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An IDACORP Company
PATruCKA"HAIf,II'IGTON
Corponb Scerctrry
Ms. Jan Noriyuki
Commission Secretrary
ldaho Public utilities Commission
11331 W. Chinden Blvd.
Building 8, Suite 201-A
Boise, lD 83714
January 21,2022
Re: ln the Matter of the Application of ldaho Power Company fur an
Order Authorlzlng up to $450,000,000 Aggregate Principal Amount
at any one time outstanding of Short to Mid-Term Bonowings
Case No. IPC-E-19-33
Dear Ms. Noriyuki:
ldaho Power Company hereby submits the enclosd compliane ffling in the
above-captioned proceeding: ldaho Powe/s Second Amendment to Credit Agreement
dated December 3,2021. The Second Amendment extends the Termination Date of
the Credit Agreement to 2025 and provides additional information on potential
alternatives, suoosssors or replacement rates for LIBOR in the event it is no longer
available as of the date of bonowing, among other things.
Please feel free to contact me at phaningbn@ldahopower.oom or (208) 388-
2878 or at if you have any questions regading this filing.
A.
(N26515LNE; U
Telephonc O0t) 3Et-287E, Fex Q0E) 3EM9t6
phurhgtor@thopma.coa
Execution Version
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of December 3,2021, is entered into by and among IDAHO POWER COMPANY, an
Idaho corporation (the "Borrower"), the Lenders (as hereinafter defined) party hereto, and
WELLS FARGO BAllK, NATIONAL ASSOCIATION, as Administrative Agent forthe
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 November 6, 2015
(as amended, amended and restated, supplemented or otherwise modified from time to time prior
to the date hereof, the "eredit_Agreement"). 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 Facility Termination Date be extended to
December 6,2025 (the "Extension"), and each Lender identified as an "Extending Lender" on its
signature page hereto (each, an "Extending Lender") has agreed to such Extension with respect
to its Commitment.
C. 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 forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
EXTENSION OF MATURITY DATE
l.l Effective as of the Second Amendment Effective Date (as defined in Section 3.1),
the Facility Termination Date applicable to each Extending Lender shall be December 6,2025;
provided, however,that if such date is not a Business Day, the Facility Termination Date applicable
to each Extending Lender shall be the immediately preceding Business Day. Each party hereto
hereby waives any timing, notice or other similar requirement pursuant to Section 2.21 of the
Credit Agreement required in connection with the Extension and further waives the requirement
that an approved extension of the existing Facility Termination Date applicable to each Extending
Lender is effective as an anniversary of the Closing Date and hereby agrees that the Extension
shall take effect as of the Second Amendment Effective Date.
14402855v4
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
2.1 Effective upon the Second Amendment Effective Date, the Credit Agreement is
hereby amended to delete the stricken text (indicated textually in the same manner as the following
example: s#ext) and to add the double-underlined text (indicated textually in the same
manner as the following example: double-underlin ) as set forth in the conformed copy of
the Credit Agreement attached hereto as Exhibit A.
ARTICLE III
CONDITIONS OF EFFECTIVENESS
3.1 The amendments set forth in ARTICLE I shall become effective as ofthe date (the
"second Amendment ') when, and only when, each of the following conditions
precedent shall have been satisfied:
(a) The Administrative Agent shall have received.each of the following, each in form
and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) An executed counterpart of this Amendment from each of the Borrower and
each Lender.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of
the Borrower's Board of Directors' resolutions and of resolutions or actions of any other
body authorizingthe execution of the Amendment and the other Loan Documents.
(iii) Such other documents as any Lender or its counsel may have reasonably
requested.
(b) The Borrower shall have paid to Wells Fargo Securities, LLC, the Administrative
Agent and the Lenders any fees required under the Extension Fee Letter (as defined below) to be
paid to each of them, in the amounts due and payable on the Second Amendment Effective Date
as required by the terms thereof. The "Extension Fee Letter" means that certain letter from Wells
Fargo and Wells Fargo Securities, LLC to the Borrower, dated November 4, 2021, relating to
certain fees payable by the Borrower in respect of the transactions contemplated by this
Amendment.
ARTICLE IV
REPRE SENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants, on and as of the Second 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 of a specific date, in which case such representation or warranty is true and
2
I 4402855v4
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
the Borrower enforceable against it in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
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), and (iii) no Default or
Unmatured Default has occurred and is continuing on the Second Amendment Effective Date,
both immediately before and immediately after giving effect to this Amendment and the
amendments contemplated hereby.
ARTICLE V
ACKNOWLEDGEMENT 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 parry 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 VI
MISCELLAI\EOUS
6.1 Governing Law. This Amendment shall be governed 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).
6.2 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 constitute a Loan Document under the terms of the Credit
Agreement.
6.3 Expenses. The Borrower 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.
6.4 Severabiliw. 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 of such 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.
J
14402855v4
6.5 Successors and Assisarc. This Amendment shall be binding upon, inure to the
benefit of and be enforceable by the respective successors and permitted assigns of the parties
hereto.
6.6 Construction. The headings of the various sections and subsections of this
Amendment have been inserted for convenience only and shall not in any way affect the meaning
or construction of any of the provisions hereof.
6.7 Countemarts: lnteeration. 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
contract 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 matter hereof.
4
14402855v4
IN WTINESS WHEREOX', the parties hereto have caused this Amendment to be
enecuted by their duly authorized officers as of the date first above written.
IDAIIO POWER COMPAI\TY
By: lslKenneth W Petersen
Name: Kenneth W. Petersen
Titlo: Vice Presidenl Chief Accounting Officer and
Treasurer
SIGNATT,'R3 PAGE TO
SECOND AMENDMEI{T TO CREDIT AGREEMENT
WELLS FARGO BANIq NATTONAL ASSOCTATTON,
as an Extsnding Lender, Swingline Lender, an LC Issr.rer
and as Adminisfiative Agent
By: lslGresorv R Gredvie
Name:Gresofi/ R. Gredvic
Title:Director
SIGNATI'REPAGE TO
SECOND AMENDMET.IT TO CREDIT AGREEITffiNT
JPMORGAN CHASE BANK N..d, a$ an LC trssuer and
as an Extending Lender
By:/s/Nancv R- Banris
Name:Nencv R. Berryis
Titlo: Exeoutive Direotor
SIGNAII'RE PAGETO
SECO}.ID AMENDMEI{T TO CRIDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION, as an LC
Issuer and as an Extending Lender
By:/s/ JonathanBouvet
Name: Johnathan Bouvet
Title: Senior Vice kosident
SIGNATI'REPAGE TO
SECOND AME}.IItrTdENT TO CREDIT AGREEMENT
I}IUX'G IIMON BAIIIK N.A., as an LC Issuer and as an
ExtendingLender
By:/d Michael Asrimis
Name:Michael Asrimis
Title:Director
SIGNATT'REPAOE TO
SECO}ID AMENDMEI{T TO CREDIT ACREEMENT
BAI\K OF AMERICA, N.A., as an Extending Lender
By:/s/ Reese Morikubo
Name: Reese Morikubo
Title: Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT
U.S. BAI{K NATIONAL ASS(rcIATION, as an
Extending Lender
By: lil Joe Horrican
Name:Joe Horriean
Title:Manasins Director
SIGNATT'REPAGE TO
SECOND AMENDMEI{T TO CREDTT AGREEMENT
CUSPNumber: Deal # 45L39CAG7
Revolving Loans CUSIP # 45I39CAH5
Conformed version giving effect to fi+stfugd Amendment dated December 63, WruL_
Exee*fufi14r,sioil
CREDIT AGREEMENT
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED I]ERE[N,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender and LC Issuer
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and LC Issuer
and
KEYBANK NATIONAL ASSOCIATION
and
MUFG UNION BANK, N.A.,
as Documentation Agents and LC Issuers
$300,000,000 Senior Credit Facility
WELLS FARGO SECURITIES, LLL
JPMORGAN CHASE BANK, N.A.
KEYBANC CAPITAL MARKETS INC.
and
MUFG UNION BANK, N.A.,
as Joint Lead Arrangers and Joint Book Runners
Dated as of November 6, 2015
rl{o@td
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Definitions
Other Interpretive P.;i;i;;;
Accounting Terms.......
Rates.........
Divisions
ARTICLE 2
THE CREDITS
Commitments.............
Required Payments ; Termination
Types of Advances; Minimum Amount of Each Advance....
Fees
Reduction or Termination of Aggregate Commitment
Optional Principal Payments...
Requesting Advances..
Conversion and Continuation of Outstanding Advances....
Changes in Interest Rate, etc....
Rates Applicable After Default.
Method of Payment
Noteless Agreement; Evidence of Indebtedness
Telephonic Notices
Interest Payment Dates; Interest and Fee Basis; Maximum Rate..............
Notification of Advances,lnterest Rates, Prepayments and Commitment
Reductions
Lending Installations.................
Non-Receipt of Funds by the Administrative Agent
Facility LCs..................
Replacement of Lender
Increase in Commitments ...........
Extension of Facility Termination Date...............
Defaulting Lenders.....
Changed Circumstances.............
ARTICLE 3
YIELD PROTECTION; TAXES
Increased Costs
Page
l.l
1.2
1.3
1.4
t.5
2.1))
12.
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.tt
2.t2
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
3.1
3.2
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TABLE OF CONTENTS
(continued)
3.3
3.4
3.5
3.6
Compensation
Page
..... seIZ
..... se57Delay in Requests ........
Taxes........
Designation of a Different Lending Installation
ARTICLE 4
CONDITIONS PRECEDENT
Effectiveness ..............
Each Credit Extension
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
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 [nformation.............
+151*6I
4.1
4.2
ssa
s663
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
s.t2
s.l3
5.14
5.15
s.l6
5.17
s.l 8
6.1
6.2
6.3
6.4
6.s
+%4062++4
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Material Agreements.................
Compliance With Laws.
Ownership of Properties ................
Environmental Matters....
lnvestment Company Act
Designated Persons; Sanctions; Anti-Comrption Laws; PATRIOT Act.....................
ARTICLE 6
COVENAI{TS
Financial Reporting..
Use of Proceeds...........
Notice of Default, etc
Conduct of Business
Taxes
ll-
TABLE OF CONTENTS
(continued)
Insurance
Compliance with Laws ....
Maintenance of Properties
Inspection.
Merger and Sale of Assets
I icnc
Leverage Ratio .........
Investments and Acquisitions
Subsidiary Dividend Restrictions
Affiliates
OFAC, PATzuOT Act Compliance; Beneficial Ownership Regulation ...........,
ARTICLE 7
DEFAULTS
ARTICLE 8
ACCELERATION, WAIVERS, AMENDME NTS AI\D REMEDIES
Acceleration; Facility LC Collateral Account
Amendments ...................
Preservation of Rights.....
ARTICLE 9
GENERAL PROVISIONS
Survival of Representations
Governmental Regulation ..............
Entire Agreement
Several Obligations; Benefits of this Agreement.
Expenses; Indemnifi cation.............
Numbers of Documents .............
Accounting................:..
Severability of Provisions ................
Nonliability of Lenders
Confidentiality
Nonreliance .....................
Disclosure
PATRIOT Act Notice .....
Counterparts................
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
Page
6.6
6.7
6.8
6.9
6.10
6.1I
6.12
6.13
6.t4
6.15
6.16
8A8A
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8.1
8.2
8.3
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9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.1I
9.12
9.13
9.14
9.15
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TABLE OF CONTENTS
(continued)
Certain ERISA Matters
Acknowledgement Regarding Any Supported QFCs
ARTICLE 10
THE ADMINISTRATIVE AGENT
l0.l Appointment and Authority .............8e88
10.2 Rights as a Lender.......,
10.3 ExculpatoryProvisions
10.4 Reliance by Administrative Agent....
10.5 Delegation of Duties
10.6 Resignation of Administrative Agent
10.7 Non-Reliance on Administrative Agent and Other Lenders.....
10.8 No Other Duties, etc
10.9 Administrative Agent May File Proofs of Claim....
10.10 Administrative Agent's Reimbursement and [ndemnification.............
l0.l I LC Issuer and Swingline Lender
10.12 Erroneous Pav
ARTICLE 11
SETOFF; RATABLE PAYMENTS
Setoff.........
Ratable Payments
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
9.16
9.17
I l.l
fi.2
t2.l
12.2
12.3
12.4
12.5
Page
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8290
8391
8391
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8594
8595
8695
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8898
8e99
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13.2
Successors and Assigns
Participations................
Assignments.................
Dissemination of Information ..............
ARTICLE 13
NOTICES
Notices
Change of Address.
ee100
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TABLE OF CONTENTS
(continued)
Page
t4.l
14.2
14.3
IW
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ARTICLE 14
CHOICE OF LAW; CONSENT TO JIIRISDICTION; WAMR OF JURY TRIAL
CHOICE OF LAW
CONSENT TO JURISDICTION.....
WAIVER OF JURY TRIAL......
+uolgil01
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Schedule I
Schedule tI
Schedule 5.8
Schedule 5.13
Schedule 5.15
Schedule l3.l
EXHIBIT A
EXHIBTT B
EXHIBIT C
EXHIBIT D-l
EXHIBIT D.2
EXHIBIT E
EXHIBIT F.I
EXHIBIT F-2
EXHIBIT F-3
EXHIBIT F-4
TABLE OF CONTENTS
(continued)
Page
Pricing Schedule
Commitments
Subsidiaries and Other Investments
Material Agreements
Indebtedness and Liens
Notice Addresses
Form of Compliance Certificate
Form of Assignment Agreement
Form of Account Designation Letter
Form of Revolving Note
Form of SwinglineNote
Form of Joinder Agreement
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not
Parfirerships For U.S. Federal lncome Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are
Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are
Partnerships For U.S. Federal lncome Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Partnerships For U.S. Federal Income Tax Purposes)
+264.962h4
1j40419tu5
vl-
CREDIT AGREEMENT
This Credit Agreement, dated as of November 6, 2015, is made among Idaho Power
Company, an Idaho corporation, the Lenders, and Wells Fargo Bank, National Association, as
Administrative Agent for the Lenders.
BACKGROUND STATEMENT
The Borrower has requested, and subject to the terms and conditions set forth in this
Agreement, the Lenders have agreed to extend certain credit to the Borrower.
AGREEMENT
NOW, TIilREFORE, in consideration of the mutual provisions, covenants and
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement:
"{cquisilion" means any transaction, or any series of related transactions, consummated
on or after the Closing Date, by which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a corporation which have
ordinary voting power for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage or voting power) of
the outstanding ownership interests of a partnership or limited liability company.
"Administrative Aeefi" means Wells Fargo Bank, NationalAssociation in its capacity as
administrative agent (i.e., contractual representative) of the Lenders pursuant to Article 10, and
not in its individual capacity as a Lender, and any successor Administrative Agent appointed
pursuant to Article 10.
"Administrative Fee 'means the letter agreement, dated October 14,2015, among
Borrower, the Parent, and Wells Fargo.
"Administrative Oue " means an administrative questionnaire in a form supplied
by the Administrative Agent.
"1!!vance" means a borrowing hereunder, (i) made by the Lenders (or the Swingline
Lender in the case of a Swingline Loan) on the same Borrowing Date, or (ii) converted or
continued by the Lenders on the same date of conversion or continuation and, in either case,
consisting of Revolving Loans of the same Type (or a Swingline Loan made by the Swingline
Lender) and, in the case of Eurodollar Advances, for the same Interest Period.
+4{SE9s4
effectea einanciat I
Financial Institution.
"Afrliate" 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 if the controlling Person owns l0oZ or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
"Aggreqate Commitment" means the aggregate of the Commitments of all the Lenders,
as reduced or increased from time to time pursuant to the terms hereof.
"Assregate Outstand 'means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.
"Aqreemen!" means this Credit Agreement.
"Asreement Accouff " 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.
"Aternate Base Rate" means, for any day, a rate of interest per annum equal to the
highest of (i) the Prime Rate for such day, (ii) the sum of the Federal Funds Effective Rate for
such day plus ll2Yo, (iii) the Eurodollar Base Rate for an lnterest Period of one month plus l%
and (iv) 0%; provided that clause (iii) shall not be applicable during any period in which the
Eurodollar Base Rate is unavailable or unascertainable. Each change in the Alternate Base Rate
shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the
Federal Funds Effective Rate or Eurodollar Rate.
announcements'' i
"Anti-Corruption L s" means the Foreign Comrpt Practices Act and all other federal or
state laws, rules, and regulations of the United States and any national laws, rules and regulations
of any foreign country, in each case applicable to the Borrower and its Subsidiaries concerning
or relating to bribery or comrption.
"Anti-Money Laund " means any and all laws, statutes, regulations or
obligatory government orders, decrees, ordinances or rules related to terrorism financing, money
laundering, any predicate crime to money laundering or any financial record keeping, including
any applicable provision of the Patriot Act and The Currency and Foreign Transactions
Reporting Act (also known as the o'Bank Secrecy Act," 3l U.S.C. $$ 531 l-5330 and 12 U.S.C.
$$ 1818(s), 1820(b) and 1951-19s9).
"Appli!gbLg_14@" means, with respect to Revolving Loans of any Type at any time,
the percentage rate per annum which is applicable at such time with respect to Revolving Loans
of such Type as set forth in the Pricing Schedule.
+16+0.5]t+.1 2
I 4404709v5
"Assumins Lender" is defined in Section 2.20(a).
"Authorized Officer'o means any of the Chief Executive Oflicer, President, Chief
Financial Officer, Vice President or Treasurer of the Borrower, acting singly.
"Available Aggregab C 'means, at any time, the Aggregate Commitment
then in effect minus the Aggregate Outstanding Credit Exposure at such time.
av*laUte fenor"
current genchmark
such Benchmark or (b) otherwise. anv oayment oeriod for interest calculated with reference to
such genchmark. as
PerioA oursuant to
anv tenor for such Benchmark that is then-removed from the definition of "Interest Period"
oursuant to Sectio
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the
applicable€EA Resolution Authority in respect of any liability of an EE4Afeeted Financial
Institution.
"B4iLl!-Leeislation" meang-means-.1@twith respect to any EEA Member Country
implementing Article 55 of Directive20l4l59/EU of the European Parliament and of the CounciloftheEuropeanUnion,theimplementinglawforsuchEEA
Member Country from time to time which is described in the EU Bail-In Legislation Schedule
and (b) with resoect to the United Kinsdom. Part I of the United Kinsdom Bankins Act 2009 (as
amended from time to time) and anv other law. requlation or rule annlicable in the United
Kinsdom relatins to the resolution of unsound or failins banks. investment firms or other
financiat institut
insolvencv orocee
genchmark" means
Event. a ferm SOPR Tr
Election- as anolicable. and its related Benchmark Reolacement Date have occurred with resDect
to USO t-lgoR or the t
Benchmark Reolacement to the extent that such Benchmark Reolacement has reolaced such orior
benchmark rate ours .
"Benchmark Replacemed' means
(a) with resoect to anv Benchmark Transition Event or Earlv Oot-in Election. the first
atternative set forttl i
aonlicable Benchmark Renlacement Date:
( l) the sum of: (A) Term SOFR and (B) the related Benchmark Reolacement
Adiustmenl orovl
g4e61M
U!4fi99v5
3
aOministrative as
gorrower has a Rate Ma
of tne aate of sucn n
entitled to relv upo
comoteteness on. t
aetermine the gench
fransition gvent or
(Zt tne sum on fat Oa
Reolacement Adi ustment:
f:) tne sum of: fa) the alternate benchmark rate@
S€FR) that has been selected by the Administrative Agent and the Borrower-as-llhe
reolacement for ttle
giving due consideration to (i) any selection or recommendation of a replacement
benehnnark-rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention for
determining a benghxoark rate eFinteres+as a replacement tefor the ffi
ffihen-current Benchmark for Dollar-denominated syndicated
credit facilities artsueh-tiue-and (bE) therrilated Benchmark Replacement Adjustment;
(b) with resoect to anv Term SOFR Transition Event. the sum of (i) Term SOFR and
f iil the relatea ge
(c) with resnect to anv Other Benchmark Rate Election. the sum of: (i) the alternate
benchmark rate tha
replacement for the
gonsideration to anv evo
rate as a reotaceme
facitities at sucn t
provided that, (i) in the case of clffi if the Administrative Ag
is not aaminlstratl
unaUte to Ue aeterml
(b) of this definiti enchmark Replacement as-+e4eteminedis
disolaved on a screen or other information service that oublishes such rate from time to time as
selected bv the Administrative Asent in its reasonable discretion. If the Benchmark Reolacement
as Aeterminea oursu
would be less than zerethc-Eloor, the Benchmark Replacement will be deemed to be zerethc-Eloqr
for the purposes of this Agreement and the other Loan .
"Benchmark Replacement Ad ' means, with respect to any replacement of the
hen-current Benchmark with an
Unadiusted Benchmark Reolacement for anv aoolicable Interest Period and Available Tenor for
anv settins of such Unadiusted Benchmark Reolacement:
4
+264462++4
1!A94799v5
( l l for ourooses of cl
neoUcement." an
one-montn's Ourat
auration anA fCt O.+
fZt for oumoses of cl Benchmark ReplacementJl-an
amgunt gqual to 0.l l
(3)_for ourposes of clause (a)(3) of the definition of
genchmark Replacemd,I the spread adjustment, or method for calculating or determining such
spread adjustment, (which may be a positive or negative value or zero) that has been selected by
the Administrative Agent and the Borrower giving due consideration to (e!) any selection or
recommendation of a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of
availaUte fenor of with the applicable Unadjusted Benchmark Replacement by
the Relevant Governmental Body on the aoolicable g or (bii) any
evolving or then-prevailing market convention for determining a spread adjustment, or method for
calculating or determining such spread adjustment, for the replacement of th+€urede{lar€ase
aooticaUle Unaaiu
facilities: and
(+t for oumoses of cl
aalustment. or met
positive or negative
Borrower sivinq due
aetermininq a sprea
for the replagement of such Available Tenor of such Benchmark with the applicable Unadjusted
Benchmark Replacement for Dollar-denominated syndicated credit facilities-aku€'Him€.
"Benchmark Replacemeft ' means, with respect to any Benchmark
Replacement, any technical, administrative or operational changes (including changes to the
definitionof..AlternateBaseRate,,'thedefinitionof..InterestPeriod@
Oennition for tne a
Day," the definition of "LIBOR Market Index Rate," timing and frequency of determining rates
and making payments of interest and other administrative matters) that the Administrative Agent
decides may be appropriate to reflect the adoption and implementation of such Benchmark
Replacement and to permit the administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the Administrative Agent decides that adoption
of any portion of such market practice is not administratively feasible or if the Administrative
Agent determines that no market practice for the administration of the Benchmark Replacement
exists, in such other manner of administration as the Administrative Agent decides is reasonably
necessary in connection with the administration of this Agreement).
"Benchmark Replacemen " means the eartie+earugs! to occur of the following events
with respect to the :
5
+164062+'t4
14404709v5
(a) in the case of clause (a) or (b) of the definition of "Benchmark Transition Event,"
the later of (i) the date of the public statement or publication of information referenced therein and
(ii) the date on which the administrator of
Ro'esuch Benchmark (o permanently or
indefinitely ceases to provide ll
Available Tenors o ;+md
(b) in the case of clause (c) ofthe definition of "Benchmark Transition Event," the date
of the public statement or publication of information referenced therein;
@) in tne case of a ferm S
the aOminlstrativ
pursuant to Sectio
ft[ in the case of an gar
sixttr fOtht gusine
Rate Election. as aoolicable. is orovided to the Lenders- so lons as the Administrative Asent has
not receivea. Uv S:O
notice of sucn garl
to tne rcnders. wrl
Election. as aoolicable. from Lenders comorisinq the Reouired Lenders.
eor tne avoidance o
on tne same dav as. b
genchmark Replace
such determination
in tne case of ctaus
event or events set
genchmark (or the p
"Benchmark Transition ' means the occurrence of one or more of the following
events with respect to the hen-current
Bcnehmark:
(a) a public statement or publication of information by or on behalf of the administrator
of
comoonent used in t announcing that such administrator has ceased or will
cease to provide the Euredellar Bese r(ate er the tlBeR Merket Index Rate^ll Available Tenors
of such genchmark (orsuchcomoonent , perrnanently or indefinitely;. provided that, at
the time of such statement or publication, there is no successor administrator that will continue toprovide anv Available Tenor of such
Benchmark (orsuch componentthereo ;
(b) a public statement or publication of information by the regulatory supervisor for
the administrator of
f or tne puUtisnea c , the-{J* Federal Reserve
SystemBank-qil!€rrylo&, an insolvency official with jurisdiction over the administrator for the
6
+264$62-lq4
144941!9t5
,a
resolutionauthoritywithjurisdictionovertheadministratorfor
Msuch Benchmark (or such comoonent) or a court or an entity with similar
insolvencyorresolutionauthorityovertheadministratorforMsuch Benchmark (or such comoonent), which states that the
administrator of
sush_go!0panc!0 has ceased or will cease to provide the Euredellar Base Rate er the tIBeR
permanently or indefinitely;r provided that, at the time of such statement or publication, there is
noSuccessoradministratorthatwillcontinuetoprovide
;or
(c) a public statement or publication of information by the regulatory supervisor for
the administrator of
the&rede{ler such Benchmark (or the oublished
comoonent used in the calculation thereofl announcins that all Available Tenors of such
Benchmark (or such comDonent thereofl are no lonser reoresentative.
for tne avoidance o "Benchmark Transition
Event" will be deemed to have
occurred with resoe Benchmark ien
Eren+isif a public statement or publication of information
set
forth above has occu (or
if the
in
@ublished comoonent used in the calculation thereofl.
"Benchmark Unavailabi " mean
t IBgRNterk€t Inde* R& the period (e[
anyl(x) beginning at the time that sueh4 Benchmark Replacement Date oursuant to clause
&)Bffhaldcfinitisn has occurred if, at such time, no Benchmark Replacement has replaced the
hen-current Benchmark for all purposes
hereunder and unde. anu Loan in accordance with Section 2.23(c) and (by) ending at
thetimethataBenchmarkReplacementhasreplacedthe
for all purposes hereunder@
I-oan Oocument in ac Section 2.23(c).
"Beneficial Ownersh 'means a certification regarding beneficial
ownership as required by the Beneficial Ownership Regulation.
7
$64e64+44
f44OU09y5
"Beneficial Owners " means 3l CFR $ 1010.230.
"E-gnefi!_Blan" means any of (a) an "employee benefit plan" (as defined in ERISA) that is
subject to Title I of ERISA, O) a "plan" as defined in and subject to Section 4975 of the Code or
(c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for
purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such femployee
benefit plan" or "plan."
"I!WI" means Idaho Power Company, an Idaho corporation.
"Borrowlne Date" means a date on which an Advance is made hereunder.
"Boryine Notice" is defined in Section 2.7
"EEsiEss-E" means anv-davlhal(id fer all pHrpeses ethe
a Saturday , Sunday or @ on whichllhe
Pederal neserve gan banks in
Charlotte, North Carolina ir
Retq &ny dey that is
.
"eapitalized Lease" of a Person means any lease of Property by such Person as lessee,
which would be capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
..@,ofaPersonmeanStheamountoftheobligationsofsuch
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 Collateralizg," means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of one or more of the LC Issuers or Lenders, as collateral for LC
Obligations or obligations of Lenders to fund participations in respect of LC Obligations, cash or
deposit account balances or, if the Administrative Agent and the applicable LC Issuer shall agree
in their sole discretion, other credit support, in each case pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the applicable LC Issuer. "Cash
Qll41!gIAl" shall have a meaning correlative to the foregoing and shall include the proceeds of
such cash collateral and other credit support.
"Cash Equivalent Investments" means (i) short-term obligations of, or fully guaranteed
by, the United States of America, (ii) commercial paper rated A-l or better by S&P or Fitch or
P-l or better by Moody's, (iii) demand deposit accounts maintained in the ordinary course of
business, and (iv) certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of $100,000,000; ry!!99! in
each case that the same provides for payment of both principal and interest (and not principal
.u64{le}t+4 8
14494199i5
alone or interest alone) and is not subject to any contingency regarding the payment of principal
or interest.
"ehg4pjn Control" means (i) the acquisition by any "person" or "group" (as such terms
are used in Sections l3(d) and l4(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan) of beneficial
ownership (within the meaning of Rule l3d-3 and l3d-5 under the Securities Exchange Act of
1934) of 20olo or more of the outstanding shares of voting stock of the Parent entitled to vote for
members of the board of directors of the Parent on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to acquire pursuant to any option right)
or (ii) during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent goveming body of the Parent cease to be composed of individuals
(A) who were members of that board on the first day of such period, (B) whose election or
nomination to that board was approved by individuals referred to in clause (A) above
constituting at the time of such election or nomination at least a majority of that board or (C)
whose election or nomination to that board was approved by individuals referred to in clauses
(A) and (B) above constituting at the time of such election or nomination at least a majority of
that board.
"ehange in Law" means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything 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, rules, guidelines or directives
promulgated by the Bank for Intemational Sefflements, 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 III, shall in each case be deemed to be a "Change in
Law", regardless of the date enacted, adopted or issued.
"eloslng_Date" means the first date all the conditions precedent in Section 4.1are
satisfied or waived in accordance with the terms of this Agreement.
('Q6ds" means the Internal Revenue Code of 1986.
"Collateral Shortfall 'is defined in Section 8.1(a).
"Commitmen!" means, for each Lender, the obligation of such Lender to make Revolving
Loans to the Borrower and to participate in the Swingline Loans and Facility LCs issued upon
the application of the Borrower, in an aggregate amount not exceeding the amount set forth
opposite its name on Schedule II, or, if such Lender has entered into one or more assignments
that has become effective pursuant to Section 12.3(a) or is an Increasing Lender or Assuming
Lender, the amount set forth for such Lender at such time in the Register maintained by the
1164Q6?{+4
1449!19915
9
Administrative Agent, in either case, as such amount may be reduced or increased from time to
time pursuant to the terms hereof.
"Commitment Increase" and "Commitment Increase Date" are defined in Section
2.20(a)
"eende!0natien" is defined in Section 7(i).
"Connection Incom 'means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or branch profits
Taxes.
"Consent Date" is defined in Section 2.21(a).
"epr4ssglige Lende/' is defined in Section 2.21(a).
"Consolidated Indeb ' means at any time the Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time; ryig!g9[, however that (i) the
aggregate outstanding Indebtedness attributed to any Hybrid Security shall be deemed equal to
the portion of such Hybrid Security that is deemed to constitute indebtedness, as determined in
accordance with Standard & Poor's methodology at such time and (ii) all Hybrid Securities shall
be included to the extent that the total book value of such Hybrid Securities exceeds l5o/o of
Consolidated Total Capitalization as of such time.
"Consolidated Net Woff' means at any time the consolidated stockholders' equity of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
"Consolidated Total 'means at any time, without duplication, the sum of
(i) Consolidated Indebtedness (but excluding any Indebtedness attributed to Hybrid Securities),
(ii) Consolidated Net Worth and (iii) the aggregate outstanding amount of Hybrid Securities,
each calculated as of such time.
"Contingent ObligdM'of a Person means any agreement, undertaking or arrangement
by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including any comfort letter, operating agreement, take or pay contract or the
obligations of any such Person as general partner of a partnership with respect to the liabilities of
the partnership; ry4!95[, however. that the obligation of the Borrower or its Subsidiaries to
guarantee the performance of mine reclamation activities, if and to the extent the Borrower, one
or more of its Subsidiaries, or a third party (without an obligation of reimbursement by the
Borrower or one or more Subsidiaries) shall have placed in trust or escrow funds specifically
designated for the purpose of satisffing such reclamation obligations, shall be excluded
therefrom.
"Conversion/Conti ' is defined in Section 2.8.
l0
+264462]14
14494199ys
CorresoonAins Teno
tenor f inctuAins o
(disresardins business dav adiustment) as such Available Tenor.
..@',meanSthemakingofanAdvanceortheissuanceorModificationof
a Facility LC.
"Credit Extension Date,' means the Borrowing Date for an Advance or the issuance date
for a Facility LC.
Pailv Simote SOen'
twnicn witl inctuO
with the conventio
for Aeterminine "D
Administrative Asent decides that anv such convention is not administrativelv feasible lor the
Administrative As
reasonable discre
"Debtor Relief Laws" means the Bankruptcy Code of the United States of America, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearangement, receivership, insolvency, reorganization, or similar debtor relief
laws of the United States or other applicable jurisdictions from time to time in effect.
"Default" means an event described in Article 7.
"Dgfautine Lender" means, subject to Section 2.22(a)(vi), any Lender that (i) has failed
to (A) fund all or any portion of its Loans within two Business Days of the date such Loans were
required to be funded hereunder unless such Lender notifies the Administrative Agent and the
Borrower in writing that such failure is the result of such Lender's determination that one or
more conditions precedent to funding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in such writing) has not been satisfied, or (B)
pay to the Administrative Agent, any LC Issuer, the Swingline Lender or any other Lender any
other amount required to be paid by it hereunder (including in respect of its participation in
Facility LCs or Swingline Loans) within two Business Days of the date when due, (ii) has
notified the Borrower, the Administrative Agent or any LC Issuer or the Swingline Lender in
writing that it does not intend to comply with its funding obligations hereunder, or has made a
public statement to that effect (unless such writing or public statement relates to such Lender's
obligation to fund a Loan hereunder and states that such position is based on such Lender's
determination that a condition precedent to funding (which condition precedent, together with
any applicable default, shall be specifically identified in such writing or public statement) cannot
be satisfied), (iii) has failed, within three Business Days after written request by the
Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the
Borrower that it will comply with its prospective funding obligations hereunder (ryiflefl 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
Db4e6yN4
I I
I 4404709v5
direct or indirect parent company that has, (A) become the subject of a proceeding under any
Debtor Relief Law, (B) had appointed for it a receiver, custodian, conseryator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit lnsurance Corporation or
any other state or federal regulatory authority acting in such a capacity or (C) become the subject
of a Bail-ln Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of
the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority so long as such ownership interest does not result
in or provide such Lender with immunity from the jurisdiction of courts within the United States
or from the enforcement ofjudgments or writs of affachment on its assets or permit such Lender
(or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Administrative Agent that a
Lender is a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be
conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Defaulting Lender (subject to Section 2.22(a)(vi)) upon delivery of written notice of such
determination to the Borrower, each LC Issuer, each Swingline Lender and each Lender.
"Deslgnated Person" means any Person listed on a Sanctions List.
"&ll4[g." or "$" means, unless otherwise qualified, dollars in lawful currency of the
United States.
"Early Opt-in Election" means, if the then-currc the
occurrence of:
(a) a notification by the
@dministrative Agentto_( the Borrower)
to the Administrative Asent to notifv) each of the
otner panies neret Dollar-denominated syndicated credit
facilities being+xee'trte4at such time
contain (as a result
of amenAment or as o
anv other rate baseO u a+ery benchmark interes#rate @(and such svndicated credit facilities are identified in such
notice and are oubl , and
(b) (+theiaill election by the Administrative Agent 6rtii)q4d the eleetien$y+he
Borrower to trisser a
fallback from USD LIBOR and the provisioryesapplieablq by the Administrative Agent of
written notice of such election to+heBerrev*e++nd the Lenders@
rvritten netiee ef sueh eleetie+r te the ,\dministrative Agent.
"EEA Financial Ins " means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of
an institution described in clause (a) of this definition, or (c) any financial institution established
D64e62$t4
14404709v5
t2
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)
of this definition and is subject to consolidated supervision with its parent.
"EEA Member Country" means any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
"EEA Resolution AuthorV' means any public administrative authority or any Person
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any credit institution or investment firm
established in any EEA Member Country.
"Elieible Replacem " is defined in Section 2.21(b).
"Environmental Laws" means any and all applicable federal, state, local and foreign
stafutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other
goverrrmental restrictions relating to (i) the protection of the environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv) the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
"Egiry_lnlerests" means (a) in the case of a corporation, capital stock, (b) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership
interests (whether general or limited), (d) in the case of a limited liability company, membership
interests, (e) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person and (0 any and
all warrants, rights or options to purchase any of the foregoing.
"EBIS" means the Employee Retirement Income Security Act of 1974,as amended,
and the rules and regulations promulgated thereunder.
"EBISA Affillgte" means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as (i) a single employer under Section 414(b), (c), (m) or
(o) of the Code or (ii) a member of the same controlled group under Section 4001(a)(14) of
ERISA.
"ERISA Even!" means any of the following: (i) a "reportable event" as defined in
Section 0a3(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 (@d, however, that a failure to meet the minimum funding standard
of Section 412 of the Code shall be considered a "reportable event" regardless of the issuance of
any waiver), (ii) the application by the Borrower or any ERISA Afliliate for a funding waiver
pursuant to Section 412 of the Code, (iii) the incurrence by the Borrower or any ERISA Affiliate
of any Withdrawal Liability, or the receipt by the Borrower or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA or that it
13
]464e€e]+4
14404709v5
intends to terminate or has terminated under Section 4041A of ERISA, (iv) the distribution by
the Borrower or any ERISA Affiliate under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the taking of any action to terminate any Plan, (v) the commencement of
proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the receipt by the Borrower or any ERISA
Affiliate of a notice from any Multiemployer Plan that such action has been taken by the PBGC
with respect to such Multiemployer Plan, (vi) the institution of a proceeding by any fiduciary of
any Multiemployer Plan against the Bonower or any ERISA Affiliate to enforce Section 515 of
EzuSA, 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 ENSA, or the imposition or threatened
imposition of any Lien upon any assets of the Borrower or any ERISA Affiliate as a result of any
alleged failure to comply with the Code or ERISA with respect to any Plan, or (viii) the
Borrower's engaging in a Prohibited Transaction with respect to any Plan.
"Erroneous Pavment'" has the meanins assisned thereto in Section 10.12(a).
grroneous Pavment O
Seclion-l0.l2Gl
grroneous Pavment n
1OJ2(dL
"EU Bail-In Legislation Schedule" means the EU Bail-In Legislation Schedule published
by the Loan Market Association (or any successor thereto), as in effect from time to time.
"Eurodollar Aclvance" means a Revolving Loan which, except as otherwise provided in
Section 2.10, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rdd'means, subject to the implementation of a Benchmark
Replacement in accordance with Section 2.23(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 determined on the
basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period as
published by the ICE Benchmark Administration Limited, a United Kingdom company, or a
comparable or successor quoting service approved by the Administrative Agent for deposits in
Dollars for an amount substantially equal to the amount of such Advance and for a period equal
to the applicable Interest Period at approximately I l:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period (rounded upward, if necessary, to the
nearest l/l00th of lo/o). If such rate is not available at such time for any reason, then the
Eurodollar Base Rate shall be determined by the Administrative Agent to be the arithmetic
average of the rate per annum at which deposits in Dollars in in an amount substantially equal to
the amount of such Advance would be offered by first class banks in the London interbank
market to the Administrative Agent at approximately I l:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period for a period equal to such lnterest
Period. Notwithstanding the foregoing, (a) at no time shall the Eurodollar Base Rate (including,
without limitation, any Benchmark Replacement with respect thereto) be less than 0%o and (b)
+t64g6++4
14
!44941-09!5
unless otherwise specified in any amendment to this Agreement entered into in accordance with
Section 2.23(c), in the event that a Benchmark Replacement with respect to the Eurodollar Base
Rate is implemented then all references herein to the Eurodollar Base Rate shall be deemed
references to such Benchmark Replacement.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the relevant lnterest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest
Period, divided by (b) 1.00 minus the Reserve Requirement (expressed as a decimal) applicable
to such Interest Period, plus (ii) the Applicable Margin.
"Exghange Act" means the Securities Exchange Act of 1934.
"Excluded'!axeg," means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient, (i) Taxes
imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (A) imposed as a result of such Recipient being organized under the
laws of, or having its principal office or, in the case of any Lender, its applicable Lending
Installation located in, the jurisdiction imposing such Tax (or any political subdivision thereof)
or (B) that are Other Connection Taxes, (ii) in the case of a Foreign Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account of such Lender with
respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date
on which (A) such Lender acquires such interest in the Loan or Commitment (other than
pursuant to an assignment request by the Borrower under Section 2.19) or (B) such Lender
changes its Lending lnstallation, except in each case to the extent that, pursuant to Section 3.5,
amounts with respect to such Taxes were payable either to such Lender's assignor immediately
before such Lender became a party hereto or to such Lender immediately before it changed its
Lending Installation, (iii) Taxes attributable to such Recipient's failure to comply with Section
3.5(g) and (iv) any U.S. federal withholding Taxes imposed under FATCA.
"Existing Credit Aq " means that certain Second Amended and Restated Credit
Agreement dated as of October 26,2011, between the Borrower, certain banks and other
financial institutions, and Wells Fargo, as administrative agent.
"Extension Date" is defined in Section 2.21(a).
"Extension Notice" is defined in Section 2.21(a).
"Eacilitv Fee" is defined in Section 2.4(b).
"Fagilitv LC." is defined in Section 2.18(a)
"Facilitv LC Applio 'is defined in Section 2.18(c).
"Facilitv LC Collat 'is defined in Section 2.18(i).
"Facility LC Maturi 'is defined in Section 2.18(a).
12640621\t4
14494199!5
l5
"Facility Terminati ' means the earlier to occur of (iA) @
; provided, however, that, if such date is not a Business Day,
then the Facility Termination Date shall be the immediately preceding Business Day, or (iiE) any
earlier date on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
o'Fr!ICr\," means Sections l47l through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with) and any current or future regulations or official
interpretations thereof and any agreements entered into pursuant to Section l47l(bxl) of the
Code.
"FCA" is defined in Section 1.4.
"Federal Funds Effect " means, for any day, an interest rate per annum (rounded
upwards, if necessary, to the nearest l/100 of one percentage point) equal to the weighted
average of the rates on ovemight Federal funds transactions with members of the Federal
Reserve System, as published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank ofNew York, or, if such rate
is not so published for any day which is a Business Day, the average of the 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. Notwithstanding the foregoing, at no time shall the Federal Funds
Effective Rate be less than 0olo.
"Fee Letters" mean, collectively, (i) the Senior Lead Arrangers Fee Letter, (ii) the Senior
Arrangers Fee Letter and (iii) the Administrative Fee Letter.
"First Amendment Eft 'means December 6,2019
"Etst Mo1!ggp" means that certain Mortgage and Deed of Trust, dated as of October l,
1937, as supplemented, under which the Borrower is Mortgagor and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company) and R.G. Page (Stanley Burg
successor individual trustee) are Trustees, as it may from time to time be further amended,
supplemented or otherwise modified.
66ru" means Fitch Rating Services, [nc.
"Elq[ine Rate" means, for any day, a rate per annum equal to the sum of (i) the Alternate
Base Rate for such day plus (ii) the Applicable Margin, in each case changing when and as the
Alternate Base Rate changes.
"Floating Rate Advanrc" means a Revolving Loan which, except as otherwise provided
in Section 2.10, bears interest at the Floating Rate.
]2641J621+4
!449fi_4tu5
l6
etoor" means tne U
tne execution of tn
orherwise) with resoect to USD LIBOR.
"Fopign Lencler" means a Lender that is not a U.S. Person.
eng" means the Boa
States.
"Froding Jxposure" means, at any time there is a Defaulting Lender, (i) with respect to
any LC Issuer, such Defaulting Lender's Pro Rata Share of the outstanding LC Obligations with
respect to Facility LCs issued by such LC Issuer other than LC Obligations as to which such
Defaulting Lender's participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (ii) with respect to the Swingline Lender,
such Defaulting Lender's Pro Rata Share of outstanding Swingline Loans made by such
Swingline Lender other than Swingline Loans as to which such Defaulting Lender's participation
obligation has been reallocated to other Lenders.
"Governmental Auth 'means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supranational bodies such as the European Union or the
European Central Bank).
"Hybrid Securities" shall mean any hybrid securities afforded equity benefit to the issuer
thereof (under the procedures and guidelines of Standard & Poor's), including any trust preferred
securities, deferrable interest subordinated debt securities, mandatory convertible debt securities
or other hybrid securities issued by the Borrower or any Subsidiary or financing vehicle of the
Borrower that (i) have an original maturity of at least twenty (20) years, (ii) require, absent an
event of default with respect to such securities, no repayments or prepayments and no mandatory
redemptions or repurchases, in each case, prior to the date which is ninety-one (91) days after the
occurrence of the final Facility Termination Date and (iii) permit the Borrower or any such
Subsidiary or any such flrnancing vehicle of the Borrower, respectively, at its option, to defer
certain scheduled interest payments.
tgA" has the meani
"] !.ql-enc!91,'is defined in Section 2.20(a).
..I!@,'ofaPersonmeanssuchPerson,s(i)obligationsforborrowedmoney,(ii)
obligations representing the deferred purchase price ofProperty or services (other than accounts
payable arising in the ordinary course of such Person's business payable on terms customary in
the trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, bonds, acceptances, or other similar instruments, (v)
obligations of such Person to purchase securities or other Property arising out of or in connection
++b4goz4't4 17
14404109v5
with the sale of the same or substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) Contingent Obligations, (viii) obligations in respect of Letters of Credit, (ix)
Rate Management Obligations, (x) prefened stock which is required by the terms thereof to be
redeemed, or for which mandatory sinking fund payments are due, by a fixed date, (xi) Off-
Balance Sheet Liabilities, (xii) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be shown as
a liability on the consolidated balance sheet of such Person and (xiii) amounts outstanding under
a Permitted Receivables Securitization.
"Indemnified-llaxeg," means (i) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrower under any Loan
Document and (ii) to the extent not otherwise described in (i), Other Taxes.
"Idemnitee." is defined in Section 9.5(b)
"Interest Period" means, with respect to a Eurodollar Advance, the period commencing
on the date such Eurodollar Advance is disbursed or converted to or continued as a Eurodollar
Advance and ending on the date one, t*e;three or six months thereafter, as selected by the
Borrower pursuant to this Agreement, ry!g!99[ that:
(i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii)noInterestPeriodshallextendbeyond1hg@
@finalFacility
Termination Date;ancl
f ivt no tenor tnat n
Z.Zf(cXivl snall
Conversion/Continuation Notice.
"lnvestment" of a Person means any loan, advance (other than commission, travel and
similar advances to officers and employees made in the ordinary course of business), extension
of credit (other than accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or contracts owned by such
Person. The term "Investment" shall exclude any direct or indirect expenditure by the Borrower
in property, plant, fixtures, equipment and capital expenditures of the Borrower and its
Subsidiaries.
tee4g6ztt4 I 8
!44941!9!5
66IRS" means the United States Internal Revenue Service.
"Jqindgr Agreemenl" means a written agreement substantially in the form of Exhibit E
hereto
"Joint Lead Arraneerf'means Wells Fargo Securities, JPMorgan, KBCM and MUFG in
their capacity as joint lead arrangers and joint book runners.
"JBMo@" means JPMorgan Chase Bank, N.A.
"KBCM" means Keybanc Capital Markets Inc.
"Kg@k" means KeyBank National Association.
"LC Commitmenl" shall mean, with respect to each LC Issuer, the commitment of such
LC Issuer to issue Facility LCs as set forth in this Agreement in the aggregate face amount not to
exceed the amount set forth opposite such LC Issuer's name on Schedule II or in the agreement
by which such LC Issuer agrees to become an LC Issuer hereunder and to be bound by the terms
hereof applicable to LC Issuers.
(6LQ pss" is defined in Section 2.18(d).
"LC Issuer" means each of Wells Fargo, JPMorgan, KeyBank or MUFG (or any
subsidiary or Affiliate of any such Lender designated by such Lender) and any other Lender that
agrees in its sole discretion to serve as an LC Issuer and is approved by the Borrower and the
Administrative Agent (which approval shall not be unreasonably withheld), in each case in its
capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of (i) the aggregate
undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
"Le Pgyment Date" is defined in Section 2.18(e).
"LC Subcommitmenl" means $50 million or, if less, the Aggregate Commitment at the
time of determination, as such amount may be reduced at or prior to such time pursuant to the
terms hereof.
"@b" means the lending institutions listed on the signature pages of this Agreement
and any other Person that shall have become a Lender party hereto pursuant to the terms hereof;
ry4!91| that unless the context otherwise requires, each reference herein to the Lenders shall be
deemed to include the Swingline Lender in such capacity.
"Lendine Installath" means, with respect to a Lender or the Administrative Agent, the
office, branch, subsidiary or Affiliate of such Lender or the Administrative Agent specified in its
Administrative Questionnaire or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2,16 or Section 3.6.
+164064+a
I 4404709v5
l9
"Letter of_elgdi!" of a Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an account party or for
which such Person is in any way liable.
"LIBOR Market Index R#'means, for any day. subiect to the imo
genchmark Replace , the sum of (i) the rate of interest
for one month U.S. dollar deposits as published by the ICE Benchmark Administration Limited,
a United Kingdom company, or a comparable or successor quoting service approved by 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), ry!g!gg[, however, that at no time shall such rate of interest (including,
without limitation, any Benchmark Replacement with respect thereto) be less than 0o/o, plus (ii)
the Applicable Margin in effect for a Eurodollar Advance from time to time.4Jet+vi+hs+anding
i{r
I,IBeR Nterl(et ln
"LIBOR Market Index " means a Swingline Loan which, except as
otherwise provided in Section 2.10, bears interest at the LIBOR Market Index Rate.
66lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security agreement or
preferential arangement of any kind or nature whatsoever (including the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention agreement).
66@" means the Revolving Loans and the Swingline Loans.
"L@_Documents" means this Agreement, the Facility LC Applications, the Joinder
Agreements, any Notes issued pursuant to Section 2.l2,the Fee Letters, and all other
agreements, instruments, documents and certificates now or hereafter executed and delivered to
the Administrative Agent or any Lender by or on behalf of the Borrower or any of its
Subsidiaries with respect to this Agreement.
"London Business Day,' means a day (other than Saturday or Sunday) on which banks
generally are open in London, England for the conduct of substantially all of their commercial
lending activities and dealings are carried on in the London interbank market.
"Material Adverse E 'o means a material adverse effect on (i) the business, Property,
condition (financial or otherwise), results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Administrative Agent, the LC Issuers or the Lenders thereunder.
"Material Indebtedn " means Indebtedness (other than Obligations) of the Borrower or
any of its Subsidiaries, in an aggregate principal amount exceeding $25,000,000 (or its
20
€6r0,5il+4
14404709v5
equivalent in any other currency). For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any of its Subsidiaries in respect of any
Rate Management Obligation at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such
Rate Management Obligation were terminated at such time of determination.
"Material Subgidiary" of the Borrower means, at any date of determination, any
Subsidiary (a) whose annual gross revenues (on a consolidated basis with its subsidiaries) exceed
l0% of the consolidated annual gross revenue of the Borower and all its Subsidiaries, in each
case for the most recently ended fiscal year for which financial statements are available, or (b)
whose gross assets (on a consolidated basis with its subsidiaries) exceed l0% of the consolidated
gross assets of the Borrower and all its Subsidiaries as of the last day of the Borrower's most
recently ended fiscal year for which financial statements are available.
"Minimum Collateral 'means, at any time, with respect to Cash Collateral
consisting of cash or deposit account balances, an amount equal to 103% of the Fronting
Exposure of all LC Issuers with respect to Facility LCs issued and outstanding at such time.
"Mgdilfu'o and "Modification" are defined in Section 2.18(a).
o'Mggdy!" means Moody's Investors Service, Inc.
"MUEG" means MUFG Union Bank, N.A.
"Multiemployer Plan" means any "multiemployer plan" within the meaning of Section
a00l(a)(3) of ERISA to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions or has, within the last six years, made or been obligated to make
contributions.
'@" is defined in Section 2.21(a).
"Non-Defaultine Le " means, at any time, each Lender that is not a Defaulting Lender
at such time.
5c$16" means any or all of the Revolving Notes and the Swingline Note.
"Oblieations" means all unpaid principal of and accrued and unpaid interest (including
interest and fees accruing after the filing of any bankruptcy or similar petition) on the Loans, all
Reimbursement Obligations, all accrued and unpaid fees (including attorneys' fees) and all
expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or
to any Lender, the Administrative Agent, the Swingline Lender, any LC Issuer or any
indemnified party arising under the Loan Documents.
"OEAQ." means the U.S. Department of the Treasury's Office of Foreign Assets Control.
"Off-Balance Sheet L 'of a Person means, without duplication, (i) any repurchase
obligation or liability of such Person with respect to accounts or notes receivable sold by such
Person, (ii) any liability under any Sale and Leaseback Transaction which is not a Capitalized
2t
+264Q62+r4
)!t9!1!9t5
Lease, (iii) any liability under any so-called "synthetic lease" transaction entered into by such
Person, or (iv) any obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a liability on the
balance sheets of such Person, but excluding from this clause (iv) all Operating Leases.
"Qleratine Lease" of a Person means any lease of Property (other than a Capitalized
Lease) by such Person as lessee, which has an original term (including any required renewals and
any renewals effective at the option of the lessor) of one year or more.
Other genchmark Ra
th€-oseurtsnec-ot
@) a notincation bv th
aamlnistrative eq
outstandinq Dolla
amendment or as ori
tnat is not a SOen-U
iOentined in sucn n
(b) the ioint election bv the Administrative Asent and the Borrower to trisser a fallback
from USO t-tgoR and th
to the Lenders.
"Other Connection " means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing
such Tax (other than connections arising from such Recipient having executed, delivered,
become aparty to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant to or enforced any
Loan Document, or sold or assigned an interest in any Loan or Loan Document).
"Other Taxes" means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2.19 or Section 3.6).
"Outstanding Credi 'means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of all Loans made by such Lender outstanding at such time, (ii) such
Lender's Pro Rata Share of the LC Obligations at such time and (iii) such Lender's (other than
the Swingline Lender's) Pro Rata Share of the Swingline Loans outstanding at such time.
"Parent" means IDACORP,Inc., an Idaho corporation.
"Partig.i@!" is defined in Section 12.2(a).
" i !_Bg€dgIgf" is defined in Section 12.2(d).
]+64BM
!4494199!5
22
"PA'I&lgIlgl" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act, Title III
of Pub. L.107-56 (signed into law October 26,2001)).
"Payment Date" means the last Business Day of each March, June, September and
December.
"Pavment Recioient" lras the meaninp assisned thereto in Section 10.12(a).
.'PBGC,'means the Pension Benefit Guaranty Corporation.
"Permitted Receivab " means a limited recourse or non-recourse sale,
assignment or contribution of accounts receivable and related records, collateral and rights of the
Borrower and/or one or more of its Subsidiaries to one or more special purpose entities, in
connection with the issuance of obligations by any such special purpose entity secured by such
assets, the proceeds of the issuance of which obligations shall be made available, directly or
indirectly, to the Borrower and/or the applicable Subsidiaries.
"@,' means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or organization, or any
Govemmental Authority.
"ElAn" means an "employee pension benefit plan" within the meaning of Section 3(2) of
ERISA that is subject to Title IV of ERISA (other than a Multiemployer Plan) and as to which
the Borrower or any ERISA Affiliate may have any liability.
"Prigln@l" is defined in the Pricing Schedule.
"Eg'cing Schedule" means Schedule I attached hereto identified as such
"Prime Rate" means the per annum interest rate publicly announced from time to time by
Wells Fargo to be its prime rate (which may not necessarily be its lowest or best lending rate), as
adjusted to conform to changes as ofthe opening ofbusiness on the date ofany such change in
such prime rate.
"Prior Termination D#'is defined in Section 2.21(b).
"Prohibited Transa " means any transaction described in (i) Section 406 of ERISA
that is not exempt by reason of Section 408 of ERISA or by reason of a Department of Labor
prohibited transaction individual or class exemption or (ii) Section a975(c) of the Code that is
not exempt by reason of Section a97 5(c)(2) or 4975(d) of the Code or by reason of a Department
of Labor prohibited transaction individual or class exemption.
"hpgry" of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender's Commitment and the denominator of which is the
23
}264{)6a++-+
.E4A4l0ilr:i
Aggregate Commitment (or, if the Commitments have been terminated, a portion equal to a
fraction (i) the numerator of which is equal to such Lender's Outstanding Credit Exposure and
(ii) the denominator of which is the Aggregate Outstanding Credit Exposure).
66PTE" means a prohibited transaction class exemption issued by the U.S. Department of
Labor, as any such exemption may be amended from time to time.
"Purchasers" means any bank or other Person to which a Lender assigns all or any part
of its rights and obligations under the Loan Documents pursuant to Section 12.3 , ry!5!9g[
neither (a) the Parent, the Borrower or any of their respective Affiliates or Subsidiaries, (b) any
Defaulting Lender or any of its Subsidiaries or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this clause (b), nor (c) any
natural Person (or a holding company, investment vehicle or trust for, or owned and operated for
the primary benefit of, a natural Person) shall be permiued to be a Purchaser.
"Rate Management Obli 'o of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management Transactions, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any Rate Management
Transactions.
"Rate Management Trans " means any transaction (including an agreement with
respect thereto, a "Rate Manaeement Agrc ") now existing or hereafter entered into by the
Borrower or the Parent which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, cuffency swap transaction, cross-curency rate swap transaction,
currency option or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more interest rates,
foreign currencies, commodity prices, equity prices or other financial measures.
"Becipien!" means (i) the Administrative Agent, (ii) any Lender and (iii) any LC Issuer,
as applicable.
neference fime" wl
such genchmark is US
gusiness Davs prec
the time determined
"Refunded Swinslin 'is defined in Section 2,7(c).
"Bgg!g1!91" is defined in Section 12.3(d).
"Bsqulation D'means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or other regulation or official
W
I 4404709v5
24
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
"Begulation U" means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit by banks for the
purpose of purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System.
"Reimbursement Obli 'means, at any time, the aggregate of all obligations of the
Borrower then outstanding under Section 2.18 to reimburse the LC Issuers for amounts paid by
the LC Issuers in respect of any one or more drawings under Facility LCs.
"Bglatgd_Parties" means, with respect to any Person, such Person's Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Person's Affiliates.
"Relevant Governme " means the r the Federal
Reserve Bank of New York, or a committee officially endorsed or convened by the Federel
@rtheFederalReserveBankofNewYork-oranysuccesSorthereto.
"Bgllorgg" is defined in Section 9.5.
"Bgg.uired Lenders" means Lenders in the aggregate having at least a majority of the
Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least a majority of the Aggregate Outstanding Credit Exposure, provided
that (i) the Commitment and Outstanding Credit Exposure of any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders and (ii) the amount of any
participation in any Swingline Loan and Facility LC of any Defaulting Lender that has not been
reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the
Swingline Lender or LIC Issuer, as the case may be, in making such determination.
"Reserve Requiremed' means, with respect to an Interest Period, the reserve percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher l/l00th of l%) in
effect from time to time during such Interest Period, as prescribed by the Board of Govemors 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
respecttoeurocurrencyliabilitiesoreurocurrencyfundin@
anatosous reouire
resoect of the maintenance of the Commitments or the fundinq of the Loans. The Eurodollar
nate for eacn outsta
cnanse in the Reseru .
"Resignation Effecti " has the meaning given to such term in Section 10.6(a).
W
14404709v5
25
nesolution euthor
einanciat lnstitu
"Bevolv.lng Loans" is defined in Section 2.1(a).
"Bsvo_lv.ing Note" means a promissory note issued at the request of a Lender pursuant to
Section 2.12(d), in substantially the form of Exhibit D-l hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving Loans made by such
Lender.
('S&P" means Standard and Poor's Financial Services LLC, a subsidiary of The McGraw
Hill Companies,Inc.
"Sale and Leaseback " means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.
"Sanctioned-Co.Un1ry" means; at any time, a reg@ountry-rcgion or territory which is
itself (or whose sovernmen he subject or target of any Sanctions ("rhiehiaeludrne, as of the
Fi+s+S€sand Amendment Effective Date,-is Cuba, Iran, North Korea, Syria-Ycnczuela and the
Crimea-regien+f{Jk+aine).
".Sanc,1!!ong" means (a) economic or financial sanctions, sectoral sanctions, secondary
sanctions, trade embargoes and restrictions and anti-terrorism laws imposed, administered or
enforced from time to time by the United States government, including those administered or
enforced by OFAC, the United Nations Security Council, the European Union, any EU member
state or Her Majesty's Treasury of the United Kingdom, and (b) economic or financial sanctions,
sectoral sanctions, secondary sanctions, trade embargoes and restrictions and anti-terrorism laws
imposed, administered or enforced from time to time by the United States State Department, the
United States Department of Commerce or the United States Department of the Treasury.
"Sanctions List" means any of the lists of specifrcally 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.
Governmental Authority, in each case as the same may be amended, supplemented or substituted
from time to time.
Second amendment P
"Senior Arrangers F ' means the letter agreement, dated October 14,2015,
among Borrower, the Parent, KeyBank, KBCM and MUFG.
"Senior Lead Arrange " means the letter agreement, dated October 14,2015,
among Borrower, the Parent, Wells Fargo, Wells Fargo Securities, JPMorgan and J.P. Morgan
Securities LLC.
reL+4
U4!474-9v5
26
ooSOFR" mcans-with respect to any the
secured ovemight financing rate for such Business Dav published for-su€@by the SOER
aaministrator on t
Dav.
SOpn administrato ederal Reserve Bank of New Yorbas{he+dr+i+istre#
e+*e+ene,hmade (or a successor administrator of the secured ove len
SOpn administrato the Federal Reserve Bank of New
York
ovemisht financins rate identified as such bv the SOFR Administrator from time to time.
"Sgl5idigry" of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association,
joint venture or similar business organization more than 50%o of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower and its
Subsidiaries, Property which (i) represents more than lUYo of the consolidated assets of the
Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as of the beginning of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries as
reflected in the financial statements referred to in clause (i) above.
"Swingline Borrowin 'is defined in Section 2.7(b).
"Swineline Commimd'shall mean $30,000,000 or, if less, the Aggregate Commitment
at the time of determination, as such amount may be reduced.
"Swingline Lentler" shall mean Wells Fargo in its capacity as maker of Swingline Loans,
and its successors in such capacity.
"S@'is defined in Section 2.1(c).
"Slvingline Note" means a promissory note issued at the request of the Swingline Lender
pursuant to Section 2.12(d), in substantially the form of Exhibit D-2 hereto, evidencing the
aggregate indebtedness of the Borrower to the Swingline Lender resulting from Swingline Loans
made by the Swingline Lender.
"h" means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Govemmental Authority, including any interest, additions to tax or penalties applicable thereto.
l+6406+iv4
E4047A9yj
27
"Term_SOFB" means. for the aoolicab!
Re&r9!ss-Iiqe. the forward-looking term rate based on SOFR that has been selected or
recommended by the Relevant Govemmental Body.
"ferm SOPRNotice'
the gorrower of the o
ferm SOen fransitio
fal ferm SOfn has bee
administration of l
genchmark Transit
aoolicable- has oreviouslv occurred resultinq in the reolacement of the then-current Benchmark
for att oumoses here
a Benchmark Reolacement the Unadiusted Benchmark Reolacement comDonent of which is not
Term SOFR.
"Transferee" is defined in Section 12.4.
'5}p" refers to whether an Advance is a Eurodollar Advance, Floating Rate Advance or
LIBOR Market Index Rate Advance.
Uf ninancial tnstl
tne Pna nulebook (as
neeulation Author
from time to timel or
inctudes cenain cr
institutions or in
Urc nesolution euth
authoritv havins resoonsibilitv for the resolution of anv UK Financial Institution.
"Unadjusted Benchm ' means the-aBplieable Benchmark Replacement
excluding the relat€dBenchmark Replacement Adj ustment.
"Unmatured Default" means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
"Unutilized Swins ' 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.
"USD LIBOR" means the London interbank offered rate for Dollars.
"W.-Person" means any Person that is a "United States Person" as defined in Section
7701(a)(30) of the Code.
"Wellg FAIp" means Wells Fargo Bank, National Association.
28
+26406+tv4
14494199v5
"Wells Fareo Securi 'means Wells Fargo Securities, LLC.
"\r':*L '-^"'^r I :^L:t:*:'" means-liabilit,'te a Multiempleyer Plan as a result ef a eemplete
Sub+itle E ef Title IV ef ERISA,
"\r/:*LL -r{:-^ { ^^-*" means the Berre*'ep, the Perent and the ,\dministrative Agent,
"Wholly-Owned Sub 'of a Person means (i) any Subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability
company, association, joint venture or similar business organization 100%o of the ownership
interests having ordinary voting power of which shall at the time be so owned or controlled.
Withdrawal t-iabil
or oartial witndraw
Subtitle E of Title IV of ERISA.
"withhotoine Aqe
"Write-Down and Conv 'means;J@) with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time
to time under the Bail-ln Legislation for the applicable EEA Member Country, which write-
down and conversion powers are described in the EU Bail-In Legislation ScheduleendlbLuth
respect to the unit
gail-ln Lesislati
Financial Institu
or Dart of that liabilitv into shares. securities or oblisations of that Derson or anv other oerson. to
orovide that anv such contract or instrument is to have effect as if a riqht had been exercised
unOer it or to suspe
Bail-ln Lesislation that are related to or ancillarv to anv of those oowers.
1.2 Other lnterpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words'oinc!gg!e," "includes" and"i@9" shall be deemed to be followed by the phrase "without limitation." The word 66y!fl"
shall be construed to have the same meaning and effect as the word "g[4[!." Unless the context
requires otherwise, (i) any definition of or reference to any agreement, instrument or other
document shall be construed as referring to such agreement, 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 "bglfu," "hereo|'and "hereunder," and words of similar
+ab4eb+.,4 29
144941!9!5
import when used in any Loan Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections ofl
and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words (asset" and "pfeplry" shall be construed to
have the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified
date,theword..from,,means..@,diE€l;',thewords..Iq,,and..gfi!,,eachmean..!fu
excluding;" and the word "@g[" means "loangljnglgdiryl."
(c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.
(d) Unless otherwise expressly specified, all references herein to a particular time
shall mean Charlotte, North Carolina time.
(e) All references to the Lenders or any of them shall be deemed to include the
Swingline Lender and LC Issuers unless specifically provided otherwise or unless the context
otherwise requires.
1.3 Accountins Terms.
(a) All accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with Agreement Accounting Principles, applied on a consistent basis, as in effect
from time to time and in a manner consistent with that used in preparing the audited financial
statements required by Section 6.1, except as otherwise specifically prescribed herein.
Notwithstanding the foregoing, for purposes of determining compliance with any covenant
(including the computation of any financial covenant) contained herein, Indebtedness of the
Borrower and its Subsidiaries shall be deemed to be carried at l00o/o of the outstanding principal
amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities
and any other accounting rule to the contrary shall be disregarded. If at any time any change in
Agreement Accounting Principles would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof in light of such
change in Agreement Accounting Principles (subject to the approval of the Required Lenders);
orovided 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
30
1264062114
!449419915
other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change in Agreement Accounting Principles.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan
Document, all terms of an accounting or financial nature used herein or therein shall be
construed, and all computations of amounts and ratios referred to herein and therein shall be
made, without giving effect to the FASB ASC 842 (or any other ASC having a similar result or
effect) (and related interpretations) to the extent any lease (or any similar arrangement conveying
the right to use) would be required to be treated as a capital-lcasep!finanee lease thereunder
where such lease (or similar arrangement) would have been treated as an operating lease under
Agreement Accounting Principles as in effect immediately prior to the effectiveness of the FASB
ASC 842 (or such other ASC having a similar result or effect).
1.4 Rates. The
Rete" er with respe
interest rate on Eurodollar
aOvances. LtgOR Ma
Uv reference to ctau
reference to USP t-tg
interUant offereO ra
short-term Uorrowinq
genchmark Adminis
tne financiat Cona
oublic statements (the "Announcements") that the final oublication or renresentativeness date for
tne mnaon interUan
necemUer:t. ZOZt a
will be June 30. 2023. No successor administrator for IBA was identified in such
announcements. es
London interbank oft
deemed a reoresentative reference rate uoon which to determine the interest rate on Eurodollar
nOvances. LtgOR Ma
Uv reference to ctau
tne dates set foth in t
furtner action tnat co
interUant< offered rate.
the date hereof- to be underwav to imolement new or alternative reference rates to be used in
olace of the London interbank offered rate. In the event that the London interbank offered rate or
anv otner tnen-cur
fortn in Section Z.ZS
atternative rate of in
Section 2.23(c). of anv chanse to the reference rate uoon which the interest rate on Eurodollar
eOvances. LlgOR Ma
3l
+264$62+'t4
14404709v5
Uv reference to clau
edministrative es
liaUititv witn res
anv other matter related to the London interbank offered rate or other rates in the definition of
guroaollar gase Rat
successor or reola
neolacementt. inc
successor or reolac
adiusted pursuant
equivalence of. USD Ll
did the l-ondon inter
unavailabilitv- or (ii) the effect- imolementation or comoosition of anv Benchmark Renlacement
Conformins Chanqes. The Administrative Aqent and its Affiliates or other related entities mav
engaee-in transactions th
reolacement rate (includins anv Benchmark Reolacement) or anv relevant adiustments thereto
and such transacti
information sources
comoonent definiti
to tne terms of tnis a
other oerson or entitv for damases of anv kind- includins direct or indirect. soecial. ounitive.
incidental or cons
otherwise and wheth
comoonent thereofl orovided bv anv such information source or service.
1.5 Divisions. For all purposes under the Loan Documents, in connection with any
division or plan of division under Delaware law (or any comparable event under a different
jurisdiction's laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person to the subsequent Person, and (b) if any new Person comes into
existence, such new Person shall be deemed to have been organized on the first date of its
existence by the holders of its Equity Interests at such time.
ARTICLE 2
THE CREDITS
2.1 Commitments.
(a) From and including the Closing Date to but excluding the Facility Termination
Date aoolicable to such , each Lender severally agrees, on the terms and conditions set
forth in this Agreement, to make loans to the Borrower (each such loan, a "Bgyg.!yi!gloan,'and
collectively, the "&gyg_!y.iggloans,') in an amount equalto its Pro Rata Share of all Revolving
Loans requested by the Borrower, provided that after giving effect to the making of each
Revolving Loan (and to any concurrent repayment of Swingline Loans with proceeds of
Revolving Loans made pursuant to such Advance), such Lender's Outstanding Credit Exposure
shall not exceed its Commitment. Subject to the terms of this Agreement, the Borrower may
]]64A6U*4
-t44O1709!5
32
borrow, repay and reborrow Revolving Loans at any time prior to the appfiqble-Facility
Termination Date.
(b) From and including the Closing Date to but excluding the Facility Termination
Date aoolicable to such , each Lender severally agrees, on the terms and conditions set
forth in this Agreement, to participate in Facility LCs issued upon the request of the Borrower,
orovided that after giving effect to the issuance of each such Facility LC, such Lender's
Outstanding Credit Exposure shall not exceed its Commitment. The LC Issuers will issue
Facility LCs hereunder on the terms and conditions set fonh in Section 2.18.
(c) From and including the Closing Date to but excluding the appleaUafacility
Termination Date, the Swingline Lender agrees, on the terms and conditions hereinafter set forth,
to make loans to the Borrower (each, a'ofuj!g!!4g-t@," and collectively, the "Slulngljne
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, rylglg{that no Advance of Swingline
Loans shall be made if, immediately after giving effect thereto, the Aggregate Outstanding
Credit Exposure would exceed the Aggregate Commitments at such time, and provided further
that the Swingline Lender shall not make any Swingline Loan if any Lender is at that time a
Defaulting Lender, unless the Swingline Lender has entered into arrangements, including the
delivery of Cash Collateral, satisfactory to the Swingline Lender (in its sole discretion) with the
Borrower or such Lender to eliminate the Swingline Lender's actual or potential Fronting
Exposure (after giving effect to Section 2.22(a)(iv)) with respect to the Defaulting Lender
arising from either the Swingline Loan then proposed to be made or that Swingline Loan and all
other Swingline Loans as to which the Swingline Lender has actual or potential Fronting
Exposure, as it may elect in its sole discretion. Subject to and on the terms and conditions of this
Agreement, the Borrower may borrow, repay (including by means of an Advance of Revolving
Loans pursuant to Section 2.7(c)) and reborrow Swingline Loans at any time prior to the Facility
Termination Date aoolicable to the Swinsline Lender. orovided that the Borrower mav not
borrow Swingline Loans the proceeds of which are used to repay outstanding Swingline Loans.
2.2 RequiredPayments:Termination
(a) Except to the extent due or paid sooner pursuant to the provisions of this
Agreement,theBorrowershallrepayto@theaggregateoutstanding
principal amount of each Revolving Loan on
the Facility Termination Date aBplcab.lelo
such Lender.
(b) Except to the extent due or paid sooner pursuant to the provisions of this
Agreement, the Borrower shall repay to the Swingline Lender the aggregate outstanding
principal amount of each Swingline Loan on the earlier to occur of (i) fourteen (14) days after
the Borrowing Date of each such Swingline Loan, and (ii) the Facility Termination Date
aopticaUte to tne S .
2.3 Types of Advances: Minimum Amount of Each Advance. Subject to Section
2.23,the Revolving Loans may be Floating Rate Advances or Eurodollar Advances selected by
33
+264061f+4
-144O1109v5
the Borrower in accordance with Sections 2.7 and 2.8. Each Eurodollar Advance shall be in the
amount of $5,000,000 or a higher integral multiple of $100,000, and each Floating Rate Advance
shall be in the amount of $5,000,000 or a higher integral multiple of $100,000, ptQylglgg[ that any
Floating Rate Advance may be in the amount of the Available Aggregate Commitment. The
Swingline Loans may be Floating Rate Advances or LIBOR Market Index Rate Advances.
2.4 Fees. In addition to certain fees described in Section 2.18(d)
(a) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender an upfront fee in an amount agreed to in the Senior Lead Arrangers Fee Letter, payable
on the date of execution of this Agreement.
(b) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a facility fee (each a "&giliq_Egg,") at a percentage rate
per annum applicable at such time as set forth in the Pricing Schedule on the average daily
Aggregate Commitment from the date hereof to the final Facility Termination Date (and, if
applicable, thereafter on the Aggregate Outstanding Credit Exposure until no Credit Extensions
remain outstanding), payable in anears on each Payment Date hereafter and on the final-Facility
Termination Date (and, if applicable, thereafter on demand).
(c) The Borrower shall pay to the Joint Lead Arrangers, KeyBank, MUFG and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever
2.5 Reduction or Termination of Aggregate Commitment. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders
in integral multiples of $10,000,000, upon at least five (5) Business Days' written notice to the
Administrative Agent, which notice shall specifu the amount of any such reduction, rylglgd
that the amount of the Aggregate Commitment may not be reduced below the Aggregate
Outstanding Credit Exposure. All accrued Facility Fees shall be payable on the effective date of
any termination of the Aggregate Commitments.
2.6 Ootional Principal Payments. The Borrower may, upon notice to the
Administrative Agent, from time to time pay, without penalty or premium, all outstanding
Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $100,000;
provided that such notice must be received by the Administrative Agent not later than I l:00 a.m
(A) three Business Days prior to any date of prepayment of Eurodollar*s+e Advances and (B)
on the date of prepayment of Floating Rate Advances. Any prepayment of a Eurodollar*ste
Advance shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.3. Each such prepayment shall be applied to
the Loans of the Lenders in accordance with their respective Pro Rata Shares.
2.7 Requesting Advances.
(a) In order to obtain an Advance (other than (x) Advances of Swingline Loans,
which shall be made pursuant to Section 2.7(b), (y) Advances for the purpose of repaying
34
$64e62++4
-144O1709v5
Refunded Swingline Loans, which shall be made pursuant to Section 2.7(c), or (z) conversions
of outstanding Revolving Loans made pursuant to Section 2.8), the Borrower shall give the
Administrative Agent irrevocable notice (a "Eorrowlge Notice") not later than I l:00 a.m. on the
Borrowing Date of each Floating Rate Advance and three (3) Business Days before the
Borrowing Date for each Eurodollar Advance, specifuing:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the lnterest Period applicable
thereto.
Not later than l:00 p.m. on each Borrowing Date, each Lender shall make available its Pro Rata
Share of the Revolving Loan or Revolving Loans in funds immediately available to the
Administrative Agent at its address specified pursuant to Article 13. Upon satisfaction of the
applicable conditions set forth in Section 4.2,the Administrative Agent will make the funds so
received from the Lenders available to the Borrower at the Administrative Agent's aforesaid
address.
(b) In order to obtain an Advance of a Swingline Loan, the Borrower shall give the
Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the
Administrative Agent) irrevocable notice (a "Swingline Borrowin ") not later than I l:00
a.m. on the Borrowing Date of each Swingline Loan, specifying the aggregate amount of such
Swingline Loan (which shall not be less than $1,000,000 and, if greater, shall be in an integral
multiple of $500,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline
Commitment)) and (ii) the Type of Advance selected. Not later than 4:00 p.m. on the Borrowing
Date, the Swingline Lender shall make available an amount equal to the amount of the requested
Swingline Loan in funds immediately available to the Administrative Agent at its address
specified pursuant to Article 13. The Administrative Agent 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, without further action by any party hereto, to have unconditionally and irrevocably sold
to each Lender, and each Lender shall be deemed, without further action by any party hereto, to
have unconditionally and irrevocably purchased from the Swingline Lender without recourse or
warranty, a participation in such Swingline Loan in an amount equalto its Pro Rata Share
thereof. Notwithstanding anything herein to the contrary, effective upon any increase or
reduction of the Aggregate Commitments pursuant to the terms hereunder, each Lender's
participation in any Swingline Loan outstanding on such date shall be adjusted to reflect its Pro
Rata Share after giving effect to such increase or reduction, as the case may be.
(c) With respect to any outstanding Swingline Loans, the Swingline Lender may at
any time (whether or not a Default has occurred and is continuing, other than a Default under
Sections 7(g) or 7(h)) in its sole and absolute discretion, and is hereby authorized and
empowered by the Borrower to, cause an Advance of Revolving Loans to be made for the
Ea4a6at4
35
lMO47O9v5
purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the
Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf oi and
with a copy to, the Borrower), not later than I l:00 a.m. on the day of the proposed Borrowing
Date therefor, a notice (which shall be deemed to be a Borrowing Notice given by the Borrower)
requesting the Lenders to make Revolving Loans (which shall be made initially as Floating Rate
Advances) on the Borrowing Date in an aggregate amount equal to the amount of such Swingline
Loans (the "Refunded Swineline 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 Borrowing
Date, each Lender (other than the Swingline Lender) shall make available its Pro Rata Share of
the Refunded Swingline Loans in funds immediately available to the Administrative Agent at its
address specified pursuant to Article 13. To the extent the Lenders have made such amounts
available to the Administrative Agent as provided hereinabove, the Administrative Agent will
make the aggregate of such amounts available to the Swingline Lender in like funds as received
by the Administrative Agent, which shall apply such amounts in repayment of the Refunded
Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the
relevant Borrowing Date, the Refunded Swingline Loans shall be deemed to be repaid with the
proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed
to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be
so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as
Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the
Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender
in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so
recovered shall be shared ratably among all the Lenders in the manner contemplated by Section
11.2.
(d) If, for any reason, Revolving Loans are not made pursuant to Section 2.7(c) in an
amount sufficient to repay any amounts owed to the Swingline Lender in respect of any
outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason
from giving a notice on behalf of the Borrower as provided for hereinabove, 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 specified pursuant to Article 13 an
amount, in immediately available funds, equal to its respective participation. To the extent the
Lenders have made such amounts available to the Administrative Agent as provided
hereinabove, the Administrative Agent will make the aggregate of such amounts available to the
Swingline Lender in like funds as received by the Administrative Agent.
(e) In the event any such Lender fails to make available to the Administrative Agent
for the account of the Swingline Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.7 , the Swingline Lender shall be entitled to recover
such amount on demand from such Lender, together with interest thereon for each day from the
date such amount is required to be made available for the account of the Swingline Lender until
the date such amount is made available to the Swingline Lender at the Federal Funds Effective
Rate for the first three (3) Business Days and thereafter at the Floating Rate applicable to
Revolving Loans. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender's Revolving Loan included in the relevant Advance
36
$64e6}{.v4
!!:!94199t5
or funded participation in the relevant Swingline Loan, as the case may be. Promptly following
its receipt of any payment by or on behalf of the Borower in respect of a Swingline Loan, the
Swingline Lender will pay to each Lender that has acquired a participation therein such Lender's
Pro Rata Share of such payment in accordance with Section 2.11.
(0 Notwithstanding any provision of this Agreement to the contrary, the obligation
of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of
repaying any Refunded Swingline Loans pursuant to Section 2.7(c) and each such Lender's
obligation to fund its risk participation in any unpaid Swingline Loans pursuant to Section 2.7(d)
shall be absolute and unconditional and shall not be affected by any circumstance or event
whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or
other right that such Lender may have against the Swingline Lender, the Administrative Agent,
the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance
of any Unmatured Default or Default, or (iii) the failure of the amount of such Advance of
Revolving Loans to meet the minimum borrowing amount specified in Section 2.3.
2.8 Conversion and Continuation of Outstandins Advances. Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances pursuant to this Section 2.8 or are repaid in accordance with
Section 2.6. Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of
the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with Section 2.6 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at
the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. Subject to Section 2.3, the Borrower may elect from time to
time to convert all or any part of a Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Administrative Agent irrevocable notice (a "Conversion/Conti
Notice") of each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than I l:00 a.m. at least three (3) Business Days
prior to the date of the requested conversion or continuation, speciffing:
(i) the requested date, which shall be a Business Day, of such conversion or
continuation,
(iD the aggregate amount and Type of the Advance which is to be converted
or continued, and
(iii) the amount of such Advance, which is to be converted into or continued as
a Eurodollar Advance and the duration of the Interest Period applicable thereto.
2.9 Chanses in Interest Rate. etc.
(a) Each Floating Rate Advance shall bear interest on the outstanding principal
amount thereof for each day from the date such Floating Rate Advance is made or is
automatically converted from a Eurodollar Advance into a Floating Rate Advance pursuant to
Section 2.8, to the date it is paid or is converted into a Eurodollar Advance pursuant to Section
37
+1640621+4
1440U0&5
2,8, at a rate per annum equal to the Floating Rate for such day. Changes in the rate of interest
on that portion of any Revolving Loan maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Altemate Base Rate.
(b) Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from the first day of the lnterest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower's selections under Sections 2.7
and 2.8 and otherwise in accordance with the terms hereof. No Interest Period may end after the
,+avaneerend@the fi n a LFac i I ity Termination Date.
(c) Each LIBOR Market Index Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from the date such LIBOR Market Index Rate Advance is
made to the date it is paid at a rate per annum equal to the LIBOR Market Index Rate for such
day.
2.10 Rates Applicable After Default. Notwithstanding anything to the contrary
contained in Sections 2.7,2.8 or 2.9, during the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrower, declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar
Advance shall bear interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus2o/o per annum, (ii) each Floating Rate Advance
shall bear interest at a rate per annum equal to the Floating Rate in effect from time to time plus
2o/o per annum (iii) each LIBOR Market Index Rate Advance shall bear interest at a rate per
annum equal to the LIBOR Market lndex Rate in effect from time to time plus2o/o per annum,
and (iv) the LC Fee shall be increasedby 2% per annum, provided that during the continuance of
a Default under Sections 7(g) or 7(h), the interest rates set forth in clauses (i), (ii) and (iii) above
and the increase in the LC Fee set forth in clause (iv) above shall be applicable to all Credit
Extensions without any election or action on the part of the Administrative Agent or any Lender.
2.ll Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article 13, or at any other
Lending Installation of the Administrative Agent specified in writing by the Administrative
Agent to the Borrower, by 12:00 noon on the date when due and shall (except for payments of
Reimbursement Obligations for which the applicable LC Issuer has not received payments from
the Lenders or as otherwise specifically required hereunder) be applied ratably by the
Administrative Agent among the Lenders. Each payment delivered to the Administrative Agent
for the account of any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at its address specified
pursuant to Article 13 or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is hereby authorized to
charge any account of the Borrower maintained with Wells Fargo for each payment of principal,
interest, Reimbursement Obligations and fees as it becomes due hereunder. Each reference to
the Administrative Agent in this Section 2.11 shall also be deemed to refer, and shall apply
38
+264e62+14
14404'709v5
equally, (i) to the Swingline Lender, in the case of payments required to be made by the
Borrower to the Swingline Lender and (ii) to the applicable LC Issuer, in the case of payments
required to be made by the Borrower to such LC Issuer.
2.12 Noteless Aereement: Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan
made by such Lender from time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall also maintain the Register pursuant to Section
12.3(d) and subaccounts for each Lender in which (taken together) it will record (a) the amount
of each Loan made hereunder, the Type thereof and the Interest Period (if any) with respect
thereto, (b) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder, (c) the original stated amount of each Facility LC
and the amount of LC Obligations outstanding at any time, and (d) the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(c) The entries maintained in the accounts, Register and subaccounts maintained
pursuant to Sections 2.12(a) and (b) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided that the failure of the Administrative
Agent or any Lender to maintain such accounts, such Register or such subaccount, as applicable,
or any error therein shall not in any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(d) The Loans made by each Lender shall, if requested by the applicable Lender
(which request shall be made to the Administrative Agent), be evidenced (i) in the case of
Revolving Loans, by a Revolving Note, and (ii) in the case of the Swingline Loans, by a
Swingline Note, in each case appropriately completed and executed by the Borrower and payable
to the order of such Lender. Each Note shall be entitled to all of the benefits of this Agreement
and the other Loan Documents and shall be subject to the provisions hereof and thereof.
2.13 Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is specifically intended to allow
Borrowing Notices, Swingline Borrowing Notices and Conversion/Continuation Notices to be
given telephonically. The Borrower agrees to deliver promptly to the Administrative Agent a
written confirmation, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest
error.
+264OAZlx4
)4494199vi
39
2.14 Interest Payment Dates: Interest and Fee Basis: Maximum Rate.
(a) Interest accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof, on any date on which
such Floating Rate Advance is prepaid, whether due to acceleration or otherwise, and at the
aBplisablc-Facility Termination Date. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion.
(b) Interest accrued on each Eurodollar Advance shall be payable on the last day of
its applicable Interest Period, on any date on which the Eurodollar Advance is prepaid, whether
by acceleration or otherwise, and at the-apDlisabla Facility Termination Date. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Interest Period.
(c) Interest accrued on each LIBOR Market Inclcr-Rate Advance shall be payable on
any date on which such LIBOR Market Inclel< Rate Advance is paid in full, whether due to
acceleration or otherwise, and on the date such LIBOR Market Index Rate Advance shall
become due and payable pursuant to Section 2.2(b).
(d) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(e) Interest hereunder shall be due and payable in accordance with the terms hereof
before and after judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.
(0 Interest on Floating Rate Advances bearing interest at the Prime Rate shall be
calculated for actual days elapsed on the basis of a 365, or when appropriate, 366 day year. All
other interest and all fees shall be calculated for actual days elapsed on the basis ofa 360-day
year. Interest shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 12:00 noon at the place of payment.
If any payment of principal of or interest on an Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business Day (except for
interest payments in respect of Eurodollar Advances whose Interest Period ends on a day which
is not a Business Day, and the next succeeding Business Day falls in a new calendar month, in
which case interest accrued on such Eurodollar Advance shall be payable on the immediately
preceding Business Day) and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
(g) In no contingency or event whatsoever shall the aggregate of all amounts deemed
interest under this Agreement charged or collected pursuant to the terms of this Agreement
exceed the highest rate permissible under any applicable law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court
determines that the Lenders have charged or received interest hereunder in excess of the highest
applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate
permitted by applicable law and the Lenders shall at the Administrative Agent's option (i)
++64e62+r4 40
14404709v5
promptly refund to the Borrower any interest received by the Lenders in excess of the maximum
lawful rate or (ii) apply such excess to the principal balance of the Obligations on a pro rata
basis. It is the intent hereof that the Borrower not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrower under
applicable law.
2.15 Notification of Advances. Interest Rates. Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will notiff each Lender of
the contents of each Aggregate Commitment reduction notice, Borrowing Notice (including
Borrowing Notices received from the Swingline Lender in accordance with Section 2.7(c)),
Swingline Borrowing Notice, Conversior/Continuation Notice, and repayment notice received
by it hereunder. Promptly after notice from any LC Issuer, the Administrative Agent will notiff
each Lender ofthe contents ofeach request for issuance ofa Facility LC hereunder. The
Administrative Agent will notiff each Lender of the interest rate applicable to each Eurodollar
Advance and each LIBOR Market Index Rate Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.16 Lending [nstallations. Each Lender may book its Loans, its participations in any
outstanding Swingline Loans, and its participation in any LC Obligations and any LC Issuer may
book the Facility LCs at any Lending Installation selected by such Lender or such LC Issuer, as
the case may be, and may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Loans, Facility LCs,
participations in outstanding Swingline Loans, participations in LC Obligations and any Notes
issued hereunder shall be deemed held by each Lender or each LC Issuer, as the case may be, for
the benefit of any such Lending Installation. Each Lender and each LC Issuer may, by written
notice to the Administrative Agent and the Borrower in accordance with Article 13, designate
replacement or additional Lending lnstallations through which Loans will be made by it or
Facility LCs will be issued by it and for whose account Loan payments or payments with respect
to Facility LCs are to be made.
2.17 Non-Receipt of Funds bv the Administrative Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is
scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such payment
available to the intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such amount at a rate per
annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for
such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant
+264e64ar4
14404709v5
4t
Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant
Loan.
2.18 Facilitv LCs.
(a) Each LC Issuer hereby agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.18, on the terms and conditions set forth in this Agreement, to issue
standby and commercial letters of credit denominated in U.S. Dollars (each, a "Eaci.!i5LE") and
to renew, extend, increase, decrease or otherwise modif, each Facility LC ("Modif.v," and each
such action a "IV[gl!!E@"), from time to time from the Closing Date and prior to the fifth
Business Day prior to the final-Facility Termination Date upon the request of the Borrower;
provided that immediately after each such Facility LC is issued or Modified, (i) the Aggregate
Outstanding Credit Exposure shall not exceed the Aggregate Commitment, (ii) the sum of the
aggregate undrawn face amount of all Facility LCs outstanding at such time issued by the LC
Issuers and the Reimbursement Obligations shall not exceed the LC Subcommitment, (iii) the
sum of the aggregate undrawn face amount of all Facility LCs issued by any LC Issuer and the
Reimbursement Obligations owed to such LC Issuer shall not exceed such LC lssuer's LC
Commitment, and (iv) no Lender shall be a Defaulting Lender, unless the applicable LC Issuer
has entered into an arrangement, including the delivery of Cash Collateral, satisfactory to such
LC Issuer (in its sole discretion), with the Borrower or such Lender to eliminate the LC Issuer's
actual or potential Fronting Exposure (after giving effect to Section 2.22(a)(iv)) with respect to
the Defaulting Lender arising from either the Facility LC then proposed to be issued or that
Facility LC and the Outstanding Credit Exposure as to which such LC Issuer has actual or
potential Fronting Exposure, as it may elect in its sole discretion. No Facility LC shall have an
expiry date later than the earlier of (A) the fifth Business Day prior to the Facility Termination
Date aoolicable to the L nd (B) one year after its issuance (the..@,),@thatanyFacilityLCwithaone-yeartenormayprovide
for the renewal thereof for additional one-year periods (but in no event beyond the date referred
to in clause (A) above). Notwithstanding the foregoing, no LC Issuer shall be under any
obligation to issue or Modiff any Facility LC if (x) any order, judgment or decree of any
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 Authority with
jurisdiction over the LC Issuer shall (l) prohibit, or request that the LC Issuer refrain from, the
issuance of letters of credit generally or such Facility LC in particular or (2) impose upon the LC
lssuer 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 Issuer any unreimbursed loss, cost or expense which was not applicable on
the Closing Date, in each case under this clause (yX2) which the L/C Issuer in good faith deems
material to it, unless the Borrower agrees in writing to indemnifr the LC Issuer for any such
costs.
(b) Upon the issuance or Modification by any LC Issuer of a Facility LC in
accordance with this Section 2.18, such LC Issuer shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably sold to each Lender, and each Lender shall
be deemed, without further action by any party hereto, to have unconditionally and irrevocably
1164A6}l+4
1M04709v5
42
purchased from such LC Issuer without recourse or warranty, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to its Pro Rata
Share. Notwithstanding anything herein to the contrary, effective upon any increase or reduction
of the Aggregate Commitments pursuant to the terms hereunder, each Lender's participation in
any Facility LC outstanding on such date shall be adjusted to reflect its Pro Rata Share after
giving effect to such increase or reduction, as the case may be.
(c) Subject to Section 2.18(a), the Borrower shall give the applicable LC Issuer a
notice prior to I l:00 a.m. at least three (3) Business Days (or such shorter period as is acceptable
to the LC Issuer in any given case) prior to the proposed date of issuance or Modification of each
Facility LC, speciffing the beneficiary, the amount of the proposed issuance (or Modification),
the proposed date of issuance (or Modification) and the expiry date of such Facility LC, and
describing the proposed terms of such Facility LC and the nature of the transactions proposed to
be supported thereby. Upon receipt of such notice, the applicable LC Issuer shall promptly
notit/ the Administrative Agent, and the Administrative Agent shall promptly notify each
Lender, of the contents thereof and of the amount of such Lender's participation in such
proposed Facility LC. The issuance or Modification by any LC Issuer of any Facility LC shall,
in addition to the conditions precedent set forth in 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 Facility LC as such LC Issuer shall have reasonably requested (each,
a "Faciliry LC Applio '). In the event of any conflict between the terms of this Agreement
and the terms of any Facility LC Application, the terms of this Agreement shall control.
(d) The Borrower shall pay to the Administrative Agent, for the account of the
Lenders in accordance with their respective Pro Rata Shares, with respect to each Facility LC
issued hereunder, a letter of credit fee at a per annum rate equal to the Applicable Margin for
Eurodollar Advances in effect from time to time on the average daily undrawn stated amount
under such Facility LC, such fee to be payable in arrears on each Payment Date, on the Facility
LC Maturity Date and thereafter on demand (each such fee described in this sentence an "re
Fre,"), provided, however, that any LC Fees otherwise payable for the account of a Defaulting
Lender with respect to any Facility LC as to which such Defaulting Lender has not provided
Cash Collateral satisfactory to the LC lssuer pursuant to Section 2.22(c) shall be payable, to the
maximum extent permitted by applicable law, to the other Lenders in accordance with the
upward adjustments in their respective Pro Rata Shares allocable to such Facility LC, with the
balance of such fee, if any, payable to the applicable LC Issuer for its own account; ry4!91!
further, that so long as no Unmatured Default or Default exists, notwithstanding the Pricing
Level otherwise applicable to the Advances, Facility LCs and Facility Fee, the Borrower shall be
required to pay an LC Fee on any portion of any Facility LC that the Borrower has Cash
Collateralized at a rate equal to the Applicable Margin for Eurodollar Advance corresponding to
Pricing Level I. The Borrower shall also pay to the applicable LC Issuer for its own account (x)
a fronting fee at the per annum rate set forth in the Senior Lead Arrangers Fee Letter or as
separately agreed with such LC Issuer on the average daily undrawn stated amount under each
Facility LC issued hereunder, such fee to be payable in arrears on each Payment Date, and (y)
documentary and processing charges in connection with the issuance or Modification of and
+t6zrc6a+v4
43
Y,q9q99v5
draws under Facility LCs in accordance with the applicable LC Issuer's standard schedule for
such charges as in effect from time to time.
(e) Upon receipt from the beneficiary of any Facility LC of any demand for payment
under such Facility LC, the applicable LC Issuer shall notiff the Administrative Agent and the
Administrative Agent shall promptly notifr the Borrower and each other Lender as to the amount
to be paid by such LC Issuer as a result of such demand and the proposed payment date (the "!Q
Payment Date"). The responsibility of such LC Issuer to the Borrower and each Lender shall be
only to determine that the documents (including each demand for payment) delivered under each
Facility LC in connection with such presentment shall be in conformity in all material respects
with such Facility LC. Each LC Issuer shall endeavor to exercise the same care in the issuance
and administration of the Facility LCs as it does with respect to letters of credit in which no
participations are granted. Each Lender's obligation to reimburse each LC Issuer for its Pro Rata
Share of the amount drawn under each Facility LCs to the extent such amount is not reimbursed
by the Borrower pursuant to Section 2.18(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 Borrower or any
other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or
Unmatured Default, or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing. If any Lender fails to make available to the Administrative Agent for the
account of the applicable LC Issuer any amount required to be paid by such Lender pursuant to
this foregoing provisions of this Section 2.18(e), such LC Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the LC Payment Date to the date on which such payment is
immediately available to the LC Issuer at a rate per annum equal to the Federal Funds Effective
Rate for the first three (3) days and, thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
(0 The Borrower shall be irrevocably and unconditionally obligated to reimburse any
LC Issuer on the applicable LC Payment Date for any amounts to be paid by such LC Issuer
upon any drawing under any Facility LC, without presentment, demand, protest or other
formalities of any kind; ryidgSl that, subject to Section 2.18(h), the Borrower shall not be
precluded from asserting any claim for direct (but not consequential) damages suffered by the
Borrower to the extent, but only to the extent, caused by (i) the willful misconduct or gross
negligence of such LC Issuer in determining whether a request presented under any Facility LC
issued by it complied with the terms of such Facility LC or (ii) such LC Issuer's failure to pay
under any Facility LC issued by it after the presentation to it of a request strictly complying with
the terms and conditions of such Facility LC. All such amounts paid by such LC Issuer and
remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid
at arate per annum equal to (x) the rate applicable to Floating Rate Advances for such day if
such day falls on or before the applicable LC Payment Date and (y) the sum of 2Yo plus the rate
applicable to Floating Rate Advances for such day if such 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 from the Borrower for application in payment, in whole or in part, of
the Reimbursement Obligation in respect of any Facility LC issued by such LC Issuer, but only
to the extent such Lender has made payment to such LC Issuer in respect of such Facility LC
44
+264e6ts],v4
14404709v5
pursuant to Section 2.18(e). Subject to the terms and conditions of this Agreement (including
the submission of a Borrowing Notice in compliance with Section 2.7 and the satisfaction of the
applicable conditions precedent set forth in Article 4), the Borrower may request an Advance
hereunder for the purpose of satisffing any Reimbursement Obligation.
(g) The Borrower's obligations to reimburse each LC Issuer for each drawing under
each Facility LC shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Facility LC, this Agreement, or any other Loan
Document; (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of such Facility LC (or
any Person for whom any such beneficiary or any such transferee may be acting), the LC Issuer
or any other Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Facility LC or any agreement or instrument relating thereto, or any unrelated
transaction; (iii) any draft, demand, certificate or other document presented under such Facility
LC proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) any payment by the applicable LC Issuer
under such Facility LC against presentation of a draft or certificate that does not strictly comply
with the terms of such Facility LC; or any payment made by the LC Issuer under such Facility
LC to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit ofcreditors, liquidator, receiver or other representative ofor successor to any beneficiary
or any transferee of such Facility LC, including any arising in connection with any proceeding
under any Debtor Relief Law; (v) any dispute between or among the Borrower, any of its
Affiliates, the beneficiary of any Facility LC or any financing institution or other party to whom
any Facility LC may be transferred; (vi) any claims or defenses whatsoever of the Borrower or of
any of its Affiliates against the beneficiary of any Facility LC or any such transferee; or (vii) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower. No LC Issuer shall be liable for any eror, omission, intemrption or
delay in transmission, dispatch or delivery of any message or advice, however transmitted, in
connection with any Facility LC. The Borrower agrees that any action taken or omitted by any
LC Issuer or any Lender under or in connection with each Facility LC and the related drafts and
documents, if done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put any LC lssuer or any Lender under any liability to the Borrower.
Nothing in this Section 2.18(9) is intended to limit the right of the Borrower to make a claim
against any LC Issuer for damages as contemplated by Section 2.18(h).
(h) Each Lender and the Borrower agree that, in paying any drawing under a Facility
LC, the applicable LC Issuer shall not have any responsibility to obtain any document (other than
any sight draft, certificates and documents expressly required by the applicable Facility LC) or to
ascertain or inquire as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document, provided that at all times the LC Issuer shall
be acting in good faith. None of the LC Issuers, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of any LC Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken
45
1164Q62+14
l!!041!9ts
or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Facility
LC. Notwithstanding any other provision of this Section 2.18, each LC Issuer shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement in accordance
with a request of the Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and any future holders of a participation in
any Facility LC. None of the LC Issuers, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of any LC Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (vii) of Section 2.18(9);
provided. however, that anything in such clauses to the contrary notwithstanding, the Borrower
may have a claim against any LC Issuer, and such LC Issuer may be liable to the Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which a court of competent jurisdiction determines in a final
nonappealable judgment to have resulted from such LC Issuer's willful misconduct or gross
negligence or the LC Issuer's failure to pay under any Facility LC after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions
of such Facility 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 of any Facility
LC and thereafter as long as any amount is payable to any LC lssuer or the Lenders in respect of
any Facility LC or (ii) if as of the Facility Termination Date aoolicable to anv L
tqndg.rt, any LC Obligation for any reason remains outstanding, maintain a special collateral
account pursuant to arrangements satisfactory to the Administrative Agent (the "Fggllitv LC
Collateral Account") at the Administrative Agent's office at the address specified pursuant to
Article 13, in the name of such Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders and in which such Borrower shall have no
interest other than as set forth in Section 8.1. The Borrower hereby pledges, assigns and grants
to the Administrative Agent, on behalf of and for the ratable benefit of the Lenders and the LC
Issuers, a security interest in all of the Borrower's right, title and interest in and to all funds
which may from time to time be on deposit in the Facility LC Collateral Account to secure the
prompt and complete payment and performance of the LC Obligations. Amounts in the Facility
LC Collateral Account shall not bear interest.
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 of the Closing Date,
each letter of credit issued by Wells Fargo or JPMorgan for the account of the Borrower under
the Existing Credit Agreement shall be deemed issued by Wells Fargo or JPMorgan, as
applicable, for the account of the Borrower 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 thereof) (i) on or prior to each Business Day on which such LC Issuer issues, amends,
renews or extends any Facility LC, the date of such issuance, amendment, renewal or extension,
and the aggregate face amount of the Facility LCs issued, amended, renewed or extended by it
46
+264462+v4
!!40!199v5
and outstanding after giving effect to such issuance, amendment, renewal or extension (and
whether the amount thereof shall 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 which such LC Issuer makes any payment on a Facility LC, the date and
amount of such disbursement, (iii) on any Business Day on which the Borrower fails to
reimburse any payment required to be reimbursed to such LC Issuer on such day, the date of
such failure and the amount of such disbursement and (iv) on any other Business Day, such other
information as the Administrative Agent shall reasonably request as to the Facility LCs issued by
such LC Issuer.
2.19 Replacement of Lender. If any Lender requests compensation under Sections 3.1
or 3.2, or if the Borrower is required to pay any lndemnified Taxes or additional amounts to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.5
and, in each case, such Lender has declined or is unable to designate a different Lending
Installation in accordance with Section 3.6, or if any Lender is a Defaulting Lender or a Non-
Consenting Lender or in connection with any proposed amendment, modification, waiver or
consent with respect to any of the provisions hereof as contemplated by Section 8.2(i) or (ii), the
consent ofthe Required Lenders shall have been obtained but the consent ofone or more ofsuch
other Lenders whose consent is required shall not have been obtained, in each case, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 12.3), all of its
interests, rights (other than its existing rights to payments pursuant to Sections 3.1 or 3.2 or
Section 3.5) and obligations under this Agreement and the related Loan Documents to an
Eligible Replacement Lender that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); ry!g!99! that:
(i) no Unmatured Default or Default shall have occurred or be continuing;
(iD the Administrative Agent shall have received the assignment fee (if any)
specified in Section 12.3;
(iii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and funded participations in LC Obligations, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under Section 3.3) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);
(iv) in the case of any such assignment resulting from a claim for
compensation under Sections 3.1 or 3.2 or payments required to be made pursuant to
Section 3.5, such assignment will result in a reduction in such compensation or payments
thereafter;
such assignment does not conflict with applicable law; and
47
+164462++4
f444fl)qv5
(v)
(vi) in the case of any assignment resulting from a Lender becoming a Non-
Consenting Lender or a Lender that has not consented to any proposed amendment,
modification, waiver or consent which requires the consent of all Lenders (or the Lenders
directly affected thereby) and with respect to which the Required Lenders have consented
to such amendment, waiver or consent, the applicable assignee shall have consented to
the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
2.20 Increase in Commitments.
(a) The Borrower shall have the right at any time and from time to time after the
Closing Date and prior to the date that is thirty (30) days prior to the=Ena! Facility Termination
DatetoincreasetheAggregateCommitment(eachsuchproposedincreasebeinga..@u!
