Published CUSIP No: Revolving Credit Loans: 90210EAB2; Deposit L/C Loans: 90210EAC0 Delayed Draw Term Loan: 90210EAD8; Initial Tranche B-1 Term Loan: 90210EAE6 Initial Tranche B-2 Term Loan: 90210EAF3; Initial Tranche B-3 Term Loan: 90210EAG1 Posting...
EXHIBIT
10(c)
EXECUTION
COPY
Published
CUSIP
No:
Revolving
Credit Loans: 00000XXX0; Deposit L/C Loans: 00000XXX0
Delayed
Draw Term Loan: 00000XXX0; Initial Tranche B-1 Term Loan:
00000XXX0
Initial
Tranche B-2 Term Loan: 00000XXX0; Initial Tranche B-3 Term Loan:
00000XXX0
Posting
Advances: XXX000XX0
Dated
as of October 10, 2007
among
ENERGY
FUTURE COMPETITIVE HOLDINGS COMPANY,
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC,
as
the Borrower,
The
Several Lenders
from
Time to Time Parties Hereto,
CITIBANK,
N.A.,
as
Administrative Agent, Collateral Agent, Swingline Lender,
Revolving
Letter of Credit Issuer and
Deposit
Letter of Credit Issuer,
XXXXXXX
XXXXX CREDIT PARTNERS L.P.,
as
Posting Agent, Posting Syndication Agent and Posting Documentation
Agent,
X.
XXXX & COMPANY,
as
Posting Calculation Agent,
JPMORGAN
CHASE BANK, N.A.,
as
Syndication Agent and Revolving Letter of Credit Issuer,
CREDIT
SUISSE,
XXXXXXX
XXXXX CREDIT PARTNERS L.P.,
XXXXXX
COMMERCIAL PAPER INC. and
XXXXXX
XXXXXXX SENIOR FUNDING, INC.,
as
Co-Documentation Agents,
CITIGROUP
GLOBAL MARKETS INC.,
X.X.
XXXXXX SECURITIES INC.,
XXXXXXX
XXXXX CREDIT PARTNERS L.P.,
XXXXXX
BROTHERS INC.,
XXXXXX
XXXXXXX SENIOR FUNDING, INC. and
CREDIT
SUISSE SECURITIES (USA) LLC,
as
Joint Lead Arrangers and Bookrunners,
and
XXXXXXX
SACHS CREDIT PARTNERS L.P.,
as
Posting Lead Arranger and Bookrunner
CG&R
DRAFT: 11/8/07 5:47 PM #890177 v6
(R5W106_.DOC)
|
Xxxxxx
Xxxxxx & Xxxxxxx llp
00
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
890177
TABLE
OF CONTENTS
|
Page
|
|
SECTION
1.
|
Definitions.
|
2
|
1.1.
|
Defined
Terms
|
2
|
1.2.
|
Other
Interpretive Provisions
|
71
|
1.3.
|
Accounting
Terms
|
71
|
1.4.
|
Rounding
|
72
|
1.5.
|
References
to Agreements, Laws, Etc.
|
72
|
1.6.
|
Times
of Day
|
72
|
1.7.
|
Timing
of Payment of Performance
|
72
|
1.8.
|
Currency
Equivalents Generally
|
72
|
1.9.
|
Classification
of Loans, Posting Advances and Borrowings
|
72
|
1.10.
|
Hedging
Agreements
|
72
|
SECTION
2.
|
Amount
and Terms of Credit
|
73
|
2.1.
|
Commitments
|
73
|
2.2.
|
Minimum
Amount of Each Borrowing; Maximum Number of Borrowings
|
75
|
2.3.
|
Notice
of Borrowing; Determination of Class of Loans
|
76
|
2.4.
|
Disbursement
of Funds
|
77
|
2.5.
|
Repayment
of Loans; Evidence of Debt
|
78
|
2.6.
|
Conversions
and Continuations
|
79
|
2.7.
|
Pro
Rata Borrowings
|
80
|
2.8.
|
Interest
|
80
|
2.9.
|
Interest
Periods
|
82
|
2.10.
|
Increased
Costs, Illegality, Etc.
|
83
|
2.11.
|
Compensation
|
85
|
2.12.
|
Change
of Lending Office
|
85
|
2.13.
|
Notice
of Certain Costs
|
85
|
2.14.
|
Incremental
Facilities
|
85
|
SECTION
3.
|
Letters
of Credit
|
88
|
3.1.
|
Issuance
of Letters of Credit
|
88
|
3.2.
|
Letter
of Credit Requests
|
89
|
3.3.
|
Revolving
Letter of Credit Participations
|
90
|
3.4.
|
Agreement
to Repay Letter of Credit Drawings
|
91
|
3.5.
|
Increased
Costs
|
92
|
3.6.
|
New
or Successor Letter of Credit Issuer
|
93
|
3.7.
|
Role
of Letter of Credit Issuer
|
94
|
3.8.
|
Cash
Collateral
|
95
|
3.9.
|
Deposit
L/C Loan Collateral Account
|
95
|
3.10.
|
Existing
Letters of Credit
|
96
|
3.11.
|
Applicability
of ISP and UCP
|
96
|
3.12.
|
Conflict
with Issuer Documents
|
96
|
3.13.
|
Letters
of Credit Issued for Others
|
96
|
i
TABLE
OF CONTENTS
|
Page
|
|
SECTION
4.
|
Fees;
Commitments
|
96
|
4.1.
|
Fees
|
96
|
4.2.
|
Voluntary
Reduction of Revolving Credit Commitments; Delayed Draw Term
Loan
Commitments; and Revolving Letter of Credit Commitments
|
98
|
4.3.
|
Mandatory
Termination of Commitments
|
98
|
SECTION
5.
|
Payments
|
99
|
5.1.
|
Voluntary
Prepayments
|
99
|
5.2.
|
Mandatory
Prepayments
|
100
|
5.3.
|
Method
and Place of Payment
|
103
|
5.4.
|
Net
Payments
|
104
|
5.5.
|
Computations
of Interest and Fees
|
107
|
5.6.
|
Limit
on Rate of Interest
|
107
|
SECTION
6.
|
Conditions
Precedent to Initial Borrowing
|
108
|
6.1.
|
Credit
Documents
|
108
|
6.2.
|
Collateral
|
108
|
6.3.
|
Legal
Opinions
|
110
|
6.4.
|
Refinancing
|
110
|
6.5.
|
Equity
Investments
|
110
|
6.6.
|
Closing
Certificates
|
110
|
6.7.
|
Authorization
of Proceedings of Each Credit Party
|
110
|
6.8.
|
Fees
|
111
|
6.9.
|
Representations
and Warranties
|
111
|
6.10.
|
Acquisition
Agreement
|
111
|
6.11.
|
Solvency
Certificate
|
111
|
6.12.
|
Merger
|
111
|
6.13.
|
Pro
Forma Financial Statements
|
111
|
6.14.
|
Patriot
Act
|
111
|
6.15.
|
Insurance
|
111
|
SECTION
7.
|
Conditions
Precedent to All Credit Events
|
111
|
7.1.
|
No
Default; Representations and Warranties
|
112
|
7.2.
|
Notice
of Borrowing
|
112
|
SECTION
8.
|
Representations,
Warranties and Agreements
|
112
|
8.1.
|
Corporate
Status; Compliance with Laws
|
112
|
8.2.
|
Corporate
Power and Authority
|
113
|
8.3.
|
No
Violation
|
113
|
8.4.
|
Litigation
|
113
|
8.5.
|
Margin
Regulations
|
113
|
8.6.
|
Governmental
Approvals
|
113
|
8.7.
|
Investment
Company Act
|
114
|
8.8.
|
True
and Complete Disclosure
|
114
|
ii
TABLE
OF CONTENTS
|
Page
|
|
8.9.
|
Financial
Condition; Financial Statements
|
114
|
8.10.
|
Tax
Matters
|
114
|
8.11.
|
Compliance
with ERISA
|
115
|
8.12.
|
Subsidiaries
|
115
|
8.13.
|
Intellectual
Property
|
115
|
8.14.
|
Environmental
Laws
|
116
|
8.15.
|
Properties
|
116
|
8.16.
|
Solvency
|
116
|
SECTION
9.
|
Affirmative
Covenants
|
116
|
9.1.
|
Information
Covenants
|
116
|
9.2.
|
Books,
Records and Inspections
|
120
|
9.3.
|
Maintenance
of Insurance
|
120
|
9.4.
|
Payment
of Taxes
|
120
|
9.5.
|
Consolidated
Corporate Franchises
|
121
|
9.6.
|
Compliance
with Statutes, Regulations, Etc.
|
121
|
9.7.
|
ERISA
|
121
|
9.8.
|
Maintenance
of Properties
|
122
|
9.9.
|
Transactions
with Affiliates
|
122
|
9.10.
|
End
of Fiscal Years; Fiscal Quarters
|
123
|
9.11.
|
Additional
Guarantors and Grantors
|
123
|
9.12.
|
Pledge
of Additional Stock and Evidence of Indebtedness
|
123
|
9.13.
|
Use
of Proceeds
|
124
|
9.14.
|
Further
Assurances
|
124
|
9.15.
|
Changes
in Business
|
126
|
9.16.
|
Independent
Review of New Build Program
|
126
|
SECTION
10.
|
Negative
Covenants
|
126
|
10.1.
|
Limitation
on Indebtedness
|
126
|
10.2.
|
Limitation
on Liens
|
132
|
10.3.
|
Limitation
on Fundamental Changes
|
136
|
10.4.
|
Limitation
on Sale of Assets
|
137
|
10.5.
|
Limitation
on Investments
|
140
|
10.6.
|
Limitation
on Dividends
|
144
|
10.7.
|
Limitations
on Debt Payments and Amendments
|
150
|
10.8.
|
Limitations
on Sale Leasebacks
|
150
|
10.9.
|
Consolidated
Secured Debt to Consolidated EBITDA Ratio
|
151
|
SECTION
11.
|
Events
of Default
|
151
|
11.1.
|
Payments
|
151
|
11.2.
|
Representations,
Etc.
|
152
|
11.3.
|
Covenants
|
152
|
11.4.
|
Default
Under Other Agreements
|
152
|
11.5.
|
Bankruptcy,
Etc.
|
152
|
11.6.
|
ERISA
|
153
|
11.7.
|
Guarantee
|
153
|
11.8.
|
Pledge
Agreement
|
153
|
iii
TABLE
OF CONTENTS
|
Page
|
|
11.9.
|
Security
Agreement
|
153
|
11.10.
|
Mortgages
|
154
|
11.11.
|
Judgments
|
154
|
11.12.
|
Hedging
Agreements
|
154
|
11.13.
|
Change
of Control
|
154
|
11.14.
|
Application
of Proceeds
|
155
|
11.15.
|
Right
to Cure
|
155
|
SECTION
12.
|
The
Agents
|
156
|
12.1.
|
Appointment
|
156
|
12.2.
|
Delegation
of Duties
|
157
|
12.3.
|
Exculpatory
Provisions
|
157
|
12.4.
|
Reliance
by Agents
|
158
|
12.5.
|
Notice
of Default
|
159
|
12.6.
|
Non-Reliance
on Administrative Agent, the Posting Agent, Collateral Agent
and Other
Lenders
|
159
|
12.7.
|
Indemnification
|
160
|
12.8.
|
Agents
in its Individual Capacities
|
161
|
12.9.
|
Successor
Agents
|
161
|
12.10.
|
Withholding
Tax
|
162
|
12.11.
|
Trust
Indenture Act
|
162
|
12.12.
|
Intercreditor
Agreement
|
163
|
12.13.
|
Security
Documents and Guarantee
|
163
|
SECTION
13.
|
Miscellaneous
|
163
|
13.1.
|
Amendments,
Waivers and Releases
|
163
|
13.2.
|
Notices
|
168
|
13.3.
|
No
Waiver; Cumulative Remedies
|
169
|
13.4.
|
Survival
of Representations and Warranties
|
169
|
13.5.
|
Payment
of Expenses; Indemnification
|
169
|
13.6.
|
Successors
and Assigns; Participations and Assignments
|
170
|
13.7.
|
Replacements
of Lenders under Certain Circumstances
|
175
|
13.8.
|
Adjustments;
Set-off
|
175
|
13.9.
|
Counterparts
|
176
|
13.10.
|
Severability
|
176
|
13.11.
|
INTEGRATION
|
176
|
13.12.
|
GOVERNING
LAW
|
177
|
13.13.
|
Submission
to Jurisdiction; Waivers
|
177
|
13.14.
|
Acknowledgments
|
177
|
13.15.
|
WAIVERS
OF JURY TRIAL
|
178
|
13.16.
|
Confidentiality
|
178
|
13.17.
|
Direct
Website Communications
|
179
|
13.18.
|
USA
PATRIOT Act
|
180
|
13.19.
|
Payments
Set Aside
|
181
|
13.20.
|
Separateness
|
181
|
SECTION
14.
|
Posting
Facility
|
181
|
iv
TABLE
OF CONTENTS
|
Page
|
|
14.1.
|
[Reserved]
|
181
|
14.2.
|
Computation
of MTM Exposure
|
181
|
14.3.
|
Computation
of Posting Advance Amounts or Posting Repayment Amounts
|
182
|
14.4.
|
Posting
Advances Amounts
|
183
|
14.5.
|
Posting
Repayment Amounts by the Borrower
|
184
|
14.6.
|
Payment
Instructions; Netting and/or Settlement Agreements
|
184
|
14.7.
|
Deemed
Transactions
|
184
|
14.8.
|
Evidence
of Indebtedness
|
185
|
14.9.
|
Termination
and Reduction of Posting Commitments
|
185
|
14.10.
|
Pro
Rata Treatment
|
186
|
14.11.
|
Trading
Acknowledgment
|
186
|
v
SCHEDULES
|
|
Schedule
1.1(a)
|
Commitments
of Lenders
|
Schedule
1.1(b)
|
Existing
Letters of Credit
|
Schedule
1.1(c)
|
Mortgaged
Properties
|
Schedule
1.1(d)
|
Excluded
Subsidiaries
|
Schedule
1.1(e)
|
Deemed
Transactions
|
Schedule
1.1(f)
|
Existing
Credit Facilities
|
Schedule
1.1(g)
|
Non-Oncor
Undertakings
|
Schedule
8.4
|
Litigation
|
Schedule
8.12
|
Subsidiaries
|
Schedule
8.15
|
Property
Matters
|
Schedule
9.9
|
Closing
Date Affiliate Transactions
|
Schedule
10.1
|
Closing
Date Indebtedness
|
Schedule
10.2
|
Closing
Date Liens
|
Schedule
10.4
|
Scheduled
Dispositions
|
Schedule
10.5
|
Closing
Date Investments
|
Schedule
13.2
|
Notice
Addresses
|
EXHIBITS
|
|
Exhibit
A
|
Form
of Borrowing Request
|
Exhibit
B
|
Form
of Guarantee
|
Exhibit
C
|
Form
of Mortgage (Real Property)
|
Exhibit
D
|
Form
of Perfection Certificate
|
Exhibit
E
|
Form
of Pledge Agreement
|
Exhibit
F
|
Form
of Security Agreement
|
Exhibit
G
|
Form
of Letter of Credit Request
|
Exhibit
H-1
|
Form
of Legal Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
|
Exhibit
H-2
|
Form
of Legal Opinion of Xxxxxx & Xxxxxx LLP
|
Exhibit
H-3
|
Form
of Legal Opinion of Hunton & Xxxxxxxx LLP
|
Exhibit
H-4
|
Form
of Legal Opinion of Xxxxxxxxx & Xxxxxxx LLP
|
Exhibit
I
|
Form
of Credit Party Closing Certificate
|
Exhibit
J
|
Form
of Assignment and Acceptance
|
Exhibit
K-1
|
Form
of Promissory Note (Revolving Credit and Swingline
Loans)
|
Exhibit
K-2-A
|
Form
of Promissory Note (Initial Tranche B-1 Term Loans)
|
Exhibit
K-2-B
|
Form
of Promissory Note (Initial Tranche B-2 Term Loans)
|
Exhibit
K-2-C
|
Form
of Promissory Note (Initial Tranche B-3 Term Loans)
|
Exhibit
K-3
|
Form
of Promissory Note (Delayed Draw Term Loans)
|
Exhibit
K-4
|
Form
of Promissory Note (Deposit L/C Loans)
|
Exhibit
L
|
Form
of Incremental Amendment
|
Exhibit
M
|
Form
of Intercreditor Agreement
|
Exhibit
N
|
Form
of Goldman Posting Facility Guaranty
|
Exhibit
O
|
Disclaimer
for Xxxx-to-Market Calculations
|
Exhibit
P
|
Form
of Daily Notice
|
Exhibit
Q
|
Form
of Non-U.S. Lender Certification
|
CREDIT
AGREEMENT, dated as of October 10, 2007, among ENERGY FUTURE COMPETITIVE
HOLDINGS COMPANY, a Texas corporation (“US Holdings”), TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC, a Delaware limited liability
company
(“TCEH” or
the “Borrower”), the lending institutions
from time to time parties hereto (each a “Lender” and,
collectively, the “Lenders”), CITIBANK, N.A., as Administrative
Agent, Collateral Agent, Swingline Lender, Revolving Letter of Credit Issuer
and
Deposit Letter of Credit Issuer, XXXXXXX SACHS CREDIT PARTNERS L.P., as
Posting
Agent, Posting Syndication Agent and Posting Documentation Agent, JPMORGAN
CHASE
BANK, N.A., as Syndication Agent and Revolving Letter of Credit Issuer,
CITIGROUP GLOBAL MARKETS INC., X.X. XXXXXX SECURITIES INC., XXXXXXX SACHS
CREDIT
PARTNERS L.P., XXXXXX BROTHERS INC., XXXXXX XXXXXXX SENIOR FUNDING, INC.
and
CREDIT SUISSE SECURITIES (USA) LLC, as Joint Lead Arrangers and Bookrunners,
XXXXXXX SACHS CREDIT PARTNERS L.P., as Posting Lead Arranger and Sole
Bookrunner, CREDIT SUISSE, XXXXXXX XXXXX CREDIT PARTNERS L.P., XXXXXX COMMERCIAL
PAPER INC. and XXXXXX XXXXXXX SENIOR FUNDING, INC., as Co-Documentation
Agents,
and X. XXXX & COMPANY, as Posting Calculation Agent.
RECITALS:
WHEREAS,
capitalized terms used and not defined in the preamble and these recitals
shall
have the respective meanings set forth for such terms in Section 1.1
hereof;
WHEREAS,
pursuant to the Agreement and Plan of Merger (as amended, supplemented
or
otherwise modified from time to time in accordance therewith, the
“Acquisition Agreement”), dated as of February 25, 2007,
by and among the Parent, Holdings and Merger Sub, Merger Sub will merge
with and
into the Parent (the “Merger”), with the Parent surviving the
Merger as a Wholly Owned Subsidiary of Holdings;
WHEREAS,
to fund, in part, the Merger Funds, it is intended that the Sponsors and
certain
other investors (collectively, the “Initial Investors”) will
directly or indirectly make cash equity contributions (the “Equity
Contribution”) to Holdings and/or a direct or indirect parent thereof
in exchange for Stock (which cash will be contributed to Merger Sub in
exchange
for common stock of Merger Sub) in an aggregate amount equal to, when combined
with the fair market value of the Stock of management and existing shareholders
of the Parent rolled over or invested in connection with the Transactions,
at
least 15% (the “Minimum Equity Amount”) of the total sources
(including the Existing Notes, the Existing Parent Notes and the Existing
Oncor
Notes, but excluding any transition bonds) required to consummate the Merger
(the “Merger Consideration”), to redeem, refinance or repay
certain existing indebtedness or repurchase receivables of the Parent and
its
Subsidiaries, including the Repaid Indebtedness (the
“Refinancing”), and to pay fees, premiums and expenses incurred
in connection with the Transactions (such fees, premiums and expenses,
together
with the Merger Consideration and the Refinancing payment, the “Merger
Funds”);
WHEREAS,
in order to fund, in part, the Merger Funds, (a) the Borrower will borrow
on the Closing Date $6,750,000,000 in aggregate principal amount of senior
unsecured interim loans (the “Borrower Senior Interim Loans”)
under the Borrower Senior Interim Loan Agreement and (b) the Parent will
borrow on the Closing Date $4,500,000,000 in aggregate principal amount
of
senior unsecured interim loans (the “Parent Senior Interim
Loans”) under the Parent Senior Interim Loan Agreement;
WHEREAS,
in connection with the foregoing, the Borrower has requested that the Lenders
extend credit to the Borrower in the form of (a) $16,450,000,000 in aggregate
principal amount of Initial Term Loans to be borrowed on the Closing Date
(the
“Initial Term Loan Facility”), (b) up to $4,100,000,000 in
aggregate principal amount of Delayed Draw Term Loan Commitments to be
made
-1-
available
to the Borrower on the Closing Date and at any time and from time to time
prior
to the Delayed Draw Term Loan Commitment Termination Date (the “Delayed
Draw Term Loan Facility”) with approximately $2,150,000,000 of such
amount to be borrowed on the Closing Date, (c) $1,250,000,000 in aggregate
principal amount of Deposit L/C Loans to be borrowed on the Closing Date
(the
“Deposit L/C Loan Facility”) and (d) up to $2,700,000,000 in
aggregate principal amount of Revolving Credit Commitments to be made available
to the Borrower at any time and from time to time prior to the Revolving
Credit
Termination Date (the “Revolving Credit
Facility”);
WHEREAS,
in connection with the foregoing, the Borrower has requested that the Lenders
extend credit to the Borrower in the form of a revolving credit facility,
the
aggregate principal amount of which is capped by the MTM Exposure (the
“Posting Facility”);
WHEREAS,
the proceeds of (a) the Initial Term Loans less $400,000,000 and (b) up
to $250,000,000 of Revolving Credit Loans will be used by the Borrower,
together
with (i) the net proceeds of the Borrower Senior Interim Loans and (ii)
cash on hand at the Borrower, to provide to the Parent a portion of the
Merger
Funds. Up to $400,000,000 of proceeds of the Initial Term Loans will
be used by the Borrower for general corporate purposes. The proceeds
of the Delayed Draw Term Loans will be used by the Borrower on and after
the
Closing Date for the purpose of funding the construction, engineering,
design,
improvement, testing, start-up, retesting, operation, repair, maintenance
and
development costs and other Capital Expenditures (including Environmental
CapEx), interest during construction and related fees and expenses in connection
with the construction of Oak Grove Xxxx 0, Xxx Xxxxx Xxxx 0 and Sandow
Unit 5
and environmental upgrades to the Borrower’s and its Subsidiaries’ existing
power generation facilities (collectively, the “New Build
Program”). The proceeds of Revolving Credit Loans and
Swingline Loans will be used by the Borrower on or after the Closing Date
for
working capital requirements and other general corporate purposes (including
the
financing of any acquisitions permitted hereunder and the provision of
collateral support in respect of Commodity Hedging Agreements, including
for the
avoidance of any doubt, any speculative Commodity Hedging
Agreements). The proceeds of the Deposit L/C Loans shall be deposited
into the Deposit L/C Loan Collateral Account for the purpose of cash
collateralizing the Borrower’s obligations to the Deposit Letter of Credit
Issuer in respect of Deposit Letters of Credit. The Letters of Credit
will be used by the Borrower for general corporate purposes (including
the
provision of collateral support in respect of Commodity Hedging Agreements,
including, for the avoidance of any doubt, speculative Commodity Hedging
Agreements). The proceeds of the Posting Advances will be used by the
Borrower (a) to fund margin payments on over-the-counter natural gas fixed
for
floating swap transactions between the Borrower and the Restricted Subsidiaries,
on the one hand, and various counterparties, on the other, (b) to fund
margin payments on NYMEX futures and swap positions maintained by the Borrower
and the Restricted Subsidiaries and (c) for other general corporate
purposes of the Borrower and its Subsidiaries (provided that such funds
will be
applied first to fund margin on Dealer Swaps to the extent such transactions
are
outstanding and any margin is due thereon and second for any of such other
purposes); and
WHEREAS,
the Lenders and Letter of Credit Issuers are willing to make available
to the
Borrower such loans and facilities upon the terms and subject to the conditions
set forth herein;
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the parties hereto hereby agree as follows:
SECTION
1. Definitions.
1.1. Defined
Terms
.
-2-
(a) As
used herein, the following terms shall have the meanings specified in this
Section 1.1 unless the context otherwise requires:
“ABR”
shall mean for any day a fluctuating rate per annum equal to the higher
of
(a) the Federal Funds Effective Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time
to time
by the Administrative Agent as its “prime rate”. The “prime rate” is
a rate set by the Administrative Agent based upon various factors including
the
Administrative Agent’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which
may be priced at, above, or below such announced rate. If the
Administrative Agent is unable to ascertain the Federal Funds Effective
Rate due
to its inability to obtain sufficient quotations in accordance with the
definition thereof, after notice is provided to the Borrower, the ABR shall
be
determined without regard to clause (a) above until the circumstances giving
rise to such inability no longer exist. Any change in the ABR due to
a change in such rate announced by the Administrative Agent or in the Federal
Funds Effective Rate shall take effect at the opening of business on the
day
specified in the public announcement of such change.
“ABR
Loan” shall mean each Loan bearing interest based on the ABR and, in
any event, shall include all Swingline Loans.
“Acceptable
Reinvestment Commitment” shall mean a binding commitment of the
Borrower or any Restricted Subsidiary entered into at any time prior to
the end
of the Reinvestment Period to reinvest the proceeds of a Prepayment
Event.
“Acquired
EBITDA” shall mean, with respect to any Acquired Entity or Business or
any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma
Entity”) for any period, the amount for such period of Consolidated
EBITDA of such Pro Forma Entity (determined using such definitions as if
references to the Borrower and the Restricted Subsidiaries therein were
to such
Pro Forma Entity and its Restricted Subsidiaries), all as determined on
a
consolidated basis for such Pro Forma Entity in a manner not inconsistent
with
GAAP.
“Acquired
Entity or Business” shall have the meaning provided in the definition
of the term “Consolidated EBITDA”.
“Acquisition
Agreement” shall have the meaning provided in the recitals to this
Agreement.
“Actual
MTM Exposure” shall have the meaning provided in Section
14.2(b).
“Additional
Lender” shall have the meaning provided in Section
2.14(f).
“Adjusted
Available Delayed Draw Term Loan Commitment” shall mean at any time the
Available Delayed Draw Term Loan Commitment less the Available Delayed
Draw Term Loan Commitments of all Defaulting Lenders.
“Adjusted
Total Posting Commitment” shall mean at any time the Total Posting
Commitment less the aggregate Posting Commitments of all Defaulting
Lenders.
“Adjusted
Total Revolving Credit Commitment” shall mean at any time the Total
Revolving Credit Commitment less the aggregate Revolving Credit
Commitments of all Defaulting Lenders.
-3-
“Administrative
Agent” shall mean Citibank, N.A., as the administrative agent for the
Lenders under this Agreement and the other Credit Documents, or any successor
administrative agent pursuant to Section 12.
“Administrative
Agent’s Office” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 13.2, or such other address
or account as the Administrative Agent may from time to time notify to
the
Borrower and the Lenders.
“Administrative
Questionnaire” shall have the meaning provided in
Section 13.6(b)(ii)(D).
“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect 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 and policies of such other Person, whether
through
the ownership of voting securities, by contract or otherwise. The
terms “controlling” and “controlled” shall have meanings correlative
thereto.
“Agent
Parties” shall have the meaning provided in
Section 13.17(d).
“Agents”
shall mean the Administrative Agent, the Posting Agent, the Collateral
Agent,
the Syndication Agent, the Posting Syndication Agent, each Joint Lead Arranger
and Bookrunner, the Posting Lead Arranger and Bookrunner, the Co-Documentation
Agents, the Posting Documentation Agent and the Posting Calculation
Agent.
“Aggregate
Posting Advances Outstanding” shall mean, on any date of determination,
an amount equal to the aggregate principal amount of all then outstanding
Posting Advances made by all Lenders.
“Aggregate
Revolving Credit Outstandings” shall have the meaning provided in
Section 5.2(b).
“Agreement”
shall mean this Credit Agreement.
“Applicable
ABR Margin” shall mean, at any date, with respect to each ABR Loan that
is an Initial Term Loan, Delayed Draw Term Loan, Deposit L/C Loan, Revolving
Credit Loan or a Swingline Loan, the applicable percentage per annum
set forth below based upon the Status in effect on such date:
Status
|
Applicable
ABR Margin for:
|
|||
Initial
Term Loans
|
Delayed
Draw Term Loans
|
Deposit
L/C Loans
|
Revolving
Credit and Swingline
Loans
|
|
Level I
Status
|
2.50%
|
2.50%
|
2.50%
|
2.50%
|
Level II
Status
|
2.25%
|
2.25%
|
2.25%
|
2.25%
|
Level III
Status
|
2.00%
|
2.00%
|
2.00%
|
2.00%
|
Notwithstanding
the foregoing, Level I Status shall apply during the period from and including
the Closing Date to but excluding the Initial Financial Statements Delivery
Date.
-4-
“Applicable
Amount” shall mean, at any time (the “Applicable Amount
Reference Time”), an amount equal to (a) the sum, without duplication,
of:
(i) 50%
of Cumulative Consolidated Net Income of the Borrower and the Restricted
Subsidiaries for the period from the first day of the first fiscal quarter
commencing after the Closing Date until the last day of the then most recent
fiscal quarter or fiscal year, as applicable, for which Section 9.1
Financials have been delivered;
(ii) to
the extent not (A) already included in the calculation of Consolidated
Net
Income of the Borrower and the Restricted Subsidiaries or (B) already reflected
as a return of capital or deemed reduction in the amount of such Investment,
the
aggregate JV Distribution Amount received by the Borrower or any Restricted
Subsidiary during the period from and including the Business Day immediately
following the Closing Date through and including the Applicable Amount
Reference
Time;
(iii) to
the extent not (A) already included in the calculation of Consolidated
Net
Income or (B) already reflected as a return of capital or deemed reduction
in
the amount of any such Investment, the aggregate amount of all cash repayments
of principal received by the Borrower or any Restricted Subsidiary from
any
Minority Investments or Unrestricted Subsidiaries during the period from
and
including the Business Day immediately following the Closing Date through
and
including the Applicable Amount Reference Time in respect of loans made
by the
Borrower or any Restricted Subsidiary to such Minority Investments or
Unrestricted Subsidiaries;
(iv) to
the extent not (A) already included in the calculation of Consolidated
Net
Income of the Borrower and the Restricted Subsidiaries, (B) already reflected
as
a return of capital or deemed reduction in the amount of such Investment
or
(C) applied to prepay the Term Loans in accordance with Section
5.2(a)(i), the aggregate amount of all Net Cash Proceeds received by the
Borrower or any Restricted Subsidiary in connection with the sale, transfer
or
other disposition of its ownership interest in any Minority Investments
or in
any Unrestricted Subsidiary during the period from and including the Business
Day immediately following the Closing Date through and including the Applicable
Amount Reference Time; and
(v) other
than for purposes of Section 10.6(c), the aggregate amount of Retained
Declined Proceeds (other than those used pursuant to Section 10.6(q))
retained by the Borrower during the period from and including the Business
Day
immediately following the Closing Date through and including the Applicable
Amount Reference Time;
minus
(b) the sum, without duplication, of:
(i) the
aggregate amount of Investments made pursuant to Section 10.5(g)(ii)(y),
10.5(h)(iii), 10.5(i)(y), 10.5(v)(y) or 10.5(ff)(y)
following the Closing Date and prior to the Applicable Amount Reference
Time;
(ii) the
aggregate amount of dividends pursuant to Section 10.6(c)(z) or
Section 10.6(r)(iii)(z) following the Closing Date and prior to the
Applicable Amount Reference Time; and
(iii) the
aggregate amount of prepayments, repurchases, redemptions and defeasances
made
pursuant to Section 10.7(a)(i)(B)(II)(3) following the Closing Date and
prior to the Applicable Amount Reference Time.
-5-
Notwithstanding
the foregoing, in making any calculation or other determination under this
Agreement involving the Applicable Amount, if the Applicable Amount at
such time
is less than zero, then the Applicable Amount shall be deemed to be zero
for
purposes of such calculation or determination.
“Applicable
Equity Amount” shall mean, at any time (the “Applicable Equity
Amount Reference Time”), an amount equal to, without duplication, (a)
the amount of any capital contributions (other than the Equity Contribution,
any
Cure Amount or the proceeds of any Equity Offering used to repay Term Loans
pursuant to Section 5.1(b)) made in cash to, or any proceeds of an equity
issuance received by the Borrower during the period from and including
the
Business Day immediately following the Closing Date through and including
the
Applicable Equity Amount Reference Time, including proceeds from the issuance
of
Stock or Stock Equivalents of the Parent or any direct or indirect parent
of the
Parent (to the extent the proceeds of any such issuance are contributed
to the
Borrower), but excluding all proceeds from the issuance of Disqualified
Stock
minus
(b) the sum, without duplication, of:
(i) the
aggregate amount of Investments made pursuant to Section 10.5(g)(ii)(x),
10.5(h)(ii), 10.5(i)(x), 10.5(v)(x) or 10.5(ff)(x)
following the Closing Date and prior to the Applicable Equity Amount Reference
Time;
(ii) the
aggregate amount of dividends pursuant to Section 10.6(c)(y) or
Section 10.6(r)(iii)(y) following the Closing Date and prior to the
Applicable Equity Amount Reference Time; and
(iii) the
aggregate amount of prepayments, repurchases, redemptions and defeasances
pursuant to Section 10.7(a)(i)(B)(II)(2) following the Closing Date and
prior to the Applicable Equity Amount Reference Time.
“Applicable
Laws” shall mean, as to any Person, any law (including common law),
statute, regulation, ordinance, rule, order, decree, judgment, consent
decree,
writ, injunction, settlement agreement or governmental requirement enacted,
promulgated or imposed or entered into or agreed by any Governmental Authority
(including the PUCT and ERCOT), in each case applicable to or binding on
such
Person or any of its property or assets or to which such Person or any
of its
property or assets is subject. Applicable Laws shall also include
commitments, undertakings and stipulations (a) relating to Oncor and its
Subsidiaries as set forth in the Joint Report and Application of Oncor
Electric
Delivery Company and Texas Energy Future Holdings Limited Partnership Pursuant
to Public Utility Regulatory Act 14.101 before the PUCT, to the extent
such
commitments, undertakings and stipulations are embodied in a final order
issued
by the PUCT and (b) relating to Credit Parties and their Affiliates other
than
Oncor and its Subsidiaries as set forth on Schedule 1.1(g)
hereto.
“Applicable
LIBOR Margin” shall mean at any date, with respect to each LIBOR Loan
that is an Initial Term Loan, Delayed Draw Term Loan, Deposit L/C Loan
or
Revolving Credit Loan, the applicable percentage per annum set forth
below based upon the Status in effect on such date:
Status
|
Applicable
LIBOR Margin for:
|
|||
Initial
Term Loans
|
Delayed
Draw Term Loans
|
Deposit
L/C Loans
|
Revolving
Credit Loans
|
|
Level I
Status
|
3.50%
|
3.50%
|
3.50%
|
3.50%
|
Level II
Status
|
3.25%
|
3.25%
|
3.25%
|
3.25%
|
Level III
Status
|
3.00%
|
3.00%
|
3.00%
|
3.00%
|
-6-
Notwithstanding
the foregoing, Level I Status shall apply during the period from and including
the Closing Date to but excluding the Initial Financial Statements Delivery
Date.
“Applicable
Posting Facility Amount” shall mean, at any date, the greater of
(a) $820,000,000 and (b) the Aggregate Posting Advances
Outstanding.
“Approved
Fund” shall mean any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an
entity that administers or manages a Lender.
“Asset
Sale Prepayment Event” shall mean any Disposition of any business
units, assets or other property of the Borrower and the Restricted Subsidiaries
not in the ordinary course of business (including any Disposition of any
Stock
or Stock Equivalents of any Subsidiary of the Borrower owned by the Borrower
or
any Restricted Subsidiary). Notwithstanding the foregoing, the term
“Asset Sale Prepayment Event” shall not include any transaction permitted by
Section 10.4 (other than transactions permitted by Section
10.4(b), Section 10.4(g), the first proviso to Section
10.4(i), Section 10.4(j), Section 10.4(m), Section
10.4(q), Section 10.4(r), Section 10.4(s) and Section
10.4(t), which shall constitute Asset Sale Prepayment Events).
“Assignment
and Acceptance” shall mean an assignment and acceptance substantially
in the form of Exhibit J, or such other form as may be approved by
the Administrative Agent.
“Authorized
Officer” shall mean the President, the Chief Executive Officer, the
Chief Financial Officer, the Chief Operating Officer, the Treasurer, the
Assistant Treasurer, with respect to certain limited liability companies
or
partnerships that do not have officers, any manager, managing member or
general
partner thereof, any other senior officer of US Holdings, the Borrower
or any
other Credit Party designated as such in writing to the Administrative
Agent by
US Holdings, the Borrower or any other Credit Party, as applicable, and,
with
respect to any document (other than the solvency certificate) delivered
on the
Closing Date, the Secretary or the Assistant Secretary of any Credit
Party. Any document delivered hereunder that is signed by an
Authorized Officer shall be conclusively presumed to have been authorized
by all
necessary corporate, limited liability company, partnership and/or other
action
on the part of US Holdings, the Borrower or any other Credit Party and
such
Authorized Officer shall be conclusively presumed to have acted on behalf
of
such Person.
“Auto-Extension
Letter of Credit” shall have the meaning provided in Section
3.2(b).
“Available
Delayed Draw Term Loan Commitment” shall mean, as of any date, an
amount equal to the excess, if any, of (a) the amount of the Total Delayed
Draw Term Loan Commitment over (b) the sum of the aggregate
principal amount of all Delayed Draw Term Loans made hereunder.
-7-
“Available
Revolving Commitment” shall mean, as of any date, an amount equal to
the excess, if any, of (a) the amount of the Total Revolving Credit
Commitment over (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Loans (but not Swingline Loans) then outstanding
and (ii) the aggregate Revolving Letters of Credit Outstanding at such
time.
“Bankruptcy
Code” shall have the meaning provided in Section
11.5.
“Baseload
Assets” shall mean (a) any Initial Baseload Assets and (b) any other
assets comprising an electric generating facility or unit acquired, constructed
or redesignated as such, in each such case after the Closing Date that
is
certified by an Authorized Officer of the Borrower to be a baseload
asset.
“benefited
Lender” shall have the meaning provided in Section
13.8(a).
“Board”
shall mean the Board of Governors of the Federal Reserve System of the
United
States (or any successor).
“Borrower”
shall have the meaning provided in the preamble to this Agreement.
“Borrower
Senior Documents” shall mean either (a) the Borrower Senior Exchange
Notes Documents or (b) the Borrower Senior Interim Loan Documents, as the
case
may be.
“Borrower
Senior Exchange Notes” shall mean senior unsecured exchange notes due
2015 and 2016 to be issued in connection with the refinancing of the Borrower
Senior Interim Loans or the exchange of the Borrower Senior Term Loans
under the
Borrower Senior Exchange Notes Indenture, in aggregate principal amount
of up to
$6,750,000,000 (less the amount of any Borrower Senior Interim Loans or
Borrower Senior Term Loans that remain outstanding after the issuance of
the
Borrower Senior Exchange Notes), together with interest (including any
PIK
Interest Amount), fees and all other amounts payable in connection
therewith.
“Borrower
Senior Exchange Notes Documents” shall mean the Borrower Senior
Exchange Notes Indenture and other credit documents referred to
therein.
“Borrower
Senior Exchange Notes Indenture” shall mean the indenture to be entered
into in connection with the refinancing of the Borrower Senior Interim
Loans or
the exchange of the Borrower Senior Term Loans, among U.S. Holdings, the
Borrower, the Co-Issuer, the guarantors party thereto and a trustee, pursuant
to
which the Borrower Senior Exchange Notes shall be issued.
“Borrower
Senior Facility” shall mean either (a) the Borrower Senior Exchange
Notes, (b) the Borrower Senior Interim Loans or (c) the Borrower Senior
Term
Loans, as the case may be.
“Borrower
Senior Interim Loan Agreement” shall mean the senior unsecured interim
loan agreement, dated as of the date hereof by and among U.S. Holdings,
the
Borrower, the Co-Issuer, the lenders from time to time parties thereto,
Xxxxxx
Xxxxxxx Senior Funding, Inc., as administrative agent, Xxxxxxx Sachs Credit
Partners L.P., as syndication agent, and Xxxxxxx Xxxxx Credit Partners
L.P.,
Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., Credit
Suisse Securities (USA) LLC, XX Xxxxxx Securities Inc., and Xxxxxx Brothers
Inc., as joint lead arrangers and bookrunners.
“Borrower
Senior Interim Loan Documents” shall mean the Borrower Senior Interim
Loan Agreement and the other credit documents referred to therein.
-8-
“Borrower
Senior Interim Loans” shall have the meaning provided in the recitals
to this Agreement.
“BorrowerSenior
Term Loans” shall mean the “Senior Term Loans”, as defined in the
Borrower Senior Interim Loan Agreement.
“Borrowing”
shall mean and include (a) the incurrence of Swingline Loans from the Swingline
Lender on a given date, (b) the incurrence of one Type of Loan on a given
date (or resulting from conversions on a given date) having, in the case
of
LIBOR Loans, the same Interest Period (provided that ABR Loans incurred
pursuant to Section 2.10(b) shall be considered part of any related
Borrowing of LIBOR Loans) and (c) the incurrence of a Posting Advance on
any
Posting Advance Date.
“Business
Day” shall mean any day excluding Saturday, Sunday and any other day
on
which banking institutions in New York City are authorized by law or other
governmental actions to close, and, if such day relates to (a) any interest
rate
settings as to a LIBOR Loan or a Posting Advance, (b) any fundings,
disbursements, settlements and payments in respect of any such LIBOR Loan
or a
Posting Advance, or (c) any other dealings pursuant to this Agreement in
respect
of any such LIBOR Loan or a Posting Advance, such day shall be a day on
which
dealings in deposits in Dollars are conducted by and between banks in the
London
interbank eurodollar market.
“Calculation
Agent Determination” shall have the meaning set forth in the Commodity
Definitions.
“Capital
Expenditures” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
in
all events all amounts expended or capitalized under Capital Leases) by
the
Borrower and the Restricted Subsidiaries during such period that, in conformity
with GAAP, are or are required to be included as capital expenditures on
a
consolidated statement of cash flows of the Borrower.
“Capital
Lease” shall mean, as applied to the Borrower and the Restricted
Subsidiaries, any lease of any property (whether real, personal or mixed)
by the
Borrower or any Restricted Subsidiary as lessee that, in conformity with
GAAP,
is, or is required to be, accounted for as a capital lease on the balance
sheet
of the Borrower.
“Capitalized
Lease Obligations” shall mean, as applied to the Borrower and the
Restricted Subsidiaries at the time any determination is to be made, the
amount
of the liability in respect of a Capital Lease that would at such time
be
required to be capitalized and reflected as a liability on the balance
sheet
(excluding the footnotes thereto) of the Borrower in accordance with GAAP,
and
the Stated Maturity thereof shall be the date of the last payment of rent
or any
other amount due under such Capital Lease prior to the first date upon
which
such Capital Lease may be prepaid by the lessee without payment of a penalty;
provided that any obligations existing on the Closing Date (i) that were
not included on the balance sheet of the Borrower as capital lease obligations
and (ii) that are subsequently recharacterized as capital lease obligations
due
to a change in accounting treatment shall for all purposes of this Agreement
not
be treated as Capitalized Lease Obligations.
“Capitalized
Software Expenditures” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by the Borrower
and the Restricted Subsidiaries during such period in respect of purchased
software or internally developed software and software enhancements that,
in
conformity with GAAP are or are required to be reflected as capitalized
costs on
the consolidated balance sheet of the Borrower.
-9-
“Cash
Collateral Account” shall mean a blocked deposit account in the name of
the Collateral Agent and under the sole dominion and control of Collateral
Agent, and otherwise established in a manner reasonably satisfactory to
Collateral Agent.
“Cash
Collateralize” shall have the meaning provided in Section
3.8(c).
“Cash
Management Agreement” shall mean any agreement or arrangement to
provide Cash Management Services.
“Cash
Management Bank” shall mean any Person that either (x) at the time it
enters into a Cash Management Agreement or provides Cash Management Services
or
(y) on the Closing Date, is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Cash Management Agreement or a provider of
such Cash
Management Services.
“Cash
Management Obligations” shall mean obligations owed by the Borrower or
any Restricted Subsidiary to any Cash Management Bank in connection with,
or in
respect of, any Cash Management Services or under any Cash Management
Agreement.
“Cash
Management Services” shall mean treasury, depository, overdraft, credit
or debit card, purchase card, electronic funds transfer (including automated
clearing house fund transfer services) and other cash management
services.
“Change
in Law” shall mean (a) the adoption of any Applicable Law after
the date of this Agreement, (b) any change in any Applicable Law or in the
interpretation or application thereof by any Governmental Authority after
the
date of this Agreement or (c) compliance by any party with any guideline,
request, directive or order issued or made after the date hereof by any
central
bank or other governmental or quasi-governmental authority (whether or
not
having the force of law).
“Change
of Control” shall mean and be deemed to have occurred if (a) at any
time prior to a Qualifying IPO, the Permitted Holders shall at any time
not own,
in the aggregate, directly or indirectly, beneficially and of record, at
least
35% of the voting power of the outstanding Voting Stock of the Borrower;
or (b)
at any time, any person, entity or “group” (within the meaning of Section 13(d)
or 14(d) of the Exchange Act), other than the Permitted Holders, shall
at any
time have acquired direct or indirect beneficial ownership of a percentage
of
the voting power of the outstanding Voting Stock of the Borrower that exceeds
35% thereof, unless, in the case of either clause (a) or (b)
above, the Permitted Holders have, at such time, the right or the ability
by
voting power, contract or otherwise to elect or designate for election
at least
a majority of the board of directors of the Borrower; or (c) Continuing
Directors shall not constitute at least a majority of the board of directors
of
the Borrower; or (d) at any time, a Change of Control (as defined in the
Borrower Senior Documents or in any Refinanced Bridge Indebtedness
Documentation) shall have occurred; or (e) at any time, the Parent shall
cease
to own, directly or indirectly, beneficially and of record, at least a
majority
of the Voting Stock of the Borrower; or (f) at any time, US Holdings shall
cease
to own directly 100% of the Stock and Stock Equivalents of the
Borrower.
“Class”,
when used in reference to any Loan, Posting Advance or Borrowing, shall
refer to
whether such Loan or Posting Advance, or the Loans or Posting Advances
comprising such Borrowing, are Revolving Credit Loans, Initial Term Loans,
Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial
Tranche
B-3 Term Loans, Delayed Draw Term Loans, Incremental Term Loans, Deposit
L/C
Loans, Incremental Deposit L/C Loans, Swingline Loans or Posting Advances
and,
when used in reference to any Commitment, refers to whether such Commitment
is a
Revolving Credit Commitment, an Initial Term Loan Commitment, an Initial
Tranche
B-1 Term Loan Commitment, an Initial Tranche B-2 Term Loan Commitment,
an
Initial Tranche B-3 Term Loan Commitment, a Delayed Draw Term Loan
-10-
Commitment,
an Incremental Term Loan Commitment, a Deposit L/C Loan Commitment, an
Incremental Deposit L/C Loan Commitment, a Swingline Commitment or a Posting
Commitment.
“Closing
Date” shall mean the date of the initial Borrowing
hereunder.
“Closing
Date Mortgaged Property” shall mean each Mortgaged Property designated
as a “Closing Date Mortgaged Property” on Schedule 1.1(c)
hereto.
“Closing
Date MTM Exposure” shall have the meaning provided in Section
14.3(a).
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to
time. Section references to the Code are to the Code, as in effect at
the date of this Agreement, and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefore.
“Co-Documentation
Agents” shall mean Credit Suisse, Xxxxxxx Sachs Credit Partners L.P.,
Xxxxxx Commercial Paper Inc. and Xxxxxx Xxxxxxx Senior Funding,
Inc.
“Co-Issuer”
shall mean TCEH Finance, Inc.
“Collateral”
shall mean all property pledged, mortgaged or purported to be pledged or
mortgaged pursuant to the Security Documents.
“Collateral
Agent” shall mean Citibank, N.A., as collateral agent under the
Security Documents, or any successor collateral agent pursuant to Section
12.
“Commitment
Letter” shall mean the amended and restated commitment letter, dated
July 20, 2007, as amended, among Texas Energy Future Merger Sub Corp and
Citigroup Global Markets Inc., Credit Suisse, Cayman Islands Branch, Credit
Suisse Securities (USA) LLC, Xxxxxxx Sachs Credit Partners L.P., JPMorgan
Chase
Bank, N.A., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxx Brothers
Holdings Inc., Xxxxxx Commercial Paper Inc., Xxxxxx Brothers Commercial
Bank and
Xxxxxx Xxxxxxx Senior Funding, Inc.
“Commitments”
shall mean, with respect to each Lender (to the extent applicable), such
Lender’s Revolving Credit Commitment, Initial Term Loan Commitment, Initial
Tranche B-1 Term Loan Commitment, Initial Tranche B-2 Term Loan Commitment,
Initial Tranche B-3 Term Loan Commitment, Delayed Draw Term Loan Commitment,
Incremental Term Loan Commitment, Swingline Commitment, Deposit L/C Loan
Commitment, Incremental Deposit L/C Loan Commitment, Posting Commitment
or
Incremental Posting Facility Commitment.
“Commodity
Definitions” shall mean the 2005 ISDA Commodity Definitions, as
published by the International Swaps and Derivatives Association, Inc.,
without
giving effect to any amendment, supplement, updating or restatement thereof
after the Closing Date unless otherwise agreed to by the Borrower and the
Posting Agent.
“Commodity
Hedging Agreement” shall mean any agreement (including each
confirmation pursuant to any Master Agreement) or transaction providing
for one
or more swaps, caps, collars, floors, futures, options, spots, forwards,
derivative, any physical or financial commodity contracts or agreements,
power
purchase or sale agreements, fuel purchase or sale agreements, environmental
credit purchase or sale agreements, power transmission agreements, commodity
transportation agreements, fuel storage agreements, netting agreements
(including Netting Agreements), capacity agreements or commecial or trading
agreements, each with respect to the purchase,
-11-
sale
or exchange of (or the option to purchase, sell or exchange), transmission,
transportation, storage, distribution, processing, lease or hedge of, any
Covered Commodity, price or price indices for any such Covered Commodity
or
services or any other similar derivative agreements, and any other similar
agreements.
“Communications”
shall have the meaning provided in Section 13.17(a).
“Computation
Date” shall mean any Weekly Computation Date or Interim Computation
Date.
“Confidential
Information” shall have the meaning provided in Section
13.16.
“Consolidated
Depreciation and Amortization Expense” shall mean, with respect to the
Borrower and the Restricted Subsidiaries for any period, the total amount
of
depreciation and amortization expense, including the amortization of deferred
financing fees, nuclear fuel costs, depletion of coal or lignite reserves,
debt
issuance costs, commissions, fees and expenses and Capitalized Software
Expenditures, of the Borrower and the Restricted Subsidiaries for such
period on
a consolidated basis and otherwise determined in accordance with
GAAP.
“Consolidated
EBITDA” shall mean, for any period, Consolidated Net Income for such
period, plus:
(a) without
duplication and to the extent deducted (and not added back) in arriving
at such
Consolidated Net Income, the sum of the following amounts for the Borrower
and
the Restricted Subsidiaries for such period:
(i)Consolidated
Interest Expense
(including (x) net losses on Hedging Obligations or other derivative instruments
entered into for the purpose of hedging interest rate risk and (y) costs
of
surety bonds in connection with financing activities in each case to the
extent
included in Consolidated Interest Expense), together with items excluded
from
Consolidated Interest Expense pursuant to clause (1)(u), (v), (w), (x),
(y) and
(z) of the definition thereof,
(ii)provision
for taxes based on income
or profits or capital gains, including federal, foreign, state, franchise,
excise, value-added and similar taxes and foreign withholding taxes (including
penalties and interest related to such taxes or arising from tax examinations)
paid or accrued during such period,
(iii)Consolidated
Depreciation and
Amortization Expense for such period,
(iv)any
fees, expenses or charges (other
than depreciation or amortization expense) related to any offering of Stock
or
Stock Equivalents (including any Equity Offering), Investment, acquisition
(including any Permitted Acquisition), Disposition, recapitalization or
the
issuance or incurrence of Indebtedness permitted to be incurred by the
Borrower
and the Restricted Subsidiaries pursuant hereto (including any refinancing
transaction or amendment or other modification of any debt instrument),
including (A) such fees, expenses or charges related to the negotiation,
execution and delivery and other transactions contemplated by this Agreement,
the other Credit Documents, the Borrower Senior Documents, any Refinanced
Bridge
Indebtedness Documentation and any Permitted Receivables Financing, (B)
any
amendment or other modification of this Agreement and the other Credit
Documents, (C) any such transaction consummated prior to
the Closing Date and any such transaction undertaken but not completed
and (D)
any charges or non-recurring merger costs as a result of any such
transaction;
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(v)the
amount of any restructuring
charge or reserve (including any costs incurred in connection with acquisitions
after the date hereof and costs related to the closure and/or consolidation
of
facilities),
(vi)any
other non-cash charges,
including any write-offs or write-downs for such period (provided that if
any such non-cash charges represent an accrual or reserve for potential
cash
items in any future period, the cash payment in respect thereof in such
future
period shall be subtracted from Consolidated EBITDA to such extent, and
excluding amortization of a prepaid cash item that was paid in a prior
period),
(vii)the
amount of any minority interest
expense consisting of Subsidiary income attributable to minority equity
interests of third parties in any non-Wholly Owned Subsidiary,
(viii)the
amount of management,
monitoring, consulting and advisory fees and related indemnities and expenses
paid in such period to (or on behalf of) the Investors to the extent otherwise
permitted pursuant to Section 9.9,
(ix)the
amount of net cost savings
projected by the Borrower in good faith to be realized as a result of specified
actions taken or to be taken prior to or during such period (which cost
savings
shall be added to Consolidated EBITDA until fully realized, shall be subject
to
certification by management of the Borrower and shall be calculated on
a Pro
Forma Basis as though such cost savings had been realized on the first
day of
such period), net of the amount of actual benefits realized during such
period
from such actions; provided that (A) such cost savings are reasonably
identifiable and factually supportable, (B) such actions have been taken
or are
to be taken within 12 months after the date of determination to take such
action
and some portion of the benefit is expected to be realized within 12 months
of
taking such action, (C) no cost savings shall be added pursuant to this
clause (ix) to the extent duplicative of any expenses or charges relating
to such cost savings that are included in clause (v) above with respect
to such period and (D) the aggregate amount of cost savings added pursuant
to
this clause (ix) shall not exceed $150,000,000 for any Test Period (which
adjustments may be incremental to any Pro Forma Adjustments),
(x)the
amount of losses on Dispositions
of receivables and related assets in connection with any Permitted Receivables
Financing,
(xi)any
costs or expenses incurred
pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement or any stock subscription
or
shareholder agreement, to the extent that such costs or expenses are funded
with
cash proceeds contributed to the capital of the Borrower or net cash proceeds
of
an issuance of Stock or Stock Equivalents (other than Disqualified Stock)
of the
Borrower (or any direct or indirect parent thereof) solely to the extent
that
such net cash proceeds are excluded from the calculation of the Applicable
Equity Amount,
(xii)Expenses
Relating to a Unit Outage
(if positive); provided that the only Expenses Relating to a Unit Outage
that may be included as Consolidated EBITