and
enforced in accordance with the laws of the State of New York (including Sections 5-1401 and
5-1402 of the New York General Obligations Law, but excluding all other choice of law and
conflicts of law rules).
5.2 Loan Document. As used in the Credit Agreement, "hereinafter," "hereto,"
"hereof," and words of similar import shall, unless the context otherwise requires, mean the
Credit Agreement after amendment by this Amendment. Any reference to the Credit Agreement
or any of the other Loan Documents herein or in any such documents shall refer to the Credit
Agreement and the other Loan Documents as amended hereby. This Amendment is limited to
the matters expressly set forth herein, and shall not constitute or be deemed to constitute an
amendment, modification or waiver of any provision of the Credit Agreement except as
expressly set forth herein. This Amendment shall constinrte a Loan Document under the terms
of the Credit Agreement.
5.3 Expenses. The Bonower shall pay all reasonable and documented out-of-pocket
fees and expenses of counsel to the Administrative Agent in connection with the preparation,
negotiation, execution and delivery of this Amendment.
5.4 Severability. To the extent any provision of this Amendment is prohibited by or
invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to
the extent ofsuch prohibition or invalidity and only in any such jurisdiction, without prohibiting
or invalidating such provision in any other jurisdiction or the remaining provisions of this
Amendment in any jurisdiction.
5.5 Successors and Assigns. This Amendment shall be binding upon, inure to the
benefit of and be enforceable by the respectivc successors and permitted assigns of the parties
hereto.
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5.6 Construction. The hcadings of the various sections and subsections of this
Amendment have been inserted lor convenience only and shall not in any way affect the
meaning or construction ofany of the provisions hereof.
5.7 Coun Integration. This Amendment may be executed and delivered via
facsimile or electronic mail with the same force and effect as if an original were executed and
may be signed in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures hereto were upon the same instrument. This Amendment constitutes
the entire oontract among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings, oral or written, relating to the
subject mafter hereof.
5.8 Exitine knder. Each ofthe parties hereto acknowledges and agrees that as of the
First Amendment Effective Date, The Bank of New York Mellon (the "!xj1i1g_!949!9") shall
cease to be a party to the Credit Agreement, shall no longer be a "Lender" and shall not have a
Commitment, but shall continue to be entitled to the benefits of Sections 3.1, 3.2(b), 3.3, 3.5, 9.5
and 9.9 ofthe Credit Agteement solely with respect to facts and circumstances occurring prior to
the First Amendment Effective Date. From and after the First Amendment Effective Date, the
Administrative Agent shall make all payments in respect of the Exiting Lender's Commitment
that existed prior to the First Amendment Effectivc Date (including payments of principal,
interest, fees and other amounts) to the Exiting Lender solely for amounts which have accrued
prior to but excluding the First Amendment Effective Date.
l?f4l7l7v4
5
IN WITNESS WIIEREOF, the punics hereio have causcd this Amcndment to be
exocuted by thcir duly authorized officers as of the date first above writtcn,
IDAHO POWER COMPAI{Y
B}1
Name: Kennclh W. Pet€rsen
Title: Vice President, Corporate Contsoller, and
Chief Accounting Officer
SICNATURE PACE TO
FIRST AMENDMENT TO CRSDTT ACREEJ,,IEMT
WELLS FARGO Bd'\Iq NATIONAL ASSOCIATION,
as a Lender, Swingline Lender, an LC Issuer and as
Administrative Agent
By:
Name: Gresory R Gredvis
Title : Director
SICNATURE PAGE TO
FIRST AMENDMENT TO CREDIT ACREEMENT
JPMORGAN CHASE BANK, N.A, as an LC Issuer and
as a Lender
By:
Name:
Titlel ExecutiveDirector
i(
SICNATURE PAGE IO
PIRST AMENOMENT TO CREDI; AGREEMENT
KEYBANK NATIONAL ASSOCIATION. as an LC
lssuer and as a Lender
By,
Name: Keven D. Smith
Title: Senior Vice President
slUNAl'URL PAoE TO
I.IRST AMENDMENT T() CREDI I ACREEMENT
LY*,
MUFG UNION BANI( N.A., as an LC Issuer and as a
Lender
, BY:
Name: Kevin Sillona
Title:Vice President
SIGNATURE PAGE TO
rRST AMENDMENT TO CREDIT AGREEMENT
BANK OF AMERICA, N.A., as a Lender
By'
Name:
Title: I L/
SICNATURE PACE IU
FIRS'I' AMENI]MEN'I 1O CREDTT AOREI]ME}TI
t-,s.8,rliK .{SS0CIATION. a-s a Lerulcr
8!,
Nerrc: Er*tu J. CoNFov€
Ti1l.' S,ri.r \';n Ph.r.lhr
TIIE BANK OF NEW YORK MELLON, as the Exiring
[.ender
By:
Name:
Title:Vice Preside nt
SICNATURE PACE TO
FIRST AMENDMENT TO CREDII AOREEIV{ENT
Pricing
Level Debt Rating
Interest
Margin
for
LIBOR
Loans
Inter€st
Margin for
Bese Rste
Loans
I-acility Fe€
Level I >AIA2IA 0.77 5%0.00%0.r0%
Level II 0.87 5%0.00%0.t25%
Level III BBR+,'RaaliRRB+0.95%0.00%0.t75%
Level IV BBBiBaaZ/BBB L05%0.05%0.20%
Level V BBB-iBaa3/BBB-t.25%0.25%0.25%
For the purposes ofthis Pricing Schedule, the following terms have the following meanings,
subject to the final paragraph of this Pricing Schedule:
"D9b!_l}!i!9" means, with resp€ct to the Borrower as ofany date of determination, the rating as
determined by either S&P, Fitch or Moody's ofthe Borrower's senior unsecured non-credit enhanced
long+erm indebtedness; provided, that ifnone ofS&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 Bonower 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 deerned the Debt Rating for purposes ofdetermining the
Pricing Level).
"Pricing lrvel" means, Level l, Level ll, Level lll, Lelel lV or Level V 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 ofthe 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'Meig4y ftAlug") and the third rating is in a different Pricing Level, the applicable Pricing
Level shall be at the Majority Status- In the event that the Borrower shall maintain Debt Ratings fiom
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 fiom at least one of S&P or
Moody's, the applicable Pricing [rvel shall be set at l,evel V.
SCHEDUT,E I
PRICING SCHEDUI,E
A-/A3/A-
SCHEDULE II
COMI\{ITMENTS
Lender
Wells Fargo Bank, National Association
JPMorgan Chase Bank, N.A.
KeyBank National Association
MUFG Union Bank, N.A.
Bank of America, N.A.
U.S. Bank National Association
Commitment
s56,250,000
$s6,250,000
$46,875,000
$46,875,000
s46,875,000
s46,875,000
TOTAL
LC COMNTIT}IEN'I'S
Lender
Wells Fargo Bank, National Association
JPMorgan Chase Bank, N.A.
KeyBank National Association
MUFG Union Bank, N.A.
s300,000,000
LC Commitment
$22,500,000
s12,500,000
s7,500,000
s7,500,000
SCHEDULE I3.1
NOTICE ADDRESSES
Address for notices for Borrower:
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, ID 83707
Attention: Steven R. Keen, Senior Vice President, Chief Financial Offrcer and Treasurer
Telephone No.: [phone]
Fax No.: [phone]
E-mail: skeen(Didahopower.com
With a copy to:
Wells Fargo Bank, National Association
90 S. Seventh Street, ls'h Floor
MAC: N9305-156
Minneapolis, MN 55402
Attention: Gregory R. Gredvig
Telephone No.: (612) 667 -4832
Telecopy No.: [phone]
E-mail: [e-mail]
Address for notices as Administrative Aqent LC Issuer or Swinsline Lender:
Wells Fargo Bant National Association
1525 West W.T. Harris Blvd.
Mail Code: Dl109-019
Charlotte, NC 28262
Attention: Syndication Agency Services
Telephone No.: [phone]
Telecopy No.: [phone]
E-mail: agencyservices. reo uests(a)wellsfareo.com
SCHEDULE 5.8
SUBSIDIARIES AND OTHER INVESTMENTS
Jurisdiction of
Investment In
Idaho Energy Resources
Companyl
SRV Lands, LLC
IPC Spectrum, LLC
Oreanization
Wyoming
Idaho
Idaho
Owned By
Idaho Power Company
Idaho Power Company
ldaho Power Company
Percent
Ownership
100%
t00%
100%
| ldaho Energy Resources Company owns one-third ofthe partnership interests in Bridger Coal Company, a
Wyoming partnemhip.
{00264m7.D(XlXi I }Schedul€ 5.8
SCHEDULE 5.I3
MATERIAL AGREEMENTS
Borrower's Revised Policy and Code ofConduct relating to transactions between and among
Borrower, the Parent, and other affiliates, u'hich was approved by the tdaho Public Utilities
Commission C'IPUC') on April 21, 2008, provides that Borrowcr, a subsidiary of the Parent, will
not pay any dividends to the Parent that will rcduce 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 payrnent ofdividends on its
common stock ifpreferred stock dividends are in arrears. Asof the Closing Date, Borrower has
no preferred stock outstanding.
Borrower must obtain approval of the Oregon Public Utility Commission before it can directly or
indirectly loan funds or issue notes or give credil on its books to the Parent.
The Fedcral Power Act prohibits the pal,rnent of dividends from 'tapital 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 ofcurrent year
eaming or retained eamings.
{00264007.DOCx; I ) Schedule 5. ll
SCIIEI)TII,E 5.I5
INDEBTEDNESS AND LIENS
Following is a list ofexisting liens ofthe Borrower and Subsidiaries
Idaho Power Company:
lndebtedness Owed To: Bondholders pursuant to that certain Mortgage and Deed of Trust, dated
as of October l, 1937 between Idaho Power Company and Deutsche Bank Trust Company
Americas (formerly Bankers Trust Company) as Trustee, as supplcmented and amended (the
"Indenture").
Property Encumbered: The lien of the Indenture constiutes a first mort gage on all the propcrtics
ofldaho Power Company, subject only to certain limited exceptions including liens for taxes and
assessments that are not delinquent and minor excepted encumbrances. Certain ofthe properties
of Idaho Power Company are subject to easements, lcases, contracts, covenants, workmen's
compensation awards, and similar orcumbrances and minor defects and clouds common to
properties. The Indenture 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 ofall or substantially all ofthe assets ofldaho Power Company.
Amount of Indebtedness: The aggregate principal amount of Idaho Power Company First
Mortgage Bonds outstanding as of December 31, 2018 was $1.665 billion. However, Idaho
Power Company's outstanding pollution control revenue bonds are secured by First Mortgage
Bonds, which increased the total First Mongage Bonds outstanding at December 31,2018 to
$ I .835 billion. The amount of First Mortgage Bonds issuable by Idaho Power Company, giving
ettect to the Forty-eighth Supplemental lndenture, is limited to a maximum of 52.5 billion, but
subjcct to increase at any time and may be funher limited by propertyr earnings and other
provisions of the Indenture.
{00264007.DOCX; I ) Schedule 5. l5
CUSIP Number: Deal # 45 l39CAG7
Revolving Loans CUSIP # 45 I 39CAH5
EXECUTI(}N Vt-,RSIoN
Conformed version giving etlect to First Amendment dated Decemher 6- 70lq
Exeattolletsol
CREDIT ACREEMEN'T
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN.
WELLS FARGO BANK, NATIONAL ASSOCTATION,
as Administrative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and LC Issuer
and
KEYBANK NATIONAL ASSOCIATION
and
MUFC UNION BANK, N,A,,
as Documentation Agents and LC lssuers
$300,000.000 Senior Credit Facility
WELLS FARGO SECURITIES, LLC
+,P, \{e)RCi,\N !;t-;( t;RtIttis l,t,('
JPMORGAN CHASF BANK. N A.
KEYBANC CAPITAL MARKETS INC.
and
MUFG UNION BANK, N.A.,
as Joint Lead Arrangers and Joint Book Runners
Dated as ofNovember 6, 2015
t:6.r061t\ 1
ARTICLE I
DEFINITIONS
I .l Definitions1.2 Other Interpritive Provisions
I .3 Accounting Terms
.Ll -Rates| 5 Divis.ions
I
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2.1
2_2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.tI
2.12
2.t3
2.t4
2.15
2.t6
2.t7
2.1 8
2.19
2.20
2.2t
2.22
2.23
ARTICLE 2
THE CREDITS
Commitments
Required Payments; Termination
Tlpes of Advances; Minimum Amount of Each Advance
Fees
Reduction or Termination of Aggregate Commitment
Optional Princ ipal Payments
Requesting Advances
Conversion and Continuation of Outstanding Advances
Changes in lnterest Rate, etc
Rates Applicable After Default
Method of Payment
Noteless Agreement; Evidence of Indebtedness
Telephonic Notices
Interest Payment Dates; lnterest and Fee Basis; Maximum Rate
Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions
Lending Installations
Non-Receipt of Funds by the Administrative Agent
Facility LCs
Replacement of Lender
lncrease in Commitments
Extension of Facility Termination Date
Defaulting Lenders
Changed Circumstances
ARTICLE 3
Increased Costs
Capital Require ments
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YIELD PROTECTION; TAXES
TABLE, OF CONTENTS
Page
Compensation
Delay in Requests
l'axes
Designation of a Different Lending Installation
ARTICLE 4
CONDITIONS PRECEDENT
Effectiveness
Flach Credit Extension
Existence and Standing
Authorization and Validity
No Conflict; Government Consent
Financial Statements
Material Adverse Change
Taxes
Litigation and Contingent Obligations
Subsidiaries
ERISA
Labor Relations
Accuracy of In[ormation
Regulation U
Material Agreements
Compliance With Laws
Ownership of Properties
Environmental Matters
lnvestment Company Act
Designated Persons; Sanctions; Anti-Corruption
Page
J.J
3.4
3.5
3.6
6.1
6.2
6.3
6.4
6.5
6.6
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51rS6
5.t
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.1I
5.12
5. l3
5.14
5. l5
5. l6
5.t7
5. l8
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Laws: PATRIOT Act
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ARTICLE 6
COVENANTS
Financial Reporting
Use of Proceeds
Notice of Default, etc
Conduct of Business
Taxes
lnsurance
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TABLE OF CONTENTS
(conrinued)
4.1
4.2
12640,621v
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v4
- ll
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6.8
6.9
6. l0
6.tI
6.12
6.1 3
6.14
6.15
6.t6
TABLE OF CONTENTS
(continued)
Compliance with Laws
Maintenance of Properties
Inspection
Merger and Sale of Assets
Liens
Leverage Ratio
Investments and Acquisitions
Subsidiary Dividend Restrictions
Affiliates
OFAC, PATRIOT Act Compliance eul@
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WATVERS, AMENDMENTS AND REMEDIES
Page
5f51
sl6't*5t*@
s864
5.r)66
,re66
6{i66
6066
f5
Acceleration; f'acility LC Collateral Account
Amendments
Preservation of Rights
ARTICLE 9
GENER,4,L PRO!'ISIONS
9.1 Survival of Representations9.2 GovernmentalRegulation9.3 Entire Agreement9.4 Several Obligations; Benefits of this Agreement9.5 Expenses;lndemnification9.6 Numbers of Documents9.7 Accounting9.8 Severability of Provisions9.9 Nonliability of Lenders
9.10 Confidentiality
9.1 I Nonreliance
9.12 Disclosure
9. t 3 PATRIOT Act Notice
9.14 CounterpartsQ.l5 Acknowledgement and Consent to Bail-ln ofFFA Financial lnstitutions
o.l 6 Certain FRISA Maners
o.l 7 Acknowledgem v Supnorted OFCs
8.1
8.2
8.3
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6171
6674
6673
6673
6673
6673
6875
6811
6815
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10. I
10.2
10.3
r0.4
t 0.5
10.6
10.7
10.8
t 0.9
10.10
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TABLE OF CONTENTS
(continued)
ARTICLE IO
THE ADMINISTRATIVE AGENT
Appointment and Authority
Rights as a Lender
Exculpatory Provisions
Reliance by Administrative Agent
Delegation of Duties
Resignation of Administrative Agent
Non-Reliance on Administrative Agent and Other Lenders
No Other Duties. etc
Administrative Agent May File Proofs of Claim
Administrative Agent's Reimbursement and Indemnification
LC Issuer and Swingline Lender
ARTICLE II
Setotf
Ratable Payments
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Successors and Assigns
Participations
Assignments
Dissemination of Information
Tax Treatment
ARTICLE I.]
NOTICES
Notices
Change ofAddress
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12.2
12.3
12.4
12.5
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ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
I4.I CHOICE OF LAW
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SETOFF; R{TABLE PAYMENTS
TABLE OF CONTENTS
(continued)
14.2
t4.3
CONSENT TO JURISDICTION
WAIVER OF JURY TRIAL
Page
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Schcdule
Schedule
Schedule
Schedule
Schedule
Schedule
I
lt
5.8
5. l3
5.15
l3.l
EXHIBIT A
EXT{IBIT B
EXt IIBIl' C
tTXHIBIT D-l
EXHIBIT D-2
EXHIBIT E
EXHIBIT F-I
I.]XFIIBIT F-2
EXHIBIT F.3
EXHIBIT F-4
12640621v
TABLE OF CONTENTS
(conrinued)
Page
Pricing Schedule
Commitments
Subsidiaries and Other Invcstments
Material Agreements
Indehtedness and Liens
Notice Addresses
Eorm of Compliance Certificate
Form of Assignment Agreement
Form ofAccount Designation Letter
Form olRevolving Note
Form of S* ingline Note
Form of Joinder Agreement
Form of U.S.-l-ax Compliance Certificate (For Foreign Lenders That Are Not
Partnerships For U.S. Federal lncome Tar Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are
Not Partnerships For U.S. Fcderal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are
Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For F'oreign Lenders That Are
Partnerships For U.S. Federal Income Tax Purposes)
::r;.lr]r]lrs
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CREDIT A(;REEI\IE,NT
This Credit Agreement, dated as ofNovember 6.20t5, is made among Idaho Power
Company, an ldaho corporation, the Lenders, and Wells Fargo Bank, National Association, as
Administrative Agent for the Lenders.
BACKGROUND STATEMENT
AGRET],ME,NT
NOW, THEREFORE, in consideration of the mutual provisions, covenants and
agrcements herein contained. the parties hereto hereby agree as tbllows:
ARTICLE I
DEFINITIONS
I . I Definitions. As used in this Agreement:
'Acquisition" 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 ofthe assets ofany firm, corporation or limited liability
company, or division thereoi whether through purchase ofassets, 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 oflvotes) ofthe securities ofa corporation which have
ordinary voting power lor the election ofdirectors (other than securities having such power only
by reason ofthe happening ofa contingency) or a majority (by percentage or voting power) ofthe
outstanding ownership interests ofa partnership or limited liability company.
'Administrative Agent"means Wells Fargo Bank, National Association in its capacity as
administrative agent (i.e., contractual representative) ofthe 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 Letter"means the letter agreement. dated October 14. 2015, among
Borrower, the Parent, and Wells Fargo.
'Administrative Ouestionnaire" means an administrative questionnaire in a form supplied
by the Administrative Agent.
'Advance"means a borrowing hcrcunder, (i) made by the Lenders (or the Swingline
Lender in the case ofa Swingline Loan) on the same Borrowing Date, or (ii) converted or
continued by the Lenders on thc same date oIconversion 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 lnterest Period.
126.4U621!
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.
'Atfiliate"of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person ifthe controlling Person owns 100/o or more ofany class ofvoting securities (or
other ownership interests) ofthe controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction ofthe management or policies ofthe controlled Person, whether
through ownership ofstock, by contract or otherwise.
'Aggregate Commitment" means the aggregate of the Commitments of all the Lenders, as
reduced or increased from time to time pursuant to the terms hereof.
'Aggregate Outstanding Credit Exposure"means, at any time, the aggregate ofthe
Outstanding Credit Exposure ofall the Lenders.
'Agreement" means this Credit Agreement
'Agreement Accounting Principles" means generally accepted accounting principles as in
effect from time to time applied in a manner consistent with that used in preparing financial
statements referred to in Section 5.4, but subject to Section 1.3.
'Altemate 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 ofthe Federal Funds Effective Rate for such day
plus I /ZYo, (iii) the Eurodotlar Base Rate for an Interest Period ofone month plus l% and (iv)
0%; eaehgpyj
Furodollar Rase Rate is unavailahle or unascertainahle. Fach change in the Alternate Base Rate
shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the
Federal Funds Effective Rate or Eurodollar Rate.
"Anti-Coruption [.aws"means the Foreign Corrupt Practices Act and all other federal or
state laws, rules, and regulations ofthe United States and any national laws, rules and regulations
ofany foreign country, in each case applicable to the Borrower and its Subsidiaries concerning or
relating to bribery or corruption.
'Anti-Monev Launderins Laws" means nv and all la'ws- statutes- resrrlations or
ohligatory government orders- decrees- ordinances or rules related to terrorism tinancing- mone)
anv:rnnlicehle nrovision nfthe Patriot Act and The Crrrrenr:v end Fnreign Trenqentinns Pcnnrtins
'Applicable Margin"means, with respect to Revolving Loans of any Type at any time, the
percentage rate per annum which is applicable at such time with respect to Revolving Loans of
such Tlpe as set forth in the Pricing Schedule.
'Assuming Lender"is defined in Section 2.20(e).
'Authorized Officel'means any of the Chief Executive Officer, President, Chief Financial
o{ficer, Vice President or Treasurer ofthe Borrower, acting singly.
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laundering- anv nredicate crime to moneJ- laundering or anv financial record keening includins
Act(alsoknownasthe'RankSecrecyAct-"31U.S.C.$$5311-5330andl2ll.S-C.lj!1818(s).
I 8r0(h) and I05 l-l 9591.
'Available Aggregate Commitment"means, at any time. the Aggregate Commitment then
in effect minus the Aggregate Outstanding Credit Exposure at such time.
'Rail-In Action"means the exercise ofanv Write-Down and Conversion Powers bv the
alplicahle F.FA Resolution Authority in respect ofanv liahilitv ofan FEA Financial lnstitution-
'Bail-In Lesislation" means- u'ith resnect to anv EEA Member Countrv imolementinc
Article 55 of Directive 2014/54/Fllofthe Furonean Parliament and ofthe Council ofthe
Furonean Union. the imnlementing law tbr such F.FA Member Countrv fiom time to time r.l'hich
ic decnrihc/ in thc FI I Roil-In I eoiclrtinn (oherlrrle
'Renchmark Renlncement" mcenc thr- crm f: (a) the alternate henchmark rate {which
mav inclrrde Term SOFRI that hrs heen \f'lecfe bv the Administrative Asent and the Borrr.rwer
menhenism for rieterminins srrch a rate h\ the R elevant Governmental Bodv or (ii) anv evolvino
or then-nrevailino marlret cnnvpntinn fnr det ininq a rate of interest as a renlacemenf to the
F.urodollar Base Rate or [.[BOR Market lndex Rate for Dollar-denom inated s]rndicated credit
facilities and (h) the Benchmark Renlacement Adjustment: orovided that- if the Benchmark
Renlacement as so determined rvould he less than zero. the Benchmark Renlacement will he
aeemea to ne zero for
'Renchmark Renlacement A4iustment" means- with resoect to an}.. renlacement of the
Eurodollar Base Rate or the [.IBOR Market lndex Rate with an Unadusted Benchmark
nentacement for ea lng
or determinins suc
las neen setectea trg
an]., selection or recommendation of a snread adustment- or method fhr calculating or
determining such spread adiustment- fbr the reolacement of the Furodollar Rase Rate or the
LIBOR Marker lnder R^te rdith the annlicehl e I Inadiusted Benchmark Renlacement bv the
Relevrnt G.rve.nmehtrl Rodv or lh) env evnlvins or then-orevailins market convention for
determining a soread adjustmen ilg-or determining such sfrread
adiuctment t'or the renlacement of fhe F.rrrndnllar Base Rate or the LIBOR Market Index Rate
witn tle anpticaUl
ffedir-facililies alsuchlime-
'Renchmark Reolac respect to anl- Benchmark
deilnitinn of 'Alternete Rese Rete " the definiti n of'Interest Period " timins and freorrencv of
determining rates a interest and other administrative matters) that the
Administrative Agent decides may he annronriate to reflect the adontion and implementation of
such Benchmark Replacement and to frermit the administration thereof b), the Administrative
Asent in a manner suhstanti
decides that adonti
Agent decides is r in q)nnection with the administration of this Agreement).
3
giving due considcration to (i) an.v sclection or recommendation of a rcplacement ratc or thc
Replace (including changes to the
the Administrative Agent determines that no market frractice for the administration of the
Renchmark Reolacement exists- in such other manner of administration as the Administrative
12640621v
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'Renchmark Renlacement Date" means the rlier to nccrrr nf rhe fhllnwino evenls \,r,,ith
resoect to the Luro :
@ in the case of clause (a) or (b) of the de nition of 'Renchmark Transition F.vent "
the later of 1i) the date of the oublic statement or oublication of information relerenced thereir
and (ii) the date on
Index Rate permanentl}- or indefinitelv ceases to provide the Eurodollar Baqe Rate erlhLLIBlCR
Market lndex Rate: and
@ in the case of clause {c) of the definiti of 'Renchmark Transirion F.venl " the
aate of *e nuntic in-
'Renchmark 'fransition Event" means the rtrrence of one or more of the follovl'in.,
events with resnect to the Flurodollar Base Rate or the LIBOR Market Index Rate:
tal a nublic statement or Dublication of information hv or on behalf oi the
adm inistrator of t
administrator has ceased or will cease to nrovide the Eurodollar Base Rate or the I IROR Market
Index Rate. nermanentlv or indefinitelv:ided that- at the time of such statement or
nuhlication there is no successor administrator that will continrre to nrovide the F.rrrodollar Base
Rate or the LIROR M
Q) a public statement or puhlication of i
the administrator olthe Flurodollar Base Rate or the LIBOR Market [ndex Rate- the [J.S. Federal
Aeserve Svstem- an
Base Rate or the I IBOR Market Index Rate- a r
administrator ltrr the Furodollar Base Rate or the I IBOR Market Index Rate or a court or an
entita- with similar insolvenc)'or resolution authority over the administrator fbr the Eurodollar
nase nate or tt're t ln
Base Rate or fhe l.IBOR Market [ndex Rate h ceared or will ceasr: to nrovide the F.rrrodollar
fime .rl srrr:h \latemcnt or nublication- there is o slrccessor rdminisfrrfor that r,r,'ill continrre to
ffoyide the Eurodoll
(c) a ouhlic statement or nuhlication of information hy th
the administrator ofthe Eurodollar Base Rate or the [ [BOR Market Index Rate announcing that
the Furodollar Rase Rate or the LIBOR Market lndex Rate is no longer renresentative.
'Renchmark Transition Start Date" means a) in the caqe of a Renchmark Transitinn
F,vent- the earlier of li) the annlicable Benchmar
Transition Fvent is a oublic statement or nuhlication of inf-ormation of a orosoective event. the
q0th day,pdor to the expecte
information for ll' t
statement or ouhlic
Ont-in F.lection the date snecified bv the A inistrative Asent or the Reorrired Lenders as
aoolicable^ bv notice to the Rorrower- the Administrative Agent (in the case ofsuch notice h), the
Required Lenders) and the I.enders-
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'Benchmark I lnavailahilitv Period"meansjf a Benchmark Tr ilt
retatea genctmart
the I IBOR Market Inder Rate and solelr- to thc extent that the Furodollar Base Rate or the
LIBOR Market lndex Rate has not heen reolaced with a Renchmark Beplacemenj. jhe_ocriocl.lal
hesinning rt thp time that qrrch Renrhmark Renlar:ement f)ate has occrrrred if at srrch time ncr
Rent:hmark Renlacemeni hac renlece,l the Frrrnrl llar Base Rate or the LIBOR Markef Inder Raft:
Co. att purposes ler
Benchmark Renlacement has renlaced the Eurodollar Base Rate or the I IBOR Market
for all ourooses hereunder oursuant to Section 2.23(cI.
'Beneficial Ownershin Certification" me il
as required hv the Renefi eialQl&[enhi&REgulajtion-
'Beneficial Ownershio Resulation" means 3 l CFR 6 l0l 0 2i0
'Renefit Plan" meens enw of /a\ an 'Fmnlnv henetit nlan"(as defined in F.RTSA) that is
suhier:t to Title T nf FRISA /h) e'hlan"es defined in and srrhiect to Section 4975 ofrhe Code or
(cl an), Person whose assets include /for purooses of ERISA Section 3
pumoses of Title I of FRISA or Section 4975 of th
'Borrower"means [daho Power Company, an Idaho corporation.
'Borrowing Date"means a date on which an Advance is made hereunder.
'Borrowing Notice" is defined in Section 2.7.
'Business Day"means (i) for all 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 ofprincipal
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 berween banks in Dollar deposits
in the London interbank market.
'Capitalized Lease"of a Person means any lease ofProperty by such Person as lessee,
which would be capitalized on a balance sheet ofsuch Person prepared in accordance with
Agreement Accounting Principles.
'Capitalized Lease Obligations"of a Person means the amount oIrhe obligations ofsuch
Person under Capitalized Leases which would be shown as a liability on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
'Cash Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit ofone or more ofthe LC Issuers or Lenders, as collateral for LC
Obligations or obligations of Lenders to fund participations in respect of LC Obligations, cash or
2640621!
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I
benefit plan"or'hlan."
deposit account tralances or, if the Administrative Agent and the applicable LC Issuer shall agree
in their sole discretion, other credit support, in each case pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the applicable LC Issuer. 'Cas[
Collateral" shall have a meaning correlative to the tbregoing and shall include the proceeds of
such cash collatcral and other credit suppon.
'Change in Control"means (i) the acquisition by any 'lerson"or 'Eroup" (as such terms
are used in Sections l3(d) and l4(d) ofthe Securities Exchange Act of 1934, but excluding any
employee benefit plan ofsuch person or its subsidiaries. and any person or entity acting in its
capacity as trustee, agent or other tiduciary or administrator ofany such plan) ofbeneficial
ownership (within the meaning of Rule l3d-3 and I 3d-5 under the Securities Exchange Act of
1934) of20% or more ofthe outstanding shares ofvoting stock ofthe Parent entitled to vote lor
members ofthe board ofdirectors ofthe 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 of24 consecutive months, a majority ofthe members ofthe board of
directors or other equivalent governing body ofthe Parent cease to be composed of individuals
(A) who were members ofthat board on the first day ofsuch period, (B) whose election or
nomination to that board was approved by individuals referred to in clause (A) above constituting
at the time ofsuch election or nomination at least a majority ofthat 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 ofsuch election or nomination at least a majority ofthat board.
'Change in Lau,"means the occurence, after the date of this Agreement, ofany ofthe
following: (a) the adoption or taking effect ofany law, rule, regulation or treaty. (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereofby any Governmental Authority or (c) the making or issuance ofany request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anyhing herein to the contrary, (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, rulcs. guidelines or directives
promulgated by the Bank for lnternational 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 lll, shall in each case be deemed to be a'Change in
Law", regardless ofthe date enacted, adopted or issued.
'Closing Date"means thc first date all the conditions precedent in Section 4.1 are
satisfied or waived in accordance with thc terms of this Agreement.
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'Cash Equivalent Investments" means (i) short-term obligations of, or fully guaranteed by.
the United States of America, (ii) commercial paper rated A-l or better by S&P or Fitch or P-l or
better by Moodyt, (iii) demand deposit accounts maintained in the ordinary course ofbusiness,
and (iv) certificates ofdeposit issued by and time deposits with commercial banks (whether
domestic or foreign) having capital and surplus in excess of$100,000,0001 proyided in each case
that the same provides for payment ofboth principal and interest (and not principal alone or
interest alone) and is not subject to any contingency regarding the payment of principal or
interest.
'Collateral Shortfall Amount" is defined in Section E.l(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 ofthe 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 ellective pursuant to Section 12.3(a) or is an lncreasing Lender or Assuming Lender, the
amount set forth lor such Lender at such time in the Register maintained by the Administrative
Agent, in either case, as such amount may be reduced or increased fiom time to time pursuant to
the terms hereof.
'Commitment Increase''and'Commitment Increase Date"are defined in Section 2.20(a)
'Condemnation" is defined in Section 7(i)
'Connection Income T&yes"means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or branch profits
Taxes.
'Consenting Lender"is defined in Section 2.21(a).
'Consolidated Indebtedness" means at any time the Indebtedness ofthe Bonower and its
Subsidiaries calculated on a consolidated basis as ofsuch time: provided, however that (i) the
aggregate outstanding Indebtedness attributed to any Hybrid Security shall be deemed equal to
the portion of such Hybrid SecuriS' 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 ofsuch Hybrid Securities exceeds l5% of
Consolidated Total Capitalization as ofsuch time.
'Consolidated Net Worth"means at any time the consolidated stockholders' equity of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
'Consolidated Total Capitalization" means at any time, without duplication, the sum of (i)
Consolidated Indebtedness (but excluding any Indebtedness attributed to Hybrid Securities), (ii)
Consolidated Net Worth and (iii) the aggregate outstanding amount of Hybrid Securities, each
calculated as of such time.
'Continsent Obligation" of a Person means any agreement. undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds lor the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability ofany 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 comflort letter, operating agreement, tak€ or pay contract or the
obligations ofany such Person as general partner ofa pannership with respect to the liabilities of
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'eodq" means the [nternal Revenue Code of I 986.
'Consent Date" is defined in Section 2.21(a).
the partnership; prwded, however, that the obligation of the Borrower or its Subsidiaries to
guarantee the performance of mine reclamation activities, iland 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 satislying such reclamation obligations, shall be excluded
therefrom.
'Conversion/Continuation Notice" is defined in Section 2.8
'Credit Extension"means the making ofan Advance or the issuance or Modification ofa
Facility LC.
'Credit Extension Date"means the Borrowing Date for an Advance or the issuance date
fbr 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 ofcreditors.
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws
of the United States or other applicable jurisdictions from time to time in effect.
'Defaulting Lender"means, subject to Section 2.22(a)(vi), any Lender that (i) has lailed
to (A) fund all or any portion of its Loans within two Business Days ofthe date such Loans were
required to be funded hereunder unless such Lender notitles the Administrative Agent and the
Borrower in writing that such failure is the rcsult 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 (ts)
pay to the Administrative Agent, any LC lssuer, the Swingline Lender or any other Lender any
other amount required to be paid by it hereunder (including in respect oI its participation in
Facility t,Cs or Swingline Loans) within two Business Days of the date r,lhen due, (ii) has
notified the Borrower. the Administrative Agent or any LC lssuer or the S*ingline Lender in
writing that it does not intend to comply with its lunding 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 Lenderl
determination that a condition precedent to funding (which condition precedent, together with
any applicable default. shall be specitically identilled in such writing or public statement) cannot
be satistied), (iii) has failed. within three Business Days after r.r'ritten request by the
Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the
Borrower that it will comply *ith its prospective funding obligations hereunder (provtded 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
dircct or indirect parent company that has, (A) become the subject of a proceeding under any
Debtor Relief Law, *r (B) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit ofcreditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or
any other state or federal regulatory authority acting in such a capaci
8
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or (C) become the suhiect
'Detault"means an event described in Article 7.
()f a Rail-ln Action; provided that a Lender shall not be a Det'aulting Lender solely by virtue of
the ownership or acquisition ofany equity interest in that Lender or any direct or indirect parent
company thereofby a Govemmental Authority so long as such ownership interest does not result
in or provide such l,ender with immunity from the jurisdiction of courts within the United States
or from the enforcement ofjudgments or writs ofattachment on its assets or permit such Lender
(or such Govemmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Administrative Agent that a
Lender is a Defaulting Lender under any one or more ofclauses (i) through (iv) above shall be
conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Det'aulting Lender (subject to Section 2.22(a)(vi)) upon delivery ofwritten notice ofsuch
determination to the Borrower, each LC Issuer. each Swingline Lender and each Lender.
'Designated Person" means any Person listed on a Sanctions List.
'Dollars" or '$" means, unless otherwise qualified, dollars in lan'fu1 currency ofthe [Jnited
States.
'Farlv Ont-in Flectinn"eans the occrrrrence of'
6Ll (i) a determination bl' thc Administrative Agent or ( ii) a_noiica[or.bUhl
Required I enders to the Administrative AE:nt (with a copy to the RonowerLhaLllhlRequircrl
I enders have determined that Dollar-denom inated svndicated credit faciliiielbsing execuie LaL
such time- or that include lansuase similar to that contained in Section 2-23(cl are heins
executed or amended- as afrplicable- to incorporate or adont a new henchmark interest rate to
reolace the Furodollar Base Rate or the I,IRC)R Market Index Rate- and
lh) (i) the election bv the Administrative Agenr or (ii) rhe elecliolbylhe Rao[ire(L
I enders tn de.lrre fhaf an Ferlv (lnl-in Flectinn as occrrrred and the nrovision as annlicahle hv
the Admini<trative Aoent nf written nntice nlsrrch eler:tion to the Borrower and the Lenders or
hv the Recuired I enders olr.r,ritten notice of such election trr the Administrative Agent.
'F.F.A Financial Institrrtinn"meens /:r\ anv c it instiiulion or investment firm estahlished
in anv F.EA Memher Countrv whir:h is srrhi to the sunervision of an F.F.A Resolrrfion
Authoritv-. (.h) anJ- entit) established in an EFA Memher Countft which isa pareflLafaft
institution described in clause (a) of this delinition. or (c) anr financialin$itudon eslahlisheclin
an FFA Memher Country which is a suhsidiar) olan institution described in clauses (a) or (hJ of
this definitinn end is crrhiect tn crrnsolidated srrnervision with its narent
'F,FA Memher Countrv"means an.v- of the memher states of the Furonean Union. lceland-
[,iechtenstein- and Norwav.
'F.FA Re<olrrtinn Arrthnritv"means rnw nrr lia rdministrrtive nuthoritv nr anv Person
entrusted with fruhlic administrative authority of anv FF.A Memher Country (including any
delegee) havins responsihilitv ior the resolution ofany credit institution or investment firm
estahlished in an], ELLNIeI xr(ounlry-
'Eligible Replacement Lender" is defined in Section 2.21(b).
9
t2610621\
{-
:4IU4e€u4
'Environmental Laws"means any and allapplicable federal, state, Iocal 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 ofthe
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 manufacture,
processing, distribution, use, treatment, storage. disposal, transport or handling ofpollutants,
contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
'Forirv lnterests"means (al in the case ofa retirrn.anit2l <tock lhl in rhe cese ofen
association or husiness entity
eouivalents (however designated) ofcapital stock- (c) in the case ofa oartnershifr. partnership
interests (whether general or Iimited)- (d) in the case of a limited liahility comoanv- membershio
interests- (e) anl'oth ive a-
share ofthe nrofits and losses of- or disrihution
ell rl'qrrqnts riohts nr nnfinns t n, rrnhr<c qnv ofthc fnraonino
'ERISA" means the Employee Retirement Income Security Act of 1974, as amended and
the rules and regulations promulsated thereunder.
'ERISA 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) ofthe Code or (ii) a member ofthe same controlled group under Section 4001(a)(14) of
ERISA.
'ERISA Event"means any ofthe following: (i) a'ieportable 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 ofthe Code shall be considered a'teportable event" regardless ofthe issuance ofany
waiver), (ii) the application by the Borrower or any ERISA Affiliate for a funding waiver
pursuant to Section 412 ofthe Code, (iii) the incurrence by the Borrower or any ERISA Affiliate
of any Withdrawat Liability. or the receipt by the Bonower or any ERISA Affiliate of notice
lrom 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 br"
the Borrower or any ERISA Affiliate under Section 4041 ofERISA ofa notice ofintent to
terminate any Plan or the taking of any action to terminate any Plan, (v) the commencement of
proceedings by the PBCC under Section 4042 of ERISA for the termination of,, or the
appointment ofa trustee to administer, any Plan, or the receipt by the Borrower or any ERISA
Afliliate ofa notice from any Multiemployer Plan that such action has been taken by the PBCC
with respect to such Multiemployer Plan, (vi) the institution ola 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 ofany Lien upon any assets ofthe Borrower or any ERISA Afliliate as a result ofany
12g062lv
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144
l0
alleged failure to comply with the Code or ERISA with respect to any Plan, or (viii) the
Borrowerk engaging in a Prohibited Transaction with respect to any Plan.
hy the Loan MarketAssociation (or anl' successo ime to time.
'Eurodollar Advance"means a Revolving Loan which, except as otherwise provided in
Section 2.10, bears interest at the applicable Eurodollar Rate.
'Eurodollar Base Rate" means
Renlacement in accordance with Section ?-23(c), for any interest rate calculation with respect to
a 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 e$ia++e+S€.ndefl-
I nterbank Oftered Rate('Wdetermined onthe basis
ofthe rate for deposits in Dollars for a neriod equal to the applicable Interest Period as oublished
hv the ICE Benchmark Administration I.imited- a United Kingdom comnanl- or a comparable or
successor ra+e.r,+h,ieh-ra{r-ir €as€{+ab.l+qrolLiog-seryicE approved by the Administrative Agent}asflbMpp+n-tbleR**eruse+et 3:-+ecM
rn+++ for deposits in Dollars lor an amount substantially equal to the amount ofsuch 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 ofthe applicable Interest Period (rounded
upward, if necessary, to the nearest l/l00th of l%). If-ti++-ary+e++,t r,*ch {ir{c--$tgblalgis 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 ofthe rate p€r annum at which deposits in
Dollars in in an amount substantially equal to the amount ofsuch Advance would be offered by
first class banks in the London interbank market to the Administrative Agent at approximately
I I:00 a.m. (London time) two (2) Business Days prior to the first day ofthe appticable Interest
Period for a period equal to such lnterest Period. Notwithstanding the foregoing, (4Lat no time
shall the Eurodollar Base Rate tre-{*--;+htn #r"(includins. without limitation- anv Benchmark
R enlecement wifh resnect theret6\ hr. les. ihq 0ol" anrl Iht rrnless otherwise snecified ir anv
amendm€nt to this Agreement entered into in accordance with Sectior 2.23(cl- in the event that a
Benchmark Renlacement with respect to the Furodollar Base Rate is implemented then all
references herein to the Furodollar Rase Rate shall he deemed references to such Renchmark
Reo.lacement.
'Eurodollar Rate"means, with respect to a Eurodollar Advance tbr the relevant lnterest
Period, the sum of(i) the quotient of(a) the Eurodollar Base Rate applicable to such Interest
Period, divided by (b) 1.00 minus the Reserve Requirement (expressed as a decimal) applicable
to such Interest Period, plus (ii) the Applicable Margin.
'Exchanee Act" means the Securities Exchanse Act of l914
'Excluded Taxes"means any ofthe following Taxes imposed on or with respect to a
Recipient or required 1o 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 ofsuch Recipient being organized under the
t?640621't
I
i,1+444e+
ll
'FlI ltail-ln Legisl@ionSchedule puhlisherL
laws ot, or having its principal office or, in the case ofany Lender, its applicable Lending
Installation located in, thejurisdiction imposing such Tax (or any political subdivision thereof) or
(B) that are Other Connection Taxes. (ii) in the case ofa Foreign Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account ofsuch 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 Tax€s were payable either to such Lender's assignor immediately betbre such
Lender became a parry- hereto or to such Lender immediately before it changed its Lending
Installation, (iii) Taxes attributable to such Recipient's failure to comply with Section J.5(g) and
(iv) any U.S. t'ederal withholding Taxes imposed under FATCA.
'Existing Credit Agreement"means that certain Second Amended and Restated Credit
Agreement dated as ofoctober 26, 201 l, between the Borrower, certain banks and other
financial institutions, and Wells Fargo, as administrative agent.
'Extension Date"is defined in Section 2.21(a).
'Extension Notice"is defined in Section 2.21(a).
'Facility Fee" is defined in Section 2.4(b).
'Facility LC"is defined in Section 2.lE(e).
'Facilitv LC Aoolication"is defined in Section 2.18(c).
'Facility LC Collateral Account" is defined in Section 2.18(i).
'Facility LC Maturitv Date" is defined in Section 2.lE(a)
'Facility Termination Date"means the earlier to occur of (i) \o+$++be+#r*clh9 li&b-
4--i--'"..., ^ffha Ei..r A ---,1- --r Eff-^l;-- l-lara (as such date may be extended from time to
time pursuant to Section 2.21)nrovided however that ifsrrch date is not a Brrsiness F)av then
the Fc.ilitw Tcrminetion F)ate shall he t e imrnerliatelv nrecerlino Rrrcinecq nav 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 ofthe date ofthis
Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with) and any current or firture regulations or official
interpretations thereofand any agre€ments entered into pursuant to Section l47l(b)(l) ofthe
Code.
'Federal Funds Effective Rate"means, for any day, an interest rate per annum (rounded
upwards, ifnecessary, to the nearest l/100 ofone percentage point) equal to the weighted
average ofthe rates on ovemight Federal funds transactions with members ofthe Federal Reserve
System, as published for such day (or, ifsuch day is not a Business Day, for the immediately
t2
126/,062lr
,l-
:4ilC409
a4
preceding Business Da1) by the Federal Reserve Bank ofNew York, or, ifsuch rate is not so
published for any day which is a Business Day, the average ofthe quotations at approximately
l0:00 a.m. on such day on such transactions received by the Administrative Agent from three
Federal funds brokers ofrecognized standing selected in good faith by the Administrative Agent.
Not'xithstanding the foregoing, at no time shallthe Federal Funds Effective Rate be less than 00lo
'Fee Letters" mean, collectively, (i) the Senior Lead Arrangers Fee Letter, (ii) the Senior
Arrangers Fee Letter and (iii) the Administrative Fee Letter.
'first Mortgage" means that certain Mortgage and Deed ofTrust, dated as ofOcrober l.
1937. as supplemented. under which the Borrower is Mortgagor and Deutsche Bank Trust
Company Americas (fbrmerly known as Bankers Trust Company) and R.G. Page (Stanley Burg
succcssor individual trustee) are Trustees, as it may tiom time to time be further amended,
supplemented or otherwise modified.
'tileh" means Fitch Rating Services, Inc.
'Floating Rate" means, for any day, a rate per annum equal to the sum of (i) the Altemate
Base Rate for such day plus (ii) the Applicable Margin, in each case changing when and as the
Alternate Base Rate changes.
'floating Rate Advance"means a Revolving Loan which, except as otherwise provided in
Section 2.10, bears interest at the Ftoating Rate,
'foreign Lender" means a [,ender that is not a U.S. Person.
'Fronting Exposure"means, at any time there is a Defaulting Lender. (i) with respect tr.r
any LC Issuer, such Defaulting Lender's Pro Rata Share ofthe outstanding LC Obligations with
respect to Faciliry- 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
Collateralized in accordance with the terms hereot, and (ii) ll'ith respect to the Swingline Lender.
such Defaulting Lender's Pro Rata Share ofoutstanding Swingline Loans made by such
Swingline Lender other than Swingline Loans as to which such Defaulting Lendert panicipation
obligation has been reallocated to other Lenders.
'Covernmental Authority'means the government of the United States of America or any
other nation, or of an1' political subdivision thereof, whether state or local, and any agency,
authority. instrumentality. regulatory body, court, central bank or oth€r entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions ofor
pertaining to government (including any supranational bodies such as the European Union or the
European Central Bank).
'H]'brid S ecurities" shall mean any hybrid securities afforded equity benefit to the issuer
thereof(under the procedures and guidelines ofStandard & Poor'.s). including any trust prelerred
securities, deferrable interest subordinated debt securities, mandatory convertible debt securities
or other hybrid securities issued by the Borrower or any Subsidiary or financing vehicle ofthe
126.10621vI
:#r+0110
r4{
I3
'F irst Amendment Ff fective Flate" mea r 6- 20 1 9.
Borrower that (i) have an original maturity of at least twenty (20) years. (ii) require, absent an
event ofdefault with respect to such securities, no repayments or prepalments and no mandatory
redemptions or repurchases, in each case. prior to the date which is ninety-one (9 l) days after the
occurrence olthe Facility Termination Date and (iii) permit the Borrower or any such Subsidiary
or any such financing vehicle ofthe Borrower, respectively. at its option, to defer certain
scheduled interest payments.
'lncreasing Lender" is defined in Section 2,20(a)
'lndebtedness" of a Person means such Person's (i) obligations for borrowed money, (ii)
obligations representing the deferred purchase price of Property or services (other than accounts
payable arising in the 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 ofsuch Person to purchase securities or other Property arising out ofor in connection
with the sale ofthe same or substantially similar securities or Property. (vi) Capitalized Lease
Obligations, (vii) Contingent Obligations, (viii) obligations in respect ofLetters of Credit, (ix)
Rate Management Obligations, (x) preferred stock which is required by the terms thereofto be
redeemed. or for which mandatory sinking fund payments are due, by a fixed date. (xi)
OfEBalance 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 ofsuch Person and (xiii) amounts outstanding under
a Perm itted Receivables Securitization.
'lndemnified Taxes"means (i) Taxes, othcr than Excluded Taxes, imposed on or with
respect to any payment made by or on account ofany obligation ofthe 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).
'lnterest 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, ppvjrlgl that:
(ii) any Interest Period that begins on the last Business Day ofa calendar
month (or on a day for which there is no numerically corresponding day in the calendar
month at the end ofsuch Interest Period) shall end on the last Business Day ofthe
calendar month at the end of such Interest Period: and
12640621!
.l
(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 u'hich case such Interest Period shall
end on the next preceding Business Day;
l4
(iii) no Interest Period shall extend beyond the eadjerfo_occurof{$
anniversafv of the Ror acilig
Termination Date.
'lnvestment"ofa Person means any loan, advance (other than commission, travel and
similar advances to officers and employees made in the ordinary course of business). extension
ofcredit (other than accounts receivable arising in the ordinary course ofbusiness on terms
customary in the trade) or contribution ofcapital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or contracts owned by such
Person. 'l'he term 'lnvestment" shall exclude any direct or indirect expenditure by the Borower
in property, plant, fixtures, equipment and capital expenditures ofthe Borrower and its
Subsidiaries.
'IRS" means the United States lnternal Revenue Service.
"Joinder Agreement'' means a written agreement substantially in the form of Exhibit E
"Joint Lead Arrangers"means Wells Fargo Securities, JPMorgan, KBCM= and MUFG in
their capacity asjoint lead arangers and joint book runners.
'KBCM"means Keybanc Capital Markets Inc.
'Ke),Bank" means KeyBank National Association.
'LC Commitment" shall mean, with respect to each LC Issuer, the commitment of such
LC lssuer to issue Facility LCs as set fonh in this Agreement in the aggregate face amount not to
exceed the amount set forth opposite such LC Issuer's name on Schedule II or in the agreement
by which such LC Issuer agrees to become an LC Issuer hereunder and to be bound by the terms
hereofapplicable to LC Issuers.
'LC Fee"is defined in Section 2.lE(d).
'LC Issuer"means each of Wells Fargo, JP+K3lf![p1ggq, KeyBank or MUFG (or any
subsidiary or Afiiliate ofany such Lender designated by such Lender) and any other Lender ft41
agrees in its sole discretiontto serte asan-l-tllssuelanrlirapproved by the Borrower and the
Administrative Agent (which approval shall not be unreasonably withheld), in each case in its
capacity as issuer ofFacility LCs hereunder.
'LC Obligations" means, at any time, the sum, without duplication, of (i) the aggregate
undrawn stated amount under alI Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
l2 062lv
l5
hereto.
':fPlvlt BJIMergan" means JPMorgan Chase Bank, N.A.
'LC Payment Date"is defined in Section 2.18(e)
'Lenders"means the lending institutions listed on the signature pages ofthis Agreement
and any other Person that shall have become a Lender party hereto pursuant to the terms hereof;
provided, that unless the context otherwise requires, each reference herein to the Lenders shall be
deemed to include the Swingline Lender in such capacity.
'Lending Installation" means, with respect to a Lender or the Administrative Agent, the
otiice, branch, subsidiary or Affiliate of such Lender or the Administrative Agent specified in its
Administrative Questionnaire or otherwise selccted by such Lender or the Administrative Agent
pursuant to Section 2.16 or Section 3.6.
'Letter of Credit"of a Person means a letter 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 lndex Rate"means, for any day, the sum of(i) the rate ofinterest for one
month U.S. dollar deposits cPPssrTr.5 w
eag$r. Frhli.hed hy t tqJ*
or a comnarable or successor ouoting service apJrroved hy the Administrative Agent- determined
as of I l: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), ptoyided,
however, that at no time shall such rate of interest
Replacement with respect thereto) be less than 0%, plus (ii) the Applicable Margin in effect for a
Eurodollar Advance from time to time. Notwithstanding isr-
spsqified in anl, amendm
in the event that a ir
implemented then all references herein to I TROR Market lndex Rate shall he deemed relerences
to such Renchmark Replacement.
'LIBOR Market Index Rate Advance"means a Swingline Loan which, except as
otherwise provided in Section 2.10, bears interest at the LIBOR Market Index Rate.
'Lien"means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement ofany kind or nature whatsoever (including the interest ofa vendor or
lessor under any conditional sale, Capitalized Lease or other title retention agreement).
'Loans"means the Revolving Loans and the Swingline Loans.
'Loan Documents"means this Agreement, the Facilitv LC Applications, the Joinder
Agreements. any Notes issued pursuant to Section 2.12, the Fee Letters, and all other
l6
'LC Subcommitment" means $++]+II0 million or, if less, the Aggregate Commitment at the
time of determination, as such amount may be reduced at or prior to such tim€ pursuant to the
terms hereof.
12640621v
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144
agreements, instruments, documcnts and certificates now or hereafter executed and delivered to
the Administralive Agent or any Lender by or on behalfofthc Borrower or any of its Subsidiaries
with respect to this Agreement.
'l,ondon Business Dav"means a day'(other than Saturday or Sunday) on which banks
generally are open in London, England for the conduct ofsubstantially all oftheir commercial
lending activities and dealings are carried on in the London interbank market.
'Material Indebtedness" means Indebtedness (other than Obligations) ofthe Borrower or
any ol 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'Frincipal
amount"ofthe obligations ofthe Borrower or any of its Subsidiaries in respect ofany Rate
Management Obligation at anl,time shall be the maximum aggregate amount (giving eflect to
any netting agreements) that the Borrovver or such Subsidiary would be required to pay if such
Rate Management Obligation were terminated at such time of determination.
'Material Subsidiary,'of the Borrower means, at any date of determination, any Subsidiary
(a) whose annual gtoss revenues (on a consolidated basis with its subsidiaries) exceed I 0olo of the
consolidated annual gross revenue olthe 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 100/o ofthe consolidated gross assets
ofthe Borrower and all its Subsidiaries as ofthe last day ofthe Borrower's most recently ended
fiscal year fbr which financial statements are available.
'lVlinimum ('ollateral Amount" mcans. at an) time . u ith rcspect to ('ash ('ollateral
consisting ofcash or deposit account balances, an amount cqual to 103% olthe Fronting
Exposure ofall l,C Issuers with respect to Facility LCs issued and outstanding at such time
'Modifo"and 'Modification"are defined in Section 2.18(a).
'Moody's" means Moodyb Investors Service, Inc.
'MUFG"means MUFG Union Bank, N.A.
'Multiemolorer Plan"means anr 'rnulticmolorer olan"*ithin the meaninu of Section
a00l(aX3) of FIRISA to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions or has, w ithin the last six years, made or been obligated to make
contributions.
'Non-Consenting Lender" is defined in Section 2.211a;
12640621v
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t7
'Material Adverse Effect"means a material adverse effect on (i) the business, Properry,
condition (tinancial or otherwise), results ofoperations, or prospects ofthe Borrower and its
Subsidiaries taken as a whole. (ii) the ability ofthe Borrower to perform its obligations under the
Loan Documents, or (iii) the validity or enforceability ofany ofthe Loan Documents or the rights
or remedies ofthe Administrative Agent, the LC Issuers or the Lenders thereunder.
'Non-Defaulting Lender"means, at any time, each Lender that is not a Defaulting Lender
at such time.
'Notes"means any or all of the Revolving Notes and the Swingline Note.
'Obligations" means all unpaid principal ofand accrued and unpaid interest (including
interest and fees accruing after the filing ofany bankruptcy or similar petition) on the Loans, all
Reimbursement Obligations. all accrued and unpaid l-ees (including attorneys'fees) and all
expenses. reimbursements, indemnities and other obligations ofthe Borrower to the Lenders or to
any [,ender, the Administrative Agent. the Swingline Lender, any LC [ssuer or any indemnified
party arising under the Loan Documents.
'OFAC" means the U.S. Department olthe Treasury's Office of Foreign Assets Control.
'0ff-Balance Sheet Liabilitv"of a Person means, without duplication, (i) any repurchase
obligation or liability ofsuch Person with respect to accounts or notes receivable sold by such
Person. (ii) any liability under an;., 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 ofor takes the place of borrowing but which does not constitute a liabiliry on the
balance sheets ofsuch Person. but excluding from this clause (iv) all Operating Leases.
'Operatins Lease"ofa Person means any lease ofProperty (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 ofthe lessor) ofone year or more.
'Other Connection Ta,res"means, with respect to any Recipient. Taxes imposed as a
result of a present or former connection b€tween such Recipient and the jurisdiction imposing
such Tax (other than connections arising from such Recipient having executed, delivered,
become a party to, performed its obligations under, received payments under. received or
perf'ected a security interest under, engaged in any other transaction pursuanl 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 Taxes that arise from any paynent made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection ofa security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
Other Connection Ta,xes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2,19 or Section 3.6).
'Outstanding Credit Exposure"means, as to any Lender at any time, the sum of(i) the
aggregate principal amount ofall Loans made by such Lender olltstanding at such time, (ii) such
Lender's Pro Rata Share ofthe LC Obligations at such time and (iii) such Lender's (other than the
Swingline Lender's) Pro Rata Share ofthe Swingline Loans outstanding at such time.
'Parent"means IDACORP, lnc., an [daho corporation.
'Participant"is defined in Section 12.2(a).
t8
l2g062lv
'Participant Resister"is defined in Section 12.2(d)
'PA'|RIOT Act"means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act, Title III of Pub. L.
107-56 (signed into law October 26. 2001)).
'?ayment Date"means the last Business Day ofeach March. June. September and
December.
'PBGC"means the Pension Benefit Guaranty Corporation.
'Permitted Receivables Securitization" means a limited recourse or non-recourse sale.
assignment or contribution ofaccounts receivable and related records. collateral and rights ofthc
Borrower and/or one or more of its Subsidiaries to one or more special purpose entities, in
connection r.r'ith the issuance of obligations by any such special purpose entity secured by such
assets, the proceeds ofthe 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 venture, partnership, limited
liability company, association, enterprise, trust or other entity or organization, or any
Governmental Authority.
'ffun"means an'bmployee pension benefit plan"within the meaning ofSection 3(2) of
ERISA that is subject to Title lV of ERISA (other than a Multiemployer Plan) and as to which
the Borrower or any ERISA Affiliate may have any liability.
'Erisi[g-teve]" is defined in the Pricing Schedule.
'Pricing Schedule"means Schedule I attached hereto identit'red as such.
'Prime Rate"means the per annum interest rate publicly announced from time to time by
Wells Fargo to be its prime rate (which ma,v not necessarily be its lo*'est or best lending rate). as
adjustcd to confbrm to changes as ofthe opening ofbusiness on the date ofany such change in
such prime rate.
'Prior Termination Date"is defincd in Section 2.21(b)
'Prohibited Transaction" means any transaction described in (i) Section 406 ofERISA
that is not exempt by reason of Section 408 of ERISA or by reason ofa Department of Labor
prohibited transaction individual or class exemption or (ii) Section 4975(c) ofthe Code that is
not exempt by reason ofSection 4975(c)(2) or 4975(d) ofthe Code or by reason ofa Department
of Labor prohibited transaction individual or class exemption.
'Property"of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, ofsuch 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 liaction the
numerator of rvhich is such Lendert Commitment and the denominator of which is the
12640621!
l9
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 llxposure and
(ii) the denominator of which is the Aggregate Outstanding Credit Exposure).
'PTE" means a nrohibited transaction class emntion i(sued hv the tl S DenArtment nf
t anor- as anv s ime-to timc-
'Purchasers" means any bank or other Person to which a Lender assigns all or any pan ol
its rights and obligations under the Loan Documents pursuant to Section 12.3 , provielec[ neither
(a) the Parent, the Borrower or any oftheir respective Afliliates or Subsidiaries, (b) any
Defaulting Lender or any of its Subsidiaries or any Person who. upon becoming a Lender
hereunder, would constitute any ofthe foregoing Persons described in this clause (b), nor (c) any
natural Person (or a holding company, investment vehicle or trust for, or owned and operated for
the primary benefit o{, a natural Person) shall be permitted to be a Purchaser.
'Rate Management Obligations"ofa Person means any and all obligations ofsuch Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereofand substitutions
therefor), under (i) any and all Rate Management Transactions, and (ii) any and all cancellations,
buy backs, reversals, terminations or assignments ofany Rate Management Transactions.
'Rate Management Transaction" means any transaction (including an agreement with
respect thereto, a'Rate Management Agreement') now existing or hereafter entered into by the
Borrower or the Parent which is a rate swap, basis swap, forward rate transaction. commodity
swap, commodity option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaclion, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction.
currency option or any other similar transaction (including any option with respect to any ofthese
transactions) or any combination thereof, whether linked to one or more interest rates, foreign
currencies. commodity prices, equity prices or other financial measures.
'Recipient" means (i) the Administratiye Agent, (ii) any Lender and (iii) any LC Issuer, as
applicable.
'Refunded Swingline Loans"is defined in Section 2.7(c).
'Registef'is defined in Section 12.3(d).
'Regulation D"means Regulation D ofthe Board ofGovemors ofthe Federal Reserve
System as from time to time in effect and any successor thereto or other regulation or oflicial
interpretation of said Board ofGovernors relating to reserve requirements applicable to member
banks olthe Federal Reserve System.
'Regulation U"means Regulation U ofthe Board ofGovemors ofthe Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation ofsaid Board ofGovernors relating to the extension ofcredit by banks for the
t2 062t\
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z0
purpose ofpurchasing or carrying margin stocks applicable to member banks ofthe Federal
Reserve System.
'Reimbursement Obligations" means. at any time, the aggregate ofall obligations ofthe
Borrower then outstanding under Sectiou 2.lE to reimburse the LC Issuers for amounts paid by
the LC lssuers in respect ofany one or more drawings under Facility LCs.
'Related Parties" means, with respect to any Person, such Personh Aftiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives ofsuch Person and ofsuch Person's Atl'iliates.
'Relevant Governmental Bodv" means the Federal Reserve Board andror the Federal
Reserve Bank of Neu, York- or a committee ofliciallv endorsed or convened bv the Federal
Reserve Board and/or the Federal Reserve Bank ofNew York or any successot:thetelo-
'Reports" is defined in Section 9,5.
'Required Lenders"means Lenders in the aggregate having at least a majority ofthe
Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least a majority ofthe Aggregate Outstanding Credit Exposure, provided
that (i) the Commitment and Outstanding Credit Exposure ofany Defaulting Lender shall be
excluded for purposes of making a determination ofRequired Lenders and (ii) the amount ofany
participation in any Swingline Loan and Facility LC ofany 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 L/C Issuer, 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/100'h of l%) in
effect from time to time during such Interest Period, as prescribed by the Board ofGovemors 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 eurocurrency funding.
'Resignation Effective Date"has the meaning given to such term in Section 10.6(a).
'Revolving Loans" is defined in Section 2.1(a).
'Revolving Note"means a promissory note issued aI the request ofa Lender pursuant to
Section 2.12(d), in substantially the form olExhibit D-l hereto, evidencing the aggregate
indebtedness ofthe Borrower to such Lender resulting from the Revolving Loans made by such
Lender.
'SrkP"means Standard and Poor's Financial Services LLC, a subsidiary of The Mccraw
Hill Companies, Inc.
12640621v
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24r
2t
'Sale and Leaseback Transaction" means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.
'Sanctioned Countr$'means, at any time, a region, a country or territory which is itself
thesubjectortargetofanySanctions(which,asolthe@
F,flflectiveDae, is Cuba, Iran, North Korea, Sutla+Syria and the Crimea region of Ukraine).
'Sanctions" means (a) economic or financial sanctions e+-secforalsancfions.secafl
SA[flieli trade embargoes@ imposed, administered or
enforced from time to time by the United States govemment, including those administered or
enforced by OFAC, the United Nations Security Council, the European Union-an]-Ell-member
51419 or Her Majestyt Treasury of the United Kingdom, and (b) economic or tinancial sanctions-
sectoral sanctions- secondarv sanctions- trade em hargoes and restrictions and anti-terrorism Iaws
imposed, administered or enforced from time to time by the United States State Department, the
United States Department of Commerce or the United States Deparlment of the Treasury.
'Sanctions List" means any ofthe lists of specifically designated nationals or designated
Persons published (and accessible to the public) by the U.S. govemment 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.
'SOFR" with resoect to any' day means th
such da], b.r' the Federal Reserv'e Rank of New York. a
successor
'Subsidiary"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% ofthe 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 th€ Property ofthe Borrower and its
Subsidiaries, Property which (i) represents more than l0% of the consolidated assets ofthe
11
t26406?1\
f#44-00s
1
'Senior Arrangers Fee Lefter"means the letter agreement, dated October 14, 2015, among
Borrower, the Parent, KeyBank, KBCM and MUFG.
'Senior Lead Arrangers Fee Letter" means the letter agreement, dated October 14, 20 15,
among Borrower, the Parent, Wells Fargo, Wells Fargo Securities,JlrN{-:il=++d JPMorgan-and
J-L:fug;:,l'i* .
Borrower and its Subsidiaries as would be shown in the consolidated financial statements ofthe
Borrower and its Subsidiaries as ofthe beginning ofthe 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 ofthe consolidated net income ofthe Borrower and its Subsidiaries as
reflected in the financial statements referred to in clause (i) above.
'Swingline Borrowing Notice" is detined in Scction 2.7(b)
'Swingline Commitment" shall mean $30,000,000 or, if less, the Aggregate Commitm€nt
at the time of determination, as such amount may be reduced.
'Swingline Lender"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 ofExhibit II-2 hereto. evidencing the
aggregate indebtedness ofthe Borrower to the Swingline Lender resulting from Swingline Loans
made by the Swingline Lender.
'Taxes"means all present or future taxes, levies, imposts, duties. deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Covernmental Authority, including any interest, additions to tax or penalties applicable thereto.
or recommended h)Lthe Relevant Governmental Rod],.
'Transferee" is defined in Section 12.4
'Type" refers to whether an Advance is a Eurodollar Advance, Floating Rate Advance or
LIBOR Market Index Rate Advance.
'1 Inadiusted Benchmark Renlacement" means the Benchmark Reolacement excluding the
Renchmark Replacement A4iustment.
'Unmatured Default"means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
'Unutilized Swingline Commitment" means, with respect to the Swingline Lender at any
time, the Swingline Commitment at such time less the aggregate principal amount of all
Swingline Loans that are outstanding at such time.
'U.S. Person"means any Person that is a'United States Person"as defined in Section
770 I(a)(30) ofthe Code.
'Wells Fargo" means Wells Fargo Bank, National Association.
l:61oi':1\
23
'Wells Fargo Securities" means Wells Fargo Securities, LLC.
'Withdrawal Liabilit)," 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 tV of ERISA.
'Withholding Agent"means the Borrower, the Parent and the Administrative Agent.
'1fuholly-Ou'ned Subsidiary'of a Person means (i) any Subsidiary all ofthe 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 ofsuch Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, timited liability
company, association, joint venture or similar business organization 100% ofthe ownership
interests having ordinary voting power of which shall at the time be so owned or controlled.
Write-nown ana Co ion-
nuthority- the wri ime-
to time under the Bail-ln I egislation for the annlicahle EFA Memher Country- which write-down
and conversion Fowers are described in the F[ I Bail-ln I.egislation Schedule.
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 hercin shall apply equally to the singular and plural forms
ofthe terms detlned. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words'include,"'includes"and
'including" shall be deemed to be followed by the phrase'Without limitation." The word 'will"
shall be construed to have the same meaning and efl'ect as the word'shall." Unless the context
requires otherwise, (i) any detinition ofor reference to any agreement, instrument or other
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 'herein,"'hereof'and 'hereunder," and words of similar
import *'hen 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
Anicles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections ol
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 'hsset"and 'Dropertv"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.
t2(A0ot\l.
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24
(b) In the computation ofperiods of time from a specified date to a later specified
date, the word 'tom" means 'from and including;"the words'te"and'hntil"each mean'to but
excluding:" and the word 'through" means 'to and including."
(c) Section headings herein and in the other Loan Documents are included for
convenience ofreference 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 ofthem shall be deemed to include the
Swingline Lender and LC Issuers unless specifically provided otherwise or unless the context
otherwise requires.
I .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 eflect 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
ofany financial covenant) contained herein, Indebtedness ofthe Borrower and its Subsidiaries
shall be deemed to be carried at 100% ofthe outstanding principal amount thereot 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 ofany 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 ofsuch change in
Agreement Accounting Principles (subject to the approval ofthe Required Lenders): provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with Agreement Accounting Principles prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations ofsuch ratio or requirement made before and after giving efl'ect to such
change in Agreement Accounting Principles.
construed- and all ratios reflcrred to herein and therein shall he
made u,,ithnrrt oivino et1i.ct to the FA(R ASC 4) (or anu other ASC having a similar resrrlt or
ef-fect) (and related internretations) to the ertent anlr lease (or anJ similar arrangement conve),ing
similar arrangement) would have heen treated as an onerating lease under Agreement Accounting
@) @isAgreementorany other [.oan
Document- all terrns ofan accoun used herein or therein shall he
the right to use) would he reouired to he treated as a canital lease thereunder where such lease (or
'1264O621y
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25
Princinles as in etl'ect immediatelv nrior to the elflctiveness of the FASB ASC 842 (or such
l.l Retps The Administrative Aoent d{res not \trrn'ant or accent resnonsihilitv fhr
and shall not have anv liabilitl'with resnect to. the administration- suhmission or an}- other matter
related to the rates in the definition of 'Eurodollar Base Rate"or'LIBOR N{arket Index Rate"or
u'ith resnect to anv rate that is an alternative or reolacement fbr or successor to an! such rate
(includinp- without limitation- any Renchmark Replacement) or the effect of anr- of the
t'oregoing- or of anv Benchmark Reolacement Confbrming Changes.
Divisions. I-or all nurnoses under the Loan Documcnts- in connection with anv
division or plan ofldivision under Delaware law (or a
jufisaiction t taws
right. obligation or liabilit)'ola ditlerent Perst
t'rom the orisinal Person to the subseouent Person. and (b) if anv new Person comes into
eristence- such new Person shall he deemed to have been organized on the first date of its
existence by the holders of its F-ouitv lnterests at such time-
ARTICLE 2
TIIE CRDDITS
2,1 Commitments.
(a) From and including the Closing Date to but excluding the Facility Termination
Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to
make loans to the Borrower (each such loan, a'Revolving Loan"and collectively, the'Revolving
Loans') in an amount equal to its Pro Rata Share of all Revolving Loans requested by the
Borrower, provided that after giving effect to the making ofeach 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 ofthis 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 florth in this Agreement, to
participate in Facility LCs issued upon the request ofthe Borrower, provicleel that after giving
effect to the issuance ofeach such Facility LC, such Lender's Outstanding Credit Exposure shall
not exceed its Commitment. The LC Issuers will issue Faciliry- LCs hereunder on the terms and
conditions set forth in Section 2.1E.
(c) From and including the Closing Date to but excluding the Facitir)- Termination
Date, the Swingline Lender agrees, on the terms and conditions hereinafter set forth, to make
loans to the Borrower (each, a'Swingline Loan,''and collectively, the'Swingline Loans'), in an
aggregate principal amount at any time outstanding not exceeding the Swingline Commitment.
Swingline Loans may be made even if the Swingline Lender's Outstanding Credit Exposure
would exceed its Commitment at such time, Eoyldcd that no Advance of Swingline Loans shall
1.5
lh
other ASC having a Iimilnx-res.ullolltIEct)-
126406211t
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be made if, immediately after giving effect thereto, the Aggregate Outstanding Credit Exposure
would exceed the Aggregate Commitments at such time. and plovided further that the Swingline
Lender shall not make any Swingline Loan ifany Lender is at that time a Defaulting Lender,
unless the Swingline Lender has entered into arrangements, including the delivery ofCash
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 Bonower may
borrow, repay (including by means ofan Advance of Revolving Loans pursuant to Section
2.7(c)) and reborrow Swingline Loans at any time prior to the Facility Termination Date,
proy.rded that the Borrower may not borrow Swingline Loans the proceeds ofwhich are used to
repay outstanding Swingline Loans.
2.2 Required Palments; 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
ofeach Revolving Loan on the earlier to occur of (i) the third anniversary ofthe Rorrowing [)ate
ofsuch Revolving I oan. and (iit th€ Facility Termination Date.
(b) Except to th€ extent due or paid sooner pursuant to the provisions of this
Agreement. the Borrower shall repay to the Su.ingline Lender the aggregate outstanding principal
amount ofeach Swingline Loan on the earlier to occur of (i) fourteen (14) days after the
Borrol,r'ing Date of each such Swingline Loan, and (ii) the Faciliry* Termination Date.
2.3 Types of Advancesl Minimum Amount of . 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.E. 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 ol$100,000, p1oride4lthat any
Floating Rate Advance may be in the amount of the Available Aggregate Commitm€nt. The
Swingline Loans may be Floating Rate Advances or LIBOR Market Index Rate Advances.
2.4 Fees. In addition to certain fees described in Section 2.lE(d)
(a) The Borrower agrees to pay to the Administrative Agent for the account ofeach
Lender an upfront fee in an amount agreed to in the Senior Lead Arrangers Fee Letter, payable on
the date ofexecution ofthis Agreement.
(b) The Borower agrees to pay to the Administrative Agent for the account afeach
Lender according to its Pro Rata Share a facility fee (each a 'FacilitJ Fee') at a percentage rate
per annum applicable at such time as set fo(h 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
12640621y
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27
outstanding), payable in arrears on each Pa)ment Date hereafter and on the Facility Termination
Date (and. if applicable, thereafter on demand).
(c) The Borrower shall pay to the Joint t-ead Arrangers-(,514!4g,[p[l[! and the
Administrative Agent for their own respective accounts fbes in the amounts and at the times
specified in the Fee Letters. Such fees shall be fully eamed when paid and shall not be
refundable for anv reason whatsoever.
2.5 Reduction or Termination of Aggregate Commitment. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders
in integral multiples of $ t0.000,000, upon at least five (5) Business Days' written notice to the
Administrative Agent, which notice shall specily the amount ofany such reduction, provided that
the amount of the Aggregate Commitment may not be reduced below the Aggregate Outstanding
Credit Exposure. All accrued Facility Fees shall be payable on the effective date ofany
termination of the Aggregate Commitments.
2.6 Optional Principal Palments. The tsorrower may, upon notice to the
Administrative Agent. from time to time pay, without penalty or premium, all outstanding
Advances or, in an aggregate amount of$5,000,000 or a higher integral multiple of$100,000;
provided that such notice must be received by the Administrative Agent not later than I I :00 a.m.
(A) three Business Days prior to any date olprepayment ofEurodollar Rate Advances and (B) on
the date ofprepayment of Floating Rate Advances. Any prepayment ofa 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 ofthe Lenders in accordance with their respective Pro Rata Shares.
(a) In order to obtain an Advance (other than (x) Advances of Swingline Loans,
which shall be made pursuant to Section 2.7(b), (y) Advances for the purpose ofrepaying
Refunded Swingline Loans. which shall be made pursuant to Section 2.7(c), or (z) conversions of
outstanding Revolving Loans made pursuant to Section 2,E), the Borower shall give the
Administrative Agent irrevocable notice (a'Borrowing Notice') not later than I l:00 a.m. on the
Borrorving Date ofeach Floating Rate Advance and three (3) Business Days before the
Borrowing Date for each Eurodollar Advance, specifoing:
(i) the Borrowing Date, which shall be a Business Day, ofsuch Advance,
(ii) the aggregate amount ofsuch Advance,
(iii) the 1-ype ofAdvance selected. and
(iv) in the case ofeach 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 ofthe
l2(4062ly
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28
2.7 RequestingAdvances.
applicable conditions set forth in Section 4.2, the Administrative Agent will make the funds so
received from the [,enders available to thc Borrower at the Administrative Agent's aforesaid
address.
(c) With respect to any outstanding S*'ingline Loans. the Swingline Lender may at
:ny 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 Bonower to, cause an Advance of Revolving Loans to be made for the
purpose of repaying such Swingline Loans by delivering to the Administrative Agent (ifthe
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 I :00 a.m. on the day ofthe proposed Borrowing
Date therefor, a notice (which shall be deemed to be a Borrowing Notice given by the Bono*'er)
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 ofsuch Srvingline
Loans (the'Refunded Swingline Loans') 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 Bonowing
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 Administrative Agent will
make the aggregate ofsuch amounts available to the Swingline Lender in like funds as received
by the Administrative Agent, which shall apply such amounts in repalment of the Refunded
S*'ingline Loans. Not*ithstanding any provision of this Agreement to the contrary, on the
relevant Borrowing Date, the Refunded Swingline Loans shall be deemed to be repaid llith the
proceeds ofthe 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
12$062lvI
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(b) In order to obtain an Advance ofa 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'Swinsline Bonowinq Notice') not later than I I :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, ifgreater, shall be in an integral
multiple of$500,000 in excess thereof(or, if less, in the amount ofthe Unutilized Swingline
CommitmenQ) and (ii) the Tpe of Advance selected. Not later than 4:00 p.m. on the Bonowing
Date, the Swingline Lender shall make available an amount equal to the amount ofthe requested
Swingline Loan in funds immediately available to the Administrative Agent at its 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. Immediately upon the making of a Swingline Loan. the Swingline Lender shall be
deemed, vithout 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 pary* hereto, to
have unconditionally and irrevocably purchased from the Swingline Lender without recourse or
warranty, a participation in such Swingline [,oan in an amount equal to its Pro Rata Share
thereof. Notwithstanding anylhing herein to the contrary, effective upon any increase or
reduction ofthe 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.
so repaid shall no longcr be outstanding as Swingline Loans but shall be outstanding as
Revolving Loans. [f any portion ofany such amount repaid (or deemed to be repaid) to the
Swingline Lender shall be recovered by or on behalfofthe Borrower from the Swingline Lender
in any bankruptcy, insolvency or similar proceeding or otherwise, the loss olthe amount so
recovered shall be shared ratably among all the Lenders in the manner contemplated by Section
11.2.
(d) Ifl, for any reason, Revolving Loans are not made pursuant to Section 2.7(c) in an
amount sufficient to repay any amounts owed to the Swingline Lender in r€spect ofany
outstanding Srvingline Loans, or if the Swingline Lender is otherwise precluded for any reason
from giving a notice on behalfofthe Borrower as provided tbr 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
make available to the Administrative Agent at its address specitied 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) [n the event any such Lender fails to make available to the Administrative Agent
for the account ofthe Swingline Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions ofthis 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 fiom the
date such amount is required to be made available for the account ofthe Swingline tender until
the date such amount is made available to the Swingline Lender at the Federal Funds Effective
Rate tbr the tirst three (3) Business Days and thereafter at the F-loating Rate applicable to
Revolving Loans. Ifsuch Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lenderl Revolving Loan included in the relevant Advance
or funded participation in the relevant Su'ingline Loan, as the case may be. Promptl.v follo*'ing
its receipt of any'palment by or on behalfofthe Borrower in respect of a Swingline Loan, the
Swingline Lender *'ill pay to each Lender that has acquired a participation therein such Lender's
Pro Rata Share ofsuch payment in accordance with Section 2.11.
(0 Notwhhstanding 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 atf'ected by any circumstance or event
whatsoever, including, without limitation, (i) any seGotf. counterclaim. recoupment, delense or
other right that such Lender may have against the Swingline Lender, the Administrative Agent,
the Borrower or any other Person tbr any reason whatsoever, (ii) thc occurrence or continuance
ofany Unmatured Default or Default, or (iii) the failure ofthe amount ofsuch Advance of
Revolving Loans Io meet the minimum borrowing amount specifled in Section 2.3.
2.8 Conversion and Continuation of Outstanding Advances. Floating Rate Advances
shallcontinue as Floating Rate Advances unless and untilsuch Floating Rate Advances are
converted into Eurodollar Advances pursuant to this Section 2.8 or are repaid in accordance with
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Section 2.6. Each Eurodollar Advance shall continue as a Eurodollar Advance untilthe end of
the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with Section 2,6 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as detined below) requesting that, at
the end ofsuch Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. Subject to Section 2.3, the Borrower may elect fiom timc to
time to convert all or any part ofa Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Administrative Agent irrevocable notice (a 'Conversion/Continuation
Notice') ofeach conversion ofa Floating Rate Advance into a Eurodollar Advance or
continuation ofa Eurodollar Advance not later than I l:00 a.m. at least three (3) Business Days
prior to the date ofthe requested conversion or continuation. specifying:
(D the requested date, which shall be a Business Day, ofsuch conversion or
continuation,
(ii) the aggregate amount and Type ofthe Advance which is to be converted or
continued. and
(iii) the amount ofsuch Advance, which is to be converted into or continued as
a Eurodollar Advance and the duration ofthe Interest Period applicable thereto.
2.9 Changes in Interest Rate, etc.
(b) Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from the first day ofthe Interest Period applicable thereto to (but not including) the last
day ofsuch 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
eartier to occur of
Advance- andliil-thrFacility Termination Date.
(c) Each LIBOR Market [ndex Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from the date such LIBOR Market [ndex Rate Advance is
made to the date it is paid at a rate per annum equal to the LIBOR Market Index Rate for such
day.
2.10 Rates Applicable After Default. Notwithstanding anlthing to the contrary
contained in Sections 2.7, 2.8 or 2.9, during the continuance ofa Default the Required Lenders
12(4062lv
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3l
(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.E, at a rate per annum equal to the Floating Rate for such day. Changes in the rate ofinterest
on that portion ofany Revolving Loan maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate.
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 ofa Default the
Required Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar
Advance shall bear intcrest fbr the remainder ofthe applicable Interest Period at the rato
otherB,ise applicable to such Interest Period plus 2olo per annum, (ii) each |'loating Rate Advance
shall bear interest at a rate per annum equal to the Floating Rate in eft'ect tiom time to time plus
20lo per annum (iii) each LIBOR Market [ndex Rate Advance shall bear interest at a rate per
annum equal to the LIBOR Market Index Rate in etfect from time to time plus 2% per annum,
and (iv) the LC Fee shall be increased by 270 per annum, ployidEd that during the continuance of
a Dethult under Sections 7(g) or 7(h), the interest rates set fbrth in clauses (i). (ii) and (iii) above
and the increase in the LC Fee set fonh in clause (iv) above shall be applicable to all Credit
Extensions without any election or action on the part ofthe Administrative Agent or any Lender.
2. 1 I Method of Par',ment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article 13, or at any other
Lending lnstallation olthe Administrative Agent specified in writing by the Administrative
Agent to the Borrower. by l2:00 noon on the date when due and shall (except for payments of
Reimbursement Obligations for u'hich the applicable LC [ssuer has not received payments l]om
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
lbr the account ofany 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 Article l3 or at any Lending Installation specitied in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is hereby authorized to
charge anv account ofthe Borower maintained with Wells Fargo for each payment ofprincipal.
interest. Reimbursement Obligations and fees as it becomes due hereunder. Each reference to thc
Administrative Agent in this Section 2.1I 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 lssuer. in the case ofpayments required to be
made by the Borrower to such LC Issuer.
2.12 Noteless Agreement: Evidence of lndebtedness
(a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness ofthe Borrower to such Lender resulting from each Loan
made by such Lender from time to time, including the amounts ofprincipal 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
ofeach Loan made hcreunder, the Type thereofand th€ Interest Period (ifany) with respect
thereto, (b) the amount ofany principal or interest due and payable or to become due and payable
flrom the Borrower to each Lender hereunder, (c) the original stated amount ofeach Facility LC
and the amount ofLC Obligations outstanding at any time. and (d) the amount ofany sum
received by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
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32
(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 ofthe existence and
amounts ot'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 aft'ect the obligation ofthe Bonower 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 bc 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 ofsuch [,ender. Each Note shall be entitled to all olthe benefits of this Agreement
and the other Loan Documents and shall be subject to the provisions hereof and thereof.
2.13 Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections ofTlpes of
Advances and to transfbr f'unds based on telephonic notices made by any person or persons the
Administrative Agent or any Lendcr in good faith believes to be acting on behalfofthe
Borrower, it being undcrstood that the foregoing authorization is specifically intended to allow
Borrowing Notices, Swingline Bonowing Notices and Conversion/Continuation Notice s to be
given telephonically. 'l he Borrower agrees to deliver promptly to the Administrative Agent a
written confirmation, if such confirmation is requested by the Administrative Agent or any
Lender, ofeach telephonic notice signed by an Authorized Officer. Ifthe written confirmation
differs in any material respect from the action taken by the Administrative Agent and the
Lenders. the records ofthe Administrative Agent and the Lenders shall govern absent manifest
error.
2.14 Interest Payment Dates: lnterest and Fee Basis: Maximum Rate.
(a) Interest accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with thc 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 accrucd on that portion of the outstanding principal amount
of any Floating Rate Advance convcrted into a Eurodollar Advance on a day other than a
Payment Date shall be payable on the date ofconversion.
(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
pavable pursuant to Section 2,2(b).
12640621v
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33
(b) Interest accrued on each Eurodollar Advance shall be payable on the last day ol its
applicable lnterest Period, on any date on which the Eurodollar Advance is prepaid, r'hether by
acceleration or otherwise. and at the Facility Termination Date. Interest accrued on each
Eurodollar Advance having an [nterest Period longer than three months shall also be payable on
the last day ofeach three-month interval during such lnterest Period.
(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 afterjudgment, and before and after the commencement ofany proceeding under any
Debtor Relief Law.
(0 Interest on F'loating Rate Advances bearing interest at the Prime Rate shall be
calculated for actual days elapsed on the basis ofa 365, or when appropriate, 366 day year. All
other interest and all fees shall be calculated tbr actual days elapsed on the basis ofa 360-day
year. Interest shall be payable for the day an Advance is made but not lor the day ofany paynent
on the amount paid if payment is received prior to l2:00 noon at the place of payment. Ifany
payment ofprincipal ofor interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day (except for
interest payments in respect of Eurodollar Advances whose Interest Period ends on a da1, 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 ofla principal payment, such extension of time shall be
included in computing interest in connection with such payment.
(g) In no contingency or event whatsoever shall the aggregate ofall 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 ofcompetent
jurisdiction shall, in a final determination. deem applicable hereto. In the event that such a coun
determines that the Lenders have charged or received interest hereunder in excess ofthe highest
applicable rate, the rate in effect hereunder shallautomatically be reduced to the maximum rate
permitted by applicable lau 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. It is the intent hereofthat 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 ofthat which may be paid by the Borrower under
applicable law.
2.15 Notification of Advances, Interest Rates. Prepa),ments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agentwill notiry each Lenderof
the contents of each Aggregate Commitment reduction notice, Borrowing Notice (including
Bonowing Notices received from the Swingline Lender in accordance with Section 2,7(c)),
Swingline Borrolving Notice, Conversion/Continuation Notice. and repayment notice received by
it hereunder. Promptly after notice from any LC Issuer, the Administrative Agent will notily
each Lender ofthe contents ofeach request for issuance ofa F-acility LC hereunder. The
Administrative Agent will no(ily each Lender ofthe interest rate applicable to each Eurodollar
Advance and each LIBOR Market lndex Rate Advance promptly upon determination olsuch
interest rate and will give each [,ender prompt notice of each change in the Alternate Base Rate.
?.16 Lending [nstallations. Each Lender may book its Loans, its panicipations in an1'
outstanding Swingline L,oans, and its participation in any l-C Obligations and any LC lssuer may
l2(4062t\
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34
book the Facility LCs at any Lending Installation selected by such Lender or such LC Issuer, as
the case may be, and may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Loans, Facility LCs.
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 benetit ofany 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
Facitity LCs will be issued by it and for whose account Loan payments or palments with respect
to Facility LCs are to be made.
2.t7 Llnless 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 Adminisrative Agent of (i) in the case of a Lender, the
proceeds ofa Loan or (ii) in the case ofthe Borrower, a payment ofprincipal, interest or fees to
the Administrative Agent for the account oIthe Lenders. that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made. fhe
Administrative Agent may, but shall not be obligated to, make the amount of such palment
available to the intended recipient in reliance upon such assumption. Ifsuch Lender or the
Borrower, as the case may be, has not in fact made such pa)ment 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 lhe date the Administrative Agent recovers such amount at a rate per
annum equal to (x) in the case ofpayment by a [,ender, the Federal Funds Effective Rate for such
day for the first three (3) days and, thereafter, the interest rate applicable to the relevant Loan or
(y) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.18 Facility LCs.
(a) F,ach l,C Issuer hereby agrees, in reliance upon the agrecments ofthe Lenders set
tbrth 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 modifo each Facility LC ('Modift,"and each
such action a 'Modification'). from time to time from the Closing Date and prior to lhe fifth
Business Da;'. prior to the Faciliry- Termination Date upon the request of the Borrower; provided
that immediately after each such FacilitJ- LC is issued or Modified, (i) the Aggregate Outstanding
Credit Exposure shall not exceed the Aggregare Commitment, (ii) the sum of the aggregate
undrawn face amount ofall Facilit_v LCs outstanding at such time issued by the LC Issuers and
the Reimbursement Obligations shall not exceed the LC Subcommitment, (iii) the sum ofthe
aggregate undrawn face amount ofall Facility LCs issued by any LC [ssuer and the
Reimbursement Obligations owed to such LC Issuer shall not exceed such [,C Issuer's LC
Commitment, and (iv) no Lender shall be a Delhulting Lender, unless the applicable LC lssuer
has entered into an arrangement, including the delivery ofCash 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
12ff0621v
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35
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 F'acility 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 Maturity Date'). pp.14fu!gs[ that any
Facility t.C with a one-year tenor may provide flor 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 Modily any Facility LC if (x)
any order,judgment or decree ofany Govemmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the LC Issuer from issuing such Facility LC, or any law applicable to
such LC Issuer or (y) any request or directive (whether or not having the force of law) from any
Governmental Authorify with jurisdiction over the LC Issuer shall ( I ) prohibit, or request that the
LC Issuer refrain from, the issuance of letters of credit generally or snch Facility LC in particular
or (2) impose upon the LC Issuer with respect to such Facility LC any restriction, 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 [ssuer any unreimbursed loss. cost or
expense which was not applicable on the Closing Date, in each case under this clause (y)(2)
which the L/C Issuer in good faith deems material to it, unless the Borrower agrees in writing to
indemnill the LC lssuer for any such costs.
(b) Upon the issuance or Modification by any LC Issuer ofa Facility LC in
accordance with this Section 2.18. such LC lssuer shall be deemed, without f-urther 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 inevocably
purchased tiom such LC lssuer withoul recourse or warranty, a participation in such Facility l,C
(and each Modification thereof) and the related LC Obligations in proportion to its Pro Rata
Share. Nowithstanding anyhing herein to the contrary, effective upon any increase or reduction
ofthe 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 lssuer a
notice prior to I I :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 ofissuance or Moditlcation ofeach
Facility LC, speciffing the beneficiary, the amount of the proposed issuance (or Modification),
the proposed date of issuance (or Modification) and the expiry date ofsuch Facility LC, and
describing the proposed terms ofsuch Facility LC and the nature ofthe transactions proposed to
be supported thereby. Upon receipt ofsuch notice, the applicable LC Issuer shall promptly notifu
the Administrative Agent. and the Administrative Agent shall promptly notifo each Lender. of
the contents thereofand ofthe amount ofsuch 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 of which the LC Issuer shall have no
duty to ascertain), be subject to the conditions precedent that such Facility LC shall be
satisfactory to such LC Issuer, acting reasonably, and that the Borrower shall have executed and
delivered such application agreement and/or such other instruments and agreements relating to
such Facilitl LC as such [-C [ssuer shall have reasonably requested (each,a 'Facilitv LC
Application'). In the event ofany conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall control.
36
1t264O621\
+rr*-trr l.r]1r:,{
(d) The Borrower shall pay to the Administrative Agent, for the account ofthe
Lenders in accordance with their respective Pro Rata Shares, with respect to each Facility LC
issued hereunder, a letter ofcredit 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 Mafurity Date and thereafter on demand (each such lee described in this sentence an 'LL
Ece'), gorrded, however. that any LC Fees otherwise pa.vable for the account ofa Defaulting
Lender with respect to any Facility LC as to *hich such Defaulting Lender has not provided Cash
Collateral satisfactory to the [,C Issuer pursuant to Section 2.22(c) shall be payable, to the
maximum extent permitted b1" applicable law, to the other Lenders in accordance with the
upward adjustments in their respective Pro Rata Shares allocable to such Faciliqv LC, with the
balance ofsuch fee, ifany, payable to the applicable LC [ssuer for its own account; Eoy-ided
further, that so long as no Unmatured Default or Dei'ault exists, notwithstanding the Pricing
Level otherwise applicable to the Advances, Facility LCs and Facility Fee, the Borrower shall be
required to pay an [,C Fee on any portion ofany 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 shallalso pay to the applicable LC Issuer tbr 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 amears on each Payment Date, and (.v)
documentary and prooessing charges in connection with the issuance or Modihcation ofand
draws under Facility t,Cs in accordance with the applicable LC Issuer s standard schedule for
such charges as in effect from time to time.
(e) Upon receipt fiom the beneficiary ofany Facility LC ofany demand tbr palment
under such Facility LC, the applicable LC Issuer shall notiry the Administrative Agent and the
Administrative Agent shall promptl.v notily the Bonower and each other Lender as to the amount
to be paid by such LC Issuer as a result ofsuch demand and the proposed payment date (the 'LC
Payment Date'). The rcsponsibiliqv ofsuch LC Issuerto 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 ofthe Facility LCs as it does with respect to letters ofcredit in which no
participations are granted. Each Lender's obligation to reimburse each LC Issuer lor its Pro Rata
Share ofthe amount drawn under each Facility LCs to the extent such amount is not reimbursed
by the Bonower pursuant to Section 2.18(f) 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 Bonower or any other
Person for any reason whatsoeveri (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 ofthe
foregoing. Ifany Lender fails to make available to the Administrative Agent for the account of
the applicable LC lssuer any amount required to be paid by such Lender pursuant to this
foregoing provisions ofthis Section 2.lE(e), such LC Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent). on demand, such amount with interest
thereon lor the period from the LC Payment Date to the date on w'hich such payment is
immediately available to the LC Issuer at a rate per annum equal to the Federal Funds Effective
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Rate for the first three (3) days and, thereafter, at a rate ol interest equal to the rate applicable to
Floating Rate Advances.
(0 The Borrower shall be irrevocably and unconditionally obligated to reimburse any
LC lssuer on the applicable LC Palment Date for any amounts to be paid by such LC Issuer upon
any drawing under any Facility LC, without presentment, demand. protest or other formalities of
any kind: provided that, subject to Section 2,lE(h). the Borrower shall not be precluded from
asserting any claim for direct (but not consequential) damages sufTered by the Borrower to the
extent, but only to the extent, caused by (i) the willful misconduct or gross negligence ofsuch LC
lssuer in determining whether a request presented under any Facility LC issued by it complied
with the terms ofsuch Facility LC or (ii) such LC Issuer's failure to pay under any Facility LC
issued by it after the presentation to it ofa request strictly complying with the terms and
conditions ofsuch Facility LC. All such amounts paid by such LC Issuer and remaining unpaid
by the Borrower shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to (x) the rate applicable to Floating Rate Advances tbr such day ifsuch day falls on
or before the applicable LC Payment Date and (y) the sum of2% plus the rate applicable to
Floating Rate Advances for such day ifsuch day falls after such LC Payment Date. The
applicable LC Issuer will pay to each Lender ratably in accordance with its Pro Rata Share all
amounts received by it fiom the Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect ofany Facility LC issued by such LC lssuer, but only to the
extent such Lender has made payment to such LC [ssuer in respect of such Facility LC pursuant
to Section 2,lE(e). Subject to the terms and conditions of this Agreement (including the
submission of a Borrowing Notice in compliance with Section 2.1 and the satisfaction of the
applicable conditions precedent set forth in Article 4), the Borrower may request an Advance
hereunder for the purpose of satis$ing any Reimburscment Obligation.
(g) The Borrower's obligations to reimburse each LC Issuer for each drawing under
each Facility LC shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability ofsuch Facility LC, this Agreement, or any other Loan
Document; (ii) the existence ofany claim, counterclaim, setoff, def'ense or other right that the
Borrower may have at any time against any beneficiary or any transferee ofsuch Facility t,C (or
any Person for whom any such beneficiary or any such transferee may be acting), the [,C 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 insufllcient 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 l.C against presentation ofa draft or certificate that does not strictly comply
with the terms of such Facility [,C; or any payment made by the LC Issuer under such Facility l.C
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 beneficiarl'
or any transferee of such Facility LC. including any arising in connection with any proceeding
under any Debtor Relief Lau'; (v) any dispute between or among the Borrower, any of its
Afliliates. the beneficiary of an;" Faciliry LC or any financing institution or other party to whom
anrv Facilit_v LC may be transfened; (vi) any claims or defenses whatsoever of the Borrower or of
any of its Affiliates against the beneficiary of any Facilit.v LC or an.v such transferee; or (vii) an.v
38
12f,40621v
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other circumstance or happening whatsoever, whether or not similar to any ofthe foregoing,
including any other circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower. No [,C Issuer shall be liable for any error. omission, interruption or
delay in transmission, dispatch or delivery ofany 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, ifdone 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 Borrower.
Nothing in this Section 2.18(g) is intended to limit the right of the Borrower to make a claim
against an.v LC Issuer for damages as contemplated by Section 2.lE(h).
(h) Flach Lender and the Borower agree that, in paying any drawing under a Facility
LC, the applicable [,C lssuer shall not have any responsibility to obtain any document (other than
any sight draft, certiticates and documents expressly required by the applicable Facility LC) or to
ascertain or inquire as to the validity or accuracy ofany such document or the authoriq- ofthe
Person executing or delivering an.v such document, provided that at all times the LC Issuer shall
be acting in good faith. None ofthe LC Issuers, the Administrative Agent. any oftheir respective
Related Parties nor an)' 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 ofthe Lenders or the Required Lenders. as applicable; (ii) any action taken or omitted in
the absence ofgross negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enfbrceability ofany document or instrument related to any Facility LC.
Notwithstanding any other provision of this Section 2.18, each LC lssuer shall in all cases be
lully protected in acting, or in retiaining from acting, under this Agreement in accordance with a
request of the Required l.enders, and such request and any action taken or tailure to act pursuant
thereto shall be binding upon the Lenders and anv t'uture holders ofa participation in any Facility
LC. None of the LC Issuers, the Administrative Agent. any of their respective Related Panies
nor an), correspondent. participant or assignee ofany LC lssuer shall be liable or responsible for
any ofthe matters described in clauses (i) through (vii) ofSection 2.1E(g)l provided, however.
that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim
against any [,C lssuer. and such LC Issuer may be liable to the Borrower, to the extent. b only
to the extent, ofany 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 lssuer's rl'illful misconduct or gross negligence or the LC [ssuer's
failure to pay under any Facility LC after the presentation to it by the beneficiary ofa sight draft
and certificate(s) strictly complying with the terms and conditions of such Faciliry- LC.
(i) 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 ofany 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) iI as ofthe Facility Termination Date, any LC Obligation lor any reason
remains outstanding, maintain a special collateral account pursuant to arrangements satisfactory
to the Administrative Agent (the'facility LC Collateral Account') at the Administrative Agent's
oflice at the address specified pursuant to Article 13, in the name of such Borrower but under the
sole dominion and control ofthe Administrative Agent. tbr the benefit ofthe Lenders and in
*'hich such Borrower shall have no interest other than as set forth in Section E.l. The Borro*er
hereby pledges, assigns and grants to the Administrative Agent, on behalfofand for the ratable
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benefit ofthe Lenders and the LC Issuers, a security interest in all ofthe 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 prompl and complete payment and performance ofthe LC
Obligations. Amounts in the Facility LC Collateral Account shall not bear interest.
C) 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 ofthe Closing Date,
each letter of credit issued by Wells Fargo or lPMetsl!figlggq for the account of the Borrower
under the Existing Credit Agreement shall be deemed issued by Wells Fargo or
J+M{SJeNteISa!, as applicable, for the account of the Bonow'er under this Agreement as a
Facility LC.
(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 of the
contents thereo! (i) on or prior to each Business Day on which such LC Issuer issues, amends,
renews or extsnds any Facility LC, the date ofsuch issuance, amendment, renewal or extension,
and the aggregate face amount ofthe 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 thereofshall have changed), it being understood that such LC Issuer shall not
effect any issuance, renewal, extension or amendment resulting in an increase in the aggregate
amount of the 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 uhich such LC Issuer makes any payment on a Facility LC, the date and amount
ofsuch disbursement, {iii) on any Business Day on which the Borro*er fails to reimburse any
palment required to be reimbursed to such LC Issuer on such day, the date ofsuch failure and the
amount ofsuch 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 oflender. Ifany Lender requests compensation under Sections 3.1
or 3.2, or ifthe Borrower is required to pay any lndemnified Taxes or additional amounts to any
Lender or any Governmental Authority for the account ofany 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 ifany 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 ofthe provisions hereofas contemplated by Section E.2(i) or (ii),
the consent ofthe Required Lenders shall have been obtained but the consent ofone 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 efforl upon notice to such lrnder and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 12.3), all of its
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
Etigible Ats+efl€cBg&bqgaflLlagIlgr that shall assume such obligations (which assignee may be
another Lender, ifa Lender accepts such assignment); orovided that:
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(i) no Unmatured Default or Default shall have occurred or be continuing;
(ii) the Administrative Agent shall have received the assignment fee (ifany)
specified in Section 12.3;
(iii) such Lender shall have received payment ofan amount equal to the
outstanding principal of its Loans and funded participations in LC Obligations, accrued
interest thereon, accrued flees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under Section 3,3) fiom the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrower (in
the case ofall other amounts);
(iv) in the case ofany 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 conllict with applicable law; and
(vi) in the case ofany assignment resulting from a Lender becoming a Non-
Consenting Lender or a Lender that has not consented to any proposed amendment,
moditication, waiver or consent which requires the consent ofall 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 *'aiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
(a) The Borro*'er 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 Faciliqv Termination Date to
increase the Aggregate Commitment (each such proposed increase being a'Commitment
Increase'), either by having a Lender increase its Commitment then in etTect (each an 'lncreasing
Lender') or by adding as a Lender with a new Commitment hereunder a Person which is not then
a Lender (eaoh an'Assuming LendeC). in each case with the approval ofthe Administrative
Agent. each LC Issuer and the Swingline Lender (such approval not to be unreasonably
withheld), which notice shall speci! the name ofeach Increasing Lender and/or Assuming
Lender, as applicable, the amount ofthe Commitment Increase and the portion thereofbeing
assumed by each such lncreasing Lender or Assuming Lender. and the date on which such
increase is to be effective (the'Commitment Increase Date'), which shall be a Business Day at
least threc (3) Business Days after delivery ofsuch notice; provided that no Lender shall have
any obligation hereunder to become an [ncreasing Lender and any election to do so shall be in the
sole discretion of each Lender; p1oyld_ed further that: (i) any such request for a Commitment
lncrea.se shall be in a minimum amount of $25,000.000 or a higher integral multiple of
t2640621v
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2.20 lncrease in Comrn itnrents.
$1,000,000; (ii) immediately after giving etl'ect to any Commitment Increase, the Aggregate
Commitment shall not exceed $450.000.000 and the aggregate amount of alI Commitment
Increases shall not exceed $[50,000,000; (iii) the sum ofthe increases in Commitments ofthe
Increasing Lenders and the new Commitments ofthe Assuming Lenders shall not exceed the
requested Commitment lncrease; (iv) no Default or Unmatured Default shall have occurred and
be continuing on the applicable Commitment lncrease DaIe or shall result from any Commitment
Increase: and (v) the representations and warranties contained in Article 5 (other than in Section
5.5) shall be true on and as of the Commitment Increase Date as if made on and as of such date
(or, if any such representation and warranty is expressly stated to have been made as ofa
specified date, as ofsuch specific date).
(b) Each Commitment Increase (and the increase of the Commitment of each
lncreasing Lender and/or the new Commitment ofeach Assuming Lender, as applicable,
resulting therefrom) shall become effective as ofthe Commitment Increase Date; provided that:
(i) the Administrative Agent shall have received on or prior to l0:00 a.m. on such Commitment
Increase Date a certificatc ofan Authorized Officer stating that each ofthe applicable conditions
to such Commitment lncrease set forth in Section 2.20(a) has been satisfied and attaching the
resolutions adopted by the Borrouer approving or conscnting 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 Incrcase Date, a Joinder Agreement among the Assuming
Lender, the Borrower and the Administrative Agent; and (iii) each lncreasing Lcnder shall have
delivered to the Administrative Agent, on or prior to l0:00 a.m. on such Commitment Increase
Date, contirmation 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 lorth in Sections 2.20(t) and 2.20(b) have been satisfied, the Borrower shall (i) prepay the
then outstanding Advances (ifany) 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
eflect thereto, the Advances are held ratably by the Lenders in accordance with their respective
Commitments (after giving effect to such Commitment Increase) and (iii) pay to the Lenders any
funding indemnification amounts required by Section 3.3.
121 [-\tension of Facilirv Termination Date
(a) So long as no Unmatured Default or Default has occuned and is continuing and
subject to the conditions set forth in Section 2,21(c), the Borro*er may, not more than two (2)
timesduringthetermofthiSAgreement@'noearlier
than sixty (60) days and no later than thirty (30) days prior to each anniversary ofthe Closing
Date (such anniversary, an'Extension Date') request through written notice to the Administrative
Agent (the 'Extension Notice'), that the Lenders extend the then existing Facility Termination
Date for an additional one-year period. Each Lender, acting in its sole discretion, shall, by notice
to the Administrative Agent no later than the applicable Extension Date (except in the year in
which the then existing Facility Termination Date shall occur, in *'hich 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
)264062tv
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its desire to extend (any such Lender, a'Consenting Lender') or not to so extend (any such
Lender, a 'Non-Consenting Lender') such date. Any Lender that does not advise the
Administrative Agent by the Consent Date shall be deemed to be a Non-Consenting Lender. No
Lender shall be under any obligation or commitment to extend the then existing Facility
Termination Date. Thc election ofany 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% ofthe 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 dat€ that
is one (l) year after the then existing Facility Termination Date. All Advances ofeach
Non-Consenting Lender shall be subject to the then existing Facility Termination Date, without
giving effect to such extension (such date. the'Prior Termination Date'). In the event ofan
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 t'rom existing Lenders
and/or other banks or financial institutions reasonably acceptable to the Administrative Agent,
the LC Issuers and the Swingline Lender (each, an 'Eligible Replacement Lender') to replace the
Commitment of any Non-Consenting Lenders for the remaining duration of this Agreement. Any
Eligible Replacement Lender (ifnot 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 Commitmentof each Non-Consenting Lender shallterminate 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 ofthe Commitment ofeach such Non-Consenting
Lender so terminated on the Prior Termination Date. Notwithstanding anyhing 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 ofeach Prior Termination Date.
(c) An extension ofthe Facility Termination Date pursuant to this Section 2.21 shall
only become effective upon the receipt by the Administrative Agent ofa certificate (the
statements contained in which shall be true) ofa duly authorized officer ofthe Borrower stating
that both before and after giving effect to such extension ofthe 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 ofthe date such extension is
made, except for such representations or warranties which by their terms are made as ofa
specified date, which shall be true and correct as ofsuch specified date.
(d) Effective on and after the Prior Termination Date, (i) each ofthe Non-Consenting
Lenders shall be automatically released from their respective LC Obligations and (ii) the LC
Obligations ofeach Lender (other than the Non-Consenting Lenders) shall be automatically
adjusted to equal such l-endert Pro Rata Share ofsuch LC Obligations.
43
I2M062lv
2.22 DelaultingLenders
(a) Notwithstanding anl,thing to the contrary contained in this Agreement, ifany
[,ender becomes a Defhulting Lender, then, until such time as such Lender is no longer a
Detbulting Lcnder, to the extent permitted by applicable law:
(D Such Defaulting Lendert 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 ofprincipal, interest, fees or olher amounts received by the
Administrative Agent for the account of such Defhulting Lender (whether voluntar.v or
mandatory, at maturity, pursuant to Article 7 or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section I l.l shall be applied
at such time or times as may be determined by the Administrative Agent as follows: first,
to the payment of any amounts owing by such Delaulting Lender to the Administrative
Agent hereunder; second, to the paltnent on a pro rata basis ofany amounts owing by
such Defaulting Lender to any LC Issuer or Swingline Lender hereunder; Ihitct, to Cash
Collateralize the LC Issuers' Fronting Exposure with respect to such Defaulting Lender in
accordance with Section 2,22(c); fourth, as the Bonower may request (so long as no
Delault or Unmatured Default exists), to the funding ofany Loan in respect of which such
Defaulting Lender has failed to fund its portion thereofas 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) satisry such Det'aulting Lender's potential future funding obligations with respect to
Loans under this Agreement and (y) Cash Collateralize the LC lssuers'future Fronting
Exposure with respect to such Defaulting Lender with respect to ftture Faciliry LCs
issued under this Agreement, in accordance with Section 2.22(c); sixth, to the palment of
any amounts owing to the Lenders, the LC Issuers or Swingline Lenders as a result ofany
judgment ofa coun of competent jurisdiction obtained by any Lender, the LC [ssuers or
Swingline Lenders against such Def'aulting Lender as a result ofsuch Defaulting Lenders
breach of its obligations under this Agreement; seventh, so long as no Default or
Unmatured Default exists, to the payment of any amounts owing to the Borrower as a
result ofanyjudgment ofa court of competent jurisdiction obtained by the Borrower
against such Defaulting Lender as a result ofsuch Defaulting Lender's breach of its
obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if (x) such payment is a
palment ofthe principal amount ofany Loans or LC Obligations in respect ofwhich 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 lorth 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-Defbulting Lenders on a pro rata basis
prior to being applied to the payment ofany Loans of, or LC Obligations owed to, such
Delaulting 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 eflbct to Section
2.22(t)(iv). Any palments, prepalments or other amounts paid or payable to a Defaulting
1264062t\
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Lender that are applied (or hcld) to pay amounts owed by a Def'aulting Lender or to post
Cash Collateral pursuant to this Section 2.22(a\(ii'l shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) (A) F)ach Defaulting Lender shall be entitled to receive a Facility Fee
for any period during which that Lender is a Defaulting l,ender 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 of the stated amount of Facility LCs tbr 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 ofthe stated amount ofFacility LCs for which it
has provided Cash Collateral pursuant to Section 2.22(c).
(C) With respect to any Facility Fee or LC Fee not required to be paid
to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall
(x) pay to each Non-Defaulting Lender that portion ofany 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 ofany 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 ofany such fee. Notwithstanding the
foregoing, so long as no lJnmatured Default or Default exists, norwithstanding 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 ofany Faciliqv LC
that the Borrower has Cash Collateralized at a rate equal to the Applicable Margin
for Eurodollar Advances corresponding to Pricing Level I.
(v) [fthe reallocation described in clause (iv) above cannot, or can only
partially, be elI'ected, the Borrower shall, without prejudice to any right or remedy
available to it hereunder or under law, (x) tirst, prepay Swingline Loans in an amount
equal to the Swingline Lenders' Fronting Exposure and (y) second, Cash Collateralize the
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(iv) All or any part ofsuch 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 Lendert Commitment) but only to the extent that such reallocation does not
cause the aggregate Revolving Credit Exposure ofany Non-Defaulting Lender to exceed
such Non-Delaulting Lender's Commitment. NuSu\icclo-Sectior9-l5, no reallocation
hereunder shall constitute a waiver or release ofany claim ofany party hereunder against
a Defaulting Lender arising from that Lender having become a Del'aulting Lender.
including any claim ofa Non-Defaulting Lender as a result ofsuch Non-Defhulting
Lendert increased exposure following such reallocation.
LC Issuers'Fronting Exposure in accordance with the procedures set forth in Section
2.22(c).
(vi) [f 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 notity the parties hereto, whereupon as of the efl-ective date
specified in such notice and subject to any conditions set forth therein (which may include
arrangements *'ith respect to any Cash Collateral). that Lender will, to the extent
applicable, purchase at par that portion ofoutstanding Loans ofthe 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 olthe Loans and funded and unfundcd
participations in Facility LCs and Swingline Loans (without giving effect to Section
2.22(a)(iv)). whereupon such Lender will cease to be a Defaulting Lender; proni<leclthat
no adjustments will be made retroactively with respect to fees accrued or payments made
by or on behalfofthe Bonower while that Lender was a Defaulting Lender; and provided.
further, that except to the extent otherwise expressly agreed by the affected parties, no
change hereunder fiom Defaulting Lender to Lender will constitute a waiver or release of
any claim ofany party 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 Moditt any Facility LC unless it is satis{ied that it will have no Fronting
Exposure afler 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 l-C Issuer (with a copy to
the Administrative Agent) the Borrower shall Cash Collateralize the LC Issuert Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section
2.22(a\(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less
than the Minimum Collateral Amount.
(i) The Borrower, and to the extent provided by any Defaulting Lender, such
Dethulting Lender, hereby grants to the Administrative Agent, fbr the benefit ofthe LC
Issuers, and agrees 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. If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any Person other
than the Administrative Agent and the LC Issuers as herein provided (other than Iiens
permitted pursuant to Section 6.ll), or that the total amount ofsuch 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 efl'ect to any
Cash Collateral provided by the Defaulting Lender).
t2&0621\
l.1+.U+r.!l+;
t-]4
46
(ii) Norwithstanding anlthing to the contrary contained in this Agreement,
Cash Collateral provided under this Section 2.22 in respect of Facility LCs shall be
applied to the satisfaction ofthe Defaulting Lender's obligation to f'und participations in
respect ofLC 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 otheru,ise be provided for
herein.
(iiD 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 ofthe applicable Fronting
Exposure (including by the termination of Defaulting Lender status ofthe applicable
Lender), or (ii) the determination by the Administrative Agent and each LC Issuer that
there exists excess Cash Collateral; pfoyided that. subject to this Section 2.22 the Person
providing Cash Collateral and each LC Issuer may agree that Cash Collateral shall be
held to support future anticipated Fronting Exposure or other obligations.
2.23 ChangedCircumstances
(a) [n 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 ofsuch Advance, (ii) the Administrative Agent shall
determine (which determination shall be conclusive and binding absent manifest error) that
reasonable and adequate means do not exist for the ascertaining the Eurodollar Base Rate for
such Interest Period with respect to a proposed Eurodollar Rate Advance (or a Floating Rate
Advance as to which the interest rate is determined wilh reference to the Eurodollar Base Rate)
or (iii) the Required Lenders shall determine (which determination shall be conclusive and
binding absent manilbst 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 notities the Borrower that such circumstances no
longer exist (which notice the Administrative Agent shall promptly deliver to the Borrower), the
obligation ofthe 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 Rat€) 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 relerence to the
Eurodollar Base Rate) shall be suspended, and (x) in the case ofEurodollar Rate Advances. the
Bonower shall either (A) repay in flrll (or cause to be repaid in full) the then outstanding
principal amount ofeach such Eurodollar Rate Advance together with accrued interest thereon
(subject to Section 3.3), on the last day of the then current Interest Period applicable to such
Eurodollar Rate Advance; or (B) convert the then outstanding principal amount ofeach 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 ofthe last day ofsuch Interest Period; or (y) in the case
ofFloating Rate Advances as to which the interest rate is determined by reference to the
12640621vIHr+){,
47
Eurodollar Base Rate, the Borrower shall convert the then outstanding principal amount ofeach
such Advance to a Floating Rate Advance as to which the interest rate is not determined by
reference to the Eurodollar Base Rate as ofthe last day ofsuch Interest Period.
(b) If, after the date hereof, the introduction of, or any change in, any applicable law
or any change in the interpretation or administration thereof by any Governmental Authoriry-.
charged with the interpretation or administration thereof or compliance by any ofthe Lenders (or
any oftheir respective Lending [nstallations) 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 ofthe Lenders (or any oftheir 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 thereofto 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 (rl'hich notice the Administrative Agent shall promptly deliver to
the Borrower alter receiving notice thereof from such affected LendeQ, (i) the obligations ofsuch
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 ofthe Borrower to
convert any Advance to a Eurodollar Rate Advance or continue any Advance as an Eurodollar
Rate Advance with respect to such Lenders (or a Floating Rate Advance as to which the interest
rate is determined by reference to the Eurodollar Base Rate) shall be suspended and thereafter the
Borrower may, with respect to such Lenders. select only Floating Rate Advances (as to which the
interest rate is not determined by reference to the Eurodollar Base Rate, (ii) all Floating Rate
Advances made by such Lenders shall cease to be determined by reference to the Eurodollar Base
Rate and (iii) if any ofthe Lenders may not lawfirlly continue to maintain a Eurodollar Rate
Advances to the end ofthe then current Interest Period applicable thereto. the applicable Loan
shall immediately be converted to a Floating Rate Advance (as to which the interest rate is not
determined by reference to the Eurodollar Base Rate) for the remainder of such Interest Period.
@} Effect of Benchnrark Transition Fvent-
O qenchmark R€nlac iL
olin anl other l.oa
an Earl),Ont-in Flection- as annlicable- the Administrative Agent and the Borrower maL
amend this Agreement to reolace the Furodollar Base Rate andior the I IBOR Vlarkel
Index Rate with a Re
nencnmart f ranslt
Rusiness Dav after the
r.enders and the R0
time written notice of obiection to such mendment lrom Lenders comnrisins the
neouirea t enaer
become eflective on the date that I enders comorising the Reouircd Lenders have
delivered to the Administrative Agent written no
suct ame"ament.
tnaex nate witn a ne
orioUo tne anpticante nen
l2(!406?1v
:14
48
( i i ) Bench m ark Ren lacement Con form i n g Chan ges-lrconnqclieo_nriltr-the-
imAlementation of
right to make Eenchrnark Replacement ConForming Changes tiom time to time and-
notwifhs.tendino anr,thino to the contr2rv herein or in anv other Loan f)or:rrment anv
amenaments imntem
necome effective wl ir
Agreement-
(iii) Notices : Standards fbr Dec is ions and nelerminationLlhe-AdmidstaLilq
Agent wiII nromptl@ rhe I.endersdlAlany_occufierrqe ola
nencnmart fransl
Renchmark Refrlacement Date and Renchma ) the
imnlementation of anv Benchmark Renlacem
Renlacement Contbrm ing Chanpes
nencnmart< t tnaval
made h) the Aclmini in&a currence QL
non-occurrence ofan event circumsta ion
in-lts or tleir sol in
each case- as expresslJ- reouired nursuant to this Seclie[22f,{C}
(iv) Bench m ark Unavai lab i I iry Peri od. Unon the Bofio:uerhreceiolainalicq
of the commencement ofaBenqhmark-Lhavailahilit","' Period. the R
anv reouest rur a eu
Advanccs lrlbe madc- colyerledlr conlinuecl during any Renchmark I lnavailahilitv
Period and. lhiling that- the Borrower will he deemed to have converted an
inlo a rerrrre<t fnr a hnrrorvino nf nr cnnver ion to Floatinq Rate Advances f)rrring anv
Benchmark Unavailahiliw Periodihe component of the Alternate Bas
the Furodollar Rase Rateraill nolbe uss:Lilanv delerminalj.qn-aflhcAlterralsBasr
Rate. During any Benchmark Unavailahilitv Period. all then-outstanding I IRCIR Market
Tndex Rate Arlvanr:es shall arrtomaficallv on the dav of such notice- be convefted into
FloafinJ, Rate Arlvanr:es and anv Swinsli ne [,oans shall be made as l'loatins Rate
Advances-
ARTICLE 3
YIELD PROTECTION; TAXES
3.1 [ncreased Costs. Ifany Change in Law shall:
(a) impose, modifu or deem applicable any reserve, assessment, special deposit,
compulsory [oan, insurance charge or similar requirement against assets of, deposits with or for
the account oi or credit extended or participated in by, any Lender (except any reserve
requirement reflected in the Eurodollar Rate) or any LC Issuer;
l2{A062lv
]_
:4+14!t1l
24r
49
taking an] action
(b) subject any Recipient to any Ta\es (other than (A) Indemnified Taxes, (B) Taxes
described in clauses (ii) through (iv) ofthe definition ofExcluded Taxes and (C) Connection
Income Ta,xes) on its loans, loan principal, letters of credit, commitments, or other obligations, or
its deposits, reserves, other liabilities or capital attributable thereto; or
(c) impose on any Lender or any LC lssuer or the London interbank market any other
condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such
Lendcr 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 panicipation therein:
and the result ofany ofthe loregoing shall be to increase the cost Io 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 lssuer or such
other Recipient ofparticipating 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
ofprincipal, interest or any other amount) then, upon request ofsuch 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 *ill compensate such Lender, LC Issuer or other
Recipient, as the case may be, tbr such additional costs incurred or reduction suffered.
3.2 Capital Requirements. If any Lender or LC Issuer determines that any Change in
Law affecting such Lender or LC Issuer or any Lending Installation ofsuch Lender or such
Lender's or LC Issuer's holding company, ifany, regarding capital or liquidity requirements, has
or would have the effect of reducing the rate of return on such Lender's or LC Issuert capital or
on the capital ofsuch Lender's or LC Issuer's holding company, ifany, as a consequence of this
Agreement, the Commitments of such l,ender 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 lssuer, to a
level below that which such Lender or LC Issuer or such Lender's or LC [ssuer's holding
company could have achieved but for such Change in Law (taking into consideration such
Lender s or LC lssuer's policies and the policies ofsuch l,ender's or LC Issuer's holding company
with respect to capital adequacy), then within fifteen (15) days ofdemand by such Lender or LC
Issuer the Borrower *'ill 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 Lendert or LC Issuer!
holding company for any such reduction suffered.
3.1 Compensation. The Borrower will compensate each Lender upon demand for all
losses, expenses and liabilities (including. without limitation, any loss, expense or liabilitv
incurred by reason ofthe liquidation or reemploymsnt ofdeposits or other funds required by such
Lender to fund or maintain Eurodollar Advances) that such Lender may incur or sustain (i) if fbr
any reason (other than a default by such Lender) an Advance or continuation o1; or conversion
into, a Eurodollar Advance does not occur on a date specified theretbr in a Borrowing Noticc or
Conversion/Continuation Notice, (ii) ifany repayment, prepayment or conversion ofany
Eurodollar Advance occurs on a date other than the last day ofan Interest Period applicable
thereto (including as a consequence ofany assignment made pursuant to Section 2.19 or any
acceleration ofthe maturity ofthe Loans pursuant to Section 8.1). (iii) if any prepayment ofany
12640621v
I
50
Eurodollar Advance is not made on any date specified in a notice of prepa;ment given by the
Borrower or (iv) as a consequence ofany other failure by the Borrower to make any pa).rnents
with respect to any Eurodollar Advance when due hereunder. Calculation ofall 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 ofa deposit bearing interest at the Eurodollar
Rate in an amount equal to the amount olsuch Eurodollar Advance, having a maturity
comparable to the relevant Interest Period: proviclecl. 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 ofamounts 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 certi{icate made in good faith for purposes ofthis Section 3.3 ofany such
losses, expenses or liabilities shalI be conclusive absent manifest error.
3.4 Delay in Requests. Failure or delay on the pan ofany LenderorLC Issuer to
demand compensation pursuant to Sections 3.I or 3,2 shall not constitute a waiver ofsuch
Lender\ or LC lssuer'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
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
3.5 Taxes.
(a) For purposes of this Section 3.5. the term 'Lender'' includes any LC Issuer and the
term 'hpplicable law" includes FATCA.
(b) Any and all payments by or on account ofany obligation ofthe Borrower under
any Loan Document shall be made without deduction or withholding for any Taxes. except as
required by applicable law. Ifany applicable law (as determined in the good faith discretion of an
applicable Withhotding Agent) requires the deduction or withholding ofany Tar 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 fu[ amount deducted or withheld to
the relevant Covernmental Authority in accordance with applicable law and. ifsuch Tax is an
Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that
after such deduction or withholding has been made (including such deductions and withholdings
applicable to additional sums payable under this Section 3.5) the applicable Recipient receives
an amount equal to the sum it would have received had no such deduction or withholding been
made.
(c) The Borrower shall timely pay to the relevant 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.
12640621v
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4
5l
(d) The Borrower shall indemnify each Recipient, within ten (10) days after demand
theretbr, fbr the full amount ofany Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section 3.5) pa,lable or paid by such
Recipient or required to be withheld or deducted from a payment to such Recipient and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or
on behalf of a Lender, shall be conclusive absent manifest error.
(e) Each Lender shall severally indemnify the Administrative Agent, within ten (10)
days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to
the extent that the Borrower has not already indemnitied the Administrative Agent for such
lndemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes
attributable to such Lender's failure to comply with the provisions ofSection 12.2 relating to the
maintenance ofa 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 l.oan
Document, and any reasonable expenses arising therefrom or with respect thereto. whether or not
such Taxes were correctly or legally imposed or asserted by'the relevant Governmental
Authority. A certificate as to the amount ofsuch payment or liabiliqv delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Administrative Agent to set offand apply any and all amounts at any time owing
to such Lender under any Loan Document or otherwise payable by the Administrative Agent to
the Lender from any other source against any amount due to the Administrative Agent under this
clause (e).
(0 As soon as practicable after any payment ofTaxes by the Borrower to a
Governmental Authority pursuant to this Section 3.5, the Borrower shall deliver to the
Administrative Agent the original or a certified copy ola receipt issued by such Governmental
Authority evidencing such paymenl a copy of the retum reporting such pal,rnent or other
evidence ofsuch payment reasonably satisfactory to the Administrative Agent.
(g) (i) Any'Lender that is entitled to an exemption from or reduction of
withholding Ta,x 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 intbrmation reporting
requirements. Notwithstanding anlhing to the contrary in the preceding two sentences, the
completion, execution and submission ofsuch documentation (other than such documentation set
forth in this Section 3.5(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the
Lendert reasonable judgment such completion, execution or submission would subject such
12640621v
52
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 lrom time to time thereafter upon the
reasonable request ofthe Borrower or the Administrative Agent), executed copies
of [RS Form W-9 certifring 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 olcopies
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 ofthe Borrower or the Administrative
Agent), whichever of the following is applicable:
(i) in the case ofa Foreign Lender claiming the benefits ofan
income tax treaty to which the United States is a party (x) with respect to
pa)rnents of interest under any Loan Document, executed copies of IRS
Form W-8BEN establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the 'interest" artic le ofsuch tax treaty
and (y) with respect to any other applicable payments under any Loan
Document. IRS I'orm W-8BEN establishing an exemption fiom. or
reduction of U.S. federal withholding Tax pursuant to thc 'business
profits" or 'bther income" article of such tax treaty;
(ii) executed copies of lRS Form W-8ECII
(iiD in the case ofa Foreign Lender claiming the benefits olthe
exemption for portfolio interest under Section 881(c) ofthe Code, (x) a
certificate substantially in the form ofExhibit F-l to the cffect that such
Foreign Lender is not a 'bank" within the meaning of Section 88 I (c)(3)(A)
ofthe Code. a "[0 percent shareholdei'of the Borrou'er within the
meaning of Section 88 t (c)(3)(B) of the Code, or a 'tontrolled foreign
corporation" described in Section 881(c)(3)(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-8IN{Y, 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 F'orm W-9,
and/or other certification documents from each beneficial owner. a.s
1264062ty
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53
applicable; provided that if the Foreign Lender is a partnership and one or
more direct or indirect partners ofsuch 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 partnel
(C) any Foreign Lender shall, to the extent it is legally entilled to do so,
deliver to the Borrower and the Administrative Agent (in such number ofcopies
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 ofthe Borrower or the Administrative
Agent), executed copies ofany other form prescribed by applicable law as a basis
fbr claiming exemption tiom or a reduction in U.S. t-ederal withholding Tax, duly
completed, together with such supplementary documentation as may be prescribed
by applicable law to permit the Borrower or the Administrative Agenl to
determine the withholding or deduction required to be made; and
(D) ifa 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 t47l(b) or 1472(b) ofthe Code, as applicable), such
Lender shall deliver to the Borrower and the Administrative Agent at the time or
times prescribed by law and at such time or times reasonabty requested by the
Borrower or the Administrative Agent such documentation prescribed by
applicable law (including as prescribed by Section l47l(bX3XCXi) ofthe Code)
and such additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borroxer 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 clauEe (D), 'FATCA" shall include any amendments
made to FATCA after the date of this Agreement.
Each Lender agrees that ifany form or certification it previously delivered expires
or becomes obsolete or inaccurate in any respect, it shall update such form or certification
or promptly notif, the Borrower and the Administrative Agent in writing of its legal
inability to do so.
(h) lfany party determines, in its sole discretion exercised in good faith, that it has
received a refund ofany Taxes as to which it has been indemnified pursuant to this Section 3.5
(including by the payment ofadditional amounts pursuant to this Section 3.5), it shatl pay to the
indemnifying party an amount equal to such relund (but only to the extent of indemnity payments
made under Ihis Section 3.5 with respect to the Taxes giving rise to such refund), net ofall
out-of-pocket expenses (including Taxes) ofsuch indemnified party and without interest (other
than any interest paid by the relevant Covernmental Authority with respect to such refund). Such
indemniSing party, upon the request ofsuch 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
1264062lv
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:-++]{!]r+x)
:+{
54
charges imposed by the relevant Governmental Authority) in lhe event that such indemnified
party is required to repay such refund to such Governmental Authority. Notwithstanding an),thing
to the contrary in this Section 3.5(h), in no event will the indemnified party be required to pay
any amount to an indemnifoing 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 party
would have been in if the indemnification pa),rnents or additional amounts giving rise to such
refund had never been paid. This clause (h) shall not be construed to require any indemnified
party to make available its Tax returns (or any other information relating to its Taxes that it
deems confidential) to the indemniSing party or any other Person.
(i) Each party's obligations under this Section 3.5 shall survive the resignation or
replacement ofthe Administrative Agent or any assignment ofrights by, or the replacement of, a
Lender, the termination ofthe Commitments and the repayment, satisfaction or discharge ofall
obligations und€r any Loan Document.
3.6 Desisnation ofa Different Lending Installation. [fany Lender requests
compensation under Sections 3.1 or 3.2, or requires the Borrower to pay any [ndemnified Taxes
or additional amounts to any Lender or any Govemmental Authoritv for the account ofany
Lender pursuant to Section 3.5, then such Lender shall (at the request ofthe 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
affiliates, if, in thejudgment ofsuch Lender, such designation or assignment (i) would eliminate
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 PRECEDENT
(a) The Administrative Agent shall have received each olthe following, each in form
and substance satisfactory to the Administrative Agent and each ofthe Lenders:
(i) Copies ofthe articles or certificate ofincorporation oflthe Borrower,
together with all amendments, and a certificate ofgood standing, each certified by the
appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary ofthe Borrower,
of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of any
other body authorizing the execution ofthe Loan Documents.
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4.1 Effectiveness. This Agreement shall not become effective until the following
conditions precedent have been satisfied:
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary ofthe Borrower. which shall identif, by name and title and bear the signatures
of the Authorized Officers and any other officers ofthe Borrower authorized to sign the
Loan Documents, upon which certificate the Administrative Agent and the Lenders shall
be entitled to rely until informed ofany change in writing by the Borro*'er.
(v) A written opinion ofthe Borrower's counsel, addressed to the
Administrative Agent, the Lenders, and the LC Issuers, dated as ofthe 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 ofExhibit
C, addressed to the Administrative Agent and signed by an Authorized Officer, together
with such other related money transfer authorizations as the Administrative Agent may
have reasonably requested.
(viii) Such other dosuments 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 thereoC (iii) to the Administrative Agent, the initial
payment ofthe annual administrative fee described in the Administrative Fee [.€tter, and (iv) alL
other fees and reasonable expenses ofthe Joint Lead Anangers, 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 ofcounsel) in connection with this
Agreement and the other Loan Documents.
(c) Since December 31.2014. both immediately belore and after giving effect to the
consummation ofthis Agreement, there shall not have occuned 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) atl amounts outstanding under the
Existing Credit Agreement shall be repaid and satisfied in t'ull, (ii) all commitments to extend
credit under the Existing Credit Agreement shall be terminated and (iii) any letters ofcredit
outstanding under the Existing Credit Agreement issued by Wells Fargo or Jtr\k:-Bl!!fog4q
shall be deemed issued hereunder by Wells Fargo or jPlvt(:tsJPMorgan, as applicable, as ofthe
l:6411(r:l!
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(iv) A certifisate. 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 ofthe Borrorver contained in Article 5 shall be true and
correct on and as ofthe 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.
Closing Date); and the Administrative Agent shall have received evidence ofthe foregoing
satisfactory to it, including a payoff letter executed by the parties to the Existing Credit
Agreemenl.
(e) The Administrative Agent shall have received from the Borrower all
documentation and other information requested by the Administrative Agent that is required to
satisly applicable'hnow 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 consentcd 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 l-ender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifling its objection thereto.
4.2 Each Credit Extension. The obligation ofeach Lender to make any Credit
Extension hereunder, including any Credit Extension made on the Closing Date (but excluding
Revolving Loans made for the purpose ofrepaying Refunded Swingline Loans pursuant to
Section 2.7(c) or flor the purpose ofpaying unpaid reimbursement obligations ofthe Borrower
pursuant to Section 2.lE(e)), is subject to the satisfaction ofthe following conditions precedent
on the applicable Credit Extension Date:
(i) No Default or Unmatured Detault exists.
(ii) The representations and warranties contained in Article 5 (other than, after
the Closing Date, in Section 5.5) are true and correct as ofsuch Credit Extension Date
except to the extent any such representation or warranty 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 of such earlier date.
(iiD All legal matters incident to the making ofsuch 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. An),
Lender may require a duly completed compliance cenificate in substantially the form of Exhibit
A as a condition to making a Credit Extension.
ARTICLE,5
Rf PRESENTATIONS AND WARR ,NTIES
'fhe Borrower represents and warrants to the Administrative Agent and the [-enders that:
5.1 Existence and Standing. Each ofthe Borrower and its Subsidiaries is a
corporation, partnership (in the case ofSubsidiaries only) or limited liability company duly and
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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 lailure to do so could not reasonably be
expected to have a Material Adverse Effect Rorrower ,-rr env nf its \rrhsidiaries is
aLEEAEinarciallxsti$rian-
5.2 Authorization and Validity. The Borrower has the power and authority and legal
right to execute and deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower ofthe 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 ofthe 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 cred itors' rights generally.
5.3 No Conflict; Covemment Consent. Neither the execution and delivery by the
Borrower ofthe Loan Documents, nor the consummation ofthe transactions therein
contemplated, nor compliance with the provisions thereolwill violate, except to the extent that
such violation, alone or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's or any Subsidiaryt
articles or certificate of incorporation, partnership agreement. certificate ofpartnership, articles
or certificate oforganization, bylaws, or operating or other management agreement, as the case
may be, or (iii) the provisions ofany 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 delault thereunder, or result in, or require. the creation or imposition
ofany Lien in, ofor on the Property ofthe Borrower or a Subsidiary pursuant to the terms ofany
such indenture, instrument or agreement. No order, consent, adjudication, approval, license.
authorization, or validation of, or filing, recording or registration with, or exemption by, or other
action in respect ofany 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 ofthe
Loan Documents, the borrowings under this Agreement, the payment and performance by the
Borrower ofthe Obligations or the legality, validity, binding effect or enforceability ofany ofthe
Loan Documents.
5 .4 Financial Statements. The December 3 I , Jl+1Jl0l3 consolidated financial
statements ofthe 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
ofthe Borrower and its Subsidiaries at such date and the consolidated results oftheir operations
for the period then ended.
5.5 Material Adverse Change. Since December 31, ?tlLlll|l!, there has been no
change in the business, Property, condition (financial or otherwise) or results ofoperations ofthe
Borrower and its Subsidiaries which could reasonably be expected to have a Material Adverse
EfTect.
58
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5.6 Taxes. The Borrower and its Subsidiaries have filed all material U.S. federal ta,x
retums and all other material tax returns 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
Subsidiaries, except such taxes, ifany, as are being contested in good t'aith 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, ifadversely determined. have a Material Adverse Effect. The
charges, accruals and reserves for taxes on the books ofthe Borro*'er 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 waranties 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 Contingent Obligations. Except as set forth in the most recsnt
consolidated financial statements provided to the Administrative Agent pursuant to Section 5.4
or Section 6,1, respectively, there is no litigation, arbitration, govemmental investigation.
proceeding or inquiry pending or, to the knowledge ofany oftheir officers, 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 olany 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.E Subsidiaries. Schedule 5.8 contains an accurate list ofall Subsidiaries ofthe
Borrower as of the €+.or+tEfuftrlOruflnSnLEt&stiys Date, sefting forth their respective
jurisdictions oforganization and the percentage oftheir respective capital stock or other
ownership interests owned by the Borrower or other Subsidiaries. All ofthe issued and
outstanding shares ofcapital stock or other ownership interests ofsuch 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. Flach 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 ofERISA 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'ht-risk status"under Section 430(iX4) ofthe Code or
Section 303(i)(4) of ERISA. Asoflhe EirsrAmc ent Ff ctive Date. the
will ncrt he rrsins'hlan assets"(within lhe mean ns ofSection i(42) of F.RISA or otherwise) of
one or more Benefit Plans with resnect to the Borrower'.s entrance into- panicination in-
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59
administration of and oerformance of the [.oans- the F'acility LCs. the Commitments or this
Agleemenl.
5.10 Labor Relations. As of the €-{t+;i+eF irst Amendment Fl-fective Date, there is (i)
no unfair labor practice complaint before the National Labor Relations Board, or grievance or
arbitration proceeding arising out ofor under any collective bargaining agreement, pending or, to
the knowledge ofthe Borrower, threatened, against it, (ii) no strike, lock-out, slowdown.
stoppage, walkout or other labor dispute pending or, to the knowledge ofthe Bonower,
threatened, against it, and (iii) to the knowledge olthe Borrower, no petition for certification or
union election or union organizing activities taking place with respect to it. As ofthe
@Date.therearenocollectivebargainingagreementsor
Multiemployer Plans covering the employees of the Borrower.
5.lt Accurac), oflnformation. No information, exhibit or report fumished bythe
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 offact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading. As of the Cles++4:fi61
Amendmenrgfc$ive 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 fumished 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. All of the informat in
tle neneiiciat Owne
ne aetiverea on or irsf
Amendment F ffbctive Date.
5.12 Regulation U. Margin stock (as defined in Regulation U) constitutes less than
Z1yo of the value ofthose assets ofthe Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
5. I 3 Material Agreements. Except as provided by applicable law or as set forth in
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 ofany Subsidiary of Borrower to declare or pay dividends to the Borrower, or (b) which
could reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary is in default in the performance, observance or fulfillment ofany ofthe obligations,
covenants or conditions contained in (i) any agreement to which it is a pany, which default could
reasonably be expected to have a Material Adverse Effect or (ii) any agreement or instrument
evidencing or goveming 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 ofany domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the conduct oftheir
respective businesses or the ownership oftheir respective Property except tbr any failure to
60
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comply with any ofthe foregoing which could not reasonably be expected to have a Material
Adverse Effect.
5.15 Ownership ofProperties. Except as set forth on Schedule 5.15, as ofthe
@iysDate,theBorroweranditsSubsidiarieswi|lhavegoodtitle,
free ofall Liens other than those permitted by Section 6.11, to all ofthe 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 Borrolver 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 ofthis 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 th€ Borro*er
nor any Subsidiary has received anv notice to the effect that its operations are not in material
compliance with any ofthe requirements ofapplicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is needed to respond to
a release ofany 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 lnvestment Company Act. The Borrower is not an'investment company"or a
company 'bontrolled" by an 'investment company'i within the meaning of the Investment
Company Act of 1940.
(a) Neither the Bonower nor any ofits Subsidiaries, and to the Borrower's
knowledge, none oftheir respective directors. ofticers, employees or a{filiates (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 ofany Anti-Corruption Laws- Anti-Monev
Laundering I aws or Sanctions. The Borrower has implemented and maintains in effect policies
and procedures designed to ensure compliance in all material respects by the Bonower and its
Subsidiaries with applicable Sanctions-*+d. Anti-Comrption Laws-andA i=Mone$,aurulering-
LaM.
(b) Neither the Borrower nor its Subsidiaries, and to the Borrower's knowledge, none
of their respective directors, otficers 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.
1ll,.1r)a: lt
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6t
5.18 Dcsicnatcd Persons: Sanctions: Anti-Corruotion Laws: PA lRIOl Act.
(c) Each ofthe Borrower and its Subsidiaries is in compliance in all material respects
with all Anti-Corruntion I.aws and Anti-MoneJ I aunderinglaws-ifl:luling--udthoullimih]tion-
the PATRIOT Act.
(dl No proceeds of anl. Credit Extension hereund directl) or
inai.ecttv. Ul tn its or
tleir respectlve a
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 shalI remain
outstanding:
6.1 Financial Reporting. The Borrower will maintain, for itselland each Subsidiary, a
system of accounting established and administered in accordance with the Agreement
Accounting Principles, and fumish to the Administrative Agent in sufficient copies for each of
the Lenders:
(i) Within one hundred twenty (120) days after the close ofeach of its fiscal
years (or, ifearlier, within thirty (30) days after the Borrower is required to file its Annual
Report on Form l0-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 statemenls need not be certified by
such accountants) for itselfand its Subsidiaries, including balance sheets as ofthe end of
such period, related profit and loss and reconciliation of surplus statements, and a
statement ofcash flows. Delivery by the Borrower to the Administrative Agent of copies
ofthe Parent's Annual Report on Form l0-K filed with the Securities and Exchange
Commission for any year shall satisfy the Borrower's obligation under this clause (i) with
respect to such year.
(ii) Whhin sixty (60) days a{ter the close ofthe 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 ofeach the first three (3) quarterly periods ofeach of its fiscal years. for itselI
and its Subsidiaries and consolidated and consolidating profit and loss and reconciliation
ofsurplus statements and a statement ofcash flows for the period fiom the beginning of
such fiscal year to the end of such quarter. all certified by an Authorized Officer.
Delivery by the Borrower to the Administrative Agent of copies of the Borrowerb
Quarterly Repon on Form l0-Q filed with the Securities and Exchange Commission for
t2640621\
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62
any quarter shall satisry the Borrower's obligation under this clause (ii) with r€spect to
such qua(er.
(iii) 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 ifany Default or
Unmatured Default exists, stating the nature and status thereofand (B) a calculation of
the Indebtedness secured by Liens permitted under Section 6.1l(xiii) in such form as is
reasonably satisfac(ory to the Administrative Agent.
(v) As soon as practicable and in any event within ten ( l0) 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 ofthe release by the
Bonower, any of its Subsidiaries, or any other Person ofany 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 Bonower or any of
its Subsidiaries. which. in either case, could reasonably be expected to have a Material
Adverse Effect.
(vi) Promptly upon the furnishing thereofto the shareholders ofthe Bonower,
copies ofall financial statements and reports so fumished.
(vii) Promptly upon the filing thereof, copies ofall registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission.
(viii) Pn,mntlv unon the request th
documentation reouired under aoolicable 'know )rour customer" rules a
PATRIOT Act or anv annlicable Anti-Mone), I.aundering I arvs or Anti-Corruption I ar,r,s-
in eacn case as tiom t
trx) tt++Such other information (including nonfinancial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
6.2 Use ofProceeds. The Borrower will, and will cause each Subsidiary to, use the
proceeds ofthe Credit Extensions for general corporate purposes and commercial paper back-up.
1264621r
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63
(iv) As soon as practicable and in any event within ten (10) days after the
Borrower knows of the occurrence ofany ERISA Event that could reasonably be
expected to have a Material Adverse Effect (x) a written statement of an Authorized
Oflicer ofthe Borrower specifoing the details ofsuch ERISA Event and the action that
the Borro\4'er or ERISA Affiliate has taken and proposes to take with respect thereto, (y) a
copy ofany notice with respect to such ERISA Event that may be required to be filed
with the PBGC and (z) a copy ofany notice delivered by the PBGC to the Borrower or an
ERISA Affiliate with respect to such ERISA Event.
6.3 Notice of Default. etc. The Borrower will, and will cause each Subsidiary to, give
prompt notice in writing to the Lenders ofthe occurrence of (i) any Default or Unmatured
Default and (ii) the commencement ofor any ruling in any litigation, or any other development,
financial or otherwise, which could reasonably be expected to have a Material Adverse Eflect.
6.4 Conduct of Business. The Borrower will, and will cause each Material Subsidiary
to. carr)'on and conduct its business in substantially the same manner and in substantially the
same fields ofenterprise 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 corect 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 Propeny. 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 lnsurance. 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 furnish to any Lender upon request fulI information as to the insurance carried.
6.7 Comoliance 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 Flnvironmental Laxs.
6.8 Maintenance of Properties. The Borrorver ll ill, 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 rspresentatives and agents, to inspect
any ofthe Property. books and financial records ofthe Borro*'er and each Subsidiary, to examine
and make copies ofthe books ofaccounts and other financial records ofthe Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts ofthe Borrower and each Subsidiary
with, and to be advised as to the same by, their respective offtcers at such reasonable times and
intervals as the Administrative Agent or any Lender may designate.
6.10 Merger and Sale of Assets. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit
any Material Subsidiary to, merge or consolidate with or into any other Person, or sell or
12640621v
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64
otherwise dispose ofall 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 ofall 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 ofthe Uniform Commercial Code) and associated cotlateral, lockbox and other collection
accounts. records and/or proceeds in connection with a Permitted Receivables Securitization.
6.1I Liens. The Borrower will not, nor will it permit any Material Subsidiary to,
create, incur, or suffer to exist any Lien in, ofor on the Property ofthe Borrower or any Material
Subsidiary, except:
(i) l,iens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or therealler 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 booksl
(ii) Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course ofbusiness which secure
payment ofobligations not more than sixty (60) days past due or which are being
contested in good thith by appropriate proceedings and for which adequate reserves shall
have been sct aside on its books'
(iii) I-iens arising out ofpledges 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 incurrcnce
of which u'ould result in a Default under Section 7(k)):
(iv) Utility easements, building restrictions and such other encumbrances or
charges against real property as are ofa nature generally existing with respect to
properties ofa similar character and which do not in any material way affect the
marketability of the same or intert'ere with the use thereof in the business of lhe Borrower
or its Subsidiaries;
(v) Liens existing on the Jate here+lFirst Amendment Fft apd
described in Schedule 5.15;
12640621\
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(vi) [,iens on Properfy- of the Borrower or any of its Material Subsidiaries
created solely for the purpose ofsecuring Indebtedness incurred to fund the purchase
price of Property. ggvidcd that no such [,ien shall extend to or cover any other Property
ofthe Borrower or its Material Subsidiaries other than the Property so acquired (and the
proceeds therefrom) and the original principal amount ofthe Indebtedness so secured by
any such Lien shall not exceed the original purchase price and costs related to the
purchase, transportation, and installation ofthe Property so acquired;
(vii) The Lien created by the First Mortgage and any Lien described in any
deeds or other instruments under which properfy" has been conveyed to the Borrower and
to which the Lien of the First Mortgage is expressly made sub.ject;
(viii) Any Lien existing on any propert)'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;
(ix) Liens arising under a Permitted Receivables Securitization;
(x) Liens arising try operation of law with respect to any deposit. securities
and commodity account; provided that (a) the right ofthe Borrower or the applicablc
Material Subsidiary to ll'ithdraw assets from such account shall not be restricted other
than by customary rules ofgeneral application (such as restrictions on withdrawals during
the time rcquired 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 ofthe Administrative Agent hereunder;
(xii) Any Lien arising out olthe refinancing, extension, or renewal ofany
Indebtedness secured by any Lien permitted by clause (v) of this Section 6.11; proyded
that such lndebtedness 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 ofbusiness 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, provirlecl 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 Indebtedness of
the Borrower or the Parent in respect ofanv 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 ifsuch Rate Management Obligation
were terminated at such time of determination.
6.12 I,everage Ratio. The Borrower will not permit the ratio, as ot'the lastdayofany
of its fiscal quarters, of (i) Consolidated Indebtedness to (ii) Consolidated Total Capitalization to
be greater than 0.65 to t.0.
6. I 3 Investments and Acquisitions. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withhetd). the Borrower will not, nor will it permit
any Subsidiary to, make or sutlbr to exist any lnvestments (including loans and advances to, and
other Investments in, Subsidiaries, or commitm€nts 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:
12640621v
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(i) Cash Equivalent Investments and lnvestments permitted by the investment
policies approved from time to time by the board ofdirectors ofthe Borrower or the
relevant Subsidiary, as applicable;
(ii) Investments in, and loans and advances to, Subsidiaries existing as ofthe
date hereofand other Investments existing as ofthe date hereof;
(iii) lnvestments by Subsidiaries in securities ofthe Borrower and Investments
by the Borrower and its Subsidiaries in any business trust controlled, directly or
indirectly, by the Borrower to Ihe extent such business trust purchases securities olthc
Borrower;
(iv) In addition to Investments otherwise permitted hereunder, [nvestments and
Acquisitions related to the energy business ofthe 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
Perm itted Receivables Securitization.
6.14 Subsidiary Dividend Reslrictions. 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 deolare or pay dividends to the Borrower, except as disclosed in
Schedule 5.13. other than prohibitions or resr.rictions in connection with a Permined Receivablcs
Securitization.
6.15 Affiliates. The Borrower will not, and will not permit any Subsidiary to, enter
into any transaction (including the purchase or sale ofany Property or service) with, or make any
paymenl or transfer to, any Affiliate that is not a Subsidiary except in the ordinary course of
business and pursuant to the reasonable requirements ofthe 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.
(a) The Borrower will, and will cause each of its Subsidiaries to, (i) comply in all
material respects with jllAfii.Cr:ulnrionlaws-Alri-Moneylauorleringl-ares_and Sanctions
requirements (including laws applicable to transactions ofor with any Designated Person or in
any Sanctioned Country), (ii) in the event ofa violation ofSanctions requirements, terminate no
later than required by applicable law, or ifapplicable law does not provide any time for
termination, then promptly upon obtaining knowledge thereo[, any funding financing or
facilitating by the Borrower or its Subsidiaries ofany activities, business or transaction ofor with
any Designated Person or in any Sanctioned Country or otherwise in violation ofSanctions, as
such Sanctions Lists or Sanctions are in effect t'rom time to time,-a{rd (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 and all other A nti-Nl one.,- Iaunrlerilg-
12610621v
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61
6.1 6 OFAC. PATRIOT Act Compliance: Renefic ial0unershjgB,egulalii:n.
f .aws- tivl notltv tn
Ownersnin Ceninca
the 'legal entit), customer" defin ition under the Renetlcial Ownershio Regulation) oianylhangg
in the information provided in the Beneficial ()vl'nership Certification that would resullina
chanqe to the list ing
to fall within an exn
Ownersh in neguta lyc.
Agent or anl- I.ender- provide the Administrative Agent or d - as the case
mal- he- an], information or documentation requested bl- it for nurposes of comnlving with thegenificiatOr&oeffhip ion-.
(b) No part ofthe proceeds ofany Credit Extension hereunder will be used directly,
or to the knowledge ofthe Borrower indirectly, (i) for any payments to any governmental oflicial
or employee, political party, official ofa political party, 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-Corruption Laws-{ ljnjttrherancedarcIfer-
na}',ment- nromise to pay- or authoriTat
vatue- to anv pers or (l-ijjj) (A) to fund, or to
lend, or to contribute such proceeds to any other Person to fund. any activities or business ofor
with any Person, or in any country or territory, that, at the time ofsuch funding or issuance, is, or
whose govemment is, the subject ofSanctions, or (B) in any other manner that would result in a
violation of Sanctions by any Person party hereto.
ARTICLE 7
DEFAULTS
The occurrence ofany 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 behalfofthe 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 ofprincipal ofany Loan when due; or nonpayment ofany
Reimbursement Obligation within one (l) Business Day after the same becomes due; or
nonpa;,rnent of interest on any Loan, any fee payable by the Bonower hereunder or any other
obligation under any ofthe Loan Documents within five (5) days after the same becomes due.
(c) The breach by the Borrorver of any ofthe terms or provisions ofSection 6.2,
6.3(i) (and (i) in the case offailure to deliver notice ofa Default arising under Section 7(d), five
(5) days shall have elapsed after an Authorized Officer obtained knowledge ofsuch Default and
(ii) in the case of t'ailure to deliver notice ofa Default arising under Section 7(e). twenty (20)
days shall have elapsed after an Authorized Officer obtained knowledge ofsuch Default), 6.10,
6.1l. 6.12 r,r'. 6.l3ori-16[t .
12640621't
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(d) The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) ofany of the terms or provisions ofSection 6.9 or 6.14
which is not remedied within tive (5) days after written notice from the Administrative Agent or
anv Lender.
(e) The breach by the Borrower (other than a breach which constitutes a Delault
under another Section of this Article 7) ofany ofthe 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 Borro*er shall occur with respect to any payment
obligations under any Rate Management Agreement that is not remedied by the later of (i) the
expiration ofany cure period provided in such Rate Management Agreement and (ii) three (3)
Business Da1's after the same shall become due and pa)'able.
(f) Failure of the Borrower or any of its Subsidiaries to pay when due (after the
expiration ofany applicablc cure period) any Material Indebtedness; or the default by the
Borrower or any of its Subsidiaries in the perfbrmance of any other term, provision or condition
contained in any agreement under which any such Material lndebtedness rvas created or is
governed, or an.v other event shall occur or condition cxist, the effect of which default or event is
to cause, or to permit the holder or holders ofsuch Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material Indebtedness ofthe
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 thereott or the
Borrower or any of its Subsidiaries shall not pay, or admit in writing its inability to pay, its dehts
generally as they become due.
(g) The Borrower or any ofits Material Subsidiaries shall (i) have an order for reliel
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 ofa 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 herealter in etlect 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 ofany such proceeding filed against it, (v) take any corporate or partnership
action to authorize or ettect any ofthe foregoing actions set forth in this Section 7(g) or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7(h).
(h) Without the application, approval or consent ofthe Borrower or any ofits
Subsidiaries. a receiver. trustee. examiner. liquidator or similar oflicial shall be appointed for the
Borrower or any of its Material Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7(g) shall be instituted against the Borrower or any of its
Material Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.
(i) Any cou(. government or governmental agency shall condemn. seize or otherwise
appropriate. or take custody or control of (each, a 'Condemnation'), all or any portion ofthe
126+0621v
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69
Propeny* of the Borrower and its Subsidiaries which, when taken together with all other Property
ofthe Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control ol, during thc 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 Ierm 'Condemnation" shall not include
any voluntary transfer by the Borrower or any of its Subsidiaries of its electronic transmission
line facilities, or an,v interest therein, to a regional independent grid operator.
O The Borrower or any of its Subsidiaries shall fail x'ithin 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 Eflbct, which judgment(s), in any such case,
is/are not sta)'ed on appeal or otherwise being appropriately contested in good laith,
(k) Any ERISA Event shall occur with respect to any Plan or Multiemployer PIan
that. r.l'hen taken together rvith 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 ofany proceeding
or investigation pertaining to the release by the Borrower, any of its Subsidiaries or any other
Person ofany toxic or hazardous waste or substance into the environment, or (ii) violate any
Environmental Larv, 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 ofall Liens. 100% ofthe outstanding
shares ofvoting stock of the Borrower.
(o) Any provision ofany 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 ofall the Obligations, ceases to be in full force and effect (pror.ided that the cessation ofthe
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 ofany provision ofany Loan Document (provided that the invalidity or
unenforceability ofsuch 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
liabiliry or obligation under any Loan Document. or purports to revoke, terminate or rescind any
provision ofany [,oan Document.
l2(A062lv
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70
ARTICLE E
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
(a) Ifany Default described in Sections 7(g) or 7(h) occurs with respect to the
Borro*er- the obligations ofthe Lenders to make Loans hereunder and the obligation and power
ofthe t,C Issuers to issue and Modi! Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any election or action on the part
ofthe Administrative Agent, any LC Issuer 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 flunds shall be held in the
Facility LC Collateral Account, equal to the dift'erence 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 ofall rights and claims of third parties and has not been applied against
the Obligations (such difference, the'Collateral Shortfall Amount'). If any other Default occurs.
the Required Lenders (or the Administrative Agent with the consent ofthe Required Lenders)
may'(a) terminate or suspend the obligations ofthe Lenders to make Loans hereunder and the
obligation and power ofthe LC Issuers to issue and Modiff 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 ofany 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 ofall amounts payable under this Agreement, make demand
on the Borrower to pay. and the Borrower will, tbrthwith 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 thc Facitity LC Collateral Account.
(b) If at any time while any Detault is continuing, the Administrative Agent
determines that the Collateral Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrower to pay, and the Borrower l,lill.
florthwith upon such demand and without any further notice or act, pay to the Administrative
Agent the Collateral Shorti'all 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 ofthe
Obligations and any other amounts as shall from time to time have become due and payable by
the Borrower to the [,enders or any LC Issuer under the Loan Documents.
(d) At any time while an1- Default is continuing, neither the Borrower nor any Person
claiming on behalfolor through the Borrower shall have any right to \4'ithdraw any ofthe funds
held in the Facility t,C Collateral Account. After all of the Obligations have been indefeasibly
paid in tull 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 *homever may be legall,v entitled thereto at such time as ordered by a court of competent
jurisdiction.
12640621v
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8.1 Acceleration: Faciliry- LC Collateral Account.
(e) If, within fburteen (14) days after acceleration ofthe maturity of the Obligations
or termination ofthe obligations ofthe Lenders to make Loans and the obligation and power of
the LC Issuers to issue and Modiff L-acililv LCs hereunder as a result ofany 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 ofthe 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 andlor termination.
(f) [n the event the Ohligations have been accelerated pursuant to this Section 8.1. or
tle aaministrativ
,ny otner t oan nocu
nroceea. fro- ttt.. iq!-
Z. t ffit ana Z.ZZ. U
First- to oa),ment of that portion of the Ohligations constituting t'ees- indemnities.
exnenses and other amounts- including attomev l'ees- pavable to the Administrative Agent in its
caoaciryas.such-
Second- to oayment of that lortion of the ()hligations constLiluiog-&es.l:ollherlhal[aqili+
Fees and I (l Fees nayahle to the I enders')- indemnities and other amounts (other than orincinal
and interest) payahle to the [.enders- th
nocuments- lnclua ins-
L"nder in nrnnnrtinn to lhe resnective ^mnrrnts rlescrihed in thiq clerrse Secnnd nevzhle ln them'
Third- to nayment ofthat nortion ofthe Clhligations constituting accrued and unpaid
Facilit!'Fees. LC Fe
the t.enaers- the ivr-
amounts aesc.inea
Fourth- to navment of that portion of the Ohligations constituting unpaid orjncina"Lotjhl
Loans and Reimhursement Clhligations then owing and to cash colla iga oni
then outstanaing lyf-
amounts aescriUea
I ast. the halance- ifany.'- after allofthe Obligations have heen paid in full.lolhq
no.rowe" or as otle
8.2 Amendments. Neither this Agreement or any other Loan Document nor any
provision hereofor thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required Lenders (or
by the Administrative Agent at the direction or with the consent ofthe Required Lenders);
ptoyidqd, however, that no such agreement shall:
(D unless agreed to by each Lender directly affected thereby, (i) reduce or
forgive the principal amount ofany Loan or Reimbursement Obligation, reduce the rate
ofor forgive any interest thereon (provided that only the consent ofthe Required Lenders
shall be required to waive the applicability ofany post-default increase in interest rates),
1264062lv
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72
or reduce or forgive any fees hereunder, (ii) extend the scheduled date for the payment of
any principal ofor 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 ofany Facility
LC beyond the Facility LC Maturif.v Date, or extend the time of payment of any fees
hereunder. or (iii) increase any Commitment ofany such Lender over the amount thereof
in eflect or extend the maturity thereof;
(iD unless agreed to by all ofthe Lenders, (A) modifo the definitions ofthe
terms 'Required Lenders"or'?ro Rata Share", or (B) change or waive any provision of
Section I1.2. any other provision of this Agreement or any other Loan Document
requiring pro rata treatment ofany Lenders, or this Section E.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, modifr or
otherwise affect the rights or duties ofthe Administrative Agent hereunder without the
prior written consent of the Administrative Agent, (B) amend, modifo or otherwise affect
the rights or duties ofthe Swingline Lender hereunder without the prior wriften consent
ofthe Swingline Lender, or (C) amend, modily or otherwise affect the rights or duties of
any [,C Issuer hereunder without the prior written consent ofsuch 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
pavments in this Agreement or any other Loan Documenl (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 ofall 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 I126(c) ofthe United States Bankruptcy Code supersedes the unanimous consent
provisions set forth herein.
Notr,r ithcterrrlins rnvthing trr thi' i rrntrerr, hetein the Administrative Aqent ancl the Borrower
m:v withnrrt the rnn,tent nlanv I pnder enter intr-r amendmenls or modillcations to lhis
Agreement or aql of th enter into addi analloannaqlmenl.s jt-t
the Adm inistrativ
Reolacement or any
terms of Section 2.
Nntwil h,ilenrl inu anr,4hino in this A.rreement the contrarv each Lender hr:rehv irrevor:ahlv
autnorizes tne lam
with the consent ( ir
Agreement and the cr
restatement- such
73
12(44621,t
]-
?.1+1C+0q:4
restated)- the (l
rrther cnmmitment or other obli!,ation hereunder and shall have been oaid in f'rrll all nrincin;rl
interest and other
other [.oan Documents and (v) enter into a
(including arnendments to this Secti inltr
Additional Loan
to effcctuate the t fammitment
fncreases to share
(2) to include a Commitment Increase- as aoolicahle. in an.,- determination of (i) Reouired
[.enders or (ii.) similar reouired lender terms annlicahle thereto): frrovided that no amendment or
moa;ncation snal itmeflafan}
ifl:rcascin any f ender\
affected I ender.
Notwithstanding an]'thing 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 ofall Lenders or each affected Lender
may be effected with the consent ofthe applicable Lenders other than Det'aulting Lenders),
except that (x) the Commitment ofany Defaulting Lender may not be increased or extended
without the consent ofsuch Lender and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by hs terms affects any Defaulting Lender
more adversely than other affected Lenders shall require the consent ofsuch Defaulting Lender
and (ii) if the Administrative Agent and the Borrower shall havejointly identified (each in its
sole discretion) an obvious enor or omission ofa technical or immaterial nature. in each case, in
an1- provision of the Loan Documents. then the Administrative Agent and the Borrower shall be
permitted to amend such provision and such amendment shalI become eflective without any
further action or consent ofany other party to any [,oan Document ifthe same is not objected to
in writing by the Required Lenders within five (5) Business Days following the posting ot'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 ofa Credit Extension notwithstanding the existence ofa
Default or the inability ofthe Borrower to satisfy the conditions precedent to such Credit
Extension shall not constitute any waiver or acquiescence. Any single or partial exercise ofany
such right shall not preclude other or further exercise thereofor the exercise ofany other right,
and no waiver, amendment or other variation ofthe terms, conditions or provisions ofthe Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant
to Sectiotr E.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.
12(,4.0621\
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74
ARTICLE 9
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties ofthe Borrower
contained in this Agreement shall survive the making ofthe Credit Extensions herein
contemplated.
9.2 Governmental Regulation. Anfhing 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 ofany limitation or prohibition provided by any
applicable statute or regulation.
9.3 Entire Agreement. 'l-he Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, the LC Issuers, the Swingline
[-ender and the Lenders and supersede all prior agreements and understandings among the
Borrower. the Administrative Agent, the LC lssuers, the S*ingline Lender and the Lenders
relating to the subject matter thereof other than the Fee I-etters.
9-4 Several C)hlipations: Benefits ofthis Asreement- The resnective oblisations 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
confbr 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 ofthis Agreement. and their
respective successors and assigns, provided that the parties hereto expressly agree that each Joint
Lead Ananger shall enjoy the benefits ofthe provisions ofSections 9.5,9,9 and l0.E to the
extent specifically set forth therein and shall have the right to enlorce 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 shallreimburse the Administrative Agent and each Joint Lead
Arranger for any reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attomeys'fees and time charges of attorneys lor the Administrative Agent and Wells
Fargo Securities, which attorneys may be employees of the Administrative Agent and/or Wells
Fargo Securities, but excluding attomeys'fees other than those incurred by the Administrative
Agent and/or Wells Fargo Securities) paid or incurred by the Administrative Agent or such Joint
Lead Ananger 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 [ssuer for all reasonable
out-of-pocket expenses incurred by such LC Issuer in connection with the issuance or
Modification ofany Facility LC or any demand for payment thereunder, The Borrower also
agrees to reimburse the Administrative Agent, each Joint Lead Arranger, each LC Issuer, the
Swingline Lender and the Lenders for any reasonable costs, intemal charges and out-of-pocket
expenses (including reasonable attorneys' fees and time charges of attorneys for the
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Administrative Agent, each Joint Lead Arranger, each LC Issuer, the Swingline Lender and the
Lenders, which attorneys may be employees of the Administrative Agent, a Joint Lead Aranger,
an LC Issuer, the Swingline Lender or a Lender) paid or incurred by the Administrative Agcnt,
any Joint Lead Arranger, any LC Issuer, the Swingline Lender or any Lender in connection with
the collection and enforcement ofthe 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 thereofby. the
Administrative Agent or any Lender as a result ofconduct ofthe Bonower that violates a
sanction enlorced by OFAC.
(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), each [,C Issuer, each Lender. and each Related Parry ofthe foregoing persons (each
such person being called an'lndemnitee') against, and hold each Indemnitee harmless from, any
and all losses. claims, damages, liabilities and related expenses (including the fees, charges and
disbursements ofany counsel for any Indemnitee). incurred by any lndemnitee or asserted against
any Indemnitee by any third party or by the Borrou'er arising out o( in connection with, or as a
result of (i) the execution or delivery ofthis Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto
oftheir respective obligations hereunder or thereunder or the consummation ofthe transactions
contemplated hereby or thereby, (ii) any Loan or Facility LC or the use or proposed use ofthe
proceeds therefrom (including any refusal by the LC Issuer to honor a demand for payment under
a Facility LC if the documents presented in connection with such demand do not strictly comply
with the terms of such Facility LC), (iii) any claim under Environmental Laws related in any way
to the Borrower, or (iv) any actual or prospective claim, litigation. investigation or proceeding
relating to any ofthe foregoing, whether based on contract. tort or any other theory, whether
brought by a third party or by the Borrower, and regardless ofwhether 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 j urisdiction by final and nonappealable j udgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result tiom a claim brought by the
Borrower against an lndemnitee for breach in bad faith ofsuch 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 ofcompetent
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 Issuer, the Swingline Lender or any Related Party of
any ofthe foregoing, each Lender severally agrees to pay to the Administrative Agent (or any
such sub-agent), each LC Issuer or such Related Party, as the case may be, such Lender's
proportion (based on the perc€ntages as used in determining the Required Lenders as of the time
that the applicable unreimbursed expense or indemnity payment is sought) ofsuch 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 capacitv as such or such LC Issuer in its
capacity as such. or against any Related Pary-- ofany ofthe foregoing acting for the
Administrative Agent (or any such sub-agent) or such LC Issuer in connection with such
76
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capacity. The obligations ofthe 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) 1-he obligations ofthe Borrower under this Section 9.5 shall survive the
termination of this Agreement.
9.6 Numbers ofDocuments. All statements, notices, closing documents, and requests
hereunder shall be furnished to the Administrative Agent with sufTicient 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 interpretcd and all accounting determinations hereunder shall be made in
accordance with Agreemcnt Accounting Principles.
9.9 Nonliability ofLenders. I-he relationship between the Borrower on the one hand
and the Lenders, the Swingline Lender, the LC lssuers and the Administrative Agent on the other
hand shall be solely that of borrower and lender. None of the Administrative Agent, anyJoint
Lead Arranger. any LC Issuer, the Swingline Lender or any Lender shall have any fiduciary
responsibilities to the Bonower. None ofthe Administrative 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 ofany matter in connection with any phase ofthe Borrower's
business or operations. The Borrower agrees that no lndemnitee 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 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 fiom the gross negligence or willful misconduct
ofthe 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 Bonower in conneclion 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 ofany information or other materials
distributed by it through telecommunications, electronic or other information transmission
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9.8 Severability ofProvisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable. or invalid in anyjurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without aflecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity ofthat provision in any other j urisdict ion,
and to this end the provisions ofall Loan Documents are declared to be severable. Without
limiting the foregoing provisions of this Section 9.E, if and to the extent that the enforceability of
any provisions in this Agreement relating to Def'autting Lenders shall be limited by appticable
bankuptcy. insolvency or similar law, as determined in good faith by the Administrative Agent,
the LC Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be
in effect only to the extent not so limited.
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 Contidentiality. Each Lender agrees to hold any confidential intbrmation which it
may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure
(i) to iB Amliates 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 parry, (vi) to such Lender's direct or indirect contractual counterparties in Rate
Management Transactions or to legal counsel, accountants and other professional advisors to
such counterparties, (vii) permitted by Section 12.4, (viii) in connection with the exercise of
rights or remedies hereunder or under any Loan Document or Rate Management Agreement or
any action or proceeding relating to the enforcement ofrights hereunder or thereunder, (ix) to the
extent such confidential information becomes publicly available other than as a result ofa breach
of this Section 9.10 or becomes available to the disclosing Lender or its Afliliates on a
non-confidential basis lrom a source other than the Borrower. its Subsidiaries or another Lender
or any of its Affilitates, and (x) on a confidential basis to ( [ ) 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 CUSIP numbers
with respect to the facilities created hereunder. In the case ofany disclosure pursuant to clause
(D, (iD, (vD, (vii) or (x) above, each Person to whom such disclosure is made will be informed of
the confidential nature ofsuch information and instructed to keep such information confidential.
In the case ofany requested disclosure pursuant to clause (iv) or (v) above, the applicable Lender
will give prompt notice ofthe request to the Borrower (unless prohibited by the terms ofthe
applicable law, regulation, subpoena or other legal process or proceeding) so that the Borrower
may endeavor to obtain a protective order or other assurance ofconfidential treatment.
9. I I Nonreliance. Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U ofthe Board ofGovernors ofthe Federal Reserve
System) lor the repayment ofthe Credit Extensions provided for herein.
9.12 Disclosure. The Borrower and each Lender hereby acknowledge and agree that
Wells Fargo and/or its Alfiliates from time to time may hold investments in, make other loans to
or have other relationships with the Borrower and its Affiliates.
9.13 PATRIOT Act Notice. Each Lender that is subject to the PATRIOT Act olatrJi
other Anti-Money l aundering I aurand the Administrative Agent (for itself and not on behalf of
any Lender) hereby notifies the Borrower that pursuant to the requirements ofthe PATRIOT Act.
or sucn o*er lnti- , it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address ofthe
Borrower and other intbrmation that llill allow such Lender or the Administrative Agent, as
applicabte, to identiS the Borrower in accordance with the PATRIOT Act or such other
A nt i- Mon ev l;rund{:f,itr+Lal&s.
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9-14 Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shallconstitute one agreement, and any ofthe parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be effective
when it has been executed by the Borrower, the Administrative Agent, the LC Issuers, the
Swingline Lender and the Lenders as ofthe Closing Date and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken such action.
Delivery ofan executed counterpart ofa signature page ofthis Agreement by facsimile or other
electronic transmission will be effective as dclivery ofa manually executed counterpart thereof.
9.15 qcf nowteagement ions-
arrangement or understanding amonEr anv such narties- each partlr hereto acknowledges that anv
tianit;tv is unsec
Notw ithstanding an
(a) the appIicarion of anv Write-Down and ConvelsiotPo]&erLbl_an.EEl\'Resol]I[i1)n.
Arrthnritv tn env srrch lirhilitipc arisino hererrnd uhich mav he navahle to it hv anv nartv hereto
that is an EFA Financial Institution: and
([] the effects ofany Rail-ln Action on anv such liahiliry- including- ifaFnlicable:
Resnlrrtinn Authnritv and aot e< rnd .^n<cnt( tn qn.l arLnnrr,'l,.,{occ and aorec< tn hc hnrrnrt hv
e rerirrctinn in firll nr in nert ^r ranc,.llaiinn afenv crr,-h lirhilitv
r conversinn of all or a nnrfinn of srrch liahilitv into shares or other
o
G)
lnstruments ofow lng-_ora
bridge institutio
shares or other in ip will he accepted hv it in lieu ofanl'rights *1th
resDect to an), such
LiA tne variation oit isc-
of the Write-F)nwn znd f'nnversion Powers nf anv FFA Resnlrrtirin Arrthorit\,,
9.16 Cerlain-ERlSA_ldauers-
(a) Fach I ender (x) renresents and warrants- as ofthe date such Pers
I ender panJ* hereto- to- and () l covenants- from the date such Person became a I ender narEi
hereto to the date such Person ceases heing a I ender partv hereto. fbr the benetit oli the
aaministrative ns
avoidance ofdouht- t
will be true:
0 srrch l.ender is nnf rrsino'hlen assets"(within the meaninp of Section i(4?)
ot nntS,l or otlerwis
effrancr-iffo-radicipatiox-in- admin
Facility I Cs or the Commitments:
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liabilitv of anv EEA Financial lnstitution arising under an,v- [ oan Documen]Llo lhc extenLsulL
79
G] the transaction e i
M-t+ qa cla.s exem
nrofessional asset managers)- P'l'Fl 95-60 (a class exemotion tbr certain transactions
involving insurance company general accounts). PTF 90- l (a class exemotion fbr certain
transactiontinvolving insura
awpmntinn fnr certe in t'.h.'^ri^6c i..^lwinc honlz nnllprtiwe inw i*-- t fi,-n"\ ^. DTE
qn-Zl ta ctass exem
is anplicahle with respEct to such I ender\ entrance into- oarticination in. administration
of and performance of the I oans- the l.etters of Credit. the Commitments and this
Agreement:
GD (Atsuch t.ender is an investment firnd managcd h)'a'Oualificd
Profissional Asset Manaser" (within the meaninp ofParf VI oIPTF R4-14) IB) srrch
Oualified Professional Asset Manager made the investment decision on hehalfofsuch
Lender to enter into-icinate in- administer and nerform the [-oans the F-ar:ilifv L(ls
the Commitments and this Agreement- (C) the entrance into- participation in-
administmtion of and perlirrmance of the I oans- the Facilit]' LCs- the Commitments and
this Agreement satisfies the reouirements oF suh-sections (h) through (g) of Part I of PTE
tl- t + ara f nt to tlr.
Part t ofPTF 84 icipalia&i itnem
and th is Asreement: or
[y] such other renresentation. wanan$, and covenant as may he agree(Lil
writino hetween the Adrninistretive Aoen, in it< (nle dis.reti n rnrl e,rnh I enrler
[b)
is true with resnect to a l.ender or f)) a
covenant in accordance *ith sub-clause (iv) in the immediatelv nrecedin clarrse /a) srrch [.ender
lurther (J!) represents and warrants- as ofthe date such Person hecame a I ender part,,- hereto- to-
and (J-') covenants- from the date such Person hecame a I ender narty herettr to the date such
Person ceases tteing
Ioint Lead Arranser an their resnective Affiliares- and not- for the avoi nnce nfdorrht to or for
t
their resnective Affiliates is a fiduciary with resnect to the assets olsuch I ender involved in such
I ender\ entrance into- participation in- administration ofand perfrrrmance ofthe I oans- the
Facilifv f .Cs. the ilrl
ol-exercise of a.v .ights h
or any documents re
9J1 Acknowledgement Regarding An)'Sunnorted C)FCs. To the extent that the I oan
nocuments provl i
or 2nv other aqreement or instrument that is a FC (srrch <rnnnrt 'f)FC Credit Srrnnort"and
each such OFC. a'Supported OFC']. the narties acknowledge and agree as thllows with respect
to the resoh'tion nower ofthe FDIC under the Federal Deposit Insurance Act and Title II ofthe
Dodd-Frank Wall Stre.t Reform and Consu iOtrL
oromulgated thereun.ler- the '1I.S. Sne
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80
OFC end OFC Credit Srnnr)rl lwith the nrnvis ions helow annlir:ahle notwifhstandins that the
T n:rn Dncrrmcnts an,l anv \rrnnnrt,.d OF'('m;rv i fe.f he s.trted to he onverned hv the lar-r"s ol- the
(a) In the event a C'overed Fnritv that is part] to a Sunnoned QFC (each- a'Covered
Parti''t tecomes suU
such Sunported OF igatia[
in or ttnder (u.h Srnnorted OFC end crrch OFC Credit Srrnnnrt and anv rishts in nronertv
secldng such Sunoort il Sunnort) from such Covered Parry- will be
etlbctive to the same crtent as the transfer would he et'fective under the U.S. Special Resolution
Regime if the Sunno iga on-
and rights in nropertJ") were governed b), the laws ofthe United States or a state ofthe I Inited
S.tote nf Neu; Y^?t nrAl^r ^f fha I IhifF,l qr tl'c ^r chr.,rthpr crate ^fthc I lnitp,l (t,tps\
qnA internnrpA i. "..^..1".^. -,ith lrllSa lRdlllzl\ nf crrch nartr.
to a proceeaing una
Documents that mig rt that
mal.he e\ercised ag eater e\tent
than such Dethult Rights could he exercised under the I I.S. Special Resolution Regime ifthe
Suooorted QFC and the I oan Documents were governed hv the larls of the (inited States or a
state of the I lnited States- Without li
rights and remedies of the Barties
lights of an), (lovered Part) * ith respect to a Sunported C)FC or anJ- OFC Credit Sunnort.
6l As used in this Sect r.l'ing meanings:
'RHC Act Affiliate"of a partymeans an'hffiliate"(as such term is defined under-
'Covered Fntitllmeans an]., of the tbllowing:
a 'hnvered pntitw"^s that teltn i. de ed in and intemreted in accordance
with. I 2 C.F.R. 6 r5r.82(h):
a 'hovered henk"as thet tefm is de
ruith^I?.C.E-R*-S4L llblrcr
a 'tovered FSI"as thet ferm is de
o
!!)
GD ed in- and intemreted in accordance
d in- and intemreted in accordance
'f)FC"has the meAnino es.(ioned trr the 'nualitied financial contract" in and
shallhe interoreted in 12 tl.S.C:.5390(c118)(D).
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SIaIes- lnlhe event a Covered Partv or a RHC Act Atliliate ofa Covered PartJ- becomes suhject
wi*t. l? C-F.R. $ 38?.2(b)-
'T)efault Right"has the meaning assigned to that term in- and shall be intemreted
in accordance with- I 2 C.F.R. $6 252.81 . 47.2 or 382.1. as apolicable.
ARTICLE 1t)
THE ADMINISTRATIYE AGENT
l0.l Appointment and Authority. Each ofthe Lenders (for purposes of this Article 10,
ret'erences to the Lenders shallalso mean the LC Issuers and the Swingline [-ender) hereby
irrevocably appoints Wells F'argo to act on its behalfas the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalfand to exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereot 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 tbr the benefit of
the Administrative Agent and the Lenders, and the Borrower shall have no righs as a third-party
beneficiary ofany ofsuch provisions. It is understood and agreed that the use ofthe term'hgent"
(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 ofany 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 Righs 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 Administative Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, own securities ot, 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 thereofas ifsuch Person were not
the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
10.3 ExculpatoryProvisions.
(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 generaliry* of the foregoing, the Administrative
Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether an Unmatured Def'ault or Detault 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 ofthe 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,
82
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for the avoidance ofdoubt, any action that may be in violation ofthe automatic stay under
any Dcbtor Relief Law or that may ef'f'ect a fbrfliture. modification or termination of
propeqv ofa Defaulting Lender in violation olany Debtor Relief Law: and
(iii) shall not. except as expressly set forth herein and in the other [,oan
Documents, have any duty to disclose, and shall not be liable tbr the t'ailure to disclose.
any information relating to the Borrower or any of its Alfiliates that is communicated to
or obtained by the Person serving as the Administrative Agent or any of its Affiliates 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 ofthe Required Lenders (or such other number or
percentage ofthe 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 t.l and E.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 ofany 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 Administrative 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 ofany certificate. report or
other document delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance ofany ofthe covenants. agreements or other terms or conditions
set tbrth herein or therein or the occurrence ofany Unmatured Default or Default, (iv) the
validity, enforceability, eflectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction ofany
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.
10.4 Reliance by Administrative Agent. 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.
intemet 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 retying thereon. ln
determining compliance with any condition hereunder to the making of a Loan, or the issuance,
extension, renewal or increase ofa Facilily LC, that by its terms must be fulfilled to the
satisfaction ofa Lender or the LC Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the LC lssuer 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 ofsuch 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
1264062t\
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taken or not taken by it in accordance with the advice ofany such counsel, accountants or
experts.
10.5 Delegation of Duties. l-he Administrative Agent may perform any and all olits
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 ofthe 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
Administrative Agent shall not be responsible Ibr the negligence or misconduct ofany sub-agent
except to the extent that a court of competent j urisdiction 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 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrower. Upon receipt ofany such notice ofresignation, the Required Lenders
shall have the right, in consultation with the Borrower. to appoint a successor. which shall be a
bank with an olfice in the United States, or an Affiliate of any such bank with an oftice in the
United States. Ifno 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 Effective Date'), then the retiring Administrative Agent may (but shall not be
obligated to), on behalfofthe Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above. Regardless ofwhether 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.
(b) With effect from the Resignation Effective Date, (i) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan
Documcnts (cxcept that in the case ofany collateral security held by the Administrative Agent on
behalfofthe Lenders under any ofthe Loan Documents, the retiring Administrative Agent shall
conrinue 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, ifany,
as the Rcquired Lenders appoint a successor Administrative Agent as provided for in Section (a).
Upon the acceplance ofa successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with allofthe 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
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Administrative Agent's resignation hereunder and under the other Loan Documents, the
provisions of this Article l0 and Section 9.5 shall continue in effect for the benefit ofsuch
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect ofany
actions taken or omitted to be taken by any of them while the retiring Administrative Agent was
acting as Administrative Agent.
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 oftheir Related Parties and based on
such documents and infbrmation as it shall lrom 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 l}.rt,]*+$tr+er\.Book Rurrne$-Jain Arrangers, Syndication Agent, Documentation Agent
or other agents listed on the cover page hereofshall have any powers, duties or responsibilities
under this Agreement or any ofthe other Loan Documents, except in its capacity, as applicable,
as the Administrative Agent or a Lender hereunder.
10.9 Administrative Ags:nt May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor ReliefLaw or any otherjudicial proceeding relative to the
Borrower, the Administrative Agent (irrespective ofwhether the principal ofany Loan or
Reimbursement Obligation shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective ofw-hether 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 ofthe 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 olthe Lenders and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances olthe L,enders
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
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(c) Any resignation by, or removal of, Wells Fargo as Administrative Agent pursuant
to this Section shall also constitute its resignation as an LC Issuer and Swingline Lender. Upon
the acceptance of a successort appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with allofthe rights, powers, privileges and duties
olthe retiring LC Issuer, if in its sole discretion it elects to, and Swingline Lender, (b) the retiring
LC [ssuer 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 ofcredit in substitution for the Facility LCs, if
any, issued by the retiring LC Issuer and outstanding at the time ofsuch succession or make other
arrangements satisfactory to the retiring LC Issuer to effectively assume the obligations ofthe
retiring LC Issuer with respect to such Facility LCs.
such judicial proceeding and (ii) to collect and receive any monies or other propedy payable or
deliverable on any' such claims and to distribute the same. Any custodian, receiver, assignee.
trustee, liquidator, sequestrator or other similar oflicial in any such judicial proceeding is herebl'
authorized by each Lender to make such payments to the Administrative Agent and. in the event
that the Administrative Agent shallcons€nt to the making ofsuch payments to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation, expenses.
disbursements and advances ofthe 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 . The l,enders agree
to reimburse and indemniS 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 ths
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
behalfofthe Lenders, in connection with the preparation, execution, delivery. administration and
enforcement ofthe Loan Documents (including for any expenses incurred by the Administrative
Agent in connection with any dispute between the Administrative Agent and any Lender or
between two or more ofthe Lenders), and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits. costs, expenses or disbursements ofany 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 ofthe Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including for any such amounts
incurred by or asserted against the Administrative Agent in connection with any dispute between
the Administrative Agent and any Lender or between two or more ofthe Lenders), or the
enforcement ofany of the terms ofthe Loan Documents or ofany such other documents,
ployrded that (x) no Lender shall be tiable for any ofthe foregoing to the extent any ofthe
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 ofthe 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.
The obligations ofthe Lenders under this Section 10.10 shall survive payment of the Obligations
and termination of this Agreement.
l0.l I LC Issuer and Swinqline Lender. The provisions of this Article l0 (other than
Section 10.2) shall apply to the LC lssuers and the Swingline Lender mutatis mutandis to the
same extent as such provisions apply to the Administrative Agent.
ARTICLE I1
SETOFF; RATABLE PAYMENTS
I l.l Setoff. Ifa Default shall have occurred and be continuing, each Lender, each LC
Issuer, and each oftheir respective Affiliates is hereby authorized at any time and from time to
time, to rhe fullest extent permitted by applicable law, to set offand 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 [rnder. such LC Issuer
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or any such Affiliate, to or for the credit or the account ofthe Borrower against any and all of the
obligations ofthe Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or such LC Issuer or their respective Atliliates, irrespective of whether
or not such Lcnder, LC Issuer or Affiliate shall have made any demand under this Agreement or
any other Loan Document and although such obligations ofthe Borrower may be contingent or
unmatured or are owed to a branch. office or Afliliate ofsuch Lender or such LC Issuer diftbrent
from the branch, office or Afliliate holding such deposit or obligated on such indebtedness;
provided that in the event that any Defaulting Lender shall exercise any such right ofsetofl, (x)
all amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions ofSection 2.22 and, pending such payment, shall
be segregated by such Defaulting l-ender from its other funds and deemed held in trust lor the
benefit ofthe Administrative Agent, the LC Issuers, and the l,enders. and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable
detail the Obligations orling to such Detaulting Lender as to which it exercised such right of
setofl The rights ofeach Lender, each LC Issuer and their respective Afllliates under this
Section are in addition to other rights and remedies (including other rights of setofl) that such
Lender, such LC Issuer or their respective Affiliates may have. Each Lender and LC Issuer agrees
to notif) the Borrower and the Administrative Agent promptly after any such setotTand
application; provided that the failure to give such notice shall not affect the validity ofsuch setolf
and application.
ll.2 Ratable Pavments. lfanv Lender- whether bv setoffor otherwise- has Dawnent
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 proponion than that received by any other Lender, such
Lender agrees. promptly upon demand, to purchase a portion ofthe 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. Ifany Lender, whether in
connection with setoff or amounts which might be subject to setoffor otherwise, receives
collateral or other protection lor its Obligations or such amounts which may be subject to setotl
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
the Aggregate Outstanding Credit Exposure. ln case any such paynent is disturbed by legal
process, or otherwise. appropriate further adjustments shall be made. If an amount to be setoff is
to be applied to Indebtedness ofthe Borrower to a Lender other than [ndebtedness comprised of
the Outstanding Credit Fixposure ofsuch Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness comprised ofsuch Outstanding Credit Exposure.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
l2.l Successors and Assigns. The terms and provisions ofthe Loan Documents shall
be binding upon and inure to the benefit ofthe 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) olthe
foregoing sentence relates only to absolute assignments and does not prohibit assignments
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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 ofa Lender which is a fund, any pledge or assignment ofall or any
portion of its rights under this Agreement and any Note to its trustee in support of its obligations
to its trustee; pronisleclthat no such pledge or assignment creating a security interest shall release
the transferor Lender from its obligations hereunder unless and untilthe parties thereto have
complied with the provisions of Section 12.3. -[he Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all purposes hereof
unless and until such Person complies with Section 12.3; proyided that the Adminishative Agent
may in its discretion (but shall not be required to) tbllow instructions from the Person which
made any Loan or which holds any Note to direct palments relating to such Loan or Note to
another Person. Any assignee ofthe rights to any Loan or any Note agrees by acceptance ofsuch
assignment to be bound by all the terms and provisions ofthe Loan Documents. Any request,
authority or consent ofany Person, who at the time of making such request or giving such
authority or consent is the owner ofthe 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 ofthe
rights to such Loan.
12.2 Participations.
(a) Any Lender may, in the ordinary course ofits business and in accordance with
applicable law, at any time sell to one or more banks or other entities (other than the Borrower,
its Afliliates and Subsidiaries or a natural Person or a holding company, investment 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 ofsuch Lender or any other interest ofsuch Lender under the Loan
Documents. In the event ofany such sale by a Lender ofparticipating 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 oflits Outstanding Credit Exposure and the holder ofany Note
issued to it in evidence thereoffor all purposes under the Loan Documents, and the Borrower and
the Administrative Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan Documents.
(b) F-ach Lender shall retain the sole right to approve, without the consent ofany
Participant, any amendment. moditication or waiver ofany 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 ot, or interest or
tbes on, any such Loan or Commitment, or postpones the expiry date ofany Facility LC beyond
the Facility Termination Date, releases any guarantor ofany such Loan or relcases all or
substantially all ofthe collateral, ifany. 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
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(d) Each Lender that sells a participation shall, acting solely tbr this purpose as a
non-fiduciary agent ofthe Borrower, maintain a register on which it enters the name and address
ofeach Participant and the principal amounts (and stated interest) ofeach Participant's interest in
the Loans or other obligations under the Loan Documents (the'Pa(icipant Register'); provided
that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity'ofany Participant or any information relating to a Participant's interest in
any commitments, loans, letters ofcredit or its olher 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 ofcredit or other obligation is in registered form
under Section 5L 103-I(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive absent manifest enor, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation lor
all purposes ofthis 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; proyfded
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.
(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
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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; provided 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 rcceive any greater payment under
Sections 3.1, 3.2 or 3.5, with respect to any participation, than its pa(icipating 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
panicipation. Each Lender that sells a panicipation agrecs, at the Borrower's request and
expense, to use reasonable efforts to cooperate with the Borro*'er to effectuate the provisions o1'
Section 2.19 with respect to any Participant. The Borrower also agrees that each Participant
shall be deemed to have thc right ol setoff provided in Section ll.l in respcct of its participating
interest in amounts owing under the Loan Documents to the same extent as ifthe amount of its
pa(icipating interest were o*ing directly to it as a Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section ll.1 with respect to the
amount ofparticipating interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setotT provided in Section ll.l,
agrees to share with each Lender, any amount received pursuant to the exercise of its right of
setoft, such amounts to be shared in accordance with Section I1.2 as ifeach Participant were a
Lender.
12.3 Assignments.
assignment shall be substantially in the form ofExhibit B or in such other form as may be agreed
to by the parties thereto. The consent ofthe 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 AIIliate thereof: provided that if a Default has occurred and is continuing. the
consent ofthe 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
thereofshall (unless each ofthe 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 ofthe
assigning Lender's Commitment (calculated as at the date of such assignment) or Outstanding
Credit Exposure (if the applicable Commitment has been terminated).
(b) Upon (i) delivery to the Administrative Agent of an assignment, together with any
consents required by Section 12.3(a), and (ii) payment ofa $3,500 fee by the assigning Lender to
the Administrative Agent for processing such assignment (unless such t'ee is waived by the
Administrative Agent in its sole discretion), such assignment shall become effective on the
effective date specified in such a.ssignment. The assignment shall contain a representation by the
Purchaser to the effect that none ofthe consideration used to make the purchase ofthe
Commitment and Outstanding Credit Exposure under the applicable assignment agreement
constitutes '!lan assets"as defined under ERISA and that the rights and interesls ofthe Purchaser
in and underthe Loan Documents will not be'plan assets"under ERISA. On and afterthe
effective date ofsuch assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalfofthe Lenders and shall have
all the rights and obligations ofa 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 Bonower, the Lenders or
the Administrative Agent shall be required to release the transferor l,ender with respect to the
percentage ofthe Aggregate Commitment and Outstanding Credit Exposure assigned to such
Purchaser. Upon the consummation ofany assignment to a Purchaser pursuant to this Section
12.3(a), the transferor Lender, the Administrative Agent and the Borrower shall, ifthe transleror
Lender or the Purchaser desires that its Loans be evidenced by Notes, make appropriate
a.rangements 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 ofrights and obligations ofany 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
thereofas appropriate (which may be outright pal,rnent, purchases by the assignee of
participations or subparticipations, or other compensating actions, including funding, with the
consent ofthe Borrower and the Administrative Agent. the applicable Pro Rata Share ofLoans
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 satisf in full all payment
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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 ofall Loans and participations in Facility LCs and Swingline Loans. Notwithstanding
the foregoing, in the event that any assignment ofrights and obligations ofany Defaulting Lender
hereunder shall become effective under applicable law without compliance with the provisions of
this paragraph, then the assignee ofsuch interest shall be deemed to be a Defaulting Lender for
all purposes ofthis Agreement until such compliance occurs.
(d) The Administrative Agent, acting solely for this purpose as *ftaJqlLlidUq.ijlty
agent ofthe Borrower, shall maintain at its office referred to in Schedule 13.l a copy ofeach
assignment agreement delivered to it and a register for the recordation ofthe names and
addresses of the Lenders, and the Commitments of, and Outstanding Credit Exposure owing to,
each Lender pursuant to the terms hereoftiom time to time (the 'Resister'). In addition, the
Administrative Agent shall maintain on the Register information regarding the designation,
revocation ofdesignation, ofany Lender as a Defaulting Lender. The entries in the Register shall
be conclusive, and the Borower. the Administrative Agent, the LC Issuers, the Swingline Lender
and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereofas a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower, any LC Issuer, any
Lender and the Swingline Lender at any reasonable time and from time to time upon reasonable
prior notice.
12.4 Dissemination of lnformation. The Borrower authorizes each Lender to disclose
to an.v Panicipant or Purchaser or any other Person acquiring an interest in the Loan Documents
by operation of law (each a'Transferee') and any prospective Transferee any and all information
in such Lender's possession concerning the creditworthiness ofthe Bonower and its Subsidiaries.
including any information contained in any Reports; pleyidgd that each Transferee and
prospective Transferee agrees to be bound by Section 9.10 of this Agreement.
12.5 Tax Treatment. Ifany 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
any State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness ofsuch transfer, to comply with the provisions ofSection 3.5(g)(ii)(B) 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 ofltransfer
and became subject to withholding as a result ofa Change In Law.
ARTICLE T3
NOTICES
1 l. I 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
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to such parqv: (x) in the case ofthe Borrower or the Administrative Agent, at its addrcss or
lacsimile number set forth on Schedule 13.1, (y) in the case ofany 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 specily 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 etlective (i) if given by
facsimile transmission, u'hen transmitted to the facsimile number specified in this Section and
confirmation ofreceipt 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; Eq:ddcd that notices to
the Administrative Agent under Article 2 shall not be efTective until received. Notices delivered
through electronic communications to the extent provided in subsection (b) below, shall be
eflbctive as provided in such subsection (b).
(b) Notices and other communications to the Lenders hereunder may be delivered or
fumished 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. proyicleclthat the loregoing shall not apply to notices to any Lender
pursuant to Article 2 ifsuch Lender has notified the Administrative 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. Eoyided that such determination or approval may be limited to panicular
notices or communications. Unless the Administrative Agent otherwise prescribcs, (i) notices
and other communications sent to an e-mail address shall be deemed received upon the sender's
receipt ofan acknowledgement from the intended recipient (such as by the'tetum receipt
requested" function. as available, return e-mail or other written acknowledgement), prpvided that
if such notice or other communication is not given during the normal business hours ofthe
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 intemet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the tbregoing clause (i) ofnotification that such
notice or communication is available and identitying the website address therefor.
13.2 Change of Address. The Borrower, the Administrative Agent and any Lender may
each change the address for service ofnotice upon it by a notice in writing to the other parties
hereto.
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.I CHOICEOFLAW. THIS AGREEMENTANDTHEOTHER LOAN
DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED IN
ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-I4OI AND
5-I402 OF THE NF,W YORK GENERAL OBLICATIONS LAW, BUT EXCLUDING ALL
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OTHER CHOICE OF LAW AND CONFLICI.S OF LAW RULES); PROVIDED THAT EACH
FACILITY LC SHALL BE GOVERNED BY. AND CONSTRUED IN ACCORDANCE WlTH
THE LAWS OR RUI,ES DESIGNATED IN SUCH FACILITY LC OR APPLICATION
THEREFOR OR, IF NO SUCH LAWS OR RULES ARE DESIGNATF]D, (I) IF SUCH
FACILITY LC IS A STANDBY LETTER OF CREDIT, THE INTERNATIONAL STANDBY
PRACTICES OF THE INTERNATIONAL CHAMBF,R OF COMMERCE. AS IN EFFECT
FROM TIME TO TIME (THE'ISP) AND (II) IF SUCH FACILITY LC IS A COMMERCIAL
LETTER OF CREDTT. THE RULES OF THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS, AS MOST RECENTLY PUBLISHED BY THE
INTERNATIONAL CHAMBER OF COMMERCE AT THE TIME OF ISSUANCE OF SUCH
COMMERCIAI, LF]TTER OF CREDIT, AND, AS TO MAT'|ERS NOT COVERNED BY THE
ISP OR THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS,
THE LAWS OF THE STATE OF NEW YORK (INCLUDTNG SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW. BUT EXCLUDING ALL OTHER
CHOTCE OF LAW AND CONFLICTS Ot-'LAW RULES).
14.2 CONSENT TO JURISDICTION. THE BORROWER HF,REBY
IRREVOCABLY STJBMT|S FOR ITSELF AND ITS PROPERTY TO THE EXCLUSTVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE
COURTS OF'THE IJNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY'I'HEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RE,LA-|ING TO ANY LOAN DOCUMENTS AND
THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAF'I-ER HAVE AS TO THE VENUE OI. ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
TNCONVENIENT FORUM. NOTHING HERF]IN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE ACENT, ANY I,C ISSUER OR ANY LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COI.,'RTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROC!]E,DINC BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER OR ANY AFFIT,IATE OF
THE ADMINISTRATIVE AGENT. ANY LC ISSUER OR ANY LENDER INVOLVING.
DIRECTLY OR INDIRECTI,Y, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO. OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN NEW YORK- NEW YORK.
I4.3 WAIVER OF JT]RY TRIAI.. THE BORROWER. THE ADMINISTRATIVE
AGENT. THE SWTNGLINE LENDER. EACH LC ISSUER AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHE-|HER SOLINDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISINC OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THERELJNDER.
EACH PARTY HERF]TO (A) CERTIFIES THAT NO REPRESENTATIVE. AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, TIIAT SUCH OTHER PERSON WOULD NOT. IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE I.'ORI.]GOING WAIVER AND (B)
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ACKNOWLEDGES TTIAT IT AND THE OTIIER PARTIES HERETO IIAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMEN'IS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS I}.i
THIS SECTION.
ISrcNATr rREs Fol-I-ow]
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