Increase"), either by having a Lender increase its Commitment then in effect (each an
"l@!gg[-encb") or by adding as a Lender with a new Commitment hereunder a Person
which is not then a Lender (each an "AEUiEg!gSb"), in each case with the approval of the
Administrative Agent, each LC Issuer and the Swingline Lender (such approval not to be
unreasonably withheld), which notice shall specify the name of each [ncreasing Lender and/or
Assuming Lender, as applicable, the amount of the Commitment Increase and the portion thereof
being assumed by each such Increasing Lender or Assuming Lender, and the date on which such
increase is to be effective (the "Commitment Increa '), which shall be a Business Day at
least three (3) Business Days after delivery of such notice; provided that no Lender shall have
any obligation hereunder to become an lncreasing Lender and any election to do so shall be in
the sole discretion of each Lender; provided further that: (i) any such request for a Commitment
Increase shall be in a minimum amount of $25,000,000 or a higher integral multiple of
$1,000,000; (ii) immediately after giving effect to any Commitment Increase, the Aggregate
Commitment shall not exceed $450,000,000 and the aggregate amount of all Commitment
Increases shall not exceed $150,000,000; (iii) the sum of the increases in Commitments of the
Increasing Lenders and the new Commitments of the Assuming Lenders shall not exceed the
requested Commitment Increase; (iv) no Default or Unmatured Default shall have occurred and
be continuing on the applicable Commitment lncrease Date 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 of a
specified date, as ofsuch specific date).
(b) Each Commitment Increase (and the increase of the Commitment of each
Increasing Lender and/or the new Commitment of each Assuming Lender, as applicable,
resulting therefrom) shall become effective as of the Commitment Increase Date; rylglgg[ that:
(i) the Administrative Agent shall have received on or prior to 10:00 a.m. on such Commitment
Increase Date a certificate of an Authorized Officer stating that each of the applicable conditions
to such Commitment Increase set forth in Section 2.20(a) has been satisfied and attaching the
resolutions adopted by the Borrower approving or consenting to such Commitment Increase; (ii)
with respect to each Assuming Lender, the Administrative Agent shall have received, on or prior
48
+164$62+14
!!49479tu5
to l0:00 a.m. on such Commitment Increase Date, a Joinder Agreement among the Assuming
Lender, the Borrower and the Administrative Agent; and (iii) each Increasing Lender shall have
delivered to the Administrative Agent, on or prior to l0:00 a.m. on such Commitment Increase
Date, confirmation in writing satisfactory to the Administrative Agent as to its increased
Commitment, with a copy of such confirmation to the Borrower.
(c) On each Commitment lncrease Date upon such time as the applicable conditions
set forth in Sections 2.20(a) and 2.20(b) have been satisfied, the Borrower shall (i) prepay the
then outstanding Advances (if any) in full prior to giving effect to such Commitment Increase,
(ii) if the Borrower shall so request, request new Advances from the Lenders (including any
Assuming Lender) in an aggregate amount at least equal to such prepayment, so that, after giving
effect thereto, the Advances are held ratably by the Lenders in accordance with their respective
Commitments (after giving effect to such Commitment Increase) and (iii) pay to the Lenders any
funding indemnification amounts required by Section 3.3.
2.21 Extension of Facilitv Termination Date.
(a) So long as no Unmatured Default or Default has occurred and is continuing and
subject to the conditions set forth in Section 2.21(c), the Borrower may, not more than two (2)
times during the term of this Agreement after the Firs+Spsond Amendment Effective Date, no
earlier than sixty (60) days and no later than thirty (30) days prior to each anniversary of the
Date (such anniversary, an "Ex!ens!on Da!g") request
through written notice to the Administrative Agent (the "Extension Notice"), that the Lenders
extend the then existing Facility Termination Date for an additional one-year period. Each
Lender, acting in its sole discretion, shall, by notice to the Administrative Agent no later than the
applicable Extension Date (except in the year in which the then existing Facility Termination
Date shall occur, in which case such written notice shall be delivered by the Lenders no later
than fifteen (15) days prior to the then existing Facility Termination Date) (such date, the
'o@gg-p41!9,"), advise the Administrative Agent in writing of its desire to extend (any such
Lender, a "@1i!gl-enc!91,') or not to so extend (any such Lender, a'1t{-on-eplpgqlilg
Lender") such date. Any Lender that does not advise the Administrative Agent by the Consent
Date shall be deemed to be a Non-Consenting Lender. No Lender shall be under any obligation
or commitment to extend the then existing Facility Termination Date. The election of any
Lender to agree to such extension shall not obligate any other Lender to agree to such extension.
The Borrower mav not request anv extension of the Facilitv Termination Date under this Section
Z.Zt untess the gorr
gonnxdssion or anv other
(b) On the Consent Date, if Lenders holding Commitments that aggregate more than
50% of the Aggregate Commitments shall have agreed to such extension, then the then existing
Facility Termination Date applicable to the Consenting Lenders shall be extended to the date that
is one (1) year after the then existing Facility Termination Date. All Advances of each Non-
Consenting Lender shall be subject to the then existing Facility Termination Date, without giving
effect to such extension (such date, the "Prior Termination D#'). In the event of an extension
of the then existing Facility Termination Date pursuant to this Section 2,2l,the Borrower shall
have the right, at its own expense, to solicit commitments from existing Lenders and/or other
banks or financial institutions reasonably acceptable to the Administrative Agent, the LC Issuers
49
144$6*xa
-1440470-9!5
andtheSwinglineLender(each,anoo@')toreplacetheCommitment
of any Non-Consenting Lenders for the remaining duration of this Agreement. Any Eligible
Replacement Lender (if not already a Lender hereunder) shall become a party to this Agreement
as a Lender by delivering an executed Joinder Agreement to the Administrative Agent and the
Borrower. The Commitment of each Non-Consenting Lender shall terminate on the Prior
Termination Date, all Advances and other amounts payable hereunder to such Non-Consenting
Lenders shall be subject to the Prior Termination Date and, to the extent such Non-Consenting
Lender's Commitment is not replaced as provided above, the Commitments hereunder shall be
reduced by the amount of the Commitment of each such Non-Consenting Lender so terminated
on the Prior Termination Date. Notwithstanding anything to the contrary in this Section 2.21,
the Facility Termination Date shall not be extended unless the aggregate Commitments of the
Consenting Lenders and any Eligible Replacement Lenders joining this Agreement pursuant to
this Section 2.21(b) are greater than or equal to the Aggregate Outstanding Credit Exposure as of
each Prior Termination Date.
(c) An extension of the Facility Termination Date pursuant to this Section 2.21 shall
only become effective upon the receipt by the Administrative Agent of a certificate (the
statements contained in which shall be true) of a duly authorized officer of the Borrower stating
that both before and after giving effect to such extension of the Facility Termination Date (i) no
Default has occurred and is continuing and (ii) all representations and warranties contained in
Article 5 are true and correct in all material respects on and as of the date such extension is
made, except for such representations or warranties which by their terms are made as of a
specified date, which shall be true and correct as of such specified date.
(d) Effective on and after the Prior Termination Date, (i) each of the Non-Consenting
Lenders shall be automatically released from their respective LC Obligations and (ii) the LC
Obligations of each Lender (other than the Non-Consenting Lenders) shall be automatically
adjusted to equal such Lender's Pro Rata Share of such LC Obligations.
2.22 DefaultineLenders.
(a) Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a
Defaulting Lender, to the extent permitted by applicable law:
(i) Such Defaulting Lender's right to approve or disapprove any amendment,
waiver or consent with respect to this Agreement shall be restricted as set forth in the
definition of Required Lenders.
(ii) Any payment of principal, interest, fees or other amounts received by the
Administrative Agent for the account of such Defaulting Lender (whether voluntary or
mandatory, at maturity, pursuant to Article 7 or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 11.1 shall be applied
at such time or times as may be determined by the Administrative Agent as follows: first,
to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by
such Defaulting Lender to any LC Issuer or Swingline Lender hereunder; third, to Cash
50
+16446U,v4
14494199v5
Collateralize the LC Issuers' Fronting Exposure with respect to such Defaulting Lender
in accordance with Section 2.22(c); fourth, as the Borrower may request (so long as no
Default or Unmatured Default exists), to the funding of any Loan in respect of which
such Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a deposit account and released pro
rata in order to (x) satisff such Defaulting Lender's potential future funding obligations
with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers'
future Fronting Exposure with respect to such Defaulting Lender with respect to future
Facility LCs issued under this Agreement, in accordance with Section2.22(c); sixth, to
the payment of any amounts owing to the Lenders, the LC Issuers or Swingline Lenders
as a result of any judgment of a court of competent jurisdiction obtained by any Lender,
the LC lssuers or Swingline Lenders against such Defaulting Lender as a result of such
Defaulting Lender's breach of its obligations under this Agreement; seventh, so long as
no Default or Unmatured Default exists, to the payment of any amounts owing to the
Borrower as a result of any judgment of a court of competent jurisdiction obtained by the
Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach
of its obligations under this Agreement; and eishth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; ry!5!9g! that if (x) such payment
is a payment of the principal amount of any Loans or LC Obligations in respect of which
such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans
were made or the related Facility LCs were issued at a time when the conditions set forth
in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the
Loans of, and LC Obligations owed to, allNon-Defaulting Lenders on a pro rata basis
prior to being applied to the payment of any Loans ol or LC Obligations owed to, such
Defaulting Lender until such time as all Loans and funded and unfunded participations in
LC Obligations and Swingline Loans are held by the Lenders pro rata in accordance with
the Commitments under the applicable Faeitiryfaq!!ry without giving effect to Section
2.22(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post
Cash Collateral pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) (A) Each Defaulting Lender shall be entitled to receive a Facility Fee
for any period during which that Lender is a Defaulting Lender only to extent allocable to
the sum of (l) the outstanding principal amount of the Revolving Loans funded by it, and
(2) its Pro Rata Share of the stated amount of Facility LCs for which it has provided Cash
Collateral pursuant to Section 2.22(c).
(B) Each Defaulting Lender shall be entitled to receive LC Fees for
any period during which that Lender is a Defaulting Lender only to the extent
allocable to its Pro Rata Share of the stated amount of Facility LCs for which it
has provided Cash Collateral pursuant to Section 2.22(c).
(C) With respect to any Facility Fee or LC Fee not required to be paid
to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall
l46406t-l+"1
14404'709v5
5l
(x) pay to each Non-Defaulting Lender that portion of any such fee otherwise
payable to such Defaulting Lender with respect to such Defaulting Lender's
participation in LC Obligations or Swingline Loans that has been reallocated to
such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each LC
lssuer and Swingline Lender, as applicable, the amount of any such fee otherwise
payable to such Defaulting Lender to the extent allocable to such LC lssuer's or
Swingline Lender's Fronting Exposure to such Defaulting Lender, and (z) not be
required to pay the remaining amount of any such fee. Notwithstanding the
foregoing, so long as no Unmatured Default or Default exists, notwithstanding the
Pricing Level otherwise applicable to the Advances, Facility LCs and Facility
Fee, the Borrower shall be required to pay an LC Fee on any portion of any
Facility LC that the Borrower has Cash Collateralized at a rate equalto the
Applicable Margin for Eurodollar Advances corresponding to Pricing Level I.
(iv) All or any part of such Defaulting Lender's participation in LC
Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders
in accordance with their respective Pro Rata Shares (calculated without regard to such
Defaulting Lender's Commitment) but only to the extent that such reallocation does not
cause the aggregate R€v€l+ingoutstandiry Credit Exposure of any Non-Defaulting
Lender to exceed such Non-Defaulting Lender's Commitment. Subject to Section 9.15,
no reallocation hereunder shall constitute a waiver or release of any claim of any party
hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting Lender' s increased exposure following such reallocation.
(v) If the reallocation described in clause (iv) above cannot, or can only
partially, be effected, the Borrower shall, without prejudice to any right or remedy
available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount
equal to the Swingline Lenders' Fronting Exposure and (y) second, Cash Collateralize the
LC Issuers' Fronting Exposure in accordance with the procedures set forth in Section
2.22(c).
(vi) If the Borrower, the Administrative Agent, the Swingline Lender and each
LC Issuer agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notiff the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may
include arrangements with respect to any Cash Collateral), that Lender will, to the extent
applicable, purchase atpar that portion of outstanding Loans of the other Lenders or take
such other actions as the Administrative Agent may determine to be necessary to cause
each Lender to hold its Pro Rata Share of the Loans and funded and unfunded
participations in Facility LCs and Swingline Loans (without giving effect to Section
2.22(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; rylglggl that
no adjustments will be made retroactively with respect to fees accrued or payments made
by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided, further, that except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver
+X4&:74+4
144O1709v5
52
or release ofany 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 Modifu any Facility LC unless it is satisfied that it will have no Fronting
Exposure after giving effect thereto.
(c) At any time that there shall exist a Defaulting Lender, within two (2) Business
Day following the written request of the Administrative Agent or any LC Issuer (with a copy to
the Administrative Agent) the Borrower shall Cash Collateralize the LC Issuer's Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section
2.22(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less
than the Minimum Collateral Amount.
(i) The Borrower, and to the extent provided by any Defaulting Lender, such
Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the LC
Issuers, and agrees to maintain, a first priority 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 liens
permitted pursuant to Section 6.11), or that the total amount of such Cash Collateral is
less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by
the Administrative Agent, pay or provide to the Administrative Agent additional Cash
Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any
Cash Collateral provided by the Defaulting Lender).
(iD Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under this Section 2.22 in respect of Facility LCs shall be
applied to the satisfaction of the Defaulting Lender's obligation to fund participations in
respect of LC Obligations (including, as to Cash Collateral provided by a Defaulting
Lender, any interest accrued on such obligation) for which the Cash Collateral was so
provided, prior to any other application of such propefty as may otherwise be provided
for herein.
(iii) Cash Collateral (or the appropriate portion thereof) provided to reduce any
LC Issuer's Fronting Exposure shall no longer be required to be held as Cash Collateral
pursuant to this Section 2.22 following (i) the elimination of the applicable Fronting
Exposure (including by the termination of Defaulting Lender status of the applicable
Lender), or (ii) the determination by the Administrative Agent and each LC Issuer that
there exists excess Cash Collateral; pv[!99! 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.
+264461]*4
i4401709y5
53
2.23 ChaneedCircumstances.
(a) In connection with any request for a Eurodollar*ete Advance (or a Floating Rate
Advance as to which the interest rate is determined with reference to the Eurodollar Base Rate)
or a conversion to or continuation thereof if for any reason (i) the Administrative Agent shall
determine (which determination shall be conclusive and binding absent manifest error) that
Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the
applicable amount and Interest Period of such Advance, (ii) the 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*o+e Advance (or a Floating Rate
Advance as to which the interest rate is determined with reference to the Eurodollar Base Rate)
or (iii) the Required Lenders shall determine (which determination shall be conclusive and
binding absent manifest error) that the Eurodollar Base Rate does not adequately and fairly
reflect the cost to such Lenders of making or maintaining such Advances during such Interest
Period, then the Administrative Agent shall promptly give notice thereof to the Borrower.
Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no
longer exist (which notice the Administrative Agent shall promptly deliver to the Borrower), the
obligation of the Lenders to make a Eurodollar Rc{€-Advance (or a Floating Rate Advance as to
which the interest rate is determined with reference to the Eurodollar Base Rate) and the right of
the Borrower to convert any Loan to or continue any Loan as a Eurodollar*ete Advance (or a
Floating Rate Advance as to which the interest rate is determined with reference to the
Eurodollar Base Rate) shall be suspended, and (x) in the case of Eurodollar RatqAdvances, the
Borrower shall either (A) repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such Eurodollar*ste Advance together with accrued interest thereon
(subject to Section 3.3), on the last day ofthe then current Interest Period applicable to such
Eurodollar*ste Advance; or (B) convert the then outstanding principal amount of each such
Eurodollar*ste Advance to a Floating Rate (as to which the interest rate is not determined by
reference to the Eurodollar Base Rate) as of the last day of such Interest Period; or (y) in the case
of Floating Rate Advances as to which the interest rate is determined by reference to the
Eurodollar Base Rate, the Borrower shall convert the then outstanding principal amount of each
such Advance to a Floating Rate Advance as to which the interest rate is not determined by
reference to the Eurodollar Base Rate as of the last day of such Interest Period.
(b) If, after the date hereof the introduction of, or any change in, any applicable law
or any change in the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, or compliance by any of the Lenders
(or any of their respective Lending Installations) with any request or directive (whether or not
having the force of law) of any such Governmental Authority shall make it unlawful or
impossible for any of the Lenders (or any of their respective Lending Installations) to honor its
obligations hereunder to make, maintain, fund or charge interest with respect to any Eurodollar
Rate Advances (or any Floating Rate Advance as to which the interest rate is determined by
reference to the Eurodollar Base Rate), such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower
and the other Lenders. Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist (which notice the Administrative Agent shall promptly deliver to
+264e6}"v4
14404709v5
54
the Borrower after receiving notice thereof from such affected Lender), (i) the obligations of
such Lenders to make Eurodollar Rs*gAdvances (or Floating Rate Advances as to which the
interest rate is determined by reference to the Eurodollar Base Rate), and the right of the
Borrower to convert any Advance to a Eurodollar Ro+eAdvance or continue any Advance as an
Eurodollar*et€ Advance with respect to such Lenders (or a Floating Rate Advance as to which
the interest rate is determined by reference to the Eurodollar Base Rate) shall be suspended and
thereafter the Borrower may, with respect to such Lenders, select only Floating Rate Advances
(as to which the interest rate is not determined by reference to the Eurodollar Base Rate), (ii) all
Floating Rate Advances made by such Lenders shall cease to be determined by reference to the
Eurodollar Base Rate and (iii) if any of the Lenders may not lawfully continue to maintain a
Eurodollar*s{€ Advances to the end of the 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.
@) (+>genchmark Replacement S
O fAt genchmark Replffi. Notwithstanding anything to the
contrary herein or in any other Loan Document
nate tvtanaqement Aq
purposes of this Sec a Benchmark Transition Event-e+. an Early
Opt-in Election or an Other Benchma , as applicable, the
and its related
Benchmark Reolacement Date have occurred orior to the Reference Time in
resoect of anv settinq of the then-current Benchmark. then (x) if a Benchmark
nepUcement is aet
detnition of "gen
such Benchmark Reolacement will reolace such Benchmark for all ourooses
hereunOer and unde
and subseouent Ben
or consent ofanv ot
fvt if a genchmark R
clause (cl of tne de enchmark Replacement-4nyllfor such
will reotace sucn g
Dosuxoentu respect te+qlany Benchmark ffi
effee+ivesgtrins at ar-dal5:00 p.m. on the fifth (5th) Business Day afterthe
ate notice of such
Benchmark Reolacement is orovided to ettthe-affeeled Lenders snd+h€
partv to. this Aqreem so long as the
Administrative Agent has not received, by such time, written notice of objection
to such from Lenders comprising the
1264062++4
144941!tu5
55
Required Lenders. ien
will beeeme effeetive en the date that r enders eernprising the Required r enders
l enders eeeept sH€
is
If an Unadiusted Benchmark Reolacement is
Dailv Simole SOFR- all interest oavments will be oavable on a monthlv basis.
@ Notwithstandins a
Loan Document. if a
Reolacement Date have occurred orior to the Reference Time in resoect of anv
settins of the then- the applicable Benchmark Transi+ien
nereunder or unOer
subseouent Benchmark settinqs. without anv amendment to. or further action or
consent of anv other nartv to- this Asreement or anv other Loan Document:
orovided that this
Aqent has delivered to the Lenders and the Bonower a Term SOFR Notice. For
tne avoldance of O ivcra
ferm SOfn Notice afte
elect to do so in its sole discretion.
(iD Benchmark Replacement Conformine Changes. In connection with the
implementation of a Benchmark Replacement, the Administrative Agent will have the
right to make Benchmark Replacement Conforming Changes from time to time and,
notwithstanding anything to the contrary herein or in any other Loan Document, any
amendments implementing such Benchmark Replacement Conforming Changes will
become effective without any further action or consent of any other party to this
Agreement or anv other Loan D .
(iii) Notices: Standards for Decisions and Determinations. The Administrative
Agent will promptly notiff the Borrower and the Lenders of (A) any occurrence of a
Benchmark Transition Event+. a Term SOFR Transi an Early Opt-in Election
or an Other Benchma , as applicable.ffi
R€pla€em€nt+a{€ and ilsrelalsd-Benchmark @ Date, (B) the
implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark
Replacement Conforming Changes+nd* (D) the removal or reinsta
a Benchmark oursuant to Section 2.23(c)(iv) below and (E) the commencement or
conclusion of any Benchmark Unavailability Period. Any determination, decision orelectionthatmaybemadebytheAdministrativeAgentor@
group-of Lenders) pursuant to this Section 2.23(c), including any determination with
respect to a tenor, rate or adjustment or ofthe occurrence or non-occurrence ofan event,
circumstance or date and any decision to take or refrain from taking any actionotany
sel-eetiorr, will be conclusive and binding absent manifest error and may be made in its or
their sole discretion and without consent from any other party heretets_thiS&fgcmentpt
+264e62+14
U4AU09y5
56
anv other t-oan Docum , except, in each case, as expressly required pursuantto this
Section 2.23(c).
(iv) Unavailabilitv of Tenor of Benchmark. Notwithstandins anvthins to the
contrarv nerein or l
the imolementation of a Benchmark Reolacement). (A) if the then-current Benchmark is
a term rate (includins Term SOFR or USD LIBOR) and either ( 1) anv tenor for such
genchmark is not di
rate from time to time a
or fZt the reeulatoru
oublic statement or oublication of information announcinq that anv tenor for such
genchmark is or will
modifo the definition of "lnterest Period" (or anv similar or analoqous definition) for anv
Benchmark settinss at or after such time to remove such unavailable or non-
representative teno
either (l ) is subseouentlv disolaved on a screen or information service for a Benchmark
(includins a Benchmark Reolacement) or (2) is not- or is no lonser- subiect to an
announcement that
Benchmark Reolacement). then the Administrative Aqent mav modifu the definition of
"lnterest Period
after such time to re
Q) @genchmark Unavailabil@. Upon the Borrower's receipt of
notice of the commencement of a Benchmark Unavailability Period, @lthe Borrower
may revoke any pcndfuE-request for a @ of, conversion to or
continuation of Eurodollar Advances to be made, converted or continued during any
Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have
converted any such request into a request for a borrowing of or conversion to Floating
Rate Advances and (B) anv outstan
have been converted
Period. Durins anv Benchmark Unavailabiliw Period or at anv time that a tenor for the
then-current gench , the component of the Alternate Base
RatebaseduoontheMhen.currentBenchmarkorsuchtenorforsuch
genchmark. as applffi will not be used in any determination of the Alternate Base
Rate.4uri.ngsny
Q[ lonAon tnterUant O
then eutstending tlBeR Merlrct Index Rate,\dvenees shall autematieellyTransition
Pvent. On tvtarch S. ZU,onthe
offered rate, anO the P
ennouncements tha
week and 2-month l,o
ZOZt ana 0tt overnl
offerea rate tenor settin
was-identified in such
1164062]*4
1494199t5
57
the Announcements
resoect to the London interbank offered rate oursuant to the terms of this Aqreement and
that anv oblieatio
Transition Event Dursuant to clause (iii) of this Section 2.23k1shallbe made+s-Ftea+ine
.
ARTICLE 3
YIELD PROTECTION; TAXES
3.1 Increased Costs. If any Change in Law shall
(a) impose, modiff or deem applicable any reserve, assessment, special deposit,
compulsory loan, insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except any reserve
requirement reflected in the Eurodollar Rate) or any LC Issuer;
(b) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes
described in clauses (ii) through (iv) of the definition of Excluded Taxes and (C) Connection
Income Taxes) on its loans, loan principal, leffers 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 Issuer or the London interbank market any other
condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such
Lender or any Facility LC or participation therein, or reduce any amount receivable by any
Lender or any LC Issuer in connection with this Agreement or Loans made by such Lender or
any Facility LC or participation therein;
and the result ofany ofthe foregoing shall be to increase the cost to such Lender or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such LC Issuer or such
other Recipient of participating in, issuing or maintaining any Facility LC (or of maintaining its
obligation to participate in or to issue any Facility LC), or to reduce the return or the amount of
any sum received or receivable by such Lender, LC Issuer or other Recipient hereunder (whether
of principal, interest or any other amount) then, upon request of such Lender, LC Issuer or other
Recipient, the Borrower shall pay to such Lender, LC Issuer or other Recipient, as the case may
be, such additional amount or amounts as will compensate such Lender, LC Issuer or other
Recipient, as the case may be, for such additional costs incurred or reduction suffered.
3.2 Caoital Requirements. If any Lender or LC Issuer determines that any Change in
Law affecting such Lender or LC Issuer or any Lending Installation of such Lender or such
Lender's or LC Issuer's holding company, if any, regarding capital or liquidity requirements, has
or would have the effect of reducing the rate of return on such Lender's or LC Issuer's capital or
on the capital of such Lender's or LC Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Facility
LCs or Swingline Loans held by, such Lender, or the Facility LCs issued by any LC Issuer, to a
level below that which such Lender or LC Issuer or such Lender's or LC Issuer's holding
ffi4
58
r44OU0$r
company could have achieved but for such Change in Law (taking into consideration such
Lender's or LC Issuer's policies and the policies of such Lender's or LC Issuer's holding
company with respect to capital adequacy), then within fifteen (15) days of demand by such
Lender or LC Issuer the Borrower will pay to such Lender or LC Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or LC Issuer or such Lender's or
LC Issuer's holding company for any such reduction suffered.
3.3 Compensation. The Borrower will compensate each Lender upon demand for all
losses, expenses and liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund or maintain Eurodollar Advances) that such Lender may incur or sustain (i)
if for any reason (other than a default by such Lender) an Advance or continuation of, or
conversion into, a Eurodollar Advance does not occur on a date specified therefor in a Borrowing
Notice or Conversion/Continuation Notice, (ii) if any repayment, prepayment or conversion of
any Eurodollar Advance occurs on a date other than the last day of an Interest Period applicable
thereto (including as a consequence of any assignment made pursuant to Section 2.19 or any
acceleration of the maturity of the Loans pursuant to Section 8.f ), (iii) if any prepayment of any
Eurodollar Advance is not made on any date specified in a notice of prepayment given by the
Borrower or (iv) as a consequence of any other failure by the Borrower to make any payments
with respect to any Eurodollar Advance when due hereunder. Calculation of all amounts payable
to a Lender under this Section 3.3 shall be made as though such Lender had actually funded its
relevant Eurodollar Advance through the purchase of a deposit bearing interest at the Eurodollar
Rate in an amount equal to the amount of such Eurodollar Advance, having a maturity
comparable to the relevant Interest Period;qidgd, however, that each Lender may fund its
Eurodollar Advances in any manner it sees fit and the foregoing assumption shall be utilized
only for the calculation of amounts payable under this Section 3.3. A certificate (which shall be
in reasonable detail) showing the bases for the determinations set forth in this Section 3.3 by any
Lender as to any additional amounts payable pursuant to this Section 3.3 shall be submitted by
such Lender to the Borrower either directly or through the Administrative Agent.
Determinations set forth in any such certificate made in good faith for purposes of this Section
3.3 of any such losses, expenses or liabilities shall be conclusive absent manifest error.
3.4 Delay in Requests. Failure or delay on the part of any Lender or LC Issuer to
demand compensation pursuant to Sections 3.1 or 3.2 shall not constitute a waiver of such
Lender's or LC Issuer's right to demand such compensation; provided that the Borrower shall
not be required to compensate a Lender or LC Issuer pursuant to Sections 3.1 or 3.2 for any
increased costs incurred or reductions suflbred more than nine months prior to the date that such
Lender or LC Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions, and of such Lender's or LC Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
3.5 Taxes.
(a) For purposes of this Section 3.5, the term "Lender" includes any LC Issuer and
the term "applicable law" includes FATCA.
59
$6446.7114
1449479915
(b) Any and all payments by or on account of any obligation of the Borrower under
any Loan Document shall be made without deduction or withholding for any Taxes, except as
required by applicable law. If any applicable law (as determined in the good faith discretion of
an applicable Withholding Agent) requires the deduction or withholding of any Tax from any
such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled
to make such deduction or withholding and shall timely pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with applicable law and, if such
Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary
so that after such deduction or withholding has been made (including such deductions and
withholdings applicable to additional sums payable under this Section 3.5) the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or
withholding been made.
(c) The Borrower shall timely pay to the relevant Governmental Authority in
accordance with applicable law, or at the option of the Administrative Agent timely reimburse it
for the payment of, any Other Taxes.
(d) The Borrower shall indemniff each Recipient, within ten (10) days after demand
therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section 3.5) payable or paid by such
Recipient or required to be withheld or deducted from a payment to such Recipient and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Govemmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or
on behalf of a Lender, shall be conclusive absent manifest error.
(e) Each Lender shall severally indemni$ the Administrative Agent, within ten (10)
days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to
the extent that the Borrower has not already indemnified the Administrative Agent for such
Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes
attributable to such Lender's failure to comply with the provisions of Section 12.2 relating to the
maintenance of a Participant Register and (iii) any Excluded Taxes affributable to such Lender,
in each case, that are payable or paid by the Administrative Agent in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were coffectly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender under any Loan Document or otherwise payable by the Administrative Agent to
the Lender from any other source against any amount due to the Administrative Agent under this
clause (e).
(f) As soon as practicable after any payment of Taxes by the Borrower to a
Govemmental Authority pursuant to this Section 3.5, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
+264e62++4
!M947lD!5
60
Authority evidencing such payment, a copy of the retum reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) (i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed documentation
reasonably requested by the Borrower or the Administrative Agent as will permit such payments
to be made without withholding or at a reduced rate of withholding. ln addition, any Lender, if
reasonably requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such documentation set
forth in this Section 3.s(gXiiXA), (iiXB) and (ii)(D) below) shall not be required if in the
Lender's reasonable judgment such completion, execution or submission would subject such
Lender to any material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the
Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and
the Administrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed copies
of IRS Form W-9 certiSing that such Lender is exempt from U.S. federal backup
withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an
income tax treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, executed copies of IRS
Form W-8BEN establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the "interest" article of such tax treaty
and (y) with respect to any other applicable payments under any Loan
Document, IRS Form W-8BEN establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the "business
profits" or "other income" article of such tax treaty;
w
I44O1109v5
6t
(ii) executed copies of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit F-l to the effect that such
Foreign Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, a "l0 percent shareholder" of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled
foreign corporation" described in Section 881(cX3XC) of the Code (a
"U.S. Tax Compliance Certificate") and (y) executed copies of IRS Form
W-8BEN; or
(iv) to the extent a Foreign Lender is not the beneficial owner,
executed copies of IRS Form W-8IMY, accompanied by IRS Form W-
8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9,
and/or other certification documents from each beneficial owner, as
applicable; provided that if the Foreign Lender is a partnership and one or
more direct or indirect partners of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a U.S. Tax
Compliance Certificate substantially in the form of Exhibit F-4 on behalf
ofeach such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed copies of any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in U.S. federal withholding Tax, duly
completed, together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would
be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA
(including those contained in Section l47l(b\ or 1472(b) of the Code, as
applicable), such Lender shall deliver to the Borrower and the Administrative
Agent at the time or times prescribed by law and at such time or times reasonably
requested by the Borrower or the Administrative Agent such documentation
prescribed by applicable law (including as prescribed by Section laTl@)(3XCXi)
of the Code) and such additional documentation reasonably requested by the
Borrower or the Administrative Agent as may be necessary for the Borrower and
the Administrative Agent to comply with their obligations under FATCA and to
determine that such Lender has complied with such Lender's obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
62
#6406e]J4
)aa9!199v5
Solely for purposes of this clause (D), "FATCA" shall include any amendments
made to FATCA afterthe date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires
or becomes obsolete or inaccurate in any respect, it shall update such form or certification
or promptly notiff the Borrower and the Administrative Agent in writing of its legal
inability to do so.
(h) If any party determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.5
(including by the payment of additional amounts pursuant to this Section 3.5), it shall pay to the
indemnifuingpar:ty an amount equal to such refund (but only to the extent of indemnity
payments made under this Section 3.5 with respect to the Taxes giving rise to such refund), net
of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such
refund). Such indemniffing party, upon the request of such indemnified patty, shall repay to
such indemnified party the amount paid over pursuant to this Section 3.5(h) (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in the event that such
indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this Section 3.5(h), in no event will the indemnified
party be required to pay any amount to an indemniffing party pursuant to this Section 3.5(h) the
payment of which would place the indemnified party in a less favorable net after-Tax position
than the indemnified party would have been in if the indemnification payments 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 indemniffing party or any other Person.
(i) Each party's obligations under this Section 3.5 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of a
Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all
obligations under any Loan Document.
3.6 Desienation of a Different Lendins Installation. If any Lender requests
compensation under Sections 3.1 or 3.2, or requires the Borrower to pay any Indemnified Taxes
or additional amounts to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.5, then such Lender shall (at the request of the Borrower) use
reasonable efforts to designate a different Lending Installation for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Sections 3.1,3.2, or 3.5, 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.
$64e6e1+4
144941!915
63
ARTICLE 4
CONDITIONS PR.ECEDENT
4.1 Effectiveness. This Agreement shall not become effective until the following
conditions precedent have been satisfied:
(a) The Administrative Agent shall have received each of the following, each in form
and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) Copies of the articles or certificate of incorporation of the Borrower,
together with all amendments, and a certificate of good standing, each certified by the
appropriate governmental oflicer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower,
of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of
any other body authorizingthe execution of the Loan Documents.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower, which shall identifu by name and title and bear the signatures
of the Authorized Officers and any other officers of the Borrower authorized to sign the
Loan Documents, upon which certificate the Administrative Agent and the Lenders shall
be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by an Authorized Officer, stating that on the Closing
Date (A) no Default or Unmatured Default has occurred and is continuing and (B) the
representations and warranties of the Borrower contained in Article 5 shall be true and
correct on and as of the Closing Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct
as of such earlier date.
(v) A written opinion of the Borrower's counsel, addressed to the
Administrative Agent, the Lenders, and the LC Issuers, dated as of the Closing Date, in
form and substance satisfactory to the Administrative Agent.
(vi) Any Notes requested by a Lender pursuant to Section 2.12 payable to the
order ofeach such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit
C, addressed to the Administrative Agent and signed by an Authorized Officer, together
with such other related money transfer authorizations as the Administrative Agent may
have reasonably requested.
(viii) Such other documents as any Lender or its counsel may have reasonably
requested.
(b) The Borrower shall have paid (i) to 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
64
+l.6ag6+r+a
| 4404709v5
the Closing Date as required by the terms thereof, (iii) to the Administrative Agent, the initial
payment of the annual administrative fee described in the Administrative Fee Letter, and (iv) all
other fees and reasonable expenses of the Joint Lead Arrangers, the Administrative Agent and
the Lenders required hereunder or under any other Loan Document to be paid on or prior to the
Closing Date (including reasonable fees and expenses of counsel) in connection with this
Agreement and the other Loan Documents.
(c) Since December 31,2014, both immediately before and after giving effect to the
consummation of this Agreement, there shall not have occurred a (i) Material Adverse Effect or
(ii) an event, condition or state of facts that could reasonably be expected to have a Material
Adverse Effect.
(d) Concurrently with the Closing Date, (i) all amounts outstanding under the
Existing Credit Agreement shall be repaid and satisfied in full, (ii) all commitments to extend
credit under the Existing Credit Agreement shall be terminated and (iii) any letters of credit
outstanding under the Existing Credit Agreement issued by Wells Fargo or JPMorgan shall be
deemed issued hereunder by Wells Fargo or JPMorgan, as applicable, as of the Closing Date);
and the Administrative Agent shall have received evidence of the foregoing satisfactory to it,
including a payoff letter executed by the parties to the Existing Credit Agreement.
(e) The Administrative Agent shall have received from the Borrower all
documentation and other information requested by the Administrative Agent that is required to
satisfu applicable "know your customey''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 puqposes of
determining compliance with the conditions specified in this Section 4.1, each Lender that has
signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifring its objection thereto.
4.2 Each Credit Extension. The obligation of each Lender to make any Credit
Extension hereunder, including any Credit Extension made on the Closing Date (but excluding
Revolving Loans made for the purpose of repaying Refunded Swingline Loans pursuant to
Section 2.7(c) or for the purpose of paying unpaid reimbursement obligations of the Borrower
pursuant to Section 2.18(e)), is subject to the satisfaction of the following conditions precedent
on the applicable Credit Extension Date:
(i) No Default or Unmatured Default exists.
(iD The representations and warranties contained in Article 5 (other than,
after the Closing Date, in Section 5.5) are true and correct as of such Credit Extension
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 ofsuch earlier date.
4264e62++4
!4491799i5
65
(iii) All legal matters incident to the making of such Credit Extension shall be
satisfactory to the Lenders and their counsel.
Each Borrowing Notice, Swingline Borrowing Notice or request for issuance of a Facility LC
with respect to each such Credit Extension shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(i) and (ii) have been satisfied. Any
Lender may require a duly completed compliance certificate in substantially the form of Exhibit
A as a condition to making a Credit Extension.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.1 Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability company duly and
properly incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation
or organization and has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect. None of the Borrower or any of its Subsidiaries is
an EEAAlfccttcd Financial Institution.
5.2 Authorization and Validitv. The Borrower has the power and authority and legal
right to execute and deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan
Documents constitute legal, valid and binding obligations of the Borrower enforceable against
the Bonower in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally.
5.3 No Conflict: Govemment Consent. Neither the execution and delivery by the
Borrower of the Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate, except to the extent that
such violation, alone or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's or any Subsidiary's
articles or certificate of incorporation, partnership agreement, certificate of partnership, articles
or certificate of organization, bylaws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to which the Borrower
or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or
conflict with or constitute a default thereunder, or result in, or require, the creation or imposition
of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, adjudication, approval, license,
authorization, or validation of or filing, recording or registration with, or exemption by, or other
action in respect of any governmental or public body or authority, or any subdivision thereof,
*n*n,**66
1449!19tu5
which has not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the execution and delivery
of the Loan Documents, the borrowings under this Agreement, the payment and performance by
the Borrower of the Obligations or the legality, validity, binding effect or enforceability of any of
the Loan Documents.
5.4 Financial Statements. The December 31, n+&nD_consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the Lenders were
prepared in accordance with the Agreement Accounting Principles in effect on the date such
statements were prepared and fairly present the consolidated financial condition and operations
of the Borrower and its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
5.5 Material Adverse Change. Since December 3l,WM_, there has been no
change in the business, Property, condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all material U.S. federal tax
returns and all other material tax returns which are required to be filed and have paid all taxes
due pursuant to said refurns or pursuant to any assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting Principles. No
tax liens have been filed and no claims are being asserted with respect to any such taxes claimed
to be due and payable that would, if adversely determined, have a Material Adverse Effect. The
charges, accruals and reserves for taxes on the books of the Borrower and its Subsidiaries (to the
extent in excess of $5,000,000) are adequate under Agreement Accounting Principles.
Notwithstanding any provision in this Agreement to the contrary, the only representations and
warranties made by the Borrower with respect to matters relating to taxes shall be the
representations and warranties set forth in this Section 5.6, and this Agreement shall not be
interpreted in any manner that is contrary hereto.
5.7 Litieation and Contingent Oblisations. Except as set forth in the most recent
consolidated financial statements provided to the Administrative Agent pursuant to Section 5.4
or Section 6.1, respectively, there is no litigation, arbitration, govemmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their 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 of any Credit
Extensions. Other than any liability incident to any litigation, arbitration or proceeding, which, if
decided adversely, would not reasonably be expected to have a Material Adverse Effect, the
Borrower has no material contingent liabilities or obligations not provided for or disclosed in the
most recent consolidated financial statements provided to the Administrative Agent pursuant to
Section 5.4 or Section 6.1, respectively.
5.8 Subsidiaries. Schedule 5.8 contains an accurate list of all Subsidiaries of the
Borrower as of the First Amendment Effective Date, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other ownership interests
67
+264Q62+x4
)4404709y5
owned by the Borrower or other Subsidiaries. All of the issued and outstanding shares of capital
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. Each of the Borrower and its ERISA Affiliates is in compliance with the
applicable provisions of ERISA, and each Plan is and has been administered in compliance with
all applicable law, including the applicable provisions of ERISA and the Code, in each case
except where the failure so to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. No ERISA Event that could reasonably be expected
to have a Material Adverse Effect (i) has occured within the five-year period prior to the
Closing Date, (ii) has occurred and is continuing, or (iii) to the knowledge of the Borrower, is
reasonably expected to occur with respect to any Plan. Except as could not reasonably be
expected to have a Material Adverse Effect, no Plan is in "at-risk status" under Section 430(iX4)
of the Code or Section 303(D(4) of ERISA. As of the First Amendment Effective Date, the
Borrower is not and will not be using "plan assets" (within the meaning of Section 3(42) of
ERISA or otherwise) of one or more Benefit Plans with respect to the Borrower's entrance into,
participation in, administration of and performance of the Loans, the Facility LCs, the
Commitments or this Agreement.
5.10 Labor Relations. As of the First Amendment Effective Date, there is (i) no unfair
labor practice complaint before the National Labor Relations Board, or grievance or arbitration
proceeding arising out of or under any collective bargaining agreement, pending or, to the
knowledge of the Borrower, threatened, against it, (ii) no strike, lock-out, slowdown, stoppage,
walkout or other labor dispute pending or, to the knowledge of the Borrower, threatened, against
it, and (iii) to the knowledge of the Borrower, no petition for certification or union election or
union organizing activities taking place with respect to it. As of the First Amendment Effective
Date, there are no collective bargaining agreements or Multiemployer Plans covering the
employees of the Borrower.
5.1I Accuracy of lnformation. No information, exhibit or report furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent, the Joint Lead Arrangers or to
any Lender in connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading. As of the First Amendment
Effective Date, there is no fact known to the Borrower that has, or could reasonably be expected
to have, a Material Adverse Effect, which fact has not been set forth herein, in the financial
statements of the Borrower and its Subsidiaries furnished to the Administrative Agent and/or the
Lenders, or in any certificate, opinion or other written statement made or furnished by the
Borrower to the Administrative Agent and/or the Lenders. All of the information included in the
Beneficial Ownership Certification, if such Beneficial Ownership Certification is required to be
delivered on or prior to the First Amendment Effective Date, is true and correct as of the First
Amendment Effective Date.
5.12 Resulation U. Margin stock (as defined in Regulation U) constitutes less than
25o/o of the value of those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
68
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!449419915
5.13 Material Aereements. 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 of any Subsidiary of Borrower to declare or pay dividends to the Borrower, or
(b) which could reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in the perfonnance, observance or fulfillment of any of the
obligations, covenants or conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect or (ii) any agreement or
instrument evidencing or governing Material lndebtedness, which default could reasonably be
expected to have a Material Adverse Effect.
5.14 Compliance With Laws. The Borrower and its Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Properfy except for any failure to
comply with any of the foregoing which could not reasonably be expected to have a Material
Adverse Effect.
5.15 Ownership of Properties. Except as set forth on Schedule 5.15, as of the First
Amendment Effective Date, the Borrower and its Subsidiaries will have good title, free of all
Liens other than those permitted by Section 6.11, to all of the Property and assets reflected in the
Borrower's most recent consolidated financial statements provided to the Administrative Agent
as owned by the Borrower and its Subsidiaries.
5. I 6 Environmental Matters. In the ordinary course of its business, the Borrower
considers the effect of Environmental Laws on the business of the Borower and its Subsidiaries,
in the course of which it identifies and evaluates potential risks and liabilities accruing to the
Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that the potential risks and liabilities accruing to the Borrower due to Environmental
Laws could not reasonably be expected to have a Material Adverse Effect , other than the matters
described in reports filed by the Borrower with the U.S. Securities and Exchange Commission
pursuant to the Exchange Act. Other than as described in reports filed by the Borrower with the
U.S. Securities and Exchange Commission pursuant to the Exchange Act, neither the Borrower
nor any Subsidiary has received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is needed to respond to
a release of any toxic or hazardous waste or substance into the environment, which
noncompliance or remedial action could reasonably be expected to have a Material Adverse
Effect.
5.17 Investment Company Act. The Borrower is not an'oinvestment company" or a
company "controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940.
+264e62++4
14404"109v5
69
5.18 Desisnated Persons: Sanctions: Anti-Corruption Laws: PATRIOT Act.
(a) Neither the Borrower nor any of its Subsidiaries, and to the Borrower's
knowledge, none of their respective directors, offrcers, employees or affiliates (i) is a Designated
Person, (ii) is a Person that is owned or controlled by a Designated Person, (iii) is located,
organized or resident in a Sanctioned Country or (iv) has taken any action, directly or indirectly,
that would result in a violation by such Persons of any Anti-Comrption Laws, Anti-Money
Laundering Laws or Sanctions. The Borrower has implemented and maintains in effect policies
and procedures designed to ensure compliance in all material respects by the Borrower and its
Subsidiaries with applicable Sanctions, Anti-Comrption Laws and Anti-Money Laundering
Laws.
(b) Neither the Borrower nor its Subsidiaries, and to the Borrower's knowledge, none
of their respective directors, officers or employees is now, directly or indirectly engaged in any
material dealings or transactions (i) with any Designated Person, (ii) in any Sanctioned Country
or (iii) otherwise in violation of Sanctions.
(c) Each of the Borrower and its Subsidiaries is in compliance in all material respects
with all Anti-Corruption Laws and Anti-Money Laundering Laws, including, without limitation,
the PATNOT Act.
(d) No proceeds of any Credit Extension hereunder have been used, directly or
indirectly, by the Borrower, any of its Subsidiaries or, to the Borrower's knowledge, any of its or
their respective directors, officers, employees and agents in violation of Section 6.16(b).
ARTICLE 6
COVENAI\ITS
So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Facility LC shall remain
outstanding:
6.1 Financial Reportins. The Borrower will maintain, for itself and each Subsidiary,
a system of accounting established and administered in accordance with the Agreement
Accounting Principles, and furnish to the Administrative Agent in sufficient copies for each of
the Lenders:
(i) Within one hundred twenty ( 120) days after the close of each of its fiscal
years (or, if earlier, within thirty (30) days after the Borrower is required to file its
Annual Report on Form 10-K with the Securities and Exchange Commission for such
fiscal year), an unqualified (except for qualifications relating to changes in Agreement
Accounting Principles or practices reflecting changes in Agreement Accounting
Principles and required or approved by the Borrower's independent certified public
accountants) audit report certified by independent certified public accountants reasonably
acceptable to the Lenders, prepared in accordance with the Agreement Accounting
Principles on a consolidated and consolidating basis (consolidating statements need not
70
*64e621+4
144941!9t5
be certified by such accountants) for itself and its Subsidiaries, including balance sheets
as of the end of such period, related profit and loss and reconciliation of surplus
statements, and a statement of cash flows. Delivery by the Borrower to the
Administrative Agent of copies of the Parent's Annual Report on Form 10-K filed with
the Securities and Exchange Commission for any year shall satisfy the Borrower's
obligation under this clause (i) with respect to such year.
(ii) Within sixty (60) days after the close of the first three (3) quarterly period
of each of its fiscal years (or, if earlier, within fifteen ( I 5) days after the Borrower is
required to file its Quarterly Report on Form l0-Q for with the Securities and Exchange
Commission for such period), consolidated and consolidating unaudited balance sheets as
at the close of each the first three (3) quarterly periods of each of its fiscal years, for itself
and its Subsidiaries and consolidated and consolidating profit and loss and reconciliation
of surplus statements and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified by an Authorized Officer.
Delivery by the Borrower to the Administrative Agent of copies of the Borrower's
Quarterly Report on Form l0-Q filed with the Securities and Exchange Commission for
any quarter shall satisff the Borrower's obligation under this clause (ii) with respect to
such quarter.
(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 if any Default or
Unmatured Default exists, stating the nature and status thereof and (B) a calculation of
the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such form as is
reasonably satisfactory to the Administrative Agent.
(iv) As soon as practicable and in any event within ten (10) days after the
Borrower knows of the occurrence of any ERISA Event that could reasonably be
expected to have a Material Adverse Effect (x) a written statement of an Authorized
Officer of the Borrower speciffing the details of such ERISA Event and the action that
the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto, (y)
a copy of any notice with respect to such ERISA Event that may be required to be filed
with the PBGC and (z) a copy of any notice delivered by the PBGC to the Borrower or an
ERISA Affiliate with respect to such ERISA Event.
(v) As soon as practicable and in any event within ten (10) days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the Borrower or any of
its Subsidiaries, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
+264e6}{14
t440470W5
7l
(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower,
copies of all financial statements and reports so fumished.
(vii) Promptly upon the filing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission.
(viii) Promptly upon the request thereof, such other information and
documentation required under applicable "know your customer" rules and regulations,
the PATRIOT Act or any applicable Anti-Money Laundering Laws or Anti-Comrption
Laws, in each case as from time to time reasonably requested by the Administrative
Agent or any Lender.
(ix) Such other information (including nonfinancial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
6.2 Use of Proceeds. The Borrower will, and will cause each Subsidiary to, use the
proceeds of the Credit Extensions for general corporate purposes and commercial paper back-up.
6.3 Notice of Default. etc. The Borrower will, and will cause each Subsidiary to, give
prompt notice in writing to the Lenders of the occuffence of (i) any Default or Unmatured
Default and (ii) the commencement of or any ruling in any litigation, or any other development,
financial or otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause each Material Subsidiary
to, carry on and conduct its business in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted and do all things necessary to remain duly
incorporated or organized, validly existing and (to the extent such concept applies to such entity)
in good standing as a domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is conducted, except
where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to, timely file complete
and correct U.S. federal and applicable foreign, state and local tax returns required by law and
pay when due all taxes, assessments and governmental charges and levies upon it or its income,
profits or Properfy, 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 fumish to any Lender upon request full information as to the insurance carried.
le64e6*+4
14404709v5
72
6.7 Compliance with Laws. The Borrower will, and will cause each Subsidiary to,
comply in all material respects with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including all Environmental Laws.
6.8 Maintenance of Properties. The Borrower will, and will cause each Subsidiary to,
do all things necessary to maintain, preserve, protect and keep its Property in good repair,
working order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be properly conducted
at all times.
6.9 Inspection. The Borrower will, and will cause each Subsidiary to, permit the
Administrative Agent and the Lenders, by their respective representatives and agents, to inspect
any of the Property, books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of the Borrower
and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Administrative Agent or any Lender may designate.
6.10 Merser and Sale of Assets. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit
any Material Subsidiary to, merge or consolidate with or into any other Person, or sell or
otherwise dispose of all or substantially all of its Property to another Person except that (i) a
Material Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary, (ii) a Material
Subsidiary may dispose of all or substantially all of its Property to the Borrower or a Wholly-
Owned Subsidiary, or (iii) the Borrower or any Subsidiary may sell, transfer, contribute, convey
or dispose of accounts, general intangibles and/or chattel paper (each as defined in Article 9 of
the Uniform Commercial Code) and associated collateral, lockbox and other collection accounts,
records andlor proceeds in connection with a Permitted Receivables Securitization.
6.1 I Liens. The Borrower will not, nor will it permit any Material Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any Material
Subsidiary, except:
(i) Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings and for
which adequate reserves in accordance with Agreement Accounting Principles shall have
been set aside on its books;
(iD Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of business which secure
payment of obligations not more than sixty (60) days past due or which are being
contested in good faith by appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or retirement
73
+164M24't4
E4A[09v5
benefits, or similar legislation (other than any Lien imposed by ERISA, the creation or
incurrence of which would result in a Default under Section 7(k));
(iv) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of the Borrower
or its Subsidiaries;
(v) Liens existing on the First Amendment Effective Date and described in
Schedule 5.15;
(vi) Liens on Property of the Borrower or any of its Material Subsidiaries
created solely forthe purpose ofsecuring Indebtedness incurred to fund the purchase
price of Property, provided that no such Lien shall extend to or cover any other Property
of the Borrower or its Material Subsidiaries other than the Property so acquired (and the
proceeds therefrom) and the original principal amount of the Indebtedness so secured by
any such Lien shall not exceed the original purchase price and costs related to the
purchase, transportation, and installation of the Property so acquired;
(vii) The Lien created by the First Mortgage and any Lien described in any
deeds or other instruments under which property has been conveyed to the Borrower and
to which the Lien of the First Mortgage is expressly made subject;
(viii) Any Lien existing on any property or asset prior to the Acquisition thereof
by the Borrower or any Material Subsidiary provided that the Acquisition is permitted
under Section 6.13 and such Lien is not created in contemplation of or in connection with
such Acquisition;
(ix) Liens arising under a Permitted Receivables Securitization;
(x) Liens arising by operation of law with respect to any deposit, securities
and commodity account; provided that (a) the right of the Borrower or the applicable
Material Subsidiary to withdraw assets from such account shall not be restricted other
than by customary rules of general application (such as restrictions on withdrawals during
the time required for a check to clear); and (b) such account is not intended by the
Borrower or any Material Subsidiary to provide collateral to the applicable depository
institution, securities intermediary or commodities intermediary;
(xi) Liens in favor of the Administrative Agent hereunder;
(xii) Any Lien arising out of the refinancing, extension, or renewal of any
Indebtedness secured by any Lien permiued by clause (v) of this Section 6.11; ry4!9{
that such Indebtedness is not increased and is not secured by any additional assets; and
(xiii) (A) Liens incurred by the Borrower or the Parent in connection with Rate
Management Transactions entered into by either the Borrower or the Parent in the
]f64061rv4
1 4404709v5
74
ordinary course of business and not for speculation and in accordance with its established
risk management policies, and @) other Liens incurred by the Borrower or the Parent in
the ordinary course of business, ryided 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" of the Indebtedness of
the Borrower or the Parent in respect of any Rate Management Obligation at any time
shall be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or the Parent would be required to pay if such Rate Management Obligation
were terminated at such time of determination.
6.12 Leverase Ratio. The Borrower will not permit the ratio, as of the last day of any
of its fiscal quarters, of (i) Consolidated Indebtedness to (ii) Consolidated Total Capitalization to
be greater than 0.65 to 1.0.
6.13 [nvestrnents and Acquisitions. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments (including loans and advances to, and
other lnvestments in, Subsidiaries, or commitments therefor, or to create any Subsidiary or to
become or remain a partner in any partnership or joint venture), or to make any Acquisition of
any Person, except:
(i) Cash Equivalent Investments and Investments permitted by the investment
policies approved from time to time by the board of directors of the Borrower or the
relevant Subsidiary, as applicable;
(ii) Investments in, and loans and advances to, Subsidiaries existing as of the
date hereof and other Investments existing as of the date hereof;
(iii) Investments by Subsidiaries in securities of the Borower and Investments
by the Borrower and its Subsidiaries in any business trust controlled, directly or
indirectly, by the Borrower to the extent such business trust purchases securities of the
Borrower;
(iv) In addition to lnvestments otherwise permitted hereunder, Investments and
Acquisitions related to the energy business of the Borrower and its Subsidiaries made
after the date hereof in an aggregate amount not exceeding $750,000,000 at any one time
outstanding; and
(v) Investments by the Borrower or a Subsidiary in connection with a
Permitted Receivables Securitization.
6.14 Subsidiary Dividend Restrictions. The Borrower will not, nor will it permit any
Material Subsidiary to, become a pafty to any agreement prohibiting or restricting the ability of
such Material Subsidiary to declare or pay dividends to the Borrower, except as disclosed in
Schedule 5.13, other than prohibitions or restrictions in connection with a Permitted Receivables
Securitization.
1464O6+t+4
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75
6.15 Affiliates. The Borrower will not, and will not permit any Subsidiary to, enter
into any transaction (including the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate that is not a Subsidiary except in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction.
6.16 OFAC. PATRIOT Act Compliance: Beneficial Ownershio Regulation.
(a) The Borrower will, and will cause each of its Subsidiaries to, (i) comply in all
material respects with all Anti-Comrption Laws, Anti-Money Laundering Laws and Sanctions
requirements (including laws applicable to transactions of or with any Designated Person or in
any Sanctioned Country), (ii) in the event of a violation of Sanctions requirements, terminate no
later than required by applicable law, or if applicable law does not provide any time for
termination, then promptly upon obtaining knowledge thereof, any funding financing or
facilitating by the Borrower or its Subsidiaries of any activities, business or transaction of or with
any Designated Person or in any Sanctioned Country or otherwise in violation of Sanctions, as
such Sanctions Lists or Sanctions are in effect from time to time, (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 Anti-Money
Laundering Laws, (iv) noti$ the Administrative Agent and each Lender that previously received
a Beneficial Ownership Certification (or a certification that the Borrower qualifies for an express
exclusion to the "legal entity customer" definition under the Beneficial Ownership Regulation)
of any change in the information provided in the Beneficial Ownership Certification that would
result in a change to the list of beneficial owners identified therein (or, if applicable, the
Borrower ceasing to fall within an express exclusion to the definition of "legal entity customer"
under the Beneficial Ownership Regulation) and (v) promptly upon the reasonable request of the
Administrative Agent or any Lender, provide the Administrative Agent or directly to such
Lender, as the case may be, any information or documentation requested by it for purposes of
complying with the Beneficial Ownership Regulation..
(b) No part of the proceeds of any Credit Extension hereunder will be used directly,
or to the knowledge of the Borrower indirectly, (i) for any payments to any govemmental official
or employee, political party, official of a 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-Comrption Laws, (ii) in furtherance of an offer,
payment, promise to pay, or authorization of the payment or giving of money, or anything else of
value, to any Person in violation of any Anti-Money Laundering Laws, or (iii) (A) to fund, or to
lend, or to conhibute such proceeds to any other Person to fund, any activities or business of or
with any Person, or in any country or territory, that, at the time of such funding or issuance, is, or
whose government is, the subject of Sanctions, or (B) in any other manner that would result in a
violation of Sanctions by any Person party hereto.
]364e6}+y4
l!494199v5
76
ARTICLE 7
DEFAULTS
The occurrence of any one or more of the following events shall constitute a Default:
(a) Any representation or warranty made (or deemed made pursuant to Section 4.2)
by or on behalf of the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Credit Extension, or any report,
certificate, financial statement or other information delivered in connection with this Agreement
or any other Loan Document shall be incorrect or misleading in any material respect when so
made, deemed made or delivered.
(b) Nonpayment of principal of any Loan when due; or nonpayment of any
Reimbursement Obligation within one (l) Business Day after the same becomes due; or
nonpayment of interest on any Loan, any fee payable by the Borrower hereunder or any other
obligation under any of the Loan Documents within five (5) days after the same becomes due.
(c) The breach by the Borrower of any of the terms or provisions of Section 6.2,
6.3(i) (and (i) in the case of failure to deliver notice of a Default arising under Section 7(d), five
(5) days shall have elapsed after an Authorized Officer obtained knowledge of such Default and
(ii) in the case of failure to deliver notice of a Default arising under Section 7(e), twenty (20)
days shall have elapsed after an Authorized Officer obtained knowledge of such Default), 6.10,
6.11, 6.12, 6.13 or 6.16(b).
(d) The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or provisions of Section 6.9 or 6.14
which is not remedied within five (5) days after written notice from the Administrative Agent or
any Lender.
(e) The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article 7) of any of the terms or provisions of this Agreement
which is not remedied within twenty (20) days after written notice from the Administrative
Agent or any Lender; or any default by the Borrower shall occur with respect to any payment
obligations under any Rate Management Agreement that is not remedied by the later of (i) the
expiration of any cure period provided in such Rate Management Agreement and (ii) three (3)
Business Days after the same shall become due and payable.
(0 Failure of the Borrower or any of its Subsidiaries to pay when due (after the
expiration of any applicable cure period) any Material Indebtedness; or the default by the
Borrower or any of its Subsidiaries in the perfornance of any other term, provision or condition
contained in any agreement under which any such Material Indebtedness was created or is
governed, or any other event shall occur or condition exist, the effect of which default or event is
to cause, or to permit the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material Indebtedness of the
Borrower or any of its Subsidiaries shall, after the occurrence of a default thereunder, be
declared to be due and payable or required to be prepaid or repurchased (other than by a
77
1264962lJv4
144941!9!5
regularly scheduled payment or mandatory prepayment) prior to the stated maturity thereof; or
the Borrower or any of its Subsidiaries shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.
(g) The Borrower or any of its Material Subsidiaries shall (i) have an order for relief
entered with respect to it under any Debtor Relief Law, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the federal bankruptcy
laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any Debtor Relief Law or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take any corporate or partnership
action to authorize or effect any of the foregoing actions set forth in this Section 7(g) or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7(h).
(h) Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the
Borrower or any of its Material Subsidiaries or any Substantial Portion of its 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 court, government or governmental agency shall condemn, seize or otherwise
appropriate,ortakecustodyorcontrolof(each,a..@,),alloranyportionofthe
Property of the Borrower and its Subsidiaries which, when taken together with all other Property
of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion and such event would reasonably be expected to
constitute a Material Adverse Effect; orovided that the term "Condemnation" shall not include
any voluntary transfer by the Borrower or any of its Subsidiaries of its electronic transmission
line facilities, or any interest therein, to a regional independent grid operator.
0) The Borrower or any of its Subsidiaries shall fail within thirty (30) days to pay,
bond or otherwise discharge one or more (i) judgments or orders for the payment of money in
excess of $25,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the
aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good faith.
(k) Any ERISA Event shall occur with respect to any Plan or Multiemployer Plan
that, when taken together with all other ERISA Events that have occurred, has or could
reasonably be expected to result in a Material Adverse Effect.
(l) The Borrower or any of its Subsidiaries shall (i) be the subject of any proceeding
or investigation pertaining to the release by the Borrower, any of its Subsidiaries or any other
Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any
+z64e6z+r4 78
1M04709v5
Environmental Law, which, in the case of an event described in clause (i) or clause (ii), could
reasonably be expected to have a Material Adverse Effect.
(m) Any Change in Control shall occur
(n) The Parent shall cease to own, free and clear of all Liens, 100% of the outstanding
shares of voting stock of the Borrower.
(o) Any provision of any Loan Document, at any time after its execution and delivery
and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in
full of all the Obligations, ceases to be in full force and effect (proviaea that the cessation of the
effect of such provision could have a material impact on the practical benefits realized by the
Lenders and each LC Issuer hereunder); or the Borrower contests in any manner the validity or
enforceability of any provision of any Loan Document (provided that the invalidity or
unenforceability of such provision could have a material impact on the practical benefits realized
by the Lenders and each LC Issuer hereunder); or the Borrower denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any
provision of any Loan Document.
ARTICLE 8
ACCELERATION, WAIYERS, AMENDMENTS AND REMEDIES
8.1 Acceleration: Facilitv LC Collateral Account.
(a) [f any Default described in Sections 7(g) or 7(h) occurs with respect to the
Borrower, the obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuers to issue and Modiff Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any election or action on the part
of the Administrative Agent, any LC 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 funds shall be held in the
Facility LC Collateral Account, equal to the difference of (x) the amount of LC Obligations at
such time, less (y) the amount on deposit in the Facility LC Collateral Account at such time
which is free and clear of all rights and claims of third parties and has not been applied against
the Obligations (such difference, the "Collateral Shortfall Amount"). If any other Default
occurs, the Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) may (a) terminate or suspend the obligations of the Lenders to make Loans hereunder
and the obligation and power of the LC lssuers to issue and ModiS Facility LCs, or declare the
Obligations to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives, and (b) upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts payable under this
Agreement, make demand on the Borrower to pay, and the Borrower will, forthwith upon such
demand and without any further notice or act, pay to the Administrative Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC Collateral Account.
*64e6?l+4
1440r[09y5
79
(b) If at any time while any Default is continuing, the Administrative Agent
determines that the Collateral Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the Administrative
Agent the Collateral Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account.
(c) The Administrative Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to the payment of the
Obligations and any other amounts as shall from time to time have become due and payable by
the Borrower to the Lenders or any LC Issuer under the Loan Documents.
(d) At any time while any Default is continuing, neither the Borrower nor any Person
claiming on behalf of or through the Borrower shall have any right to withdraw any of the funds
held in the Facility LC Collateral Account. After all of the Obligations have been indefeasibly
paid in full and the Aggregate Commitment has been terminated, any funds remaining in the
Facility LC Collateral Account shall be returned by the Administrative Agent to the Borrower or
paid to whomever may be legally entitled thereto at such time as ordered by a court of competent
jurisdiction.
(e) If, within fourteen (14) days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans and the obligation and power of
the LC Issuers to issue and Modifu Facility LCs hereunder as a result of any Default (other than
any Default as described in Sections 7(g) or 7(h) with respect to the Borrower) and before any
judgment or decree for the payment of the Obligations due shall have been obtained or entered,
the Required Lenders (in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or termination.
(f) [n the event the Obligations have been accelerated pursuant to this Section 8.1, or
the Administrative Agent or any Lender has exercised any remedy set forth in this Agreement or
any other Loan Document, all payments received on account to of the Obligations and all net
proceeds from the enforcement of the Obligations shall, subject to the provisions of Sections
2.18(i) and2.22, be applied by the Administrative Agent as follows:
First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts, including attorney fees, payable to the Administrative Agent in its
capacity as such;
Second, to payment of that portion of the Obligations constituting fees (other than
Facility Fees and LC Fees payable to the Lenders), indemnities and other amounts (other than
principal and interest) payable to the Lenders, the LC Issuers and the Swingline Lender under the
Loan Documents, including attorney fees, ratably among the Lenders, the LC Issuers and the
Swingline Lender in proportion to the respective amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid
Facility Fees, LC Fees and interest on the Loans and Reimbursement Obligations, ratably among
++e4e6z++4 80
14404709v5
theLenders,the@andtheSwinglineLenderinproportiontothe
respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the
Loans and Reimbursement Obligations then owing and to cash collateralize any LC Obligations
then outstanding, ratably among the holders of such obligations in proportion to the respective
amounts described in this clause Fourth payable to them; and
Last, the balance, if any, after all of the Obligations have been paid in full, to the
Borrower or as otherwise required by applicable law.
8.2 Amendments. Neither this Agreement or any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required Lenders (or
by the Administrative Agent at the direction or with the consent of the Required Lenders);
ry[g!g!, however. that no such agreement shall:
(i) unless agreed to by each Lender directly affected thereby, (i) reduce or
forgive the principal amount of any Loan or Reimbursement Obligation, reduce the rate
of or forgive any interest thereon (proviOea that only the consent of the Required Lenders
shall be required to waive the applicability of any post-default increase in interest rates),
or reduce or forgive any fees hereunder, (ii) extend the scheduled date for the payment of
any principal of or interest on any Loan (including any scheduled date for the mandatory
reduction or termination of any Commitments), extend the time of payment of any
Reimbursement Obligation or any interest thereon, extend the expiry date of any Facility
LC beyond the Facility LC Maturity Date, or extend the time of payment of any fees
hereunder, or (iii) increase any Commitment of any such Lender over the amount thereof
in effect or extend the maturity thereof;
(ii) unless agreed to by all of the Lenders, (A) modiff the definitions of the
terms "Required Lenders" or "Pro Rata Share", or (B) change or waive any provision of
Section 11.2, any other provision of this Agreement or any other Loan Document
requiring pro rata treatment of any Lenders, or this Section 8.2;
(iii) unless agreed to by the applicable LC Issuer, the Swingline Lender or the
Administrative Agent, as applicable, no such agreement shall (A) amend, modiff or
otherwise affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent, (B) amend, modiff or otherwise affect
the rights or duties of the Swingline Lender hereunder without the prior written consent
of the Swingline Lender, or (C) amend, modifu or otherwise affect the rights or duties of
any LC lssuer hereunder without the prior written consent of such LC Issuer; and
(iv) unless agreed to by each party to any Rate Management Agreement
affected thereby in its capacity as such amend any provision regarding priority of
payments in this Agreement or any other Loan Document (other than as may be
otherwise specifically provided in this Agreement or in any other Loan Document);
+264e62+r4
r4401709y5
8l
and ppvided further that the Fee Letters may be amended or modified, and any rights thereunder
waived, in a writing signed by the parties thereto.
Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as
set forth above, each Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of
Section I126(c) of the United States Bankruptcy Code supersedes the unanimous consent
provisions set forth herein.
Notwithstanding anything to the contrary herein, the Administrative Agent and the Borrower
may, without the consent of any Lender, enter into amendments or modifications to this
Agreement or any of the other Loan Documents or to enter into additional Loan Documents as
the Administrative Agent reasonably deems appropriate in order to implement any Benchmark
Replacement or any Benchmark Replacement Conforming Changes or otherwise effectuate the
terms of Section 2.23(c) in accordance with the terms of Section 2.23(c).
Notwithstanding anyhing in this Agreement to the contrary, each Lender hereby irrevocably
authorizes the Administrative Agent on its behalf, and without further consent of any Lender (but
with the consent of the Borrower and the Administrative Agent), to (x) amend and restate this
Agreement and the other Loan Documents if, upon giving effect to such amendment and
restatement, such Lender shall no longer be a party to this Agreement (as so amended and
restated), the Commitments of such Lender shall have terminated, such Lender shall have no
other commitment or other obligation hereunder and shall have been paid in full all principal,
interest and other amounts owing to it or accrued for its account under this Agreement and the
other Loan Documents and (y) enter into amendments or modifications to this Agreement
(including amendments to this Section 8.2) or any of the other Loan Documents or to enter into
additional Loan Documents as the Administrative Agent reasonably deems appropriate in order
to effectuate the terms of Section 2.20 (including as applicable, (l) to permit the Commitment
lncreases to share ratably in the benefits of this Agreement and the other Loan Documents and
(2) to include a Commitment Increase, as applicable, in any determination of (i) Required
Lenders or (ii) similar required lender terms applicable thereto); provided that no amendment or
modification shall result in any increase in the amount of any Lender's Commitment or any
increase in any Lender's Pro Rata Share, in each case, without the written consent of such
affected Lender.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment,
waiver or consent which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting Lenders),
except that (x) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Lender and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender
more adversely than other affected Lenders shall require the consent of such Defaulting Lender
and (ii) if the Administrative Agent and the Borrower shall have jointly identified (each in its
sole discretion) an obvious error or omission of a technical or immaterial nature, in each case, in
any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be
permitted to amend such provision and such amendment shall become effective without any
+e64o6z+14 82
!4494199t5
further action or consent of any other party to any Loan Document if the same is not objected to
in writing by the Required Lenders within five (5) Business Days following the posting of such
amendment to the Lenders.
8.3 Preservation of Riehts. No delay or omission of the Lenders, the Swingline
Lender, the LC Issuers or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfu the conditions precedent to such Credit
Extension shall not constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereofor the exercise ofany other right,
and no waiver, amendment or other variation of the tems, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant
to Section 8.2, and then only to the extent specifically set forth in such writing. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders
until the Obligations have been paid in full.
ARTICLE 9
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of the Borrower
contained in this Agreement shall survive the making of the Credit Extensions herein
contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, neither the LC Issuers, the Swingline Lender nor any Lender shall be obligated
to extend credit to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, the LC Issuers, the Swingline
Lender and the Lenders and supersede all prior agreements and understandings among the
Borrower, the Administrative Agent, the LC Issuers, the Swingline Lender and the Lenders
relating to the subject matter thereof other than the Fee Letters.
9.4 Several Obligations: Benefits of this Aereement. The respective obligations of
the Lenders hereunder are several and notjoint and no Lender shall be the partner or agent ofany
other (except to the extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this Agreement and any
Person indemnified under Section 9.5 or any other provision of this Agreement, and their
respective successors and assigns, plqvided that the parties hereto expressly agree that each Joint
Lead Arranger shall enjoy the benefits of the provisions of Sections 9.5,9.9 and 10.8 to the
+264-063]14
144941!tu5
83
extent specifically set forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this Agreement.
9.5 Expenses: lndemnification.
(a) The Borrower shall reimburse 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 for the Administrative Agent and Wells
Fargo Securities, which attorneys may be employees of the Administrative Agent and/or Wells
Fargo Securities, but excluding attorneys' fees other than those incurred by the Administrative
Agent and/or Wells Fargo Securities) paid or incurred by the Administrative Agent or such Joint
Lead Arranger in connection with the preparation, negotiation, execution, delivery, syndication,
distribution (including via the internet), review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse each LC Issuer for all reasonable
out-of-pocket expenses incurred by such LC Issuer in connection with the issuance or
Modification of any Facility LC or any demand for payment thereunder. The Borrower also
agrees to reimburse the Administrative Agent, each Joint Lead Arranger, each LC lssuer, the
Swingline Lender and the Lenders for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' fees and time charges of attorneys for the
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 Arranger,
an LC Issuer, the Swingline Lender or a Lender) paid or incurred by the Administrative Agent,
any Joint Lead Arranger, any LC Issuer, the Swingline Lender or any Lender in connection with
the collection and enforcement of the Loan Documents. The Borrower also agrees to pay any
civil penalty or fine assessed by OFAC against, and all reasonable costs and expenses (including
counsel fees and disbursements) incurred in connection with defense thereof by, the
Administrative Agent or any Lender as a result of conduct of the Borrower that violates a
sanction enforced by OFAC.
(b) The Borrower shall indemniff the Administrative Agent (and any sub-agent
thereof), each LC lssuer, each Lender, and each Related Party ofthe foregoing persons (each
suchpersonbeingcalledan..I@')against,andholdeachIndemniteeharmlessfrom,any
and all losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any lndemnitee or asserted
against any Indemnitee by any third party or by the Borrower arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Facility LC or the use or proposed use of the
proceeds therefrom (including any refusal by the LC Issuer to honor a demand for payment
under a Facility LC if the documents presented in connection with such demand do not strictly
comply with the terms of such Facility LC), (iii) any claim under Environmental Laws related in
any way to the Borrower, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to
$64e6}l+4
144O1709v5
84
the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by
a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such lndemnitee or (y) result from a claim brought by
the Borrower against an Indemnitee for breach in bad faith of such Indemnitee's obligations
hereunder or under any other Loan Document, if the Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any
amount required under Section 9.5(a) or Section 9.5(b) to be paid by it to the Administrative
Agent (or any sub-agent thereof), any LC Issuer, the Swingline Lender or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any
such sub-agent), each LC Issuer or such Related Party, as the case may be, such Lender's
proportion (based on the percentages as used in determining the Required Lenders as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative
Agent (or any such sub-agent), the Swingline Lender in its capacity as such or such LC Issuer in
its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or such LC lssuer in connection with such
capacity. The obligations of the Lenders under this Section 9.5(c) are subject to the provisions
of Section 9.4.
(d) All amounts due under this Section shall be payable by the Borrower upon
demand therefor.
(e) The obligations of the Borrower under this Section 9.5 shall survive the
termination of this Agreement.
9.6 Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.
9.7 Accounting. Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.
9.8 Severabilitv of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction,
and to this end the provisions of all Loan Documents are declared to be severable. Without
limiting the foregoing provisions of this Section 9.8, if and to the extent that the enforceability of
any provisions in this Agreement relating to Defaulting Lenders shall be limited by applicable
bankruptcy, insolvency or similar law, as determined in good faith by the Administrative Agent,
the LC Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be
in effect only to the extent not so limited.
+z64e6z+14 85
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9.9 Nonliabilitv of Lenders. The relationship between the Borrower on the one hand
and the Lenders, the Swingline Lender, the LC Issuers and the Administrative Agent on the other
hand shall be solely that of borrower and lender. None of the Administrative Agent, any Joint
Lead Arranger, any LC Issuer, the Swingline Lender or any Lender shall have any fiduciary
responsibilities to the Borrower. None of the 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 of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that no Indemnitee shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted from the gross negligence
or willful misconduct of the party from which recovery is sought. No lndemnitee shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, (i)
any special, indirect, consequential or punitive damages suffered by the Borrower in connection
with, arising out of or in any way related to the Loan Documents or the transactions
contemplated thereby, and (ii) any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby. The provisions of this Section
9.9 shall survive the termination of this Agreement.
9.10 Confidentialit)r. Each Lender agrees to hold any confidential information which it
may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates and to other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials having jurisdiction over such Lender or any of its Affiliates, (iv) as required by law,
regulation, or legal process, (v) as required in connection with any legal proceeding to which
such Lender is a party, (vi) to such Lender's direct or indirect contractual counterparties in Rate
Management Transactions or to legal counsel, accountants and other professional advisors to
such counterparties, (vii) permitted by 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 of rights hereunder or thereunder, (ix) to the
extent such confidential information becomes publicly available other than as a result of a breach
of this Section 9.10 or becomes available to the disclosing Lender or its Affiliates on a non-
confidential basis from a source other than the Borrower, its Subsidiaries or another Lender or
any of its A,ffi+itat€sAffiIaIss, and (x) on a confidential basis to (l) any rating agency in
connection with the Borrower or its Subsidiaries or the facilities created hereunder or (2) the
CUSIP Service Bureau or any similar agency in connection with the issuance monitoring of
CUSIP numbers with respect to the facilities created hereunder. In the case of any disclosure
pursuant to clause (i), (ii), (vi), (vii) or (x) above, each Person to whom such disclosure is made
will be informed of the confidential nature of such information and instructed to keep such
information confidential. In the case of any requested disclosure pursuant to clause (iv) or (v)
above, the applicable Lender will give prompt notice of the request to the Borrower (unless
prohibited by the terms of the applicable law, regulation, subpoena or other legal process or
+264r)62u4 86
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proceeding) so that the Bonower may endeavor to obtain a protective order or other assurance of
confidential treatment.
9.1 I Nonreliance. Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve
System) for the repayment of the Credit Extensions provided for herein.
9.12 Disclosure. The Borrower and each Lender hereby acknowledge and agree that
Wells Fargo and/or its Affiliates 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 or any
other Anti-Money Laundering Laws and the Administrative Agent (for itself and not on behalf of
any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATNOT Act
or such other Anti-Money Laundering Laws, it is required to obtain, veriff and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identifu the Borrower in accordance with the PATRIOT Act or such other Anti-
Money Laundering Laws.
9.14 Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be effective
when it has been executed by the Borrower, the Administrative Agent, the LC Issuers, the
Swingline Lender and the Lenders as of the Closing Date and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken such action.
Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other
electronic transmission will be effective as delivery of a manually executed counterpart thereof.
9.15 Acknowledgement and Consent to Bail-In of EEA Financial lnstitutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
affangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Loan Document, to the extent such
liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any paffy hereto
that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial Institution, its parent undertaking, or a
bridge institution that may be issued to it or otherwise conferred on it, and that such
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shares or other instruments of ownership will be accepted by it in lieu of any rights with
respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise
of the Write-Down and Conversion Powers of any EEA Resolution Authority.
9.16 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a
Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party
hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agent, each Joint Lead Arranger and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and
will be true:
(i) such Lender is not using "plan assets'o (within the meaning of Section
3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender's
entrance into, participation in, administration of and performance of the Loans, the
Facility LCs or the Commitments;
(iD the transaction exemption set forth in one or more PTEs, such as PTE 84-
l4 (a class exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain transactions
involving insurance company general accounts), PTE 90-l (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 9l-38 (a class
exemption for certain transactions involving bank collective investment funds) or PTE
96-23 (a class exemption for certain transactions determined by in-house asset managers),
is applicable with respect to such Lender's entrance into, participation in, administration
of and performance of the Loans, the Letters of Credit, the Commitments and this
Agreement;
(iii) (A) such Lender is an investment fund managed by a "Qualified
Professional Asset Manager" (within the meaning of Part VI of PTE 84-14), (B) such
Qualified Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participate in, administer and perform the Loans, the Facility LCs,
the Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Facility LCs, the Commitments and
this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE
84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a)
of Part I of PTE 84-14 are satisfied with respect to such Lender's entrance into,
participation in, administration of and performance of the Loans, the Facility LCs, the
Commitments and this Agreement; or
(iv) such other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion, and such Lender.
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88
(b) [n addition, unless either (l) sub-clause (i) in the immediately preceding clause
(a) is true with respect to a Lender or (2) a Lender has provided another representation, warrangr
and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such
Lender further (x) represents and warrants, as of the date such Person became a Lender party
hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date
such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent,
each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to
or for the benefit of the Borrower, that none of the Administrative Agent, any Joint Lead
Arranger and their respective Affiliates is a fiduciary with respect to the assets of such Lender
involved in such Lender's entrance into, participation in, administration of and performance of
the Loans, the Facility LCs, the Commitments and this Agreement (including in connection with
the reservation or exercise of any rights by the Administrative Agent under this Agreement, any
Loan Document or any documents related hereto or thereto).
9.17 Acknowledeement Regardine Any Supported OFCs. To the extent that the Loan
Documents provide support, through a guarantee or otherwise, for Rate Management
Agreements or any other agreement or instrument that is a QFC (such support, "QFClCrecli!
Support" and, each such QFC, a "Sgppo!gd-QFC."), the parties acknowledge and agree as
follows with respect to the resolution power of the FDIC under the Federal Deposit Insurance
Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together
withtheregulationspromulgatedthereunder,the..,')inrespect
of such Supported QFC and QFC Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be
governed by the laws of the State of New York and/or of the United States or any other state of
the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a oo@d,
Partlr") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of
such Supported QFC and the benefit of such QFC Credit Support (and any interest and
obligation in or under such Supported QFC and such QFC Credit Support, and any rights in
property securing such Supported QFC or such QFC Credit Support) from such Covered Party
will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United States or a state of the
United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that
may be exercised against such Covered Party are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if the
Supported QFC and the Loan Documents were governed by the laws of the United States or a
state of the United States. Without limitation of the foregoing, it is understood and agreed that
rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the
rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 9.17, the following terms have the following meanings
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89
"ElHe&I3f,Eliglq" of a party means an "affiliate" (as such term is defined
under, and interpreted in accordance with, l2 U.S.C. l84l(k)) of such party.
"egrcEdE4iq." means any of the following:
a o'covered entity" as that term is defined in, and interpreted in accordance
with, 12 C.F.R. $ 252.82(b);
(i i)a'ocovered bank" as that term is defined in, and interpreted in accordance
with, l2 C.F.R. $ 47.3(b); or
(iii) a "covered FSI" as that term is defined in, and interpreted in accordance
with, l2 C.F.R. $ 382.2(b).
"D@UlL&igh!" has the meaning assigned to that term in, and shall be interpreted
in accordance with, l2 C.F.R. $$ 252.81 ,47.2 or 382.1, as applicable.
('@" has the meaning assigned to the term "qualified financial contract" in, and
shall be interpreted in accordance with, l2 U.S.C. 5390(c)(8)(D).
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authority. Each of the Lenders (for purposes of this Article 10,
references to the Lenders shall also mean the LC Issuers and the Swingline Lender) hereby
irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
Except as set forth in Section 10.6, the provisions of this Article 10 are solely for the benefit of
the Administrative Agent and the Lenders, and the Borrower shall have no rights as a third-party
beneficiary of any of such provisions. It is understood and agreed that the use of the term
"agent" (or any other similar term) herein or in any other Loan Document with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations under agency doctrine of any applicable law. Instead, such term is used as a matter
of market custom, and is intended to create or reflect only an administrative relationship between
contracting parties.
10.2 Riehts as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as
the financial advisor or in any other advisory capacity for and generally engage in any kind of
l]64{)6}l++
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90
business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
10.3 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 generality of the foregoing, the Administrative
Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether an Unmatured Default or Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the other Loan
Documents); provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the Administrative
Agent to liability or that is contrary to any Loan Document or applicable law, including,
for the avoidance of doubt, any action that may be in violation of the automatic stay
under any Debtor Relief Law or that may effect a forfeiture, modification or termination
of properly of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Affrliates 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 of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith shall be necessary, under the circumstances as provided in Sections 8.1 and 8.2), or
(ii) in the absence of its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be
deemed not to have knowledge of any Unmatured Default or Default unless and until notice
describing such Unmatured Default or Default is given to the Administrative Agent in writing by
the Borrower or a Lender.
(c) The 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 of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Unmatured Default or Default, (iv) the
+164ga24r4
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validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
10.4 Reliance by Administrative Aeent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
internet or intranet website posting or other distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance,
extension, renewal or increase of a Facility LC, that by its terms must be fulfilled to the
satisfaction of a Lender or the LC Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the LC Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the LC Issuer prior to the making of
such Loan or the issuance, extension, renewal or increase of such Facility LC. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
10.5 Deleeation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication of
the credit facility provided for herein as well as activities as Administrative Agent. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent
except to the extent that a court of competent jurisdiction determines in a final and
nonappealable judgment that the Administrative Agent acted with gross negligence or willful
misconduct in the selection of such sub-agent.
10.6 Resienation of Administrative Aeent.
(a) The Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an offrce in the
United States. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders)
(the "Resignation Effective Date"), then the retiring Administrative Agent may (but shall not be
obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the
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qualifications set forth above. Regardless of whether a successor has been appointed or has
accepted such appointment, such resignation shall become effective in accordance with such note
on the Resignation Effective Date.
(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
Documents (except that in the case of any collateral security held by the Administrative Agent
on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (ii) except for any indemnity payments owed to the retiring
Administrative Agent, all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender directly,
until such time, if any, as the Required Lenders appoint a successor Administrative Agent as
provided for in Section (a). Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Administrative Agent (other than any
rights to indemnity payments owed to the retiring Administrative Agent), and the retiring
Administrative Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the retiring Administrative Agent's
resignation hereunder and under the other Loan Documents, the provisions of this Article 10 and
Section 9.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-
agents and their respective Related Parties in respect of any actions taken or omitted to be taken
by any of them while the retiring Administrative Agent was acting as Administrative Agent.
(c) Any resignation by, or removal ol 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 successor's appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring LC Issuer, if in its sole discretion it elects to, and Swingline Lender, (b) the
retiring LC Issuer and Swingline Lender shall be discharged from all of their respective duties
and obligations hereunder or under the other Loan Documents, and (c) the successor LC Issuer,
if in its sole discretion it elects to, shall issue letters of credit in substitution for the Facility LCs,
if any, issued by the retiring LC Issuer and outstanding at the time of such succession or make
other arrangements satisfactory to the retiring LC Issuer to effectively assume the obligations of
the retiring LC lssuer with respect to such Facility LCs.
10.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or
any other Lender or any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on
such documents and information as it shall from time to time deem appropriate, continue to make
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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 Book Runners, Joint Lead Arrangers, Syndication Agent, Documentation Agent or other
agents listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent or a Lender hereunder.
10.9 Administrative Aeent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to the
Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or
Reimbursement Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have made any demand
on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such
proceeding or otherwise (i) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, Reimbursement Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary
advisable in order to have the claims of the Lenders and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders
and the Administrative Agent and their respective agents, sub-agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 2.4 and 9.5) allowed in
such judicial proceeding and (ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same. Any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents, sub-agents and counsel,
and any other amounts due the Administrative Agent under Section 2.4 or 9,5.
10.10 Administrative Asent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemni$ the Administrative Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower
under the Loan Documents, (ii) for any other expenses incurred by the Administrative Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including for any expenses incurred by the Administrative
Agent in connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including for any such amounts
incurred by or asserted against the Administrative Agent in connection with any dispute between
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the Administrative Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other documents,
provided that (x) no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of the Administrative Agent and
(y) any indemnification required pursuant to Section 3.5(e) shall, notwithstanding the provisions
of this Section 10.10, be paid by the relevant Lender in accordance with the provisions thereof.
The obligations of the Lenders under this Section 10.10 shall survive payment of the Obligations
and termination of this Agreement.
10.11 LC Issuer and Swingline Lender. The provisions of this Article 10 (other than
Section 10.2) shall apply to the LC Issuers and the Swingline Lender mutatis mutandis to the
same extent as such provisions apply to the Administrative Agent.
1!J2 Erroneous Pavments.
(a) Each Lender. each LC Issuer and anv other oartv hereto herebv severallv asrees
tnat if fil tne eOmin
manifest error) such Lender or LC Issuer or anv other Person that has received funds from the
Administrative Asent or anv of its Affiliates. either for its own account or on behalf of a Lender
or LC lssuer (each such recioient. a "Pavment Recioient") that the Administrative Asent has
determined in its so
erroneoustv transm
necioient fwnetne
reeeives anv pavment ft
different amount tha
Drepavment or repav
to such oavment. orenavment or reoavment. as anolicable. (v) that was not oreceded or
accomnanied bv a notice of oavment. DreDavment or reDavment sent bv the Administrative Asent
(or anv of its Affiliates) with resDect to such Davment. orenavment or reDavment. as aoolicable.
or (z) that such Pavment Recioient otherwise becomes aware was transmitted or received in error
or bv mistake (in whole or in oart) then. in each case. an error in oavment shall be nresumed to
nave been maae (anv s
whether received a
or otherwise: individuallv and collectivelv. an "Erroneous Pavment"). then- in each case. such
Pavment Recioient is deemed to have knowledse of such error at the time of its receiot of such
Erroneous Pavment: orovided that nothine in this Section shall reouire the Administrative Asent
to orovide anv of the notices soecified in clauses (i) or (ii) above. Each Pavment Recioient asrees
tnat it snall not as
claim- counterclaim. defense or risht of set-off or recouoment with resoect to anv demand. claim
or counterclaim bv the Administrative Asent for the return of anv Erroneous Pavments.
includins without limitation waiver of anv defense based on "discharse for value" or anv similar
doeIrua.
(b) Without limitins the immediatelv orecedins clause (a). each Pavment Recioient
asrees that. in the case of clause (aXii) above. it shall oromntlv notifv the Administrative Asent
in writins of such occurrence.
v)
+264e62+14
14404709v5
(c) In the case of either clause (aXi) or (a)(ii) above. such Erroneous Pavment shall at
all times remain tne
Pavment necioient
demanO from the admi
wno received anv oot
no tater than one gus
such grroneous Pavm
funds and in the curr
anO inchAins the d
Pavment Recioient to the date such amount is reoaid to the Administrative Aqent at the ereater of
tne Pederal Punds Bft
accordance with bank
([ In the event that an E
tne administrative a
accorOance with imm
or an effiIate of a Pavm
grroneous Pavment n
and uoon the Administrative Aeent's written notice to such Lender (i) such Lender shall be
aeemea to nave maae
(but not its Commitments) to the Administrative Asent or. at the ootion of the Administrative
esent. the Adminis
Erroneous Pavment Return Deficiencv (or such lesser amount as the Administrative Asent mav
spscifot (such assisnm
Oeficiencv essienm
further consent or aooroval of anv oartv hereto and without anv oavment bv the Administrative
Asent or its aonlicable lendins affiliate as the assisnee of such Erroneous Pavment Deficiencv
Assiqnment. The pa
this clause (d) shall be made without anv reouirement for anv oavment or other consideration
oaid Uv tne aooticab
shall qovern in the e
Administrative Aqent mav reflect such assienments in the Resister without further consent or
action bv anv other Person.
(e) Each nartv hereto herebv asrees that (x) in the event an Erroneous Pavment (or
oortion thereofl is not recovered from anv Pavment Recioient that has received such Erroneous
Pavment (or nortion thereofl for anv reason- the Administrative Asent ( I ) shall be subrosated to
allthe rishts of su
off. net and aoolv anv and all amounts at anv time owins to such Pavment Recioient under anv
Loan Document. or otherwise oavable or distributable bv the Administrative Aqent to such
Pavment necinient
this Section t0.t2
an Erroneous Pavment bv a Pavment Recioient shall not for the numose of this Aereement be
treated as a Davment. oreoavment. reDavment. discharse or other satisfaction of anv Oblipations
owed bv the gorrower
with resoect to the amount of such Erroneous Pavment that is. comorised of funds received bv
1264062144
!4494199t5
96
tne eaministrativ
Oblisations and h\ to the extent that an Erroneous Pavment was in anv wav or at anv time
creOiteA as oavmen
tnat were so creAiteA
reinstated and cont
reeeiYcd.
CI each oaftv's oUliea
reolacement of the Administrative Asent or anv transfer of risht or oblisations bv. or the
reolacement of. a l,e
discharee of all Oblisations (or anv oortion thereofl under anv Loan Document.
Q) Nothins in this Sec
tne administrative
Euoneous tavnaenr
ARTICLE 11
SETOFF; RATABLE PAYMENTS
I l.l Setoff. If a Default shall have occurred and be continuing, each Lender, each LC
Issuer, and each of their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held,
and other obligations (in whatever currency) at any time owing, by such Lender, such LC Issuer
or any such Affiliate, to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or such LC Issuer or their respective Affiliates, irrespective of whether
or not such Lender, LC Issuer or Affiliate shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch, office or Affiliate of such Lender or such LC Issuer different
from the branch, office or Affiliate holding such deposit or obligated on such indebtedness;
provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section2.22 and, pending such payment, shall
be segregated by such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable
detail the Obligations owing to such Defaulting Lender as to which it exercised such right of
setoff. The rights of each Lender, each LC Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, such LC Issuer or their respective Affiliates may have. Each Lender and LC Issuer
agrees to notiff the Borrower and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of such
setoffand application.
$64e62+'t4
!449419915
97
ll.2 Ratable Payments. If any Lender, whether by setoffor otherwise, has payment
made to it upon its Outstanding Credit Exposure (other than payments received pursuant to
Sections 3.1,3.2,3.3 or 3.5) in a greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding
Credit Exposure held by the other Lenders so that after such purchase each Lender will hold its
Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoffor amounts which might be subject to setoffor otherwise, receives
collateral or other protection for its Obligations or such amounts which may be subject to setoff,
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. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made. If an amount to be setoffis
to be applied to Indebtedness of the Borrower to a Lender other than lndebtedness comprised of
the Outstanding Credit Exposure of such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness comprised of such Outstanding Credit Exposure.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
l2.l Successors and Assisns. The terms and provisions of the Loan Documents shall
be binding upon and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns, except that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of the
foregoing sentence relates only to absolute assignments and does not prohibit assignments
creating security interests, including (x) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal Reserve Bank or other
central bank or (y) in the case of a Lender which is a fund, any pledge or assignment of all or any
portion of its rights under this Agreement and any Note to its trustee in support of its obligations
to its trustee; proviided that no such pledge or assignment creating a security interest shall release
the transferor Lender from its obligations hereunder unless and until the parties thereto have
complied with the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all purposes hereof
unless and until such Person complies with Section 12.3; provided that the Administrative Agent
may in its discretion (but shall not be required to) follow instructions from the Person which
made any Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by acceptance of
such assignment to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such request or giving
such authority or consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent holder or
assignee of the rights to such Loan.
+e64e6?-l\4
!4494199t5
98
12.2 Particioations.
(a) Any Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other entities (other than the Borower,
its Affiliates 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) ("PgrtigiBants")
participating interests in any Outstanding Credit Exposure of such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Outstanding Credit Exposure and the holder of any
Note issued to it in evidence thereof for all purposes under the Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan Documents.
(b) Each Lender shall retain the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any provision of the Loan Documents
other than any amendment, modification or waiver with respect to any Credit Extension or
Commitment in which such Participant has an interest which forgives principal, interest or fees
or reduces the interest rate or fees payable with respect to any such Loan or Commitment,
extends the Facility Termination Date (except as otherwise permitted in accordance with Section
2.21), postpones any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Commitment, or postpones the expiry date of any Facility LC
beyond the finalFacility Termination Date, releases any guarantor of any such Loan or releases
all or substantially all of the collateral, if any, securing any such Loan.
(c) The Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.1,3.2,3.3 and 3.5 (subject to the requirements and limitations therein, including the
requirements under Section 3.5(g) (it being understood that the documentation required under
Section 3.5(g) shall be delivered to the participating Lender)) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 12.3; pfovided that such
Participant (A) agrees to be subject to the provisions of Sections 2.19 and 3.6 as if it were an
assignee under Section 12.3; and (B) shall not be entitled to receive any greater payment under
Sections 3.1,3.2 or 3.5, with respect to any participation, than its participating Lender would
have been entitled to receive, except to the extent such entitlement to receive a greater payment
results from a Change in Law that occurs after the Participant acquired the applicable
participation. Each Lender that sells a participation agrees, at the Borrowe/ls request and
expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of
Section 2.19 with respect to any Participant. The Borrower also agrees that each Participant
shall be deemed to have the right of setoff provided in Section I 1.1 in respect of its participating
interest in amounts owing under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan Documents, ry4!95[
that each Lender shall retain the right of setoff provided in Section 11.1 with respect to the
amount of participating interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoffprovided in Section 11.1,
+2640624+4
144O1?09y5
99
agrees to share with each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if each Participant were a
Lender.
(d) Each Lender that sells a participation shall, acting solely for this purpose as a non-
fiduciary agent of the Borrower, maintain a register on which it enters the name and address of
each Participant and the principal amounts (and stated interest) of each Participant's interest in
the Loans or other obligations under the Loan Documents (the "EArticip4g!_B9gi$91"); pfqylded
that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to a Participant's interest in
any commitments, loans, leffers of credit or its other obligations under any Loan Document) to
any Person other than the Borrower except to the extent that such disclosure is necessary to
establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f.103-l(c) ofthe United States Treasury Regulations. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of
doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(e) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
12.3 Assienments.
(a) Any Lender may, in accordance with applicable law, at any time assign to one or
more Purchasers all or any part of its rights and obligations under the Loan Documents. Such
assignment shall be substantially in the form of Exhibit B or in such other form as may be
agreed to by the parties thereto. The consent of the Borrower and the Administrative Agent shall
be required prior to an assignment becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate thereof; orovided that if a Default has occurred and is continuing, the
consent of the Borrower shall not be required; and Eovided 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 Affiliate
thereof shall (unless each of the Borrower and the Administrative Agent otherwise consents) be
in an amount not less than the lesser of (i) $10,000,000 or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such assignment) or Outstanding
Credit Exposure (if the applicable Commitment has been terminated).
(b) Upon (i) delivery to the Administrative Agent of an assignment, together with any
consents required by Section 12.3(a), and (ii) payment of a $3,500 fee by the assigning Lender
+z64ebz+14 100
t4404-10Ws
to the Administrative Agent for processing such assignment (unless such fee is waived by the
Administrative Agent in its sole discretion), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for all purposes be a Lender
party to this Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit Exposure
assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant
to this Section 12.3(a), the transferor Lender, the Administrative Agent and the Borrower shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arangements so that new Notes or, as appropriate, replacement Notes are issued to
such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective Commitments, as
adjusted pursuant to such assignment.
(c) In connection with any assignment of rights and obligations of any Defaulting
Lender hereunder, no such assignment shall be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignment shall make such additional
payments to the Administrative Agent in an aggregate amount suffrcient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including funding, with the
consent of the Borrower and the Administrative Agent, the applicable Pro Rata Share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisff in full all payment
liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender
hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Pro
Rata Share of all Loans and participations in Facility LCs and Swingline Loans.
Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any
Defaulting Lender hereunder shall become effective under applicable law without compliance
with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(d) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent
of the Borrower, shall maintain at its office referred to in Schedule 13.1 a copy of each
assignment agreement delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and Outstanding Credit Exposure owing to,
each Lender pursuant to the terms hereof from time to time (the ooReqister"). In addition, the
Administrative Agent shall maintain on the Register information regarding the designation,
revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, the LC Issuers, the Swingline
+264Q62+14
L!4941!9y5
l0l
Lender and the Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrower, any LC
Issuer, any Lender and the Swingline Lender at any reasonable time and from time to time upon
reasonable prior notice.
12.4 Dissemination of Information. The Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents
by operation of law (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditrvorthiness of the Borrower and its
Subsidiaries, including any information contained in any Reports; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.10 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee, which is organized under the laws of any jurisdiction other than the United States or
any State thereof the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 3.s(gXiiXB) and such
Transferee shall not be entitled to any additional payments under Section 3.5, (i) unless, and only
to the extent, that the transferor Lender was entitled to amounts under Section 3.5, or (ii) in the
event that payments to the Transferee were not subject to any withholding at the time of transfer
and became subject to withholding as a result of a Change In Law.
ARTICLE 13
NOTICES
l3.l Notices.
(a) Except as otherwise permitted by Section 2.13 with respect to borrowing notices,
all notices, requests and other communications to any party hereunder shall be in writing
(including electronic transmission, facsimile transmission or similar writing) and shall be given
to such party: (x) in the case of the Borrower or the Administrative Agent, at its address or
facsimile number set forth on Schedule 13.1, (y) in the case of any Lender, at its address or
facsimile number set forth in its Administrative Questionnaire or (z) in the case of any party, at
such other address or facsimile number as such party may hereafter specifr for the purpose by
notice to the Administrative Agent and the Borrower in accordance with the provisions of this
Section 13.1. Each such notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid, or (iii) if given by
any other means, when delivered at the address specified in this Section; provided that notices to
the Administrative Agent under Article 2 shall not be effective until received. Notices delivered
through electronic communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Notices and other communications to the Lenders hereunder may be delivered or
fumished by electronic communication (including e-mail and internet or intranet websites)
102
t464062l*4
144OU09v5
pursuant to procedures approved by the Administrative Agent or as otherwise determined by the
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
pursuant to Article 2 if such Lender has notified the Administrative Agent that it is incapable of
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, orovided that such determination or approval may be limited to particular
notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon the sender's
receipt of an acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written acknowledgement), ry15!gg[ that
if such notice or other communication is not given during the normal business hours of the
recipient, such notice or communication shall be deemed to have been given at the opening of
business on the next Business Day for the recipient, and (ii) notices or communications posted to
an internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (i) of notification that such
notice or communication is available and identiffing the website address therefor.
13.2 Change of Address. The Borrower, the Administrative Agent and any Lender
may each change the address for service of notice upon it by a notice in writing to the other
parties hereto.
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIYER OF JTIRY TRIAL
I4.I CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL (EXCEPT AS MAY BE EXPRESSLY OTHERWISE PROVIDED TN
ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED TN ACCORDANCE
wrTH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-140r AND
5.1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL
OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES); PROVIDED THAT EACH
FACILITY LC SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OR RULES DESIGNATED IN SUCH FACILITY LC OR APPLICATION
THEREFOR OR, IF NO SUCH LAWS OR RULES ARE DESIGNATED, (I) IF SUCH
FACILITY LC IS A STANDBY LETTER OF CREDIT, THE INTERNATIONAL STANDBY
PRACTICES OF THE INTERNATTONAL CHAMBER OF COMMERCE, AS IN EFFECT
FROM TIME TO TIME (THE "ISB') AND (tI) IF SUCH FACILITY LC IS A COMMERCIAL
LETTER OF CREDIT, THE RULES OF THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS, AS MOST RECENTLY PUBLISHED BY THE
TNTERNATIONAL CHAMBER OF COMMERCE AT THE TIME OF ISSUANCE OF SUCH
COMMERCIAL LETTER OF CREDIT, AND, AS TO MATTERS NOT GOVERNED BY THE
ISP OR THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS,
THE LAWS OF THE STATE OF NEW YORK (TNCLUDTNG SECTTONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER
cHoICE OF LAW AND CONFLICTS OF LAW RULES).
t264{)6}fv4
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103
14.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY STIBMITS FOR ITSELF AND ITS PROPERTY TO THE EXCLUSIVE
GENERAL ruRISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE
COURTS OF TTM UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISTNG OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMTNED IN ANY
SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT TN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO BRING
PROCEEDTNGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY ruDICTAL PROCEEDING BY THE BORROWER AGATNST THE
ADMINISTRATIVE AGENT, ANY LC TSSUER OR ANY LENDER OR ANY AFFILIATE
OF THE ADMTNISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, 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.
14.3 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT, THE SWINGLINE LENDER, EACH LC ISSUER AND EACH LENDER HEREBY
WAIVE TRIAL BY ruRY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISTNG OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, TN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
TNDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
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40470W1<WSACTIVE> - IPC 2021 Conformed Copy
Credit Aqreement Gxhibit A to Amendment No. 2)Description
Document 2 lD liManage:/MORKSlTEMSACTlVEll4 O4TOglS
404709v5<WSACTIVE> - IPC 2021Conformed Copy
Credit Agreement (Exhibit A to Amendment No. 2)
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