THIRD AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT dated as of May 4, 2007 among PPL ELECTRIC UTILITIES CORPORATION, THE LENDERS FROM TIME TO TIME PARTY HERETO, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, Swingline Lender and...
Exhibit
10(b)
_____________________________________________________________________________
\
$200,000,000
THIRD
AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT
dated
as of May 4, 2007
among
PPL
ELECTRIC UTILITIES CORPORATION,
THE
LENDERS FROM TIME TO TIME PARTY HERETO,
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent, Swingline Lender and Issuing Lender,
BARCLAYS
BANK PLC and CITIBANK, N.A., as Syndication Agents,
WACHOVIA
CAPITAL MARKETS, LLC,
and
BARCLAYS
CAPITAL,
as
Joint Lead Arrangers,
and
JPMORGAN
CHASE BANK AND XXXXXX XXXXXXX BANK,
as
Documentation Agents
_____________________________________________________________________________
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ARTICLE
I DEFINITIONS
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1
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Section
1.01
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Definitions
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1
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ARTICLE
II THE CREDITS
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18
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Section
2.01
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Commitments
to Lend
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18
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|
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Section
2.02
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Swingline
Loans
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18
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Section
2.03
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Notice
of Borrowings
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20
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Section
2.04
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Notice
to Lenders; Funding of Revolving Loans and Swingline Loans
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20
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Section
2.05
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Noteless
Agreement; Evidence of Indebtedness
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21
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Section
2.06
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Interest
Rates
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22
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Section
2.07
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Fees
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24
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Section
2.08
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Adjustments
of Commitments
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25
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Section
2.09
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Maturity
of Loans; Mandatory Prepayments
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28
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Section
2.10
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Optional
Prepayments and Repayments
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29
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Section
2.11
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General
Provisions as to Payments
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29
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Section
2.12
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Funding
Losses
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30
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Section
2.13
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Computation
of Interest and Fees
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30
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Section
2.14
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Basis
for Determining Interest Rate Inadequate, Unfair or
Unavailable
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30
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Section
2.15
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Illegality
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31
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Section
2.16
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Increased
Cost and Reduced Return
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31
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Section
2.17
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Taxes
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32
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Section
2.18
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Base
Rate Loans Substituted for Affected Euro-Dollar Loans
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34
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Section
2.19
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Increases
to the Revolving Commitment
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35
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Section
2.20
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Term-Out
Option
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36
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ARTICLE
III Letters of Credit
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37
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Section
3.01
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Existing
Letters of Credit
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37
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Section
3.02
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Additional
Letters of Credit
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37
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Section
3.03
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Method
of Issuance of Letters of Credit
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37
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Section
3.04
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Conditions
to Issuance of Additional Letters of Credit
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38
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Section
3.05
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Purchase
and Sale of Letter of Credit Participations
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38
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Section
3.06
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Drawings
under Letters of Credit
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39
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Section
3.07
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Reimbursement
Obligations
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39
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Section
3.08
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Duties
of Issuing Lenders to Lenders; Reliance
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39
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Section
3.09
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Obligations
of Lenders to Reimburse Issuing Lender for Unpaid Drawings
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40
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Section
3.10
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Funds
Received from the Borrower in Respect of Drawn Letters of
Credit
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41
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Section
3.11
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Obligations
in Respect of Letters of Credit Unconditional
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41
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Section
3.12
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Indemnification
in Respect of Letters of Credit
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42
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Section
3.13
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ISP98
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43
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ARTICLE
IV CONDITIONS
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43
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Section
4.01
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Conditions
to Closing
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43
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Section
4.02
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Conditions
to All Credit Events
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45
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ARTICLE
V REPRESENTATIONS AND WARRANTIES
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45
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Section
5.01
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Status
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46
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Section
5.02
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Authority;
No Conflict
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46
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Section
5.03
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Legality;
Etc
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46
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Section
5.04
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Financial
Condition
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46
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Section
5.05
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Litigation
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47
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Section
5.06
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No
Violation
|
47
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Section
5.07
|
ERISA
|
47
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Section
5.08
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Governmental
Approvals
|
47
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Section
5.09
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Investment
Company Act
|
47
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Section
5.10
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Tax
Returns and Payments
|
48
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Section
5.11
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Compliance
with Laws
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48
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Section
5.12
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No
Default
|
48
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Section
5.13
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Environmental
Matters
|
48
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Section
5.14
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OFAC
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49
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ARTICLE
VI COVENANTS
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49
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Section
6.01
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Information
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49
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Section
6.02
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Maintenance
of Property; Insurance
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51
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Section
6.03
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Conduct
of Business and Maintenance of Existence
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52
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Section
6.04
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Compliance
with Laws, Etc
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52
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Section
6.05
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Books
and Records
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52
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Section
6.06
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Use
of Proceeds
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52
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Section
6.07
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Merger
or Consolidation
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52
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Section
6.08
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Asset
Sales
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53
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Section
6.09
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Consolidated
Debt to Consolidated Capitalization Ratio
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53
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ARTICLE
VII DEFAULTS
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53
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Section
7.01
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Events
of Default
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53
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ARTICLE
VIII THE AGENTS
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55
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Section
8.01
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Appointment
and Authorization
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55
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Section
8.02
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Individual
Capacity
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56
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Section
8.03
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Delegation
of Duties
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56
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Section
8.04
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Reliance
by the Administrative Agent
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56
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Section
8.05
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Notice
of Default
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56
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Section
8.06
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Non-Reliance
on the Agents and Other Lenders
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57
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Section
8.07
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Exculpatory
Provisions
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57
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Section
8.08
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Indemnification
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58
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Section
8.09
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Resignation;
Successors
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58
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Section
8.10
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Administrative
Agent’s Fees
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59
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ARTICLE
IX MISCELLANEOUS
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59
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Section
9.01
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Notices
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59
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Section
9.02
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No
Waivers; Non-Exclusive Remedies
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60
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Section
9.03
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Expenses;
Indemnification
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60
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Section
9.04
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Sharing
of Set-Offs
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62
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Section
9.05
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Amendments
and Waivers
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62
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Section
9.06
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Successors
and Assigns
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63
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Section
9.07
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Governing
Law; Submission to Jurisdiction
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65
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Section
9.08
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Counterparts;
Integration; Effectiveness
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65
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Section
9.09
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Generally
Accepted Accounting Principles
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65
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Section
9.10
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Usage
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66
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Section
9.11
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WAIVER
OF JURY TRIAL
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67
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Section
9.12
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Confidentiality
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67
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Section
9.13
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USA
PATRIOT Act Notice
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67
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Section
9.14
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Effect
of Agreement
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68
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Appendices
and Schedules:
Commitment
Appendix
Schedules:
Schedule
3.01 - Existing
Letters of Credit
Exhibits:
Exhibit
A-1 - Form
of
Notice of Borrowing
Exhibit
A-2 - Form
of
Notice of Conversion/Continuation
Exhibit
A-3 - Form
of
Letter of Credit Request
Exhibit
A-4 - Form
of
Extension Letter
Exhibit
B
- Form
of
Note
Exhibit
C
- Form
of
Assignment and Assumption Agreement
Exhibit
D
- Forms
of
Opinion of Counsel for the Borrower
Exhibit
E
- Form
of
Notice of Revolving Increase
THIRD
AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT (this
“Agreement”)
dated
as of May 4, 2007 among PPL ELECTRIC UTILITIES CORPORATION, a Pennsylvania
corporation (the “Borrower”),
the
LENDERS party hereto from time to time, WACHOVIA BANK, NATIONAL ASSOCIATION,
as
Administrative Agent, Swingline Lender and Issuing Lender, BARCLAYS BANK PLC
and
CITIBANK, N.A., as Syndication Agents, WACHOVIA CAPITAL MARKETS, LLC and
BARCLAYS CAPITAL (the investment banking division of Barclays Bank PLC), as
Joint Lead Arrangers, and JPMORGAN CHASE BANK and XXXXXX XXXXXXX BANK, as
Documentation Agents.
Pursuant
to that certain Second Amended and Restated Five-Year Credit Agreement, dated
as
of June 9, 2006 (as such agreement has been extended through the extension
of
the Revolving Termination Date (as defined therein) pursuant to Section 2.07(c)
thereof, and as further amended, extended or otherwise modified, the “Existing
Credit Agreement”), among the Borrower, the lenders party thereto (the “Existing
Lenders”) and Wachovia Bank, National Association, as Administrative Agent and
Issuing Lender, the Existing Lenders provided certain credit facilities to
the
Borrower.
The
Borrower has requested, and the Lenders (as hereinafter defined) have agreed,
that the Existing Credit Agreement be amended and restated as set forth
herein.
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms used in this Agreement or in any Appendix, Schedule or Exhibit
hereto which are not otherwise defined herein or therein shall have the
respective meanings set forth below.
“Additional
Commitment Lender”
shall
have the meaning set forth in Section 2.08(c)(iii).
“Additional
Letter of Credit”
means
any standby letter of credit issued under this Agreement by Wachovia Bank,
National Association, as Issuing Lender, on or after the Closing
Date.
“Adjusted
London Interbank Offered Rate”
means,
for any Interest Period, a rate per annum equal to the quotient obtained
(rounded upward, if necessary, to the nearest 1/100th of 1%) by dividing (i)
the
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
“Administrative
Agent”
means
Wachovia Bank, National Association, in its capacity as administrative agent
for
the Lenders hereunder and under the other Loan Documents, and its successor
or
successors in such capacity.
“Administrative
Questionnaire”
means,
with respect to each Lender, an administrative questionnaire in the form
provided by the Administrative Agent and submitted to the Administrative Agent
(with a copy to the Borrower) duly completed by such Lender.
“Affiliate”
means,
with respect to any Person, any other Person who is directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if such Person possesses, directly
or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through the ownership of stock or
its
equivalent, by contract or otherwise.
“Agent”
means
the Administrative Agent, the Syndication Agents, the Joint Lead Arrangers
or
the Documentation Agents, and “Agents” means any two or more of
them.
“Agreement”
means
this Credit Agreement, as amended, restated supplemented or modified from time
to time.
“Applicable
Lending Office”
means,
with respect to any Lender, (i) in the case of its Base Rate Loans, its Base
Rate Lending Office and (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office.
“Applicable
Percentage”
means,
for purposes of calculating (i) the applicable interest rate for any day for
any
Base Rate Loans or Euro-Dollar Loans, (ii) the applicable rate for the
Commitment Fee for any day for purposes of Section 2.07(a) or (iii) the
applicable rate for the Letter of Credit Fee for any day for purposes of Section
2.07(b), the appropriate applicable percentage set forth below corresponding
to
the then current highest Borrower’s Ratings; provided,
that,
in the event that (a) the Borrower’s Ratings shall fall within different levels
and ratings are maintained by all Rating Agencies, (i) if two applicable ratings
are equal and higher than the third applicable rating, the higher applicable
rating will apply, (ii) if two applicable ratings are equal and lower than
the
third applicable rating, the lower applicable rating will apply, (iii) if no
applicable ratings are equal, the intermediate applicable rating will apply;
(b)
if the Borrower’s Ratings shall fall within different levels and ratings are
then maintained by only two Rating Agencies, the applicable rating shall be
based on the higher of the two applicable ratings unless one of the two
applicable ratings is two or more levels lower than the other, in which case
the
applicable rating shall be determined by reference to the level one rating
lower
than the higher of the two applicable ratings:
|
Borrower’s
Ratings
(S&P
/Xxxxx’x /Fitch)
|
Applicable
Percentage for Commitment Fees
|
Applicable
Percentage for Base Rate Loans
|
Applicable
Percentage for Euro-Dollar Loans and
Letter
of
Credit
Fees
|
|
|
Category
A
|
≥
A
from S&P / A2 from Xxxxx’x / A from Fitch
|
0.050%
|
0.0%
|
0.200%
|
|
Category
B
|
A-
from S&P / A3 from Xxxxx’x/ A- from Fitch
|
0.060%
|
0.0%
|
0.250%
|
|
Category
C
|
BBB+
from S&P / Baa1 from Xxxxx’x / BBB+ from Fitch
|
0.070%
|
0.0%
|
0.350%
|
|
Category
D
|
BBB
from S&P / Baa2 from Xxxxx’x / BBB from Fitch
|
0.
090%
|
0.0%
|
0.450%
|
|
Category
E
|
BBB-
from S&P / Baa3 from Xxxxx’x / BBB- from Fitch
|
0.125%
|
0.0%
|
0.525%
|
|
Category
F
|
<
BBB- from S&P / Baa3 from Xxxxx’x / BBB- from Fitch
|
0.175%
|
0.0%
|
0.700%
|
provided,
that if the Borrower exercises the Term-Out option pursuant to Section 2.20,
then the Applicable Percentage in effect at any time for Base Rate Loans and
Euro-Dollar Loans will be increased by 0.25% per annum.
“Applicable
Utilization Fee”
means
on any day on which the aggregate principal amount of Loans plus the aggregate
Letter of Credit Liabilities outstanding exceeds 50% of the aggregate
Commitments of all Lenders, the appropriate applicable percentage set forth
below corresponding to (a) the percentage of the aggregate of the Lenders’
Commitments outstanding represented by the aggregate Loans plus the aggregate
Letter of Credit Liabilities outstanding on such day; provided, that the amount
of outstanding Swingline Loans shall not be considered usage for purposes of
calculating the Applicable Utilization Fee; provided further that, upon the
Borrower’s exercise of the Term-Out, the Applicable Utilization Fee shall be
calculated based on the aggregate principal amount of the Term Loans outstanding
on such day, notwithstanding usage; and (b) the then current highest Borrower
Rating; provided,
that,
in the event that (a) the Borrower’s Ratings shall fall within different levels
and ratings are maintained by all Rating Agencies, (i) if two applicable ratings
are equal and higher than the third applicable rating, the higher applicable
rating will apply, (ii) if two applicable ratings are equal and lower than
the
third applicable rating, the lower applicable rating will apply, (iii) if no
applicable ratings are equal, the intermediate applicable rating will apply;
(b)
if the Borrower’s Ratings shall fall within different levels and ratings are
then maintained by only two Rating Agencies, the applicable rating shall be
based on the higher of the two applicable ratings unless one of the two
applicable ratings is two or more levels lower than the other, in which case
the
applicable rating shall be determined by reference to the level one rating
lower
than the higher of the two applicable ratings:
|
Ratings
(S&P/
Xxxxx’x/ Fitch)
|
Usage
> 50% of Total Commitments
|
|
|
Category
A
|
≥
A
from S&P / A2 from Xxxxx’x / A from Fitch
|
0.050%
|
|
Category
B
|
A-
from S&P / A3 from Xxxxx’x/ A- from Fitch
|
0.050%
|
|
Category
C
|
BBB+
from S&P / Baa1 from Xxxxx’x / BBB+ from Fitch
|
0.050%
|
|
Category
D
|
BBB
from S&P / Baa2 from Xxxxx’x / BBB from Fitch
|
0.050%
|
|
Category
E
|
BBB-
from S&P / Baa3 from Xxxxx’x / BBB- from Fitch
|
0.100%
|
|
Category
F
|
<
BBB- from S&P / Baa3 from Xxxxx’x / BBB- from Fitch
|
0.100%
|
“Asset
Sale”
shall
mean any sale of any assets, including by way of the sale by the Borrower or
any
of its Subsidiaries of equity interests in such Subsidiaries.
“Assignee”
has
the
meaning set forth in Section 9.06(c).
“Assignment
and Assumption Agreement”
means
an Assignment and Assumption Agreement, substantially in the form of attached
Exhibit C, under which an interest of a Lender hereunder is transferred to
an
Eligible Assignee pursuant to Section 9.06(c).
“Availability
Period”
means
the period from and including the Closing Date to but excluding the Revolving
Termination Date.
“Bankruptcy
Code”
means
the Bankruptcy Reform Act of 1978, as amended, or any successor
statute.
“Base
Rate”
means
for any day a rate per annum equal to the higher of (i) the Prime Rate for
such
day and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such
day.
“Base
Rate Borrowing”
means
a
Borrowing comprised of Base Rate Loans.
“Base
Rate Lending Office”
means,
as to each Lender, its office located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Base Rate Lending Office) or such other office as such Lender may
hereafter designate as its Base Rate Lending Office by notice to the Borrower
and the Administrative Agent.
“Base
Rate Loan”
means
a
Loan in respect of which interest is computed on the basis of the Base Rate
plus
the Applicable Percentage, if any, with respect to Base Rate Loans.
“Borrower”
has
the
meaning set forth in the Recitals.
“Borrower’s
Rating”
means
the senior secured long-term debt rating of the Borrower from S&P, Xxxxx’x
or Fitch.
“Borrowing”
means
a
group of Loans of a single Type made by the Lenders on a single date and, in
the
case of a Euro-Dollar Borrowing, having a single Interest Period.
“Business
Day”
means
any day except a Saturday, Sunday or other day on which commercial banks in
Charlotte, North Carolina or New York, New York are authorized by law to close;
provided,
that,
when used in Article III with respect to any action taken by or with respect
to
any Issuing Lender, the term “Business Day” shall not include any day on which
commercial banks are authorized by law to close in the jurisdiction where the
office at which such Issuing Lender books any Letter of Credit is located;
and
provided,
further,
that
when used with respect to any borrowing of, payment or prepayment of principal
of or interest on, or the Interest Period for, a Euro-Dollar Loan, or a notice
by the Borrower with respect to any such borrowing payment, prepayment or
Interest Period, the term “Business Day” shall also mean that such day is a day
on which commercial banks are open for international business (including
dealings in Dollar deposits) in London.
“Capital
Lease”
means
any lease of property which, in accordance with GAAP, should be capitalized
on
the lessee’s balance sheet.
“Capital
Lease Obligations”
means,
with respect to any Person, all obligations of such Person as lessee under
Capital Leases, in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.
“Change
of Control”
means
(i) the acquisition by any Person, or two or more Persons acting in concert,
of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended)
of
25% or more of the outstanding shares of voting stock of PPL Corporation or
its
successors or (ii) the failure at any time of PPL Corporation or its successors
to own 80% or more of the outstanding shares of the Voting Stock in the
Borrower.
“Closing
Date”
means
the date, not later than May 4, 2007, on which the Administrative Agent
determines that the conditions specified in or pursuant to Section 4.01 have
been satisfied.
“Commitment”
means,
with respect to any Lender, the commitment of such Lender to (i) make Loans
under this Agreement as set forth in the Commitment Appendix, (ii) to refund
or
purchase participations in Swingline Loans pursuant to Section 2.02(b) and
(iii)
to purchase participations in Letters of Credit pursuant to Article III hereof,
in each case as such Commitment may be reduced from time to time pursuant to
Sections 2.08(a) or (b), 2.20 or 9.06(c) or increased from time to time pursuant
to Sections 2.19 or 9.06(c).
“Commitment
Appendix”
means
the Appendix attached under this Agreement identified as such.
“Commitment
Fee”
has
the
meaning set forth in Section 2.07(a).
“Commitment
Ratio”
shall
mean, with respect to any Lender for its Commitment, the percentage equivalent
of the ratio which such Lender’s portion of such Commitment bears to the
aggregate amount of all Commitments, as the case may be (as each may be adjusted
from time to time as provided herein); and “Commitment Ratios” shall mean, with
respect to any Commitment, the Commitment Ratios of all of the Lenders with
respect to such Commitment.
“Consolidated
Capitalization”
shall
mean the sum of, without duplication, (A) the Consolidated Debt (without giving
effect to clause (b) of the definition of “Consolidated Debt”) and (B) the
consolidated shareowners’ equity (determined in accordance with GAAP) of the
common, preference and preferred shareowners of the Borrower and minority
interests recorded on the Borrower’s consolidated financial statements
(excluding from shareowner’s equity the balance of accumulated other
comprehensive income/loss of the Borrower on any date of determination solely
with respect to (i) the effect of all unrealized gains and losses reported
under
Financial Accounting Standards Board Statement No. 133 in connection with
forward contracts, futures contracts or other derivatives or commodity hedging
agreements for the future delivery of electricity or capacity and (ii) the
effect of any pension and other post-retirement benefit liability adjustment
recorded in accordance with GAAP), except that for purposes of calculating
Consolidated Capitalization of the Borrower, Consolidated Debt of the Borrower
shall exclude Non-Recourse Debt and Consolidated Capitalization of the Borrower
shall exclude that portion of shareowner’s equity attributable to assets
securing Non-Recourse Debt.
“Consolidated
Debt”
means
the consolidated Debt of the Borrower and its Consolidated Subsidiaries
(determined in accordance with GAAP), except that for purposes of this
definition (a) Consolidated Debt shall exclude Non-Recourse Debt of the Borrower
and its Consolidated Subsidiaries, and (b) Consolidated Debt shall exclude
(i)
Hybrid Securities of the Borrower and its Consolidated Subsidiaries in an
aggregate amount as shall not exceed 15% of Consolidated Capitalization and
(ii)
Equity-Linked Securities in an aggregate amount as shall not exceed 15% of
Consolidated Capitalization.
“Consolidated
Subsidiary”
means
with respect to any Person at any date any Subsidiary of such Person or other
entity the accounts of which would be consolidated with those of such Person
in
its consolidated financial statements if such statements were prepared as of
such date in accordance with GAAP.
“Continuing
Lender”
means
with respect to any event described in Section 2.08(b), a Lender which is not
a
Retiring Lender, and “Continuing Lenders” means any two or more of such
Continuing Lenders.
“Corporation”
means
a
corporation, association, company, joint stock company, limited liability
company, partnership or business trust.
“Credit
Event”
means
a
Borrowing or the issuance, renewal or extension of a Letter of
Credit.
“Current
Revolving Termination Date”
shall
have the meaning set forth in Section 2.08(c)(i).
“Debt”
of
any
Person means, without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (iii) all Guarantees by such Person
of
Debt of others, (iv) all Capital Lease Obligations and Synthetic Leases of
such
Person, (v) all obligations of such Person in respect of Interest Rate
Protection Agreements, foreign currency exchange agreements or other interest
or
exchange rate hedging arrangements (the amount of any such obligation to be
the
net amount that would be payable upon the acceleration, termination or
liquidation thereof), but only to the extent that such net obligations exceed
$75,000,000 in the aggregate and (vi) all obligations of such Person as an
account party in respect of letters of credit and bankers’ acceptances;
provided,
however,
that
“Debt” of such Person does not include (a) obligations of such Person under any
installment sale, conditional sale or title retention agreement or any other
agreement relating to obligations for the deferred purchase price of property
or
services (b) obligations under agreements relating to the purchase and sale
of
any commodity, including any power sale or purchase agreements, any commodity
hedge or derivative (regardless of whether any such transaction is a “financial”
or physical transaction), (c) any trade obligations or other obligations of
such
Person incurred in the ordinary course of business or (d) obligations of such
Person under any lease agreement (including any lease intended as security)
that
is not a Capital Lease or a Synthetic Lease.
“Default”
means
any condition or event which constitutes an Event of Default or which with
the
giving of notice or lapse of time or both would, unless cured or waived, become
an Event of Default.
“Defaulting
Lender”
means
at any time any Lender with respect to which a Lender Default is in effect
at
such time.
“Documentation
Agents”
means
JPMorgan Chase Bank and Xxxxxx Xxxxxxx, in their capacity as documentation
agents for the Lenders under this Agreement and under the other Loan Documents,
and their respective successors in such capacity.
“Dollars”
and
the
sign “$” means lawful money of the United States of America.
“Effective
Date”
means
the date this Agreement becomes effective in accordance with Section
9.08.
“Election
Date”
has
the
meaning set forth in Section 2.08(c)(i).
“Eligible
Assignee”
means
(i) a Lender; (ii) a commercial bank organized under the laws of the United
States and having a combined capital and surplus of at least $100,000,000;
(iii)
a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000; provided,
that
such bank is acting through a branch or agency located and licensed in the
United States; or (iv) an Affiliate of a Lender that is an “accredited investor”
(as defined in Regulation D under the Securities Act of 1933, as amended);
provided, that upon and following the occurrence of an Event of Default, an
Eligible Assignee shall mean any Person other than the Borrower or its
Affiliates.
“Environmental
Laws”
means
any and all federal, state and local statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses or other written governmental restrictions relating to the environment
or to emissions, discharges or releases of pollutants, contaminants, petroleum
or petroleum products, chemicals or industrial, toxic or Hazardous Substances
or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or Hazardous Substances or wastes.
“Environmental
Liabilities”
means
all liabilities (including anticipated compliance costs) in connection with
or
relating to the business, assets, presently or previously owned, leased or
operated property, activities (including, without limitation, off-site disposal)
or operations of the Borrower or any of its Subsidiaries, whether vested or
unvested, contingent or fixed, actual or potential, which arise under or relate
to matters covered by Environmental Laws.
“Equity-Linked
Securities”
means
any securities of the Borrower or any of its Subsidiaries which are convertible
into, or exchangeable for, equity securities of the Borrower, such Subsidiary
or
PPL Corporation, including any securities issued by any of such Persons which
are pledged to secure any obligation of any holder to purchase equity securities
of the Borrower, any of its Subsidiaries or PPL Corporation.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.
“ERISA
Group”
means
the Borrower and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer under Section
414(b) or (c) of the Internal Revenue Code.
“Euro-Dollar
Lending Office”
means,
as to each Lender, its office, branch or Affiliate located at its address set
forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other office, branch
or
Affiliate of such Lender as it may hereafter designate as its Euro-Dollar
Lending Office by notice to the Borrower and the Administrative
Agent.
“Euro-Dollar
Borrowing”
means
a
Borrowing comprised of Euro-Dollar Loans.
“Euro-Dollar
Loan”
means
a
Loan in respect of which interest is computed on the basis of the Adjusted
London Interbank Offered Rate pursuant to the applicable Notice of Borrowing
or
Notice of Conversion/Continuation.
“Euro-Dollar
Reserve Percentage”
of
any
Lender for the Interest Period of any LIBOR Rate Loan means the reserve
percentage applicable to such Lender during such Interest Period (or if more
than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to time
by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any
emergency, supplemental or other marginal reserve requirement) then applicable
to such Lender with respect to liabilities or assets consisting of or including
“Eurocurrency Liabilities” (as defined in Regulation D). The Adjusted London
Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
“Event
of Default”
has
the
meaning set forth in Section 7.01.
“Existing
Credit Agreement”
has
the
meaning set forth in the Recitals.
“Existing
Lenders”
has
the
meaning set forth in the Recitals.
“Existing
Letters of Credit”
means
the standby letters of credit issued before the Closing Date pursuant to the
Existing Credit Agreement and listed in attached Schedule 3.01, and “Existing
Letter of Credit” means any one of them.
“Existing
Revolving Loans”
has
the
meaning set forth in Section 4.01(f).
“Extension
Date”
means,
in the event the Revolving Termination Date or the Current Revolving Termination
Date, as applicable, is extended pursuant to Section 2.08(c), either (i) in
a
year in which the Current Revolving Termination Date does not occur, the
anniversary of the Closing Date occurring in any such year or (ii) in the year
in which the Current Revolving Termination Date is scheduled to occur, the
then
Current Revolving Termination Date.
“Extension
Letter”
means
a
letter from the Borrower to the Administrative Agent requesting an extension
of
the Revolving Termination Date substantially in the form of Exhibit A-4
hereto.
“Federal
Funds Rate”
means
for any day the rate per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank
of
New York on the Business Day next succeeding such day; provided,
that
(i) if such day is not a Business Day, the Federal Funds Rate for such day
shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if no such rate is
so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average of quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by the Administrative Agent.
“Fee
Letter”
means
the letter designated as such dated as of April 10, 2007 by the Administrative
Agent and Wachovia Securities, as a Joint Lead Arranger and a Joint Book
Manager, addressed to and acknowledged and agreed to by the Borrower, as
amended, modified or supplemented from time to time.
“Fitch”
means
Fitch, Inc. and its successors or, absent any such successor, such nationally
recognized statistical rating organization as the Borrower and the
Administrative Agent may select.
“Fronting
Fee”
has
the
meaning set forth in Section 2.07(b).
“GAAP”
means
United States generally accepted accounting principles applied on a consistent
basis.
“Governmental
Authority”
means
any federal, state or local government, authority, agency, central bank,
quasi-governmental authority, court or other body or entity, and any arbitrator
with authority to bind a party at law.
“Group
of Loans”
means
at any time a group of Loans consisting of (i) all Loans which are Base Rate
Loans at such time or (ii) all Loans which are Euro-Dollar Loans of the same
Type having the same Interest Period at such time; provided,
that,
if a Loan of any particular Lender is converted to or made as a Base Rate Loan
pursuant to Sections 2.15 or 2.18, such Loan shall be included in the same
Group
or Groups of Loans from time to time as it would have been in if it had not
been
so converted or made.
“Guarantee”
of
or
by any person means any obligation, contingent or otherwise, of such person
guaranteeing or having the economic effect of guaranteeing any Debt of any
other
person (the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of such person, direct or indirect, (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Debt
or
to purchase (or to advance or supply funds for the purchase of) any security
for
payment of such Debt, (ii) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Debt of the payment of such Debt
or (iii) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Debt; provided,
however,
that
the term Guarantee shall not include endorsements for collection or deposit
in
the ordinary course of business.
“Hazardous
Substances”
means
any toxic, caustic or otherwise hazardous substance, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance having any
constituent elements displaying any of the foregoing
characteristics.
“Hybrid
Securities”
means
any trust preferred securities, or deferrable interest subordinated debt with
a
maturity of at least 20 years issued by the Borrower, or any business trusts,
limited liability companies, limited partnerships (or similar entities)
(i) all of the common equity, general partner or similar interests of which
are owned (either directly or indirectly through one or more wholly owned
Subsidiaries) at all times by the Borrower or any of its Subsidiaries, (ii)
that
have been formed for the purpose of issuing hybrid preferred securities and
(iii) substantially all the assets of which consist of (A) subordinated
debt of the Borrower or a Subsidiary of the Borrower, as the case may be, and
(B) payments made from time to time on the subordinated debt.
“Indemnitee”
has
the
meaning set forth in Section 9.03(b).
“Interest
Period”
means
with respect to each Euro-Dollar Loan, a period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Conversion/Continuation and ending one,
two, three or six months thereafter, as the Borrower may elect in the applicable
notice; provided,
that:
(i) any
Interest Period which would otherwise end on a day which is not a Business
Day
shall, subject to clauses (iii) and (iv) below, 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 which 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, subject to clause (iii) below, end
on
the last Business Day of a calendar month;
(iii) if
any
Interest Period includes a date on which a payment of principal of the Loans
is
required (based on circumstances existing at the first day of such Interest
Period) to be made under Section 2.09 but does not end on such date, then (x)
the principal amount (if any) of each Euro-Dollar Loan required to be repaid
on
such date shall have an Interest Period ending on such date and (y) the
remainder (if any) of each such Euro-Dollar Loan shall have an Interest Period
determined as set forth above; and
(iv) no
Interest Period shall end after the Termination Date.
“Interest
Rate Protection Agreements”
means
any agreement providing for an interest rate swap, cap or collar, or any other
financial agreement designed to protect against fluctuations in interest
rates.
“Internal
Revenue Code”
means
the Internal Revenue Code of 1986, as amended, or any successor
statute.
“Issuing
Lender”
means
(i) Wachovia Bank, National Association, in its capacity as an issuer of Letters
of Credit under Section 3.02, and its successor or successors in such capacity,
and (ii) each issuer of an Existing Letter of Credit.
“Joint
Lead Arrangers”
means
Wachovia Securities and Barclays Capital (the investment banking division of
Barclays Bank PLC), in their capacities as joint lead arrangers for the Lenders
hereunder and under the other Loan Documents, and their successors in such
capacity.
“Lender”
means
each bank or other lending institution listed in the Commitment Appendix as
having a Commitment, each Eligible Assignee that becomes a Lender pursuant
to
Section 9.06(c) and their respective successors and shall include, as the
context may require, each Issuing Lender and the Swingline Lender in such
capacity.
“Lender
Default”
means
(i) the failure (which has not been cured) of any Lender to make available
any
Loan or any reimbursement for a drawing under a Letter of Credit or a refunding
of a Swingline Loan which in either case it is obligated to make available
under
the terms and conditions of this Agreement or (ii) a Lender having notified
the
Administrative Agent and the Borrower that such Lender does not intend to comply
with its obligations under Article II following the appointment of a receiver
or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority.
“Letter
of Credit”
means
an Existing Letter of Credit or an Additional Letter of Credit, and “Letters of
Credit” means any combination of the foregoing.
“Letter
of Credit Commitment”
means
the aggregate Revolving Commitment.
“Letter
of Credit Fee”
has
the
meaning set forth in Section 2.07(b).
“Letter
of Credit Liabilities”
means,
for any Lender at any time, the product derived by multiplying (i) the sum,
without duplication, of (A) the aggregate amount that is (or may thereafter
become) available for drawing under all Letters of Credit outstanding at such
time plus (B) the aggregate unpaid amount of all Reimbursement Obligations
outstanding at such time by (ii) the quotient derived by dividing such Lender’s
Revolving Commitment by the aggregate of the Revolving Commitments of all
Revolving Lenders.
“Letter
of Credit Request”
has
the
meaning set forth in Section 3.03.
“Lien”
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance intended to confer or having the effect of conferring upon a
creditor a preferential interest.
“Loan”
means
a
Base Rate Loan or a Euro-Dollar Loan, whether such loan is a Revolving Loan,
Term Loan or Swingline Loan, and “Loans” means any combination of the
foregoing.
“Loan
Documents”
means
this Agreement and the Notes.
“London
Interbank Offered Rate”
means,
for any Euro-Dollar Loan for any Interest Period, the interest rate for deposits
in Dollars for a period of time comparable to such Interest Period which appears
on Telerate Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period; provided,
however,
if more
than one rate is specified on Telerate page 3750, the applicable rate shall
be
the arithmetic means of all such rates. If for any reason such rate is not
available, the term “London Interbank Offered Rate” means for any Interest
Period, the rate per annum appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period
for
a period of time comparable to such Interest Period; provided,
however,
that if
more than one such rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates (rounded upwards, if
necessary, to the nearest 1/100 of 1%). If for any reason the London interbank
offered rate is not available on either Telerate page 3750 or Reuters Screen
LIBO Page, the term “London Interbank Offered Rate” means for any Interest
Period, the rate per annum at which deposits in Dollars are offered to Wachovia
Bank, National Association in the London interbank market at approximately
11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of Wachovia Bank, National Association to which such Interest
Period is to apply and for a period of time comparable to such Interest
Period.
“Mandatory
Letter of Credit Borrowing”
has
the
meaning set forth in Section 3.09.
“Margin
Stock”
means
“margin stock” as such term is defined in Regulation U.
“Material
Adverse Effect”
means
(i) any material adverse effect upon the business, assets, financial condition
or operations of the Borrower or the Borrower and its Subsidiaries, taken as
a
whole; (ii) a material adverse effect on the ability of the Borrower to perform
its obligations under this Agreement, the Notes or the other Loan Documents
or
(iii) a material adverse effect on the validity or enforceability of this
Agreement, the Notes or any of the other Loan Documents.
“Material
Debt”
means
Debt (other than the Notes) of the Borrower in a principal or face amount
exceeding $50,000,000.
“Material
Plan”
means
at any time a Plan or Plans having aggregate Unfunded Liabilities in excess
of
$25,000,000.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., a Delaware corporation, and its successors or,
absent any such successor, such nationally recognized statistical rating
organization as the Borrower and the Administrative Agent may
select.
“Multiemployer
Plan”
means
at any time an employee pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group is then making or
accruing an obligation to make contributions or has within the preceding five
plan years made contributions.
“New
Lender”
means
with respect to any event described in Section 2.08(b), an Eligible Assignee
which becomes a Lender hereunder as a result of such event, and “New Lenders”
means any two or more of such New Lenders.
“Non-Defaulting
Lender”
means
each Lender other than a Defaulting Lender, and “Non-Defaulting Lenders” means
any two or more of such Lenders.
“Non-Extending
Lender”
shall
have the meaning set forth in Section 2.08(c)(i).
“Non-Recourse
Debt”
shall
mean (a) Debt that is nonrecourse to the Borrower or any Subsidiary of the
Borrower and (b) any transition bonds issued by PPL Transition Bond Company,
LLC, a subsidiary of the Borrower, or any similar special purpose company
organized for the purpose of issuing bonds payable from revenues associated
with
intangible transition property created under the PEGCCCA or other assets of
PPL
Transition Bond Company LLC or any such other special purpose company, provided
that (i) such bonds are nonrecourse to the Borrower or any of its Subsidiaries
(other than PPL Transition Bond Company LLC or any such other special purpose
company) and (ii) the aggregate amount of such transition bonds shall not exceed
$2,850,000,000.
“Non-U.S.
Lender”
has
the
meaning set forth in Section 2.17(e).
“Note”
shall
mean a promissory note, substantially in the form of Exhibit B hereto, issued
at
the request of a Lender evidencing the obligation of the Borrower to repay
outstanding Revolving Loans, Term Loans or Swingline Loans, as
applicable.
“Notice
of Borrowing”
has
the
meaning set forth in Section 2.03.
“Notice
of Conversion/Continuation”
has
the
meaning set forth in Section 2.06(d)(ii).
“Obligations”
means:
(i) all
principal of and interest (including, without limitation, any interest which
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of the Borrower, whether or
not
allowed or allowable as a claim in any such proceeding) on any Loan, fees
payable or Reimbursement Obligation under, or any Note issued pursuant to,
this
Agreement or any other Loan Document;
(ii) all
other
amounts now or hereafter payable by the Borrower and all other obligations
or
liabilities now existing or hereafter arising or incurred (including, without
limitation, any amounts which accrue after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of the Borrower, whether or not allowed or allowable as a claim
in any such proceeding) on the part of the Borrower pursuant this Agreement
or
any other Loan Document;
(iii) all
expenses of the Agents as to which such Agents have a right to reimbursement
under Section 9.03(a) hereof or under any other similar provision of any other
Loan Document; and
(iv) all
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 9.03 hereof or under any other similar provision
of
any other Loan Document;
together
in each case with all renewals, modifications, consolidations or extensions
thereof.
“OFAC”
means
the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“Optional
Increase”
has
the
meaning set forth in Section 2.19(a).
“Other
Taxes”
has
the
meaning set forth in Section 2.17(b).
“Participant”
has
the
meaning set forth in Section 9.06(b).
“PBGC”
means
the Pension Benefit Guaranty Corporation or any entity succeeding to any or
all
of its functions under ERISA.
“PEGCCCA”
means
the Pennsylvania Electricity Generation Customer Choice and Competition Act,
and
any successor statute, regulation or law.
“Permitted
Business”
with
respect to any Person means a business that is the same or similar to the
business of the Borrower or any Subsidiary as of the date hereof, or any
business reasonably related thereto.
“Person”
means
an individual, a corporation, a partnership, an association, a limited liability
company, a trust or an unincorporated association or any other entity or
organization, including a government or political subdivision or an agency
or
instrumentality thereof.
“Plan”
means
at any time an employee pension benefit plan (including a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees
of
any member of the ERISA Group or (ii) has at any time within the preceding
five
years been maintained, or contributed to, by any Person which was at such time
a
member of the ERISA Group for employees of any Person which was at such time
a
member of the ERISA Group.
“Prime
Rate”
means
the rate of interest publicly announced by Wachovia Bank, National Association
in Charlotte, North Carolina from time to time as its Prime Rate.
“PUC”
has
the
meaning set forth in Section 4.01(h).
“PUC
Order”
has
the
meaning set forth in Section 4.01(h).
“Quarterly
Date”
means
the last Business Day of each of March, June, September and
December.
“Rating
Agency”
means
any of S&P, Moody’s or Fitch, and “Rating Agencies” means any two or more of
them collectively.
“Register”
has
the
meaning set forth in Section 9.06(e).
“Regulation
U”
means
Regulation U of the Board of Governors of the Federal Reserve System, as
amended, or any successor regulation.
“Regulation
X”
means
Regulation X of the Board of Governors of the Federal Reserve System, as
amended, or any successor regulation.
“Reimbursement
Obligations”
means
at any time all obligations of the Borrower to reimburse the Issuing Lenders
pursuant to Section 3.07 for amounts paid by the Issuing Lenders in respect
of
drawings under Letters of Credit, including any portion of any such obligation
to which a Lender has become subrogated pursuant to Section 3.09.
“Replacement
Date”
has
the
meaning set forth in Section 2.08(b).
“Replacement
Lender”
has
the
meaning set forth in Section 2.08(b).
“Required
Lenders”
means
at any time Non-Defaulting Lenders having at least 51% of the aggregate amount
of the Revolving Commitments of all Non-Defaulting Lenders or, if the Revolving
Commitments shall have been terminated, having at least 51% of the aggregate
amount of the Revolving Outstandings of the Non-Defaulting Lenders at such
time;
provided
that, if
the Borrower has exercised the Term-Out option pursuant to Section 2.20, from
and after the effective date of such Term-Out, “Required Lenders” shall mean
Non-Defaulting Lenders holding in the aggregate at least 51% of the aggregate
principal amount of the Term Loans.
“Responsible
Officer”
means,
as to any Person, the chief executive officer, president, chief financial
officer, controller, treasurer or assistant treasurer of such Person
or
any
other officer of such Person reasonably acceptable to the Administrative
Agent.
Any
document delivered hereunder that is signed by a Responsible Officer of a Person
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Person and such
Responsible Officer shall be conclusively presumed to have acted on behalf
of
such Person.
“Retiring
Lender”
means
a
Lender that ceases to be a Lender hereunder pursuant to the operation of Section
2.08(b).
“Revolving”
means,
when used with respect to (i) a Lender’s Commitment, such Lender’s Commitment to
make Revolving Loans pursuant to Section 2.01, as such Commitment may be reduced
from time to time pursuant to Sections 2.08, 2.20 or 9.06(c) or increased from
time to time pursuant to Sections 2.19 or 9.06(c), (ii) a Borrowing, a Borrowing
made by the Borrower under Section 2.01, as identified in the Notice of
Borrowing with respect thereto, a Borrowing of Revolving Loans to refund
outstanding Swingline Loans pursuant to Section 2.02(b)(i), or a Mandatory
Letter of Credit Borrowing, (iii) a Lender’s Commitment Ratio, the percentage
equivalent of the ratio which any Lender’s portion of its Revolving Commitment
bears to the amount of the aggregate Revolving Commitments of all Lenders (as
adjusted from time to time as provided herein) and (iv) a Loan, a Loan made
under Section 2.01; provided,
that,
if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Conversion/Continuation, the term “Revolving Loan” shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as
the
case may be.
“Revolving
Outstandings”
means
at any time, with respect to any Lender, the sum of (i) the aggregate principal
amount of such Lender’s outstanding Revolving Loans plus (ii) the aggregate
amount of such Lender’s Revolving Commitment Ratio in respect of outstanding
Swingline Loans plus (iii) the aggregate amount of such Lender’s Revolving
Commitment Ratio in respect of outstanding Letter of Credit
Liabilities.
“Revolving
Outstandings Excess”
has
the
meaning set forth in Section 2.09.
“Revolving
Termination Date”
means
the earliest to occur of (a) May 3, 2012 (or, if such day is not a Business
Day,
the next preceding Business Day), as extended from time to time pursuant to
Section 2.08(c), (b) the date of the effectiveness of the Term-Out pursuant
to
Section 2.20, and (c) such earlier date upon which the Revolving Commitments
shall have been terminated in their entirety in accordance with this
Agreement.
“Sanctioned
Entity”
shall
mean (i) an agency of the government of, (ii) an organization directly or
indirectly controlled by, or (iii) a person resident in, a country that is
subject to a sanctions program identified on the list maintained by OFAC and
available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx,
or as otherwise published from time to time as such program may be applicable
to
such agency, organization or person.
“Sanctioned
Person”
shall
mean a person named on the list of Specially Designated Nationals or Blocked
Persons maintained by OFAC available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/xxxxx.xxxx, or as otherwise
published from time to time.
“SEC”
means
the Securities and Exchange Commission.
“S&P”
means
Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., a New York
corporation, and its successors or, absent any such successor, such nationally
recognized statistical rating organization as the Borrower and the
Administrative Agent may select.
“Subsidiary”
means,
any Corporation a majority of the outstanding Voting Stock of which is owned,
directly or indirectly, by the Borrower or one or more other Subsidiaries of
the
Borrower.
“Swingline
Borrowing”
means
a
Borrowing made by the Borrower under Section 2.02, as identified in the Notice
of Borrowing with respect thereto.
“Swingline
Commitment”
means
the lesser of (a) an aggregate principal amount of $20,000,000 and (b) the
aggregate Revolving Commitments of all Lenders.
“Swingline
Lender”
means
Wachovia Bank, National Association, in its capacity as Swingline
Lender.
“Swingline
Loan”
means
any
swingline loan made by the Swingline Lender to the Borrower pursuant to Section
2.02, and all such swingline loans collectively as the context
requires.
“Swingline
Termination Date”
means
the
first
to occur of (a) the resignation of Wachovia as Administrative Agent in
accordance with Section 8.09 and (b)
the
Revolving Termination Date.
“Syndication
Agents”
means
Barclays Bank PLC and Citibank, N.A., in their capacities as syndication agents
for the Lenders hereunder and under the other Loan Documents, and their
successors in such capacities.
“Synthetic
Lease”
means
any synthetic lease, tax retention operating lease, off-balance sheet loan
or
similar off-balance sheet financing product where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an operating
lease in accordance with GAAP.
“Taxes”
has
the
meaning set forth in Section 2.17(a).
“Term
Loan Maturity Date”
has
the
meaning specified in Section 2.20(a).
“Term
Loans”
shall
mean the term loans made by the Lenders pursuant to Section 2.20.
“Term-Out”
has
the
meaning specified in Section 2.20(a).
“Termination
Date”
means
the earliest to occur of (a) in the event the Term-Out option has not been
exercised pursuant to Section 2.20, the Revolving Termination Date, (b) the
Term
Loan Maturity Date and (c) such earlier date upon which all Commitments shall
have been terminated in their entirety in accordance with this
Agreement.
“Type”,
when
used in respect of any Loan or Borrowing, shall refer to the rate by reference
to which interest on such Loan or on the Loans comprising such Borrowing is
determined.
“Unfunded
Liabilities”
means,
with respect to any Plan at any time, the amount (if any) by which (i) the
value
of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section
4044
of ERISA, exceeds (ii) the fair market value of all Plan assets allocable to
such liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
“United
States”
means
the United States of America, including the States and the District of Columbia,
but excluding its territories and possessions.
“Voting
Stock”
means
stock (or other interests) of a Corporation having ordinary voting power for
the
election of directors, managers or trustees thereof, whether at all times or
only so long as no senior class of stock has such voting power by reason of
any
contingency.
“Wachovia
Securities”
means
Wachovia Capital Markets, LLC, and its successors and assigns.
“Wholly
Owned Subsidiary”
means,
with respect to any Person at any date, any Subsidiary of such Person all of
the
Voting Stock of which (except directors’ qualifying shares) are at the time
directly or indirectly owned by such Person.
ARTICLE
II
THE
CREDITS
Section
2.01 Commitments
to Lend.
Each
Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make Revolving Loans to the Borrower pursuant to this Section
2.01
from time to time during the Availability Period in amounts such that its
Revolving Outstandings shall not exceed its Revolving Commitment; provided,
that,
immediately after giving effect to each such Revolving Loan, the aggregate
principal amount of all outstanding Revolving Loans (after giving effect to
any
amount requested) shall not exceed the aggregate Revolving Commitments less
the
sum of all outstanding Swingline Loans and Letter of Credit Liabilities. Each
Revolving Borrowing (other than Mandatory Letter of Credit Borrowings) shall
be
in an aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount of
the
unused Revolving Commitments) and shall be made from the several Lenders ratably
in proportion to their respective Revolving Commitments. Within the foregoing
limits, the Borrower may borrow under this Section 2.01, repay, or, to the
extent permitted by Section 2.10, prepay, Revolving Loans and reborrow under
this Section 2.01.
Section
2.02 Swingline
Loans.
(a) Availability.
Subject
to the terms and conditions of this Agreement, the Swingline Lender agrees
to
make Swingline Loans to the Borrower from time to time from the Closing Date
through, but not including, the Swingline Termination Date; provided,
that
the aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the lesser of (i) the
Revolving Commitment less the sum of all Revolving Outstandings and (ii) the
Swingline Commitment; and provided further,
that
the Borrower shall not use the proceeds of any Swingline Loan to refinance
any
outstanding Swingline Loan. Each Swingline Loan shall be in an aggregate
principal amount of $5,000,000 or any larger multiple of $1,000,000 (except
that
any such Borrowing may be in the aggregate amount of the unused Swingline
Commitment). Within the foregoing limits, the Borrower may borrow, repay and
reborrow Swingline Loans, in each case under this Section 2.02.
(b) Refunding.
(i) Swingline
Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such
refundings shall be made by the Lenders in accordance with their respective
Revolving Commitment Ratios and shall thereafter be reflected as Revolving
Loans
of the Lenders on the books and records of the Administrative Agent. Each Lender
shall fund its respective Revolving Commitment Ratio of Revolving Loans as
required to repay Swingline Loans outstanding to the Swingline Lender upon
demand by the Swingline Lender but in no event later than 1:00 P.M. (Charlotte,
North Carolina time) on the next succeeding Business Day after such demand
is
made. No Lender’s obligation to fund its respective Revolving Commitment Ratio
of a Swingline Loan shall be affected by any other Lender’s failure to fund its
Revolving Commitment Ratio of a Swingline Loan, nor shall any Lender’s Revolving
Commitment Ratio be increased as a result of any such failure of any other
Lender to fund its Revolving Commitment Ratio of a Swingline Loan.
(ii) The
Borrower shall pay to the Swingline Lender on demand, and in no case more than
fourteen (14) days after the date that such Swingline Loan is made, the amount
of such Swingline Loan to the extent amounts received from the Lenders are
not
sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. In addition, the Borrower hereby authorizes the
Administrative Agent to charge any account maintained by the Borrower with
the
Swingline Lender (up to the amount available therein) in order to immediately
pay the Swingline Lender the amount of such Swingline Loans to the extent
amounts received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. If any portion
of any such amount paid to the Swingline Lender shall be recovered by or on
behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise,
the
loss of the amount so recovered shall be ratably shared among all the Lenders
in
accordance with their respective Revolving Commitment Ratios (unless the amounts
so recovered by or on behalf of the Borrower pertain to a Swingline Loan
extended after the occurrence and during the continuance of an Event of Default
of which the Administrative Agent has received notice in the manner required
pursuant to Section 8.05 and which such Event of Default has not been waived
by
the Required Lenders or the Lenders, as applicable).
(iii) Each
Lender acknowledges and agrees that its obligation to refund Swingline Loans
(other than Swingline Loans extended after the occurrence and during the
continuance of an Event of Default of which the Administrative Agent has
received notice in the manner required pursuant to Section 8.05, and which
such
Event of Default has not been waived by the Required Lenders or the Lenders,
as
applicable) in accordance with the terms of this Section is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth
in
Article IV. Further, each Lender agrees and acknowledges that if prior to the
refunding of any outstanding Swingline Loans pursuant to this Section, one
of
the events described in Section 7.01(h) or (i) shall have occurred, each Lender
will, on the date the applicable Revolving Loan would have been made, purchase
an undivided participating interest in the Swingline Loan to be refunded in
an
amount equal to its Revolving Commitment Ratio of the aggregate amount of such
Swingline Loan. Each Lender will immediately transfer to the Swingline Lender,
in immediately available funds, the amount of its participation and upon receipt
thereof the Swingline Lender will deliver to such Lender a certificate
evidencing such participation dated the date of receipt of such funds and for
such amount. Whenever, at any time after the Swingline Lender has received
from
any Lender such Lender’s participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender’s participating interest was outstanding and
funded).
Section
2.03 Notice
of Borrowings.
The
Borrower shall give the Administrative Agent notice substantially in the form
of
Exhibit A-1 hereto (a “Notice
of Borrowing”)
not
later than (a) 11:30 A.M. (Charlotte, North Carolina time) on the date of each
Base Rate Borrowing and each Swingline Borrowing and (b) 12:00 Noon (Charlotte,
North Carolina time) on the third Business Day before each Euro-Dollar
Borrowing, specifying:
(i) the
date
of such Borrowing, which shall be a Business Day;
(ii) the
aggregate amount of such Borrowing;
(iii) whether
such Borrowing is a Revolving Loan or a Swingline Loan;
(iv) the
initial Type of the Loans comprising such Borrowing; and
(v) in
the
case of a Euro-Dollar Borrowing, the duration of the initial Interest Period
applicable thereto, subject to the provisions of the definition of Interest
Period.
Notwithstanding
the foregoing, no more than six (6) Groups of Euro-Dollar Loans shall be
outstanding at any one time, and any Loans which would exceed such limitation
shall be made as Base Rate Loans.
Section
2.04 Notice
to Lenders; Funding of Revolving Loans and Swingline
Loans
(a) Notice
to Lenders.
Upon
receipt of a Notice of Borrowing (other than in respect of a Borrowing of a
Swingline Loan), the Administrative Agent shall promptly notify each Lender
of
such Lender’s ratable share (if any) of the Borrowing referred to in the Notice
of Borrowing, and such Notice of Borrowing shall not thereafter be revocable
by
the Borrower.
(b) Funding
of Loans.
Not
later than (a) 1:00 P.M. (Charlotte, North Carolina time) on the date of each
Base Rate Borrowing and (b) 12:00 Noon (Charlotte, North Carolina time) on
the
date of each Euro-Dollar Borrowing, each Lender participating therein shall
make
available its share of such Borrowing, in Federal or other funds immediately
available in Charlotte, North Carolina, to the Administrative Agent at its
address referred to in Section 9.01. Unless the Administrative Agent determines
that any applicable condition specified in Article IV has not been satisfied,
the Administrative Agent shall apply any funds so received in respect of a
Borrowing available to the Borrower at the Administrative Agent’s address not
later than (a) 3:00 P.M. (Charlotte, North Carolina time) on the date of each
Base Rate Borrowing and (b) 2:00 P.M. (Charlotte, North Carolina time) on the
date of each Euro-Dollar Borrowing. Revolving Loans to be made for the purpose
of refunding Swingline Loans shall be made by the Lenders as provided in Section
2.02(b).
(c) Funding
By the Administrative Agent in Anticipation of Amounts Due from the
Lenders.
Unless
the Administrative Agent shall have received notice from a Lender prior to
the
date of any Borrowing (except in the case of a Base Rate Borrowing, in which
case prior to the time of such Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have
so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount, together with interest thereon for each day
from the date such amount is made available to the Borrower until the date
such
amount is repaid to the Administrative Agent at (i) a rate per annum equal
to
the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.06, in the case of the Borrower, and (ii) the Federal
Funds Rate, in the case of such Lender. Any payment by the Borrower hereunder
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make its share of a Borrowing available to the
Administrative Agent. If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Lender’s
Loan included in such Borrowing for purposes of this Agreement.
(d) Obligations
of Lenders Several.
The
failure of any Lender to make a Loan required to be made by it as part of any
Borrowing hereunder shall not relieve any other Lender of its obligation, if
any, hereunder to make any Loan on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Loan to
be
made by such other Lender on such date of Borrowing.
Section
2.05 Noteless
Agreement; Evidence of Indebtedness.
(a) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts
of
principal and interest payable and paid to such Lender from time to time
hereunder.
(b) The
Administrative Agent shall also maintain accounts in which it will record (a)
the amount of each Loan made hereunder, the Type thereof and the Interest Period
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
and (c) 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 maintained pursuant to paragraphs (a) and
(b)
above shall be prima facie evidence of the existence and amounts of the
Obligations therein recorded; provided, however, that the failure of the
Administrative Agent or any Lender to maintain such accounts 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) Any
Lender may request that its Loans be evidenced by a Note. In such event, the
Borrower shall prepare, execute and deliver to such Lender a Note payable to
the
order of such Lender. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after any assignment pursuant to Section
9.06(c)) be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 9.06(c), except to the extent
that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (a) and (b) above.
Section
2.06 Interest
Rates.
(a) Interest
Rate Options.
The
Loans shall, at the option of the Borrower and except as otherwise provided
herein, be incurred and maintained as, or converted into, one or more Base
Rate
Loans or Euro-Dollar Loans.
(b) Base
Rate Loans.
Each
Loan which is made as, or converted into, a Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made as, or converted into, a Base Rate Loan until it becomes due or
is
converted into a Loan of any other Type, at a rate per annum equal to the sum
of
the Base Rate for such day plus the Applicable Percentage, if any, for Base
Rate
Loans for such day. Such interest shall be payable quarterly in arrears on
each
Quarterly Date and, with respect to the principal amount of any Base Rate Loan
converted to a Euro-Dollar Loan, on the date such Base Rate Loan is so
converted. Any overdue principal of or interest on any Base Rate Loan shall
bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the rate otherwise applicable to Base Rate Loans for
such
day.
(c) Euro-Dollar
Loans.
Each
Euro-Dollar Loan shall bear interest on the outstanding principal amount
thereof, for each day during the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Adjusted London Interbank Offered Rate for
such Interest Period plus the Applicable Percentage for Euro-Dollar Loans for
such day plus the Applicable Utilization Fee for such day, if any; provided,
that if any Euro-Dollar Loan or any portion thereof shall, as a result of clause
(iii) of the definition of Interest Period, have an Interest Period of less
than
one month, such portion shall bear interest during such Interest Period at
the
rate applicable to Base Rate Loans during such period. Such interest shall
be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than three months, at intervals of three months after the
first
day thereof. Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the sum of (A) the Adjusted London Interbank Offered
Rate applicable to such Loan at the date such payment was due plus (B) the
Applicable Percentage for Euro-Dollar Loans for such day plus (C) the Applicable
Utilization Fee, if any (or, if the circumstance described in Section 2.14
shall
exist, at a rate per annum equal to the sum of 2% plus the rate applicable
to
Base Rate Loans for such day).
(d) Method
of Electing Interest Rates.
(i) Subject
to Section 2.06(a), the Loans included in each Borrowing shall bear interest
initially at the type of rate specified by the Borrower in the applicable Notice
of Borrowing. Thereafter, with respect to each Group of Loans, the Borrower
shall have the option (A) to convert all or any part of (y) so long as no
Default or Event of Default is in existence on the date of conversion,
outstanding Base Rate Loans to Euro-Dollar Loans and (z) outstanding Euro-Dollar
Loans to Base Rate Loans; provided,
that,
other than in the case of Swingline Loans, in each case that the amount so
converted shall be equal to $10,000,000 or any larger multiple of $1,000,000,
or
(B) upon the expiration of any Interest Period applicable to outstanding
Euro-Dollar Loans, so long as no Default or Event of Default is in existence
on
the date of continuation, to continue all or any portion of such Loans, other
than in the case of Swingline Loans, equal to $10,000,000 and any larger
multiple of $1,000,000 in excess of that amount as Euro-Dollar Loans. The
Interest Period of any Base Rate Loan converted to a Euro-Dollar Loan pursuant
to clause (A) above shall commence on the date of such conversion. The
succeeding Interest Period of any Euro-Dollar Loan continued pursuant to clause
(B) above shall commence on the last day of the Interest Period of the Loan
so
continued. Euro-Dollar Loans may only be converted on the last day of the then
current Interest Period applicable thereto or on the date required pursuant
to
Section 2.18.
(ii) The
Borrower shall deliver a written notice of each such conversion or continuation
(a “Notice
of Conversion/Continuation”)
to the
Administrative Agent no later than (A) 12:00 Noon (Charlotte, North Carolina
time) at least three (3) Business Days before the date of the proposed
conversion to, or continuation of, a Euro-Dollar Loan (other than Swingline
Loans), (B) 11:30 A.M. (Charlotte, North Carolina time) on the date of the
proposed conversion to, or continuation of, a Euro-Dollar Loan that is a
Swingline Loan and (C)11:30 A.M. (Charlotte, North Carolina time) on the day
of
a conversion to a Base Rate Loan. A written Notice of Conversion/Continuation
shall be substantially in the form of Exhibit A-2 attached hereto and shall
specify: (A) the Group of Loans (or portion thereof) to which such notice
applies, (B) the proposed conversion/continuation date (which shall be a
Business Day), (C) the aggregate amount of the Loans being converted/continued,
(D) an election between the Base Rate and the Adjusted London Interbank Offered
Rate and (E) in the case of a conversion to, or a continuation of, Euro-Dollar
Loans, the requested Interest Period. Upon receipt of a Notice of
Conversion/Continuation, the Administrative Agent shall give each Lender prompt
notice of the contents thereof and such Lender’s pro rata share of all
conversions and continuations requested therein. If no timely Notice of
Conversion/Continuation is delivered by the Borrower as to any Euro-Dollar
Loan,
and such Loan is not repaid by the Borrower at the end of the applicable
Interest Period, such Loan shall be converted automatically to a Base Rate
Loan
on the last day of the then applicable Interest Period.
(e) Determination
and Notice of Interest Rates.
The
Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Borrower
and
the participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
Any
notice with respect to Euro-Dollar Loans shall, without the necessity of the
Administrative Agent so stating in such notice, be subject to adjustments in
the
Applicable Percentage applicable to such Loans after the beginning of the
Interest Period applicable thereto. When during an Interest Period any event
occurs that causes an adjustment in the Applicable Percentage applicable to
Loans to which such Interest Period is applicable, the Administrative Agent
shall give prompt notice to the Borrower and the Lenders of such event and
the
adjusted rate of interest so determined for such Loans, and its determination
thereof shall be conclusive in the absence of manifest error.
Section
2.07 Fees.
(a) Commitment
Fees.
The
Borrower shall pay to the Administrative Agent for the account of each Lender
a
fee (the “Commitment Fee”) for each day at a rate per annum equal to the
Applicable Percentage for the Commitment Fee for such day. The Commitment Fee
shall accrue from and including the Effective Date to but excluding the last
day
of the Availability Period on the amount by which such Lender’s Revolving
Commitment exceeds the sum of its Revolving Outstandings on such day. The
Commitment Fee shall be payable on the last day of each of March, June,
September and December and on the Revolving Termination Date.
(b) Letter
of Credit Fees.
The
Borrower shall pay to the Administrative Agent a fee (the “Letter of Credit
Fee”) for each day at a rate per annum equal to the Applicable Percentage for
the Letter of Credit Fee for such day plus the Applicable Utilization Fee for
such day, if any. The Letter of Credit Fee shall accrue from and including
the
Effective Date to but excluding the last day of the Availability Period on
the
aggregate amount available for drawing under any Letters of Credit outstanding
on such day and shall be payable for the account of the Lenders ratably in
proportion to their participations in such Letter(s) of Credit. In addition,
the
Borrower shall pay to each Issuing Lender a fee (the “Fronting Fee”) in respect
of each Letter of Credit issued by such Issuing Lender computed at the rate
of
.125% per annum on the average amount available for drawing under such Letter(s)
of Credit. Fronting Fees shall be due and payable quarterly in arrears on each
Quarterly Date and upon the first day after the Revolving Termination Date.
In
addition, the Borrower agrees to pay to each Issuing Lender, upon each issuance
of, payment under, and/or amendment of, a Letter of Credit, such amount as
shall
at the time of such issuance, payment or amendment be the administrative charges
and expenses which such Issuing Lender is customarily charging for issuances
of,
payments under, or amendments to letters of credit issued by it.
(c) Payments.
Except
as otherwise provided in this Section 2.07, accrued fees under this Section
2.07
in respect of Loans and Letter of Credit Liabilities shall be payable quarterly
in arrears on each Quarterly Date, on the last day of the Availability Period
and, if later, on the date the Loans and Letter of Credit Liabilities shall
be
repaid in their entirety. Fees paid hereunder shall not be refundable under
any
circumstances.
Section
2.08 Adjustments
of Commitments.
(a) Optional
Termination or Reductions of Commitments (Pro-Rata).
The
Borrower may, upon at least three Business Days’ prior written notice to the
Administrative Agent, permanently (i) terminate the Revolving Commitments,
if
there are no Revolving Outstandings at such time or (ii) ratably reduce from
time to time by a minimum amount of $10,000,000 or any integral multiple of
$5,000,000, the aggregate amount of the Revolving Commitments in excess of
the
aggregate Revolving Outstandings. Upon receipt of any such notice, the
Administrative Agent shall promptly notify the Lenders. If the Revolving
Commitments are terminated in their entirety, all accrued fees shall be payable
on the effective date of such termination.
(b) Optional
Termination of Commitments (Non-Pro-Rata).
If (i)
any Lender has demanded compensation or indemnification pursuant to Sections
2.14, 2.15, 2.16 or 2.17, (ii) the obligation of any Lender to make Euro-Dollar
Loans has been suspended pursuant to Section 2.15 or (iii) any Lender is a
Defaulting Lender (each such Lender described in clauses (i), (ii) or (iii)
being a “Retiring Lender”), the Borrower shall have the right, if no Default or
Event of Default then exists, to replace such Lender with one or more Eligible
Assignees (which may be one or more of the Continuing Lenders) (each a
“Replacement Lender” and, collectively, the “Replacement Lenders”) reasonably
acceptable to the Administrative Agent. The replacement of a Retiring Lender
pursuant to this Section 2.08(b) shall be effective on the tenth Business Day
(the “Replacement Date”) following the date of notice of such replacement to the
Retiring Lender and each Continuing Lender through the Administrative Agent,
subject to the satisfaction of the following conditions:
(i) the
Replacement Lender shall have satisfied the conditions to assignment and
assumption set forth in Section 9.06(c) (with all fees payable pursuant to
Section 9.06(c) to be paid by the Borrower) and, in connection therewith, the
Replacement Lender(s) shall pay:
(A) to
the
Retiring Lender an amount equal in the aggregate to the sum of (x) the principal
of, and all accrued but unpaid interest on, all outstanding Loans of the
Retiring Lender, (y) all unpaid drawings that have been funded by (and not
reimbursed to) the Retiring Lender under Section 3.10, together with all accrued
but unpaid interest with respect thereto and (z) all accrued but unpaid fees
owing to the Retiring Lender pursuant to Section 2.08; and
(B) to
the
Swingline Lender an amount equal to the aggregate amount owing by the Retiring
Lender to the Swingline Lender in respect of all unpaid refundings of Swingline
Loans requested by the Swingline Lender pursuant to Section 2.02(b)(i), to
the
extent such amount was not theretofore funded by such Retiring Lender;
and
(C) to
the
Issuing Lenders an amount equal to the aggregate amount owing by the Retiring
Lender to the Issuing Lenders as reimbursement pursuant to Section 3.09, to
the
extent such amount was not theretofore funded by such Retiring Lender;
and
(ii) the
Borrower shall have paid to the Administrative Agent for the account of the
Retiring Lender an amount equal to all obligations owing to the Retiring Lender
by the Borrower pursuant to this Agreement and the other Loan Documents (other
than those obligations of the Borrower referred to in clause (i)(A)
above).
On
the
Replacement Date, each Replacement Lender that is a New Lender shall become
a
Lender hereunder, and the Retiring Lender shall cease to constitute a Lender
hereunder; provided,
that
the provisions of this Agreement (including, without limitation, the provisions
of Sections 2.12, 2.16, 2.17 and 9.03) shall continue to govern the rights
and
obligations of a Retiring Lender with respect to any Loans made, any Letters
of
Credit issued or any other actions taken by such Retiring Lender while it was
a
Lender.
In
lieu
of the foregoing, upon express written consent of a majority of the Continuing
Lenders, the Borrower shall have the right to permanently terminate the
Revolving Commitment of a Retiring Lender in full. Upon payment by the Borrower
to the Administrative Agent for the account of the Retiring Lender of an amount
equal to the sum of (i) the aggregate principal amount of all Loans and Letter
of Credit Liabilities held by the Retiring Lender and (ii) all accrued interest,
fees and other amounts owing to the Retiring Lender hereunder, including,
without limitation, all amounts payable by the Borrower to the Retiring Lender
under Sections 2.12, 2.16, 2.17 or 9.03, such Retiring Lender shall cease to
constitute a Lender hereunder; provided,
that
the provisions of this Agreement (including, without limitation, the provisions
of Sections 2.12, 2.16, 2.17 and 9.03) shall continue to govern the rights
and
obligations of a Retiring Lender with respect to any Loans made, any Letters
of
Credit issued or any other actions taken by such Retiring Lender while it was
a
Lender.
(c) Optional
Extensions of Commitments.
(i) The
Borrower may, by sending an Extension Letter to the Administrative Agent (in
which case the Administrative Agent shall promptly deliver a copy to each of
the
Lenders), not less than thirty (30) days and not more than sixty (60) days
prior
to any anniversary of the Closing Date occurring prior to the effectiveness
of
the Term-Out pursuant to Section 2.20, request that the Lenders extend the
Revolving Termination Date then in effect (the “Current
Revolving Termination Date”)
so
that it will occur one year after the Current Revolving Termination Date. Each
Lender, acting in its sole discretion, shall, by notice to the Administrative
Agent given no later than fifteen (15) days prior to any anniversary of the
Closing Date occurring prior to the exercise of the Term-Out pursuant to Section
2.20 (the “Election
Date”),
advise the Administrative Agent in writing whether or not such Lender agrees
to
such extension (each Lender that so advises the Administrative Agent that it
will not extend the Current Revolving Termination Date being referred to herein
as a “Non-Extending
Lender”);
provided,
that
any Lender that does not advise the Administrative Agent by the Election Date
shall be deemed to be a Non-Extending Lender. The election of any Lender to
agree to such extension shall not obligate any other Lender to
agree.
(ii) (A)
If
Lenders holding Revolving Commitments that aggregate at least 51% of the
aggregate Revolving Commitments of the Lenders on or prior to the Election
Date
shall not have agreed to extend the Revolving Termination Date, then the Current
Revolving Termination Date shall not be so extended and the outstanding
principal balance of all loans and other amounts payable hereunder shall be
due
and payable on the Current Revolving Termination Date. (B) If (and only if)
Lenders holding Revolving Commitments that aggregate at least 51% of the
aggregate Revolving Commitments of the Lenders on or prior to the Election
Date
shall have agreed to extend the Current Revolving Termination Date, then the
Revolving Termination Date applicable to the Lenders that are Continuing Lenders
shall, as of the Extension Date, be the day that is one year after the Current
Revolving Termination Date. In the event of such extension, the Revolving
Commitment of each Non-Extending Lender shall terminate on the Current Revolving
Termination Date applicable to such Non-Extending Lender, all Loans and other
amounts payable hereunder to such Non-Extending Lender shall become due and
payable on such Current Revolving Termination Date and the aggregate Revolving
Commitments of the Lenders hereunder shall be reduced by the aggregate Revolving
Commitments of Non-Extending Lenders so terminated on and after such Current
Revolving Termination Date. Each Non-Extending Lender shall be required to
maintain its original Revolving Commitment up to the Revolving Termination
Date,
or Current Revolving Termination Date, as applicable, for which such
Non-Extending Lender had previously agreed upon.
(iii) In
the
event that the conditions of clause (B) of paragraph (ii) above have been
satisfied, the Borrower shall have the right on or before the Extension Date,
at
its own expense, to require any Non-Extending Lender to transfer and assign
without recourse or representation (except as to title and the absence of Liens
created by it) (in accordance with and subject to the restrictions contained
in
Section 9.06(c)) all its interests, rights and obligations under the Loan
Documents (including with respect to any Letter of Credit Liabilities) to one
or
more Eligible Assignees (which may include any Lender) (each, an “Additional
Commitment Lender”),
provided,
that
(x) such Additional Commitment Lender, if not already a Lender hereunder, shall
be subject to the approval of the Administrative Agent (not to be unreasonably
withheld), (y) such assignment shall become effective as of the Extension Date
and (z) the Additional Commitment Lender shall pay to such Non-Extending Lender
in immediately available funds on the effective date of such assignment the
principal of and interest accrued to the date of payment on the Loans made
by
such Non-Extending Lender hereunder and all other amounts accrued for such
Non-Extending Lender’s account or owed to it hereunder.
(iv) Notwithstanding
the foregoing, no extension of the Revolving Termination Date shall become
effective unless, on the Extension Date, the conditions set forth in Section
4.02 shall be satisfied (with all references in such paragraphs to the making
of
a Loan or issuance of a Letter of Credit being deemed to be references to the
extension of the Revolving Commitments on the Extension Date) and the
Administrative Agent shall have received a certificate to that effect dated
the
Extension Date and executed by a Responsible Officer of the
Borrower.
Section
2.09 Maturity
of Loans; Mandatory Prepayments.
(a) Scheduled
Repayments and Prepayments of Loans; Overline Repayments.
(i) The
Revolving Loans shall mature on the Revolving Termination Date, and any
Revolving Loans, Swingline Loans and Letter of Credit Liabilities then
outstanding (together with accrued interest thereon and fees in respect thereof)
shall be due and payable (unless such Revolving Loans and Swingline Loans are
converted to Term Loans pursuant to Section 2.20) or, in the case of Letters
of
Credit, cash collateralized pursuant to Section 2.09(a)(ii), on such
date.
(ii) If
on any
date the aggregate Revolving Outstandings exceed the aggregate amount of the
Revolving Commitments (such excess, a “Revolving Outstandings Excess”), the
Borrower shall prepay, and there shall become due and payable (together with
accrued interest thereon) on such date, an aggregate principal amount of
Revolving Loans and/or Swingline Loans equal to such Revolving Outstandings
Excess. If, at a time when a Revolving Outstandings Excess exists and (x) no
Revolving Loans or Swingline Loans are outstanding or (y) the Revolving
Commitment has been terminated pursuant to this Agreement and, in either case,
any Letter of Credit Liabilities remain outstanding, then, in either case,
the
Borrower shall cash collateralize any Letter of Credit Liabilities by depositing
into a cash collateral account established and maintained (including the
investments made pursuant thereto) by the Administrative Agent pursuant to
a
cash collateral agreement in form and substance satisfactory to the
Administrative Agent an amount in cash equal to the then outstanding Letter
of
Credit Liabilities. In determining Revolving Outstandings for purposes of this
clause (ii), Letter of Credit Liabilities shall be reduced to the extent that
they are cash collateralized as contemplated by this Section 2.09(a)(ii).
(iii) The
Term
Loans shall mature on the Term Loan Maturity Date, and any Term Loans then
outstanding (together with accrued interest thereon and fees in respect thereof)
shall be due and payable.
(b) Applications
of Prepayments and Reductions.
(i) Each
prepayment of Loans pursuant to this Section 2.09 shall be applied ratably
to
the respective Loans of all of the Lenders.
(ii) Each
payment of principal of the Loans shall be made together with interest accrued
on the amount repaid to the date of payment.
(iii) Each
payment of the Loans shall be applied to such Group or Groups of Loans as the
Borrower may designate (or, failing such designation, as determined by the
Administrative Agent).
Section
2.10 Optional
Prepayments and Repayments.
(a) Prepayments
of Loans.
Other
than in respect of Swingline Loans, the repayment of which is governed pursuant
to Section 2.02(b), subject to Section 2.12, the Borrower may (i) upon at
least one (1) Business Day’s notice to the Administrative Agent, prepay any Base
Rate Borrowing or (ii) upon at least three (3) Business Days’ notice to the
Administrative Agent, prepay any Euro-Dollar Borrowing, in each case in whole
at
any time, or from time to time in part in amounts aggregating $10,000,000 or
any
larger multiple of $1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Lenders included in such Borrowing.
(b) Notice
to Lenders.
Upon
receipt of a notice of prepayment pursuant to Section 2.10(a), the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender’s ratable share (if any) of such prepayment, and such notice
shall not thereafter be revocable by the Borrower.
Section
2.11 General
Provisions as to Payments.
(a) Payments
by the Borrower.
The
Borrower shall make each payment of principal of and interest on the Loans
and
Letter of Credit Liabilities and fees hereunder (other than fees payable
directly to the Issuing Lenders) not later than 12:00 Noon (Charlotte, North
Carolina time) on the date when due, without set-off, counterclaim or other
deduction, in Federal or other funds immediately available in Charlotte, North
Carolina, to the Administrative Agent at its address referred to in Section
9.01. The Administrative Agent will promptly distribute to each Lender its
ratable share of each such payment received by the Administrative Agent for
the
account of the Lenders. Whenever any payment of principal of or interest on
the
Base Rate Loans or Letter of Credit Liabilities or of fees shall be due on
a day
which is not a Business Day, the date for payment thereof shall be extended
to
the next succeeding Business Day. Whenever any payment of principal of or
interest on the Euro-Dollar Loans shall be due on a day which is not a Business
Day, the date for payment thereof shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case the date for payment thereof shall be the next preceding Business Day.
If
the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended
time.
(b) Distributions
by the Administrative Agent.
Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume that
the
Borrower has made such payment in full to the Administrative Agent on such
date,
and the Administrative Agent may, in reliance upon such assumption, cause to
be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that the Borrower shall not have so made
such payment, each Lender shall repay to the Administrative Agent forthwith
on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until
the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
Section
2.12 Funding
Losses.
If the
Borrower makes any payment of principal with respect to any Euro-Dollar Loan
pursuant to the terms and provisions of this Agreement (any conversion of a
Euro-Dollar Loan to a Base Rate Loan pursuant to Section 2.18 being treated
as a
payment of such Euro-Dollar Loan on the date of conversion for purposes of
this
Section 2.12) on any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant
to
Section 2.06(c), or if the Borrower fails to borrow, convert or prepay any
Euro-Dollar Loan after notice has been given in accordance with the provisions
of this Agreement, the Borrower shall reimburse each Lender within fifteen
(15)
days after demand for any resulting loss or expense incurred by it (and by
an
existing Participant in the related Loan), including, without limitation, any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment
or
failure to borrow or prepay; provided,
that
such Lender shall have delivered to the Borrower a certificate as to the amount
of such loss or expense, which certificate shall be conclusive in the absence
of
manifest error.
Section
2.13 Computation
of Interest and Fees.
Interest on Loans based on the Prime Rate hereunder shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and paid for the actual
number of days elapsed. All other interest and fees shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
Section
2.14 Basis
for Determining Interest Rate Inadequate, Unfair or
Unavailable.
If on
or prior to the first day of any Interest Period for any Euro-Dollar Loan:
(a)
Lenders having 50% or more of the aggregate amount of the Commitments or, in
the
event the Term-Out has been exercised pursuant to Section 2.20, Lenders holding
50% or more of the outstanding principal amount of the Term Loans, as the case
may be, advise the Administrative Agent that the Adjusted London Interbank
Offered Rate as determined by the Administrative Agent, will not adequately
and
fairly reflect the cost to such Lenders of funding their Euro-Dollar Loans
for
such Interest Period; or (b) the Administrative Agent shall determine that
no
reasonable means exists for determining the Adjusted London Interbank Offered
Rate, the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies
the
Borrower that the circumstances giving rise to such suspension no longer exist,
(i) the obligations of the Lenders to make Euro-Dollar Loans or to convert
outstanding Loans into Euro-Dollar Loans shall be suspended; and (ii) each
outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on the
last day of the current Interest Period applicable thereto. Unless the Borrower
notifies the Administrative Agent at least two (2) Domestic Business Days before
the date of (or, if at the time the Borrower receives such notice the day is
the
date of, or the date immediately preceding, the date of such Euro-Dollar
Borrowing, by 10:00 A.M. on the date of) any Euro-Dollar Borrowing for which
a
Notice of Borrowing has previously been given that it elects not to borrow
on
such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
Section
2.15 Illegality.
If, on
or after the date of this Agreement, the adoption of any applicable law, rule
or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation
or
administration thereof, or compliance by any Lender (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Lender (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Euro-Dollar Loans, or to convert outstanding Loans into Euro-Dollar Loans,
shall
be suspended. Before giving any notice to the Administrative Agent pursuant
to
this Section, such Lender shall designate a different Euro-Dollar Lending Office
if such designation will avoid the need for giving such notice and will not,
in
the judgment of such Lender, be otherwise disadvantageous to such Lender. If
such notice is given, each Euro-Dollar Loan of such Lender then outstanding
shall be converted to a Base Rate Loan either (i) on the last day of the then
current Interest Period applicable to such Euro-Dollar Loan if such Lender
may
lawfully continue to maintain and fund such Loan to such day or (ii) immediately
if such Lender shall determine that it may not lawfully continue to maintain
and
fund such Loan to such day.
Section
2.16 Increased
Cost and Reduced Return.
(a) Increased
Costs.
If
after the date hereof, the adoption of any applicable law, rule or regulation,
or any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with
any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System), special
deposit, insurance assessment or similar requirement against Letters of Credit
issued or participated in by, assets of, deposits with or for the account of
or
credit extended by, any Lender (or its Applicable Lending Office) or shall
impose on any Lender (or its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank market any other
condition affecting its Euro-Dollar Loans, its Notes, its obligation to make
Euro-Dollar Loans or its obligations hereunder in respect of Letters of Credit,
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any Euro-Dollar
Loan, or of issuing or participating in any Letter of Credit, or to reduce
the
amount of any sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or under its Notes with respect thereto,
then, within fifteen (15) days after demand by such Lender (with a copy to
the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts, as determined by such Lender in good faith, as will
compensate such Lender for such increased cost or reduction, solely to the
extent that any such additional amounts were incurred by the Lender within
ninety (90) days of such demand.
(b) Capital
Adequacy.
If any
Lender shall have determined that, after the date hereof, the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
in
any such law, rule or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of
law)
of any such authority, central bank or comparable agency, has or would have
the
effect of reducing the rate of return on capital of such Lender (or any Person
controlling such Lender) as a consequence of such Lender’s obligations hereunder
to a level below that which such Lender (or any Person controlling such Lender)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy), then from
time to time, within fifteen (15) days after demand by such Lender (with a
copy
to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender (or any Person
controlling such Lender) for such reduction, solely to the extent that any
such
additional amounts were incurred by the Lender within ninety (90) days of such
demand.
(c) Notices.
Each
Lender will promptly notify the Borrower and the Administrative Agent of any
event of which it has knowledge, occurring after the date hereof, that will
entitle such Lender to compensation pursuant to this Section and will designate
a different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of
such Lender, be otherwise disadvantageous to such Lender. A certificate of
any
Lender claiming compensation under this Section and setting forth in reasonable
detail the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution
methods.
Section
2.17 Taxes.
(a) Payments
Net of Certain Taxes.
Any and
all payments by the Borrower to or for the account of any Lender or any Agent
hereunder or under any other Loan Document shall be made free and clear of
and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges and withholdings and all liabilities with respect
thereto, excluding: (i) taxes imposed on or measured by the net income
(including branch profits or similar taxes) of, and gross receipts, franchise
or
similar taxes imposed on, any Agent or any Lender by the jurisdiction (or
subdivision thereof) under the laws of which such Lender or Agent is organized
or in which its principal executive office is located or, in the case of each
Lender, in which its Applicable Lending Office is located, and (ii) in the
case
of each Lender, any United States withholding tax imposed on such payments,
but
only to the extent that such Lender is subject to United States withholding
tax
at the time such Lender first becomes a party to this Agreement or changes
its
Applicable Lending Office (all such nonexcluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to
as “Taxes”). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any other Loan Document
to
any Lender or any Agent, (i) the sum payable shall be increased as necessary
so
that after making all such required deductions (including deductions applicable
to additional sums payable under this Section 2.17(a)) such Lender or Agent
(as
the case may be) receives an amount equal to the sum it would have received
had
no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Administrative Agent, for delivery to such Lender,
the original or a certified copy of a receipt evidencing payment
thereof.
(b) Other
Taxes.
In
addition, the Borrower agrees to pay any and all present or future stamp or
documentary taxes and any other excise or property taxes, or similar charges
or
levies, which arise from any payment made pursuant to this Agreement, any Note
or any other Loan Document or from the execution, delivery, registration or
enforcement of, or otherwise with respect to, this Agreement, any Note or any
other Loan Document (collectively, “Other Taxes”).
(c) Indemnification.
The
Borrower agrees to indemnify each Lender and each Agent for the full amount
of
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
2.17(c)), whether or not correctly or legally asserted, paid by such Lender
or
Agent (as the case may be) and any liability (including penalties, interest
and
expenses) arising therefrom or with respect thereto as certified in good faith
to the Borrower by each Lender or Agent seeking indemnification pursuant to
this
Section 2.17(c). This indemnification shall be paid within 15 days after such
Lender or Agent (as the case may be) makes demand therefor.
(d) Refunds
or Credits.
If a
Lender or Agent receives a refund, credit or other reduction from a taxation
authority for any Taxes or Other Taxes for which it has been indemnified by
the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.17, it shall within fifteen (15) days from the date
of such receipt pay over the amount of such refund, credit or other reduction
to
the Borrower (but only to the extent of indemnity payments made or additional
amounts paid by the Borrower under this Section 2.17 with respect to the Taxes
or Other Taxes giving rise to such refund, credit or other reduction), net
of
all reasonable out-of-pocket expenses of such Lender or Agent (as the case
may
be) and without interest (other than interest paid by the relevant taxation
authority with respect to such refund, credit or other reduction); provided,
however, that the Borrower agrees to repay, upon the request of such Lender
or
Agent (as the case may be), the amount paid over to the Borrower (plus
penalties, interest or other charges) to such Lender or Agent in the event
such
Lender or Agent is required to repay such refund or credit to such taxation
authority.
(e) Tax
Forms and Certificates.
On or
before the date it becomes a party to this Agreement, from time to time
thereafter if reasonably requested by the Borrower, and at any time it changes
its Applicable Lending Office, each Lender organized under the laws of a
jurisdiction other than the United States, any State thereof or the District
of
Columbia (a “Non-U.S. Lender”) shall deliver to the Borrower and the
Administrative Agent: (i) two (2) properly completed and duly executed copies
of
Internal Revenue Service Form W-8 BEN, or any successor form prescribed by
the
Internal Revenue Service, certifying that such Lender is entitled to the
benefits under an income tax treaty to which the United States is a party which
exempts the Lender from United States withholding tax or reduces the rate of
withholding tax on payments of interest for the account of such Lender or (ii)
two (2) properly completed and duly executed copies of Internal Revenue Service
Form W-8 ECI, or any successor form prescribed by the Internal Revenue Service,
certifying that the income receivable pursuant to this Agreement and the other
Loan Documents is effectively connected with the conduct of a trade or business
in the United States. In addition, each Non-U.S. Lender agrees that from time
to
time after the Closing Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the Borrower and the Administrative Agent two new
accurate and complete signed originals of Internal Revenue Service Form W-8
BEN
or W-8 ECI, or successor forms, as the case may be, and such other forms as
may
be required in order to confirm or establish the entitlement of such Non-U.S.
Lender to a continued exemption from or reduction in United States withholding
tax with respect to payments under this Agreement and any other Loan Document,
or it shall immediately notify the Borrower and the Administrative Agent of
its
inability to deliver any such Form or certificate.
(f) Exclusions.
The
Borrower shall not be required to indemnify any Non-U.S. Lender or Agent, or
to
pay any additional amount to any Non-U.S. Lender or Agent, pursuant to Section
2.17(a), (b) or (c) in respect of Taxes or Other Taxes to the extent that the
obligation to indemnify or pay such additional amounts would not have arisen
but
for the failure of such Non-U.S. Lender to comply with the provisions of
subsection (e) above.
(g) Mitigation.
If the
Borrower is required to pay additional amounts to or for the account of any
Lender pursuant to this Section 2.17, then such Lender will use reasonable
efforts (which shall include efforts to rebook the Revolving Loans held by
such
Lender to a new Applicable Lending Office, or through another branch or
affiliate of such Lender) to change the jurisdiction of its Applicable Lending
Office if, in the good faith judgment of such Lender, such efforts (i) will
eliminate or, if it is not possible to eliminate, reduce to the greatest extent
possible any such additional payment which may thereafter accrue and (ii) is
not
otherwise disadvantageous, in the sole determination of such Lender, to such
Lender. Any Lender claiming any indemnity payment or additional amounts payable
pursuant to this Section shall use reasonable efforts (consistent with legal
and
regulatory restrictions) to file any certificate or document reasonably
requested in writing by the Borrower or to change the jurisdiction of its
Applicable Lending Office if the making of such a filing or change would avoid
the need for or reduce the amount of any such indemnity payment or additional
amounts that may thereafter accrue and would not, in the sole determination
of
such Lender, be otherwise disadvantageous to such Lender.
(h) Confidentiality.
Nothing
contained in this Section shall require any Lender or any Agent to make
available any of its tax returns (or any other information that it deems to
be
confidential or proprietary).
Section
2.18 Base
Rate Loans Substituted for Affected Euro-Dollar Loans.
If (a)
the obligation of any Lender to make or maintain, or to convert outstanding
Loans to, Euro-Dollar Loans has been suspended pursuant to Section 2.15 or
(b)
any Lender has demanded compensation under Section 2.16(a) with respect to
its
Euro-Dollar Loans and, in any such case, the Borrower shall, by at least four
Business Days’ prior notice to such Lender through the Administrative Agent,
have elected that the provisions of this Section shall apply to such Lender,
then, unless and until such Lender notifies the Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer
apply:
(i) all
Loans
which would otherwise be made by such Lender as (or continued as or converted
into) Euro-Dollar Loans shall instead be Base Rate Loans (on which interest
and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Lenders); and
(ii) after
each of its Euro-Dollar Loans has been repaid (or converted to a Base Rate
Loan), all payments of principal that would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
If
such
Lender notifies the Borrower that the circumstances giving rise to such notice
no longer apply, the principal amount of each such Base Rate Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other
Lenders.
Section
2.19 Increases
to the Revolving Commitment.
(a) Subject
to the terms and conditions of this Agreement and prior to the effectiveness
of
the Term-Out pursuant to Section 2.20, the Borrower may, by delivering to the
Administrative Agent and the Lenders a Notice of Revolving Increase in the
form
of Exhibit E, request increases to the Lenders’ Revolving Commitments (each such
request, an “Optional
Increase”);
provided
that:
(i) the Borrower may not request any increase to the Revolving Commitments
after
the occurrence and during the continuance of a Default or Event of Default,
including, without limitation, any Default that would result after giving effect
to any Optional Increase; (ii) the Borrower may not request any increase to
the
Revolving Commitments on or after the date on which the Term-Out becomes
effective; (iii) each Optional Increase shall be in a minimum principal amount
of $25,000,000, or if less, the remaining principal amount permitted pursuant
to
this Section 2.19 after giving effect to any prior Optional Increases made
under
this Section and (iv) the sum of the principal amounts of all aggregate Optional
Increases shall be in an aggregate principal amount of no more than $100,000,000.
(b) Each
Lender may, but shall not be obligated to, participate in any Optional Increase,
and the decision of any Lender to commit to an Optional Increase shall be at
such Lender’s sole discretion and shall be made in writing. The Borrower may, at
its own expense, solicit additional Revolving Commitments from third party
financial institutions reasonably acceptable to the Administrative Agent, the
Swingline Lender and the Issuing Lender. Any such financial institution (if
not
already a Lender hereunder) shall become a party to this Agreement as a Lender,
pursuant to a joinder agreement in form and substance reasonably satisfactory
to
the Administrative Agent and the Borrower.
(c) As
a
condition precedent to the Optional Increase, the Borrower shall deliver to
the
Administrative Agent a certificate of the Borrower dated the effective date
of
the Optional Increase, signed by a Responsible Officer of the Borrower,
certifying that: (i) the resolutions adopted by the Borrower approving or
consenting to such Optional Increase are attached thereto and such resolutions
are true and correct and have not been altered, amended or repealed and are
in
full force and effect, (ii) before and after giving effect to the Optional
Increase, (A) the representations and warranties contained in Article V and
the
other Loan Documents are true and correct in all material respects on and as
of
the effective date of the Optional Increase, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and (B) that no Default
or Event of Default exists, is continuing, or would result from the Optional
Increase and (iii) all necessary governmental, regulatory and third party
approvals, including, without limitation, any PUC approval required to approve
the Optional Increase, are attached thereto and remain in full force and effect,
in each case without any action being taken by any competent authority which
could restrain or prevent such transaction or impose, in the reasonable judgment
of the Administrative Agent, materially adverse conditions upon the consummation
of the Optional Increase.
(d) Each
Optional Increase and all Revolving Loans made in connection with such Optional
Increase (i) shall be subject to the terms applicable to the Revolving
Commitments and Revolving Loans in this Agreement (including, without
limitation, the terms applicable to pricing and maturity pursuant to Sections
2.06 and 2.09); (ii) shall for all purposes be Loans and Obligations hereunder
and under the Loan Documents; (iii) shall if requested by the applicable Lender
be represented by a replacement Note which shall be exchanged for the Note
of
any Lender committing to an increase in its Revolving Commitment; and (iv)
shall
rank pari passu
with the
other Loans for purposes of Sections 2.09 and 2.11.
(e) The
Revolving Outstandings will be reallocated by the Administrative Agent on the
effective date of any Optional Increase among the Lenders in accordance with
their revised Revolving Commitment Ratios, and the Borrower hereby agrees to
pay
any and all costs (if any) required pursuant to Section 2.12 incurred by any
Lender in connection with the exercise of the Optional Increase.
Section
2.20 Term-Out
Option.
(a) Provided
no Default or Event of Default has occurred and is continuing, the Borrower
may,
upon prior written notice to the Administrative Agent sent not less than thirty
(30) days and not more than sixty (60) days prior to any Revolving Termination
Date in effect, elect to have the entire principal balance of the Loans then
outstanding continued as non-revolving term loans (the “Term-Out”), to a date
that is the earlier of (i) one year after such Revolving Termination Date and
(ii) the date of acceleration of the Loans pursuant to Section 7.01 (the “Term
Loan Maturity Date”). As a condition precedent to the Term-Out, the Borrower
shall deliver to the Administrative Agent a certificate of the Borrower dated
the effective date of the Term-Out signed by a Responsible Officer of the
Borrower, certifying that: (i) the resolutions adopted by the Borrower approving
or consenting to such Term-Out are attached thereto and such resolutions are
true and correct and have not been altered, amended or repealed and are in
full
force and effect, (ii) before and after giving effect to the Term-Out, (A)
the
representations and warranties contained in Article V and the other Loan
Documents are true and correct in all material respects on and as of the
effective date of the Term-Out, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are
true and correct as of such earlier date and (B) that no Default or Event of
Default exists, is continuing, or would result from the Term-Out and (iii)
all
necessary governmental, regulatory and third party approvals, including, without
limitation, any PUC approval required to approve the Term-Out, are attached
thereto and remain in full force and effect, in each case without any action
being taken by any competent authority which could restrain or prevent such
transaction or impose, in the reasonable judgment of the Administrative Agent,
materially adverse conditions upon the consummation of the
Term-Out.
(b) After
giving effect to the Term-Out, the Borrower may repay, but not reborrow, the
Term Loans, and the Borrower may exercise the Term-Out only once during the
term
of this Agreement.
(c) Exercise
of the Term-Out shall result in a permanent termination of the Revolving
Commitments.
(d) The
Borrower hereby agrees to pay any and all costs (if any) required pursuant
to
Section 2.12 incurred by any Lender in connection with the exercise of the
Term-Out.
ARTICLE
III
LETTERS
OF CREDIT
Section
3.01 Existing
Letters of Credit.
On the
Closing Date, each Issuing Lender (as defined in the Existing Credit Agreement)
that has issued an Existing Letter of Credit shall be deemed, without further
action by any party to this Agreement, to have issued such Existing Letter
of
Credit under this Agreement pursuant to the terms and subject to the conditions
of this Article III.
Section
3.02 Additional
Letters of Credit.
The
Issuing Lender agrees, on the terms and conditions set forth in this Agreement,
to issue Letters of Credit from time to time before the fifth day prior to
the
Revolving Termination Date for the account, and upon the request, of the
Borrower and in support of such obligations of the Borrower that are reasonably
acceptable to the Issuing Lender; provided,
that,
immediately after each Letter of Credit is issued, (A) the aggregate amount
of
the Letter of Credit Liabilities shall not exceed the Letter of Credit
Commitment and (B) the aggregate Revolving Outstandings shall not exceed the
aggregate amount of the Revolving Commitments.
Section
3.03 Method
of Issuance of Letters of Credit.
The
Borrower shall give the Issuing Lender notice substantially in the form of
Exhibit A-3 to this Agreement (a “Letter
of Credit Request”)
of the
requested issuance or extension of a Letter of Credit prior to 1:00 P.M.
(Charlotte, North Carolina time) on the proposed date of the issuance or
extension of Letters of Credit (which shall be a Domestic Business Day) (or
such
shorter period as may be agreed by the Issuing Lender in any particular
instance), specifying the date such Letter of Credit is to be issued or extended
and describing the terms of such Letter of Credit and the nature of the
transactions to be supported thereby. The extension or renewal of any Letter
of
Credit shall be deemed to be an issuance of such Letter of Credit, and if any
Letter of Credit contains a provision pursuant to which it is deemed to be
extended unless notice of termination is given by the Issuing Lender, the
Issuing Lender shall timely give such notice of termination unless it has
theretofore timely received a Letter of Credit Request and the other conditions
to issuance of a Letter of Credit have theretofore been met with respect to
such
extension. No Letter of Credit shall have a term of more than one year;
provided,
that no
Letter of Credit shall have a term extending or be so extendible beyond the
fifth Business Day before the Revolving Termination Date.
Section
3.04 Conditions
to Issuance of Additional Letters of Credit.
The
issuance by the Issuing Lender of each Additional Letter of Credit shall, in
addition to the conditions precedent set forth in Article IV, be subject to
the
conditions precedent that (i) such Letter of Credit shall be satisfactory in
form and substance to the Issuing Lender, (ii) the Borrower shall have executed
and delivered such other instruments and agreements relating to such Letter
of
Credit as the Issuing Lender shall have reasonably requested and (iii) the
Issuing Lender shall have confirmed on the date of (and after giving effect
to)
such issuance that (A) the aggregate amount of all Letter of Credit Liabilities
will not exceed the Letter of Credit Commitment and (B) the aggregate Revolving
Outstandings will not exceed the aggregate amount of the Revolving Commitments.
Notwithstanding any other provision of this Section 3.04, the Issuing Lender
shall not be under any obligation to issue any Additional Letter of Credit
if:
any order, judgment or decree of any governmental authority shall by its terms
purport to enjoin or restrain the Issuing Lender from issuing such Additional
Letter of Credit, or any requirement of law applicable to the Issuing Lender
or
any request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the Issuing Lender shall prohibit,
or request that the Issuing Lender refrain from, the issuance of letters of
credit generally or such Additional Letter of Credit in particular or shall
impose upon the Issuing Lender with respect to such Additional Letter of Credit
any restriction, reserve or capital requirement (for which the Issuing Lender
is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall
impose upon the Issuing Lender any unreimbursed loss, cost or expense which
was
not applicable on the Closing Date and which the Issuing Lender in good xxxxx
xxxxx material to it.
Section
3.05 Purchase
and Sale of Letter of Credit Participations.
Upon
the issuance by an Issuing Lender of a Letter of Credit, such Issuing Lender
shall be deemed, without further action by any party hereto, to have sold to
each Lender, and each Lender shall be deemed, without further action by any
party hereto, to have purchased from such Issuing Lender, without recourse
or
warranty, an undivided participation interest in such Letter of Credit and
the
related Letter of Credit Liabilities in accordance with its respective Revolving
Commitment Ratio (although the Fronting Fee payable under Section 2.07(b) shall
be payable directly to the Administrative Agent for the account of the
applicable Issuing Lender, and the Lenders (other than such Issuing Lender)
shall have no right to receive any portion of any such Fronting Fee) and any
security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Commitments pursuant to Sections 2.19, 2.20 or 9.06(c), there shall
be
an automatic adjustment to the participations in all outstanding Letters of
Credit and Letter of Credit Liabilities to reflect the adjusted Revolving
Commitments of the Lenders pursuant to Sections 2.19 or 2.20, or the adjustment
of the Revolving Commitments of the assigning and assignee Lenders or of all
Lenders having Revolving Commitments pursuant to Section 9.06(c), as the case
may be.
Section
3.06 Drawings
under Letters of Credit.
Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the applicable Issuing Lender shall determine
in
accordance with the terms of such Letter of Credit whether such drawing should
be honored. If the Issuing Lender determines that any such drawing shall be
honored, such Issuing Lender shall make available to such beneficiary in
accordance with the terms of such Letter of Credit the amount of the drawing
and
shall notify the Borrower as to the amount to be paid as a result of such
drawing and the payment date.
Section
3.07 Reimbursement
Obligations.
The
Borrower shall be irrevocably and unconditionally obligated forthwith to
reimburse the applicable Issuing Lender for any amounts paid by such Issuing
Lender upon any drawing under any Letter of Credit, together with any and all
reasonable charges and expenses which the Issuing Lender may pay or incur
relative to such drawing and interest on the amount drawn at the rate applicable
to Base Rate Loans for each day from and including the date such amount is
drawn
to but excluding the date such reimbursement payment is due and payable. Such
reimbursement payment shall be due and payable (i) at or before 1:00 P.M.
(Charlotte, North Carolina time) on the date the Issuing Lender notifies the
Borrower of such drawing, if such notice is given at or before 10:00 A.M.
(Charlotte, North Carolina time) on such date or (ii) at or before 10:00 A.M.
(Charlotte, North Carolina time) on the next succeeding Business Day;
provided,
that no
payment otherwise required by this sentence to be made by the Borrower at or
before 1:00 P.M. (Charlotte, North Carolina time) on any day shall be overdue
hereunder if arrangements for such payment satisfactory to the Issuing Lender,
in its reasonable discretion, shall have been made by the Borrower at or before
1:00 P.M. (Charlotte, North Carolina time) on such day and such payment is
actually made at or before 3:00 P.M. (Charlotte, North Carolina time) on such
day. In addition, the Borrower agrees to pay to the Issuing Lender interest,
payable on demand, on any and all amounts not paid by the Borrower to the
Issuing Lender when due under this Section 3.07, for each day from and including
the date when such amount becomes due to but excluding the date such amount
is
paid in full, whether before or after judgment, at a rate per annum equal to
the
sum of 2% plus the rate applicable to Base Rate Loans for such day. Each payment
to be made by the Borrower pursuant to this Section 3.07 shall be made to the
Issuing Lender in Federal or other funds immediately available to it at its
address referred to Section 9.01.
Section
3.08 Duties
of Issuing Lenders to Lenders; Reliance.
In
determining whether to pay under any Letter of Credit, the relevant Issuing
Lender shall not have any obligation relative to the Lenders participating
in
such Letter of Credit or the related Letter of Credit Liabilities other than
to
determine that any document or documents required to be delivered under such
Letter of Credit have been delivered and that they substantially comply on
their
face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by an Issuing Lender under or in connection with any Letter of
Credit shall not create for the Issuing Lender any resulting liability if taken
or omitted in the absence of gross negligence or willful misconduct. Each
Issuing Lender shall be entitled (but not obligated) to rely, and shall be
fully
protected in relying, on the representation and warranty by the Borrower set
forth in the last sentence of Section 4.02 to establish whether the conditions
specified in clauses (c), (d) and (e) of Section 4.02 are met in connection
with
any issuance or extension of a Letter of Credit. Each Issuing Lender shall
be
entitled to rely, and shall be fully protected in relying, upon advice and
statements of legal counsel, independent accountants and other experts selected
by such Issuing Lender and upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopier, telex or teletype message, statement, order or other
document believed by it in good faith to be genuine and correct and to have
been
signed, sent or made by the proper Person or Persons, and may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary unless
the beneficiary and the Borrower shall have notified such Issuing Lender that
such documents do not comply with the terms and conditions of the Letter of
Credit. Each Issuing Lender shall be fully justified in refusing to take any
action requested of it under this Section in respect of any Letter of Credit
unless it shall first have received such advice or concurrence of the Required
Lenders as it reasonably deems appropriate or it shall first be indemnified
to
its reasonable satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take,
or omitting or continuing to omit, any such action. Notwithstanding any other
provision of this Section, each Issuing Lender shall in all cases be fully
protected in acting, or in refraining from acting, under this Section in respect
of any Letter of Credit in accordance with a request of the Required Lenders,
and such request and any action taken or failure to act pursuant hereto shall
be
binding upon all Lenders and all future holders of participations in such Letter
of Credit; provided,
that
this sentence shall not affect any rights the Borrower may have against the
Issuing Lender or the Lenders that make such request.
Section
3.09 Obligations
of Lenders to Reimburse Issuing Lender for Unpaid
Drawings.
If any
Issuing Lender makes any payment under any Letter of Credit and the Borrower
shall not have reimbursed such amount in full to such Issuing Lender pursuant
to
Section 3.07, the Issuing Lender shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify each Lender (other than
the
relevant Issuing Lender), and each such Lender shall promptly and
unconditionally pay to the Administrative Agent, for the account of such Issuing
Lender, such Lender’s share of such payment (determined in accordance with its
respective Revolving Commitment Ratio) in Dollars in Federal or other
immediately available funds, the aggregate of such payments relating to each
unreimbursed amount being referred to herein as a “Mandatory
Letter of Credit Borrowing”;
provided,
however,
that no
Lender shall be obligated to pay to the Administrative Agent its pro rata share
of such unreimbursed amount for any wrongful payment made by the relevant
Issuing Lender under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence by such Issuing Lender.
If
the Administrative Agent so notifies a Lender prior to 11:00 A.M. (Charlotte,
North Carolina time) on any Business Day, such Lender shall make available
to
the Administrative Agent at its address referred to in Section 9.01 and for
the
account of the relevant Issuing Lender such Lender’s pro rata share of the
amount of such payment by 3:00 P.M. (Charlotte, North Carolina time) on the
Business Day following such Lender’s receipt of notice from the Administrative
Agent, together with interest on such amount for each day from and including
the
date of such drawing to but excluding the day such payment is due from such
Lender at the Federal Funds Rate for such day (which funds the Administrative
Agent shall promptly remit to such Issuing Lender). The failure of any Lender
to
make available to the Administrative Agent for the account of an Issuing Lender
its pro rata share of any unreimbursed drawing under any Letter of Credit shall
not relieve any other Lender of its obligation hereunder to make available
to
the Administrative Agent for the account of such Issuing Lender its pro rata
share of any payment made under any Letter of Credit on the date required,
as
specified above, but no such Lender shall be responsible for the failure of
any
other Lender to make available to the Administrative Agent for the account
of
the Issuing Lender such other Lender’s pro rata share of any such payment. Upon
payment in full of all amounts payable by a Lender under this Section 3.09,
such
Lender shall be subrogated to the rights of the Issuing Lender against the
Borrower to the extent of such Lender’s pro rata share of the related Letter of
Credit Liabilities (including interest accrued thereon). If any Lender fails
to
pay any amount required to be paid by it pursuant to this Section 3.09 on the
date on which such payment is due, interest shall accrue on such Lender’s
obligation to make such payment, for each day from and including the date such
payment became due to but excluding the date such Lender makes such payment,
whether before or after judgment, at a rate per annum equal to (i) for each
day
from the date such payment is due to the third succeeding Business Day,
inclusive, the Federal Funds Rate for such day as determined by the relevant
Issuing Lender and (ii) for each day thereafter, the sum of 2% plus the rate
applicable to its Base Rate Loans for such day. Any payment made by any Lender
after 3:00 P.M. (Charlotte, North Carolina time) on any Business Day shall
be
deemed for purposes of the preceding sentence to have been made on the next
succeeding Business Day.
Section
3.10 Funds
Received from the Borrower in Respect of Drawn Letters of
Credit.
Whenever an Issuing Lender receives a payment of a Reimbursement Obligation
as
to which the Administrative Agent has received for the account of such Issuing
Lender any payments from the other Lenders pursuant to Section 3.09 above,
such
Issuing Lender shall pay the amount of such payment to the Administrative Agent,
and the Administrative Agent shall promptly pay to each Lender which has paid
its pro rata share thereof, in Dollars in Federal or other immediately available
funds, an amount equal to such Lender’s pro rata share of the principal amount
thereof and interest thereon for each day after relevant date of payment at
the
Federal Funds Rate.
Section
3.11 Obligations
in Respect of Letters of Credit Unconditional.
The
obligations of the Borrower under Section 3.07 above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under all circumstances whatsoever, including,
without limitation, the following circumstances:
(a) any
lack
of validity or enforceability of this Agreement or any Letter of Credit or
any
document related hereto or thereto;
(b) any
amendment or waiver of or any consent to departure from all or any of the
provisions of this Agreement or any Letter of Credit or any document related
hereto or thereto;
(c) the
use
which may be made of the Letter of Credit by, or any acts or omission of, a
beneficiary of a Letter of Credit (or any Person for whom the beneficiary may
be
acting);
(d) the
existence of any claim, set-off, defense or other rights that the Borrower
may
have at any time against a beneficiary of a Letter of Credit (or any Person
for
whom the beneficiary may be acting), any Issuing Lender or any other Person,
whether in connection with this Agreement or any Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
(e) any
statement or any other document presented under a Letter of Credit proving
to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever;
(f) payment
under a Letter of Credit against presentation to an Issuing Lender of a draft
or
certificate that does not comply with the terms of such Letter of Credit;
provided, that the relevant Issuing Lender’s determination that documents
presented under such Letter of Credit comply with the terms thereof shall not
have constituted gross negligence or willful misconduct of such Issuing Lender;
or
(g) any
other
act or omission to act or delay of any kind by any Issuing Lender or any other
Person or any other event or circumstance whatsoever that might, but for the
provisions of this subsection (g), constitute a legal or equitable discharge
of
the Borrower’s obligations hereunder.
Nothing
in this Section 3.11 is intended to limit the right of the Borrower to make
a
claim against any Issuing Lender for damages as contemplated by the proviso
to the
first sentence of Section 3.12.
Section
3.12 Indemnification
in Respect of Letters of Credit.
The
Borrower hereby indemnifies and holds harmless each Lender (including each
Issuing Lender) and the Administrative Agent from and against any and all
claims, damages, losses, liabilities, costs or expenses which such Lender or
the
Administrative Agent may incur by reason of or in connection with the failure
of
any other Lender to fulfill or comply with its obligations to such Issuing
Lender hereunder (but nothing herein contained shall affect any rights which
the
Borrower may have against such defaulting Lender), and none of the Lenders
(including any Issuing Lender) nor the Administrative Agent, their respective
affiliates nor any of their respective officers, directors, employees or agents
shall be liable or responsible, by reason of or in connection with the execution
and delivery or transfer of or payment or failure to pay under any Letter of
Credit, including, without limitation, any of the circumstances enumerated
in
Section 3.11, as well as (i) any error, omission, interruption or delay in
transmission or delivery of any messages, by mail, cable, telegraph, telex
or
otherwise, (ii) any error in interpretation of technical terms, (iii) any loss
or delay in the transmission of any document required in order to make a drawing
under a Letter of Credit, (iv) any consequences arising from causes beyond
the
control of such indemnitee, including without limitation, any government acts,
or (v) any other circumstances whatsoever in making or failing to make payment
under such Letter of Credit; provided,
that
the Borrower shall not be required to indemnify any Issuing Lender for any
claims, damages, losses, liabilities, costs or expenses, and the Borrower shall
have a claim against such Issuing Lender for direct (but not consequential)
damages suffered by it, to the extent found by a court of competent jurisdiction
in a final, non-appealable judgment or order to have been caused by (i) the
willful misconduct or gross negligence of the Issuing Lender in determining
whether a request presented under any Letter of Credit issued by it complied
with the terms of such Letter of Credit or (ii) the Issuing Lender’s failure to
pay under any Letter of Credit issued by it after the presentation to it of
a
request strictly complying with the terms and conditions of such Letter of
Credit. Nothing in this Section 3.12 is intended to limit the obligations of
the
Borrower under any other provision of this Agreement.
Section
3.13 ISP98.
The
rules of the “International Standby Practices 1998” (the “ISP98”)
as
published by the ICC most recently at the time of issuance of any Letter of
Credit shall apply to such Letter of Credit unless otherwise expressly provided
in such Letter of Credit.
ARTICLE
IV
CONDITIONS
Section
4.01 Conditions
to Closing.
The
obligation of each Lender to make a Loan or issue a Letter of Credit on the
occasion of the first Credit Event hereunder is subject to the satisfaction
of
the following conditions:
(a) Effectiveness.
This
Agreement shall have become effective in accordance with Section
9.08.
(b) Notes.
On or
prior to the Closing Date, the Administrative Agent shall have received a duly
executed Note for the account of each Lender requesting delivery of a Note
pursuant to Section 2.05.
(c) Officers’
Certificates.
The
Administrative Agent shall have received a certificate dated the Closing Date
signed on behalf of the Borrower by the Chairman of the Board, the President,
any Vice President, the Treasurer or Assistant Treasurer of the Borrower stating
that (A) on the Closing Date and after giving effect to the Loans and Letters
of
Credit being made or issued on the Closing Date, no Default or Event of Default
shall have occurred and be continuing and (B) the representations and warranties
of the Borrower contained in the Loan Documents are true and correct on and
as
of the Closing Date.
(d) Proceedings.
On the
Closing Date, the Administrative Agent shall have received (i) a copy of the
Borrower’s certificate of incorporation certified by the Secretary of State of
the Commonwealth of Pennsylvania; (ii) a certificate of the Secretary of State
of the Commonwealth of Pennsylvania, dated as of a recent date, as to the good
standing of the Borrower; and (iii) a certificate of the Secretary or an
Assistant Secretary of the Borrower dated the Closing Date and certifying (A)
that attached thereto is a true, correct and complete copy of the articles
of
incorporation of the Borrower, (B) that attached thereto is a true, correct
and
complete copy of the bylaws of the Borrower, (C) as to the absence of
dissolution or liquidation proceedings by or against the Borrower, (D) that
attached thereto is a true, correct and complete copy of resolutions adopted
by
the board of directors of the Borrower authorizing the execution, delivery
and
performance of the Loan Documents to which the Borrower is a party and each
other document delivered in connection herewith or therewith and that such
resolutions have not been amended and are in full force and effect on the date
of such certificate and (E) as to the incumbency and specimen signatures of
each
officer of the Borrower executing the Loan Documents to which the Borrower
is a
party or any other document delivered in connection herewith or
therewith.
(e) Opinions
of Counsel.
On the
Closing Date, the Administrative Agent shall have received from counsel to
the
Borrower, opinions addressed to the Administrative Agent and each Lender, dated
the Closing Date, substantially in the form of Exhibit D-1 hereto and covering
such additional matters incident to the transactions contemplated hereby as
the
Administrative Agent or the Required Lenders may reasonably
request.
(f) Repayment
of Existing Credit Agreement.
(A) All
outstanding Revolving Loans (as defined in the Existing Credit Agreement) under
the Existing Credit Agreement (the “Existing Revolving Loans”) made by any
Existing Lender thereunder who is not a Lender hereunder shall be repaid in
full
and the commitments and other obligations and rights (except as expressly set
forth in the Existing Credit Agreement) of such Lender shall be terminated,
(B)
all Existing Revolving Loans not being repaid under item (A) above, shall be,
from and after the Closing Date, Revolving Loans hereunder and the
Administrative Agent shall make such transfers of funds as are necessary in
order that the outstanding balance of such Revolving Loans, together with any
Revolving Loans funded hereunder on the Closing Date, reflect the Revolving
Commitments of the Lenders hereunder, (C) all of the Existing Letters of Credit
shall be, from and after the Closing Date, Letters of Credit hereunder, (D)
all
accrued but unpaid interest due on the Existing Revolving Loans to the Closing
Date shall be paid in cash in full on the Closing Date, (E) all accrued but
unpaid fees under the Existing Credit Agreement owing to the Administrative
Agent and the Lenders under the Existing Credit Agreement to the Closing Date
shall be paid in cash in full on the Closing Date and (F) all outstanding
promissory notes issued by the Borrower to the Lenders under the Existing Credit
Agreement shall be amended and restated pursuant to the terms and conditions
hereunder and in the other Loan Documents.
(g) Financial
Statements.
The
Administrative Agent and each Lender shall have received and be satisfied with
the (i) the audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries for the fiscal year ending December 31, 2006, audited
by Ernst & Young, LLP, or other nationally recognized independent public
accountants, and containing an opinion of such firm that such financial
statements present fairly, in all material respects and in conformity with
GAAP,
the financial position and results of operations of the Borrower and its
Consolidated Subsidiaries, and (ii) unaudited consolidated interim financial
statements of the Borrower and its Consolidated Subsidiaries for the fiscal
quarter ending March 31, 2007.
(h) Consents.
All
necessary governmental (domestic or foreign), regulatory and third party
approvals, including, without limitation, the order (“PUC Order”) of the
Pennsylvania Public Utility Commission (“PUC”) dated May 27, 2004 authorizing
borrowings hereunder, in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall have been obtained and remain
in
full force and effect, in each case without any action being taken by any
competent authority which could restrain or prevent such transaction or impose,
in the reasonable judgment of the Administrative Agent, materially adverse
conditions upon the consummation of such transactions; provided
that any
such approvals with respect to elections by the Borrower to increase the
Revolving Commitment as contemplated by Section 2.19 or to have Revolving Loans
continued as Term Loans as contemplated by Section 2.20 need not be obtained
or
provided until the Borrower makes any such election.
(i) Borrower’s
Structure.
The
corporate and capital structure of the Borrower and its Subsidiaries shall
be
satisfactory to the Administrative Agent in its reasonable
discretion.
(j) Payment
of Fees.
All
costs, fees and expenses due to the Administrative Agent, the Joint Lead
Arrangers and the Lenders on or before the Closing Date shall have been
paid.
(k) Counsel
Fees.
The
Administrative Agent shall have received full payment from the Borrower of
the
fees and expenses of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. described
in Section 9.03 which are billed through the Closing Date.
(l) Other
Materials.
The
Administrative Agent shall have received such other assurances, certificates,
documents, consents or opinions as the Administrative Agent, any Issuing Lender
or the Required Lenders may reasonably request, in each case in form and
substance satisfactory to the Administrative Agent.
Section
4.02 Conditions
to All Credit Events.
The
obligation of any Lender to make a Loan on the occasion of any Borrowing, and
the obligation of any Issuing Lender to issue (or renew or extend the term
of)
any Letter of Credit, is subject to the satisfaction of the following
conditions:
(a) the
fact
that the Closing Date shall have occurred;
(b) receipt
by the Administrative Agent of a Notice of Borrowing as required by Section
2.02, or receipt by the Issuing Lender of a Letter of Credit Request as required
by Section 3.03;
(c) the
fact
that, immediately before and after giving effect to such Credit Event, no
Default or Event of Default shall have occurred and be continuing;
and
(d) the
fact
that the representations and warranties of the Borrower contained in this
Agreement and the other Loan Documents shall be true and correct on and as
of
the date of such Credit Event (except for the representations in Sections
5.04(c), 5.05 and 5.13, which shall be deemed only to relate to the matters
referred to therein on and as of the Closing Date).
Each
Credit Event under this Agreement shall be deemed to be a representation and
warranty by the
Borrower
on the date of such Credit Event as to the facts specified in clauses (c) and
(d) of this Section.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants that:
Section
5.01 Status.
The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and has the corporate
authority to make and perform this Agreement and each other Loan Document to
which it is a party.
Section
5.02 Authority;
No Conflict.
The
execution, delivery and performance by the Borrower of this Agreement and each
other Loan Document to which it is a party have been duly authorized by all
necessary corporate action and do not violate (i) any provision of law or
regulation, or any decree, order, writ or judgment, (ii) any provision of its
articles of incorporation or bylaws, or (iii) result in the breach of or
constitute a default under any indenture or other agreement or instrument to
which the Borrower is a party; provided
that any
exercise of the option to increase the Revolving Commitment as contemplated
in
Section 2.19 will require further authorization of the Borrower’s Board of
Directors.
Section
5.03 Legality;
Etc.
This
Agreement and each other Loan Document (other than the Notes) to which the
Borrower is a party constitute the legal, valid and binding obligations of
the
Borrower, and the Notes, when executed and delivered in accordance with this
Agreement, will constitute legal, valid and binding obligations of the Borrower,
in each case enforceable against the Borrower in accordance with their terms
except to the extent limited by (a) bankruptcy, insolvency, fraudulent
conveyance or reorganization laws or by other laws relating to or affecting
the
enforceability of creditors’ rights generally and by general equitable
principles which may limit the right to obtain equitable remedies regardless
of
whether enforcement is considered in a proceeding of law or equity or (b) any
applicable public policy on enforceability of provisions relating to
contribution and indemnification.
Section
5.04 Financial
Condition.
(a) Audited
Financial Statements.
The
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as
of December 31, 2006 and the related consolidated statements of income and
cash
flows for the fiscal year then ended, reported on by Ernst & Young, LLP,
copies of which have been delivered to each of the Administrative Agent and
the
Lenders, fairly present, in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such date
and
their consolidated results of operations and cash flows for such fiscal
year.
(b) Interim
Financial Statements.
The
unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of March 31, 2007 and the related unaudited consolidated
statements of income and cash flows for the three months then ended fairly
present, in conformity with GAAP applied on a basis consistent with the
financial statements referred to in subsection (a) of this Section, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such three-month period (subject to normal year-end audit
adjustments).
(c) Material
Adverse Change.
Since
December 31, 2006 there has been no change in the business, assets, financial
condition or operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, that would materially and adversely affect the Borrower’s
ability to perform any of its obligations under this Agreement, the Notes or
the
other Loan Documents.
Section
5.05 Litigation.
Except
as disclosed in or contemplated by the Borrower’s Form 10-K Report to the SEC
for the year ended December 31, 2006 or in any subsequent Form 10-Q or 8-K
Report or otherwise furnished in writing to the Administrative Agent, no
litigation, arbitration or administrative proceeding against the Borrower is
pending or, to the Borrower’s knowledge, threatened, which, if adversely
determined, would materially and adversely affect the ability of the Borrower
to
perform any of its obligations under this Agreement, the Notes or the other
Loan
Documents. There is no litigation, arbitration or administrative proceeding
pending or, to the knowledge of the Borrower, threatened which questions the
validity of this Agreement or the other Loan Documents to which it is a
party.
Section
5.06 No
Violation.
No part
of the proceeds of the borrowings by hereunder will be used, directly or
indirectly by the Borrower for the purpose of purchasing or carrying any “margin
stock” within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System, or for any other purpose which violates, or which
conflicts with, the provisions of Regulations U or X of said Board of Governors.
The Borrower is not engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
any such “margin stock”.
Section
5.07 ERISA.
Each
member of the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect to each
Material Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Material Plan. No member of the ERISA Group has (i) sought a waiver of
the
minimum funding standard under Section 412 of the Internal Revenue Code in
respect of any Material Plan, (ii) failed to make any contribution or payment
to
any Material Plan, or made any amendment to any Material Plan, which has
resulted or could result in the imposition of a lien or the posting of a bond
or
other security under ERISA or the Internal Revenue Code or (iii) incurred any
material liability under Title IV of ERISA other than a liability to the PBGC
for premiums under Section 4007 of ERISA.
Section
5.08 Governmental
Approvals.
No
authorization, consent or approval from any Governmental Authority is required
for the execution, delivery and performance by the Borrower of this Agreement,
the Notes and the other Loan Documents to which it is a party and except such
authorizations, consents and approvals, including, without limitation, the
PUC
Order, as have been obtained prior to the Closing Date and are in full force
and
effect; provided,
that
any exercise of the option to increase the Revolving Commitment as contemplated
in Section 2.19 or to exercise the Term-Out option contemplated in Section
2.20
may require additional approvals of the PUC or the Federal Energy Regulatory
Commission.
Section
5.09 Investment
Company Act.
The
Borrower is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
Section
5.10 Tax
Returns and Payments.
The
Borrower has filed or caused to be filed all Federal, state, local and foreign
income tax returns required to have been filed by it and has paid or caused
to
be paid all income taxes shown to be due on such returns except income taxes
that are being contested in good faith by appropriate proceedings and for which
the Borrower shall have set aside on its books appropriate reserves with respect
thereto in accordance with GAAP or that would not reasonably be expected to
have
a Material Adverse Effect.
Section
5.11 Compliance
with Laws.
To the
knowledge of the Borrower, the Borrower is in compliance with all applicable
laws, regulations and orders of any Governmental Authority, domestic or foreign,
in respect of the conduct of its business and the ownership of its property
(including, without limitation, compliance with all applicable ERISA and
Environmental Laws and the requirements of any permits issued under such
Environmental Laws), except to the extent (a) such compliance is being contested
in good faith by appropriate proceedings or (b) non-compliance would not
reasonably be expected to materially and adversely affect its ability to perform
any of its obligations under this Agreement, the Notes or any other Loan
Document to which it is a party.
Section
5.12 No
Default.
No
Default or Event of Default has occurred and is continuing.
Section
5.13 Environmental
Matters.
(a) Except
(i) as disclosed in or contemplated by the Borrower’s Form 10-K Report to the
SEC for the year ended December 31, 2006 or in any subsequent Form 10-Q or
8-K
Report or otherwise furnished to the Administrative Agent in writing, or (ii)
to
the extent that the liabilities of the Borrower and its Subsidiaries, taken
as a
whole, that relate to or could result from the matters referred to in clauses
(i) through (iii) of this Section 5.13, inclusive, would not reasonably be
expected to result in a Material Adverse Effect, to the Borrower’s or any of its
Subsidiaries’ knowledge:
(i) no
notice, notification, citation, summons, complaint or order has been issued,
no
complaint has been filed, no penalty has been assessed nor is any investigation
or review pending or threatened by any governmental or other entity with respect
to any (A) alleged violation by the Borrower or any of its Subsidiaries of
any
Environmental Law, (B) alleged failure by the Borrower or any of its
Subsidiaries to have any environmental permit, certificate, license, approval,
registration or authorization required in connection with the conduct of its
business or (C) generation, storage, treatment, disposal, transportation or
release of Hazardous Substances;
(ii) no
Hazardous Substance has been released (and no written notification of such
release has been filed) (whether or not in a reportable or threshold planning
quantity) at, on or under any property now or previously owned, leased or
operated by the Borrower or any of its Subsidiaries; and
(iii) no
property now or previously owned, leased or operated by the Borrower or any
of
its Subsidiaries or any property to which the Borrower or any of its
Subsidiaries has, directly or indirectly, transported or arranged for the
transportation of any Hazardous Substances, is listed or, to the Borrower’s or
any of its Subsidiaries’ knowledge, proposed for listing, on the National
Priorities List promulgated pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (“CERCLA”),
on
CERCLIS (as defined in CERCLA) or on any similar federal, state or foreign
list
of sites requiring investigation or clean-up.
(b) Except
as
disclosed in or contemplated by the Borrower’s Form 10-K Report to the SEC for
the year ended December 31, 2006 or in any subsequent Form 10-Q or 8-K Report
or
otherwise furnished to the Administrative Agent in writing, to the Borrower’s or
any of its Subsidiaries’ knowledge, there are no Environmental Liabilities that
have resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) For
purposes of this Section 5.13, the terms “the Borrower” and “Subsidiary” shall
include any business or business entity (including a corporation) which is
a
predecessor, in whole or in part, of the Borrower or any of its Subsidiaries
from the time such business or business entity became a Subsidiary of PPL
Corporation.
Section
5.14 OFAC.
None of
the Borrower, any Subsidiary of the Borrower or any Affiliate of the Borrower:
(i) is a Sanctioned Person, (ii) has more than 10% of its assets in Sanctioned
Entities, or (iii) derives more than 10% of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned Entities.
The proceeds of any Loan will not be used and have not been used to fund any
operations in, finance any investments or activities in, or make any payments
to, a Sanctioned Person or a Sanctioned Entity.
ARTICLE
VI
COVENANTS
The
Borrower agrees that so long as any Lender has any Commitment hereunder or
any
amount payable hereunder or under any Note or other Loan Document remains unpaid
or any Letter of Credit Liability remains outstanding:
Section
6.01 Information.
The
Borrower will deliver or cause to be delivered to each of the Lenders (it being
understood that the posting of the information required in clauses (a), (b)
and
(f) of this Section 6.01 on the Borrower’s website (xxxx://xxx.xxxxxx.xxx) shall
be deemed to be effective delivery to the Lenders):
(a) Annual
Financial Statements.
Promptly when available and in any event within ten (10) days after the date
such information is required to be delivered to the SEC, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of income and cash flows
for
such fiscal year and accompanied by an opinion thereon by independent public
accountants of recognized national standing, which opinion shall state that
such
consolidated financial statements present fairly the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of the date of
such financial statements and the results of their operations for the period
covered by such financial statements in conformity with GAAP applied on a
consistent basis.
(b) Quarterly
Financial Statements.
Promptly when available and in any event within ten (10) days after the date
such information is required to be delivered to the SEC, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of such
quarter and the related consolidated statements of income and cash flows for
such fiscal quarter, all certified (subject to normal year-end audit
adjustments) as to fairness of presentation, GAAP and consistency by any vice
president, the treasurer or the controller of the Borrower.
(c) Officer’s
Certificate.
Simultaneously with the delivery of each set of financial statements referred
to
in subsections (a) and (b) above, a certificate of the chief accounting officer
of the Borrower, (i) setting forth in reasonable detail the calculations
required to establish compliance with the requirements of Section 6.09 on the
date of such financial statements and (ii) stating whether there exists on
the
date of such certificate any Default or Event of Default and, if any Default
or
Event of Default then exists, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect
thereto.
(d) Default.
Forthwith upon acquiring knowledge of the occurrence of any (i) Default or
(ii)
Event of Default, in either case a certificate of a vice president or the
treasurer of the Borrower setting forth the details thereof and the action
which
the Borrower is taking or proposes to take with respect thereto.
(e) Change
in Borrower’s Ratings.
Upon
the chief executive officer, the president, any vice president or any senior
financial officer of the Borrower obtaining knowledge of any change in a
Borrower’s Rating, a notice of such Borrower’s Rating in effect after giving
effect to such change.
(f) Securities
Laws Filing.
Promptly when available and in any event within ten (10) days after the date
such information is required to be delivered to the SEC, a copy of any Form
10-K
Report to the SEC and a copy of any Form 10-Q Report to the SEC, and promptly
upon the filing thereof, any other filings with the SEC.
(g) ERISA
Matters.
If and
when any member of the ERISA Group: (i) gives or is required to give notice
to
the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with
respect to any Material Plan which might constitute grounds for a termination
of
such Plan under Title IV of ERISA, or knows that the plan administrator of
any
Material Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives, with respect to any Material Plan that is
a
Multiemployer Plan, notice of any complete or partial withdrawal liability
under
Title IV of ERISA, or notice that any Multiemployer Plan is in reorganization,
is insolvent or has been terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate, impose
material liability (other than for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer any Material Plan, a copy of
such
notice; (iv) applies for a waiver of the minimum funding standard under Section
412 of the Internal Revenue Code with respect to a Material Plan, a copy of
such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063
of
ERISA; or (vii) fails to make any payment or contribution to any Plan or makes
any amendment to any Plan which has resulted or could result in the imposition
of a lien or the posting of a bond or other security, a copy of such notice,
a
certificate of the chief accounting officer of the Borrower setting forth
details as to such occurrence and action, if any, which the Borrower or
applicable member of the ERISA Group is required or proposes to
take.
(h) Other
Information.
From
time to time such additional financial or other information regarding the
financial condition, results of operations, properties, assets or business
of
the Borrower or any of its Subsidiaries as any Lender may reasonably
request.
The
Borrower hereby acknowledges that (a) the Administrative Agent will make
available to the Lenders and the Issuing Lender materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another similar
electronic system (the “Platform”) and (b) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each,
a
“Public Lender”). The Borrower hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that
may
be distributed to the Public Lenders and that (w) all such Borrower Materials
shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Issuing Lender and the Lenders to
treat
such Borrower Materials as not containing any material non-public information
(although it may be sensitive and proprietary) with respect to the Borrower
or
its securities for purposes of United States Federal and state securities laws
(provided,
however,
that to
the extent such Borrower Materials constitute Information (as defined below),
they shall be treated as set forth in Section 9.12); (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting (subject to Section 9.12) on a portion of the Platform
not designated “Public Investor.” “Information”
means
all information received from the Borrower or any of its Subsidiaries relating
to the Borrower or any of its Subsidiaries or any of their respective
businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Lender on a nonconfidential
basis prior to disclosure by the Borrower or any of its Subsidiaries;
provided
that, in
the case of information received from the Borrower or any of its Subsidiaries
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Section
6.02 Maintenance
of Property; Insurance.
(a) Maintenance
of Properties.
The
Borrower will keep all property useful and necessary in its businesses in good
working order and condition, subject to ordinary wear and tear, unless the
Borrower determines in good faith that the continued maintenance of any of
such
properties is no longer economically desirable and so long as the failure to
so
maintain such properties would not reasonably be expected to have a Material
Adverse Effect.
(b) Insurance.
The
Borrower will maintain, or cause to be maintained, insurance with financially
sound (determined in the reasonable judgment of the Borrower) and responsible
companies in such amounts (and with such risk retentions) and against such
risks
as is usually carried by owners of similar businesses and properties in the
same
general areas in which the Borrower operates.
Section
6.03 Conduct
of Business and Maintenance of Existence.
The
Borrower will (i) continue to engage in businesses of the same general type
as
now conducted by the Borrower and its Subsidiaries and businesses related
thereto or arising out of such businesses, except to the extent that the failure
to maintain any existing business would not have a Material Adverse Effect
and
(ii) except as otherwise permitted in Section 6.07, preserve, renew and keep
in
full force and effect, and will cause each of its Subsidiaries to preserve,
renew and keep in full force and effect, their respective corporate (or other
entity) existence and their respective rights, privileges and franchises
necessary or material to the normal conduct of business, except, in each case,
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
Section
6.04 Compliance
with Laws, Etc.
The
Borrower will comply with all applicable laws, regulations and orders of any
Governmental Authority, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including, without limitation,
compliance with all applicable ERISA and Environmental Laws and the requirements
of any permits issued under such Environmental Laws), except to the extent
(a)
such compliance is being contested in good faith by appropriate proceedings
or
(b) non-compliance could not reasonably be expected to have a Material Adverse
Effect.
Section
6.05 Books
and Records.
The
Borrower (i) will keep, and will cause each of its Subsidiaries to keep, proper
books of record and account in conformity with GAAP and (ii) will permit
representatives of the Administrative Agent and each of the Lenders to visit
and
inspect any of their respective properties, to examine and make copies from
any
of their respective books and records and to discuss their respective affairs,
finances and accounts with their officers, any employees and independent public
accountants, all at such reasonable times and as often as may reasonably be
desired; provided,
that,
the rights created in this Section 6.05 to “visit”, “inspect”, “discuss” and
copy shall not extend to any matters which the Borrower deems, in good faith,
to
be confidential, unless the Administrative Agent and any such Lender agree
in
writing to keep such matters confidential.
Section
6.06 Use
of Proceeds.
The
proceeds of the Loans made under this Agreement will be used by the Borrower
for
general corporate purposes, including as a commercial paper backstop, of the
Borrower and its Subsidiaries. The Borrower will request the issuance of Letters
of Credit solely for general corporate purposes of the Borrower and its
Subsidiaries. No such use of the proceeds for general corporate purposes will
be, directly or indirectly, for the purpose, whether immediate, incidental
or
ultimate, of buying or carrying any Margin Stock within the meaning of
Regulation U.
Section
6.07 Merger
or Consolidation.
The
Borrower will not merge with or into or consolidate with or into any other
corporation or entity, unless (i) immediately after giving effect thereto,
no
event shall occur and be continuing which constitutes a Default or Event
Default, (ii) the surviving or resulting Person, as the case may be, assumes
and
agrees in writing to pay and perform all of the obligations of the Borrower
under this Agreement, (iii) substantially all of the consolidated assets and
consolidated revenues of the surviving or resulting person, as the case may
be,
are anticipated to come from the utility or energy businesses and (iv) the
surviving or resulting person, as the case may be, has senior long-term debt
ratings from at least two Rating Agencies that are at least equal to each
Borrower’s Rating at the end of the fiscal quarter immediately preceding the
effective date of such consolidation or merger.
Section
6.08 Asset
Sales.
Except
for the sale of assets required to be sold to conform with governmental
requirements, the Borrower shall not consummate any Asset Sale, if the aggregate
net book value of all such Asset Sales consummated during the four calendar
quarters immediately preceding any date of determination would exceed 25% of
the
total assets of the Borrower and its Consolidated Subsidiaries as of the
beginning of the Borrower’s most recently ended full fiscal quarter;
provided,
however,
that
any such Asset Sale will be disregarded for purposes of the 25% limitation
specified above: (a) if any such Asset Sale is in the ordinary course of
business of the Borrower; (b) if the assets subject to any such Asset Sale
are
worn out or are no longer useful or necessary in connection with the operation
of the businesses of the Borrower; (c) if the assets subject to any such Asset
Sale are being transferred to a Wholly Owned Subsidiary of the Borrower; (d)
if
the proceeds from any such Asset Sale (i) are, within twelve (12) months of
such
Asset Sale, invested or reinvested by the Borrower in a Permitted Business,
(ii)
are used by the Borrower to repay Debt of the Borrower, or (iii) are retained
by
the Borrower; or (e) if, prior to any such Asset Sale, at least two of the
Rating Agencies confirm the then-current Borrower Ratings after giving effect
to
any such Asset Sale.
Section
6.09 Consolidated
Debt to Consolidated Capitalization Ratio.
The
ratio of Consolidated Debt of the Borrower to Consolidated Capitalization of
the
Borrower shall not exceed 70% at any time.
ARTICLE
VII
DEFAULTS
Section
7.01 Events
of Default.
If one
or more of the following events (each an “Event
of Default”)
shall
have occurred and be continuing:
(a) the
Borrower shall fail to pay when due any principal of the Loans or shall fail
to
reimburse when due any drawing under any Letter of Credit; or
(b) the
Borrower shall fail to pay when due any interest on the Loans and Reimbursement
Obligations, any fee or any other amount payable hereunder or under any other
Loan Document for five (5) days following the date such payment becomes due
hereunder; or
(c) the
Borrower shall fail to observe or perform any covenant or agreement contained
in
clause (ii) of Section 6.05 or Sections 6.06, 6.07, 6.08 or 6.09;
or
(d) the
Borrower shall fail to observe or perform any covenant or agreement contained
in
Section 6.01(d)(i) for 30 days after any such failure or in Section 6.01(d)(ii)
for ten (10) days after any such failure; or
(e) the
Borrower shall fail to observe or perform any covenant or agreement contained
in
this Agreement or any other Loan Document (other than those covered by clauses
(a), (b), (c) or (d) above) for thirty (30) days after written notice thereof
has been given to the defaulting party by the Administrative Agent, or at the
request of the Required Lenders; or
(f) any
representation, warranty or certification made by the Borrower in this Agreement
or any other Loan Document or in any certificate, financial statement or other
document delivered pursuant hereto or thereto shall prove to have been incorrect
in any material respect when made or deemed made; or
(g) the
Borrower shall (i) fail to pay any principal or interest, regardless of amount,
due in respect of any Material Debt beyond any period of grace provided with
respect thereto, or (ii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing
or
governing any such Material Debt beyond any period of grace provided with
respect thereto if the effect of any failure referred to in this clause (ii)
is
to cause, or to permit the holder or holders of such Debt or a trustee on its
or
their behalf to cause, such Debt to become due prior to its stated maturity;
or
(h) the
Borrower shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by
any
such official in an involuntary case or other proceeding commenced against
it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay, or shall admit in writing its inability to pay, its debts
as
they become due, or shall take any corporate action to authorize any of the
foregoing; or
(i) an
involuntary case or other proceeding shall be commenced against the Borrower
seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter
in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against the
Borrower under the Bankruptcy Code; or
(j) any
member of the ERISA Group shall fail to pay when due an amount or amounts
aggregating in excess of $25,000,000 which it shall have become liable to pay
under Title IV of ERISA; or notice of intent to terminate a Material Plan shall
be filed under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur
a
complete or partial withdrawal from, or default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could reasonably be expected to cause one or more members of the ERISA Group
to
incur a current payment obligation in excess of $25,000,000; or
(k) the
Borrower shall fail within sixty (60) days to pay, bond or otherwise discharge
any judgment or order for the payment of money in excess of $20,000,000, entered
against the Borrower that is not stayed on appeal or otherwise being
appropriately contested in good faith; or
(l) a
Change
of Control shall have occurred;
then,
and
in every such event, while such event is continuing, the Administrative Agent
may (A) if requested by the Required Lenders, by notice to the Borrower
terminate the Commitments, and the Commitments shall thereupon terminate, and
(B) if requested by the Lenders holding more than 50% of the sum of the
aggregate outstanding principal amount of the Loans and Letter of Credit
Liabilities at such time, by notice to the Borrower declare the Loans and Letter
of Credit Liabilities (together with accrued interest and accrued and unpaid
fees thereon) to be, and the Loans and Letter of Credit Liabilities shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind (except as set forth in clause (A) above),
all of which are hereby waived by the Borrower; and require the Borrower to,
and
the Borrower shall, cash collateralize (in accordance with Section 2.09(a)(ii))
all Letter of Credit Liabilities then outstanding; provided,
that,
in the case of any Default or any Event of Default specified in clause 7.01(h)
or 7.01(i) above with respect to the Borrower, without any notice to the
Borrower or any other act by the Administrative Agent or any Lender, the
Commitments shall thereupon terminate and the Loans and Letter of Credit
Liabilities (together with accrued interest and accrued and unpaid fees thereon)
shall become immediately due and payable without presentment, demand, protest
or
other notice of any kind, all of which are hereby waived by the Borrower, and
the Borrower shall cash collateralize (in accordance with Section 2.09(a)(ii))
all Letter of Credit Liabilities then outstanding.
ARTICLE
VIII
THE
AGENTS
Section
8.01 Appointment
and Authorization.
Each
Lender hereby irrevocably designates and appoints the Administrative Agent
to
act as specified herein and in the other Loan Documents and to take such actions
on its behalf under the provisions of this Agreement and the other Loan
Documents and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such upon the express conditions
contained in this Article VIII. Notwithstanding any provision to the contrary
elsewhere in this Agreement or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly
set
forth herein or in the other Loan Documents, or any fiduciary relationship
with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent. The provisions of this Article VIII are solely
for the benefit of the Administrative Agent and Lenders, and no other Person
shall have any rights as a third party beneficiary of any of the provisions
hereof. For the sake of clarity, the Lenders hereby agree that neither the
Syndication Agents, the Joint Lead Arrangers nor the Documentation Agents shall
have any duties or powers with respect to this Agreement or the other Loan
Documents.
Section
8.02 Individual
Capacity.
The
Administrative Agent and its Affiliates may make loans to, accept deposits
from
and generally engage in any kind of business with the Borrower and its
Affiliates as though the Administrative Agent were not an Agent. With respect
to
the Loans made by it and all obligations owing to it, the Administrative Agent
shall have the same rights and powers under this Agreement as any Lender and
may
exercise the same as though it were not an Agent, and the terms “Required
Lenders”, “Lender” and “Lenders” shall include the Administrative Agent in its
individual capacity.
Section
8.03 Delegation
of Duties.
The
Administrative Agent may execute any of its duties under this Agreement or
any
other Loan Document by or through agents or attorneys-in-fact. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care except
to
the extent otherwise required by Section 8.07.
Section
8.04 Reliance
by the Administrative Agent.
The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy or other electronic facsimile transmission, telex,
telegram, cable, teletype, electronic transmission by modem, computer disk
or
any other message, statement, order or other writing or conversation believed
by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent shall
be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders, or all of the Lenders, if applicable,
as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by
it by
reason of taking or continuing to take any such action. The Administrative
Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders or all of the Lenders, if applicable, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Lenders.
Section
8.05 Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating
that
such notice is a “notice of default”. If the Administrative Agent receives such
a notice, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided,
that,
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
Section
8.06 Non-Reliance
on the Agents and Other Lenders.
Each
Lender expressly acknowledges that no Agent or officer, director, employee,
agent, attorney-in-fact or affiliate of any Agent has made any representations
or warranties to it and that no act by any Agent hereafter taken, including
any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon any Agent
or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and to enter into this Agreement. Each Lender also represents that
it
will, independently and without reliance upon any Agent or any other Lender,
and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such investigation
as it deems necessary to inform itself as to the business, assets, operations,
property, financial and other condition, prospects and creditworthiness of
the
Borrower. No Agent shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
assets, property, financial and other condition, prospects or creditworthiness
of the Borrower which may come into the possession of such Agent or any of
its
officers, directors, employees, agents, attorneys-in-fact or
affiliates.
Section
8.07 Exculpatory
Provisions.
The
Administrative Agent shall not, and no officers, directors, employees, agents,
attorneys-in-fact or affiliates of the Administrative Agent, shall (i) be liable
for any action lawfully taken or omitted to be taken by it under or in
connection with this Agreement or any other Loan Document (except for its own
gross negligence, willful misconduct or bad faith) or (ii) be responsible in
any
manner to any of the Lenders for any recitals, statements, representations
or
warranties made by the Borrower or any of its officers contained in this
Agreement, in any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document or for any failure of the Borrower or any of its officers to
perform its obligations hereunder or thereunder. The Administrative Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to
the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower. The Administrative Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made by any other Person herein or therein or made by any other Person in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or therewith
furnished or made by the Administrative Agent to the Lenders or by or on behalf
of the Borrower to the Administrative Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein
or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
Section
8.08 Indemnification.
To the
extent that the Borrower for any reason fails to indefeasibly pay any amount
required under Sections 9.03(a), (b) or (c) to be paid by it to the
Administrative Agent (or any sub-agent thereof), the Lenders agree to indemnify
the Administrative Agent, in its capacity as such, and hold the Administrative
Agent, in its capacity as such, harmless ratably according to their respective
Commitments or, in the event the Term-Out option has been exercised pursuant
to
Section 2.20, according to the ratio which the principal amount of Term Loans
held by such Lender bears to the aggregate of all outstanding Term Loans, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs and reasonable expenses or disbursements of
any
kind whatsoever which may at any time (including, without limitation, at any
time following the full payment of the obligations of the Borrower hereunder)
be
imposed on, incurred by or asserted against the Administrative Agent, in its
capacity as such, in any way relating to or arising out of this Agreement or
any
other Loan Document, or any documents contemplated hereby or referred to herein
or the transactions contemplated hereby or any action taken or omitted to be
taken by the Administrative Agent under or in connection with any of the
foregoing, but only to the extent that any of the foregoing is not paid by
the
Borrower; provided,
that no
Lender shall be liable to the Administrative Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs or expenses or disbursements resulting from the gross
negligence, willful misconduct or bad faith of the Administrative Agent. If
any
indemnity furnished to the Administrative Agent for any purpose shall, in the
reasonable opinion of the Administrative Agent, be insufficient or become
impaired, the Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreement in this Section 8.08 shall survive the
payment of all Loans, Letter of Credit Liabilities, fees and other obligations
of the Borrower arising hereunder.
Section
8.09 Resignation;
Successors.
The
Administrative Agent may resign as Administrative Agent upon twenty (20) days’
notice to the Lenders. Upon the resignation of the Administrative Agent, the
Required Lenders shall appoint from among the Lenders a successor to the
Administrative Agent, subject to prior approval by the Borrower (so long as
no
Event of Default exists) and the consent of the Required Lenders (such approval
or consent, as the case may be, not to be unreasonably withheld), whereupon
such
successor Administrative Agent shall succeed to the rights, powers and duties
of
the retiring Administrative Agent, and the term “Administrative Agent” shall
include such successor Administrative Agent effective upon its appointment,
and
the retiring Administrative Agent’s rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the
part
of such former Administrative Agent or any of the parties to this Agreement
or
any other Loan Document. After the retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article VIII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement or any other Loan Document.
Any
resignation by Wachovia Bank, National Association, as Administrative Agent
pursuant to this Section shall also constitute its resignation as Issuing Lender
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
Issuing Lender and Swingline Lender, (b) the retiring Issuing Lender 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
Issuing Lender shall issue letters of credit in substitution for the Letters
of
Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring Issuing Lender to effectively assume
the obligations of the retiring Issuing Lender with respect to such Letters
of
Credit.
Section
8.10 Administrative
Agent’s Fees.
The
Borrower shall pay to the Administrative Agent for its own account fees in
the
amount and at the times agreed upon between the Borrower, the Administrative
Agent and Wachovia Securities pursuant to the Fee Letter.
ARTICLE
IX
MISCELLANEOUS
Section
9.01 Notices.
Except
as otherwise expressly provided herein, all notices and other communications
hereunder shall be in writing (for purposes hereof, the term “writing” shall
include information in electronic format such as electronic mail and internet
web pages) or by telephone subsequently confirmed in writing; provided
that the
foregoing shall not apply to notices to any Lender, Swingline Lender or Issuing
Lender pursuant to Article II or Article III, as applicable, if such Lender,
Swingline Lender or Issuing Lender, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article in electronic format. Any notice shall have been duly given and shall
be
effective if delivered by hand delivery or sent via electronic mail, telecopy,
recognized overnight courier service or certified or registered mail, return
receipt requested, or posting on an internet web page, and shall be presumed
to
be received by a party hereto (i) on the date of delivery if delivered by hand
or sent by electronic mail, posting on an internet web page, or telecopy, (ii)
on the Business Day following the day on which the same has been delivered
prepaid (or on an invoice basis) to a reputable national overnight air courier
service or (iii) on the third Business Day following the day on which the same
is sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers, in the case of the
Borrower and the Administrative Agent, set forth below, and, in the case of
the
Lenders, set forth on signature pages hereto, or at such other address as such
party may specify by written notice to the other parties hereto:
if
to the
Borrower:
PPL
Electric Utilities Corporation
Xxx
Xxxxx
Xxxxx Xxxxxx (XXXXX00)
Xxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx X. Xxxxxxxx
Telephone:
000-000-0000
Facsimile:
000-000-0000
with
a
copy to:
PPL
Electric Utilities Corporation
Xxx
Xxxxx
Xxxxx Xxxxxx (XXXXX0)
Xxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx X. XxXxxxx, Esq.
Telephone:
000-000-0000
Facsimile:
000-000-0000
if
to the
Administrative Agent:
Wachovia
Bank, National Association
One
Wachovia Center
000
Xxxxx
Xxxxxxx Xxxxxx - 00xx
Xxxxx,
XX 5562
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxx Xxxxx
Telephone:
000-000-0000
Facsimile:
000-000-0000
with
a
copy to:
Wachovia
Bank, National Association
000
Xxxxx
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Syndications Agency Services
Telephone:
000-000-0000
Facsimile:
000-000-0000
with
a
copy to:
Xxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
000
Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
Telephone
: 000-000-0000
Facsimile:
000-000-0000
Section
9.02 No
Waivers; Non-Exclusive Remedies.
No
failure by any Agent or any Lender to exercise, no course of dealing with
respect to, and no delay in exercising any right, power or privilege hereunder
or under any Note or other Loan Document shall operate as a waiver thereof
nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided herein and in the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by
law.
Section
9.03 Expenses;
Indemnification.
(a) Expenses.
The
Borrower shall pay (i) all out-of-pocket expenses of the Agents, including
legal
fees and disbursements of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. and
any other local counsel retained by the Administrative Agent, in its reasonable
discretion, in connection with the preparation, execution, delivery and
administration of the Loan Documents, the syndication efforts of the Agents
with
respect thereto, any waiver or consent thereunder or any amendment thereof
or
any Default or alleged Default thereunder and (ii) if an Event of Default
occurs, all reasonable out-of-pocket expenses incurred by the Agents and each
Lender, including (without duplication) the fees and disbursements of outside
counsel, in connection with such Event of Default and restructuring, workout,
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom; provided, that the Borrower shall not be liable for any legal fees
or
disbursements of any counsel for the Agents and the Lenders other than Xxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. associated with the preparation,
execution and delivery of this Agreement and the closing documents contemplated
hereby.
(b) Indemnity
in Respect of Loan Documents.
The
Borrower agrees to indemnify the Agents and each Lender, their respective
Affiliates and the respective directors, officers, trustees, agents and
employees of the foregoing (each an “Indemnitee”) and hold each Indemnitee
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs and expenses or disbursements of
any
kind whatsoever, (including, without limitation, the reasonable fees and
disbursements of counsel, and any civil penalties or fines assessed by OFAC)
which may at any time (including, without limitation, at any time following
the
payment of the obligations of the Borrower hereunder) be imposed on, incurred
by
or asserted against such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such Indemnitee shall
be
designated a party thereto) brought or threatened relating to or arising out
of
the Loan Documents or any actual or proposed use of proceeds of Loans hereunder;
provided, that no Indemnitee shall have the right to be indemnified hereunder
for such Indemnitee’s own gross negligence or willful misconduct as determined
by a court of competent jurisdiction in a final, non-appealable judgment or
order.
(c) Indemnity
in Respect of Environmental Liabilities.
The
Borrower agrees to indemnify each Lender and hold each Lender harmless from
and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs and expenses or disbursements of any kind
whatsoever (including, without limitation, reasonable expenses of investigation
by engineers, environmental consultants and similar technical personnel and
reasonable fees and disbursements of counsel) which may at any time (including,
without limitation, at any time following the payment of the obligations of
the
Borrower hereunder) be imposed on, incurred by or asserted against such Lender
in respect of or in connection with any and all Environmental Liabilities.
Without limiting the generality of the foregoing, the Borrower hereby waives
all
rights of contribution or any other rights of recovery with respect to
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs and expenses and disbursements in respect of or in connection with
Environmental Liabilities that it might have by statute or otherwise against
any
Lender.
(d) Waiver
of Damages.
To the
fullest extent permitted by applicable law, the Borrower shall not assert,
and
hereby waives, any claim against any Indemnitee, on any theory of liability,
for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter
of
Credit or the use of the proceeds thereof. No Indemnitee referred to in clause
(b) above shall be liable for 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; provided that nothing in this Section 9.03(d)
shall relieve a Lender of its obligations under Section 9.12.
Section
9.04 Sharing
of Set-Offs.
Each
Lender agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Loan made or Note
held
by it and any Letter of Credit Liabilities which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal
and
interest due with respect to any Loan, Note and Letter of Credit Liabilities
made or held by such other Lender, the Lender receiving such proportionately
greater payment shall purchase such participations in the Loan made or Notes
and
Letter of Credit Liabilities held by the other Lenders, and such other
adjustments shall be made, in each case as may be required so that all such
payments of principal and interest with respect to the Loan made or Notes and
Letter of Credit Liabilities made or held by the Lenders shall be shared by
the
Lenders pro rata; provided,
that
nothing in this Section shall impair the right of any Lender to exercise any
right of set-off or counterclaim it may have for payment of indebtedness of
the
Borrower other than its indebtedness hereunder.
Section
9.05 Amendments
and Waivers.
Any
provision of this Agreement or the Notes may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the Borrower and
the
Required Lenders (and, if the rights or duties of the Administrative Agent,
Swingline Lender or any Issuing Lenders are affected thereby, by the
Administrative Agent, Swingline Lender or such Issuing Lender, as relevant);
provided,
that no
such amendment or waiver shall, unless signed by each Lender affected thereby,
(i) increase or decrease the Commitment of any Lender (except for a ratable
decrease in the Commitments of all of the Lenders) or subject any Lender to
any
additional obligation (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or of mandatory reductions in the
Commitments shall not constitute an increase of the Commitment of any Lender,
and that an increase in the available portion of any Commitment of any Lender
as
in effect at any time shall not constitute an increase in such Commitment),
(ii)
reduce the principal of or rate of interest on any Loan (except in connection
with a waiver of applicability of any post-default increase in interest rates)
or the amount to be reimbursed in respect of any Letter of Credit or any
interest thereon or any fees hereunder, (iii) postpone the date fixed for any
payment of interest on any Loan or the amount to be reimbursed in respect of
any
Letter of Credit or any interest thereon or any fees hereunder or for any
scheduled reduction or termination of any Commitment or (except as expressly
provided in Article III) expiration date of any Letter of Credit, (iv) postpone
or change the date fixed for any scheduled payment of principal of any Loan
or
(v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans and Letter of Credit Liabilities, or the number
of
Lenders, which shall be required for the Lenders or any of them to take any
action under this Section or any other provision of this Agreement.
Section
9.06 Successors
and Assigns.
(a) Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns, except that
the
Borrower may not assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all of the Lenders, except to
the
extent any such assignment results from the consummation of a merger or
consolidation permitted pursuant to Section 6.07 of this Agreement.
(b) Participations.
Any
Lender may at any time grant to one or more banks or other financial
institutions or special purpose funding vehicle (each a “Participant”)
participating interests in its Commitments and/or any or all of its Loans and
Letter of Credit Liabilities. In the event of any such grant by a Lender of
a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Lender shall remain responsible
for
the performance of its obligations hereunder, and the Borrower, the Issuing
Lenders, Swingline Lender and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which any Lender
may
grant such a participating interest shall provide that such Lender shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided, that such
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement which would (i) extend
the
Termination Date, reduce the rate or extend the time of payment of principal,
interest or fees on any Loan or Letter of Credit Liability in which such
Participant is participating (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the Participant’s
participation over the amount thereof then in effect (it being understood that
a
waiver of any Default or Event of Default or of a mandatory reduction in the
Commitments shall not constitute a change in the terms of such participation,
and that an increase in any Commitment or Loan or Letter of Credit Liability
shall be permitted without the consent of any Participant if the Participant’s
participation is not increased as a result thereof) or (ii) allow the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement, without the consent of the Participant, except to the extent any
such
assignment results from the consummation of a merger or consolidation permitted
pursuant to Section 6.07 of this Agreement. The Borrower agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article II with respect to its participating
interest to the same extent as if it were a Lender, subject to the same
limitations, and in no case shall any Participant be entitled to receive any
amount payable pursuant to Article II that is greater that the amount the Lender
granting such Participant’s participating interest would have been entitled to
receive had such Lender not sold such participating interest. An assignment
or
other transfer which is not permitted by subsection (c) or (d) below shall
be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection
(b).
(c) Assignments
Generally.
Any
Lender may at any time assign to one or more Eligible Assignees (each, an
“Assignee”) all, or a proportionate part (equivalent to an initial amount of not
less than $5,000,000 or any larger multiple of $1,000,000), of its rights and
obligations under this Agreement and the Notes with respect to its Loans and,
if
still in existence, its Revolving Commitment, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit C attached hereto executed by such Assignee
and such transferor, with (and subject to) the consent of the Borrower, which
shall not be unreasonably withheld, the Administrative Agent, the Swingline
Lender and the Issuing Lenders, which consent shall not be unreasonably
withheld; provided, that if an Assignee is an Affiliate of such transferor
Lender or was a Lender immediately prior to such assignment, no such consent
of
the Borrower or the Administrative Agent shall be required; provided, further,
that if at the time of such assignment a Default or an Event of Default has
occurred and is continuing, no such consent of the Borrower shall be required.
Upon execution and delivery of such instrument and payment by such Assignee
to
such transferor of an amount equal to the purchase price agreed between such
transferor and such Assignee, such Assignee shall be a Lender party to this
Agreement and shall have all the rights and obligations of a Lender with a
Commitment, if any, as set forth in such instrument of assumption, and the
transferor shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor shall pay to the
Administrative Agent an administrative fee for processing such assignment in
the
amount of $3,500. If the Assignee is not incorporated under the laws of the
United States or any state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or withholding
of any United States Taxes in accordance with Section 2.17.
(d) Assignments
to Federal Reserve Banks.
Any
Lender may at any time assign all or any portion of its rights under this
Agreement and its Note to a Federal Reserve Bank. No such assignment shall
release the transferor Lender from its obligations hereunder.
(e) Register.
The
Borrower hereby designates the Administrative Agent to serve as the Borrower’s
agent, solely for purposes of this subsection 9.06(e), to (i) maintain a
register (the “Register”) on which the Administrative Agent will record the
Commitments from time to time of each Lender, the Loans made by each Lender
and
each repayment in respect of the principal amount of the Loans of each Lender
and to (ii) retain a copy of each Assignment and Assumption Agreement delivered
to the Administrative Agent pursuant to this Section. Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrower’s
obligation in respect of such Loans. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent, the Swingline Lender, the Issuing Lenders and the other
Lenders shall treat each Person in whose name a Loan and the Note evidencing
the
same is registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. With respect
to
any Lender, the assignment or other transfer of the Commitments of such Lender
and the rights to the principal of, and interest on, any Loan made and any
Note
issued pursuant to this Agreement shall not be effective until such assignment
or other transfer is recorded on the Register and, except to the extent provided
in this subsection 9.06(e), otherwise complies with Section 9.06, and prior
to
such recordation all amounts owing to the transferring Lender with respect
to
such Commitments, Loans and Notes shall remain owing to the transferring Lender.
The registration of assignment or other transfer of all or part of any
Commitments, Loans and Notes for a Lender shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement and payment of the administrative fee referred to in
Section 9.06(c). The Register shall be available for inspection by each of
the
Borrower, the Swingline Lender and each Issuing Lender at any reasonable time
and from time to time upon reasonable prior notice. In addition, at any time
that a request for a consent for a material or substantive change to the Loan
Documents is pending, any Lender wishing to consult with other Lenders in
connection therewith may request and receive from the Administrative Agent
a
copy of the Register. The Borrower may not replace any Lender pursuant to
Section 2.08(b), unless, with respect to any Notes held by such Lender, the
requirements of subsection 9.06(c) and this subsection 9.06(e) have been
satisfied.
Section
9.07 Governing
Law; Submission to Jurisdiction.
This
Agreement and each Note shall be governed by and construed in accordance with
the internal laws of the State of New York. The Borrower hereby submits to
the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may
now
or hereafter have to the laying of the venue of any such proceeding brought
in
such court and any claim that any such proceeding brought in any such court
has
been brought in an inconvenient forum.
Section
9.08 Counterparts;
Integration; Effectiveness.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement, the other Loan Documents and the Fee Letter
constitute the entire agreement and understanding among the parties hereto
and
supersede any and all prior agreements and understandings, oral or written,
relating to the subject matter hereof and thereof. This Agreement shall become
effective upon receipt by the Administrative Agent of counterparts hereof signed
by each of the parties hereto (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the Administrative
Agent in form satisfactory to it of telegraphic, telex, facsimile or other
written confirmation from such party of execution of a counterpart hereof by
such party).
Section
9.09 Generally
Accepted Accounting Principles.
Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for changes concurred in by the Borrower’s independent public
accountants) with the audited consolidated financial statements of the Borrower
and its Consolidated Subsidiaries most recently delivered to the Lenders;
provided,
that,
if the Borrower notifies the Administrative Agent that the Borrower wishes
to
amend any covenant in Article VI to eliminate the effect of any change in GAAP
on the operation of such covenant (or if the Administrative Agent notifies
the
Borrower that the Required Lenders wish to amend Article VI for such purpose),
then the Borrower’s compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended
in
a manner satisfactory to the Borrower and the Required Lenders.
Section
9.10 Usage.
The
following rules of construction and usage shall be applicable to this Agreement
and to any instrument or agreement that is governed by or referred to in this
Agreement.
(a) All
terms
defined in this Agreement shall have the defined meanings when used in any
instrument governed hereby or referred to herein and in any certificate or
other
document made or delivered pursuant hereto or thereto unless otherwise defined
therein.
(b) The
words
“hereof”, “herein”, “hereunder” and words of similar import when used in this
Agreement or in any instrument or agreement governed here shall be construed
to
refer to this Agreement or such instrument or agreement, as applicable, in
its
entirety and not to any particular provision or subdivision hereof or
thereof.
(c) References
in this Agreement to “Article”, “Section”, “Exhibit”, “Schedule” or another
subdivision or attachment shall be construed to refer to an article, section
or
other subdivision of, or an exhibit, schedule or other attachment to, this
Agreement unless the context otherwise requires; references in any instrument
or
agreement governed by or referred to in this Agreement to “Article”, “Section”,
“Exhibit”, “Schedule” or another subdivision or attachment shall be construed to
refer to an article, section or other subdivision of, or an exhibit, schedule
or
other attachment to, such instrument or agreement unless the context otherwise
requires.
(d) The
definitions contained in this Agreement shall apply equally to the singular
and
plural forms of such terms. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The word “will”
shall be construed to have the same meaning as the word “shall”. The term
“including” shall be construed to have the same meaning as the phrase “including
without limitation”.
(e) Unless
the context otherwise requires, any definition of or reference to any agreement,
instrument, statute or document contained in this Agreement or in any agreement
or instrument that is governed by or referred to in this Agreement shall be
construed (i) as referring to such agreement, instrument, statute or document
as
the same may be amended, supplemented or otherwise modified from time to time
(subject to any restrictions on such amendments, supplements or modifications
set forth in this Agreement or in any agreement or instrument governed by or
referred to in this Agreement), including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession
of
comparable successor statutes and (ii) to include (in the case of agreements
or
instruments) references to all attachments thereto and instruments incorporated
therein. Any reference to any Person shall be construed to include such Person’s
successors and permitted assigns.
(f) Unless
the context otherwise requires, whenever any statement is qualified by “to the
best knowledge of” or “known to” (or a similar phrase) any Person that is not a
natural person, it is intended to indicate that the senior management of such
Person has conducted a commercially reasonable inquiry and investigation prior
to making such statement and no member of the senior management of such Person
(including managers, in the case of limited liability companies, and general
partners, in the case of partnerships) has current actual knowledge of the
inaccuracy of such statement.
Section
9.11 WAIVER
OF JURY TRIAL.
THE
BORROWER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
9.12 Confidentiality.
Each
Lender agrees to hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe
and
sound banking practices; provided,
that
nothing herein shall prevent any Lender from disclosing such information (i)
to
any other Lender or to any Agent, (ii) to any other Person if reasonably
incidental to the administration of the Loans and Letter of Credit Liabilities,
(iii) upon the order of any court or administrative agency, (iv) to the extent
requested by, or required to be disclosed to, any rating agency or regulatory
agency or similar authority (including any self-regulatory authority, such
as
the National Association of Insurance Commissioners), (v) which had been
publicly disclosed other than as a result of a disclosure by any Agent or any
Lender prohibited by this Agreement, (vi) in connection with any litigation
to
which any Agent, any Lender or any of their respective Subsidiaries or
Affiliates may be party, (vii) to the extent necessary in connection with the
exercise of any remedy hereunder, (viii) to such Lender’s or Agent’s Affiliates
and their respective directors, officers, employees and agents including legal
counsel and independent auditors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential), (ix) with
the
consent of the Borrower, (x) to Gold Sheets and other similar bank trade
publications, such information to consist solely of deal terms and other
information customarily found in such publications and (xi) subject to
provisions substantially similar to those contained in this Section, to any
actual or proposed Participant or Assignee or to any actual or prospective
counterparty (or its advisors) to any securitization, swap or derivative
transaction relating to the Borrower's Obligations hereunder. Notwithstanding
the foregoing, any Agent, any Lender or Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx,
L.L.P. may circulate promotional materials and place advertisements in financial
and other newspapers and periodicals or on a home page or similar place for
dissemination of information on the Internet or worldwide web, in each case,
after the closing of the transactions contemplated by this Agreement in the
form
of a “tombstone” or other release limited to describing the names of the
Borrower or its Affiliates, or any of them, and the amount, type and closing
date of such transactions, all at their sole expense.
Section
9.13 USA
PATRIOT Act Notice.
Each
Lender that is subject to the Patriot Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT
Act
(Title III of Pub.L. 107-56 (signed into law October 26, 2001)) (the
“Patriot
Act”),
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Patriot
Act.
Section
9.14 Effect
of Agreement.
The
parties hereto agree that this Agreement is given as a continuation,
modification, extension and amendment and restatement of the Existing Credit
Agreement and shall not constitute a novation of the Existing Credit
Agreement.
[Signature
Pages to Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
PPL
ELECTRIC UTILITIES CORPORATION
By:______________________________________
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Assistant Treasurer
Signature
Page to the $200,000,000
Second
Amended and Restated Five-Year Credit Agreement for
PPL
Electric Utilities Corporation
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
By:
______________________________________
Name:
Title:
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Issuing Lender
By:
______________________________________
Name:
Title:
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Swingline Lender
By:
______________________________________
Name:
Title:
WACHOVIA
BANK, NATIONAL ASSOCIATION, as a Lender
By:
______________________________________
Name:
Title:
Signature
Page to the $200,000,000
Third
Amended and Restated Five-Year Credit Agreement for
PPL
Electric Utilities Corporation
______________________________,
as a Lender
(insert
name of Lender)
By:
______________________________________
Name:
Title
Second
signature block, if required
______________________________,
as a Lender
(insert
name of Lender)
By:
______________________________________
Name:
Title
Signature
Page to the $200,000,000
Third
Amended and Restated Five-Year Credit Agreement for
PPL
Electric Utilities Corporation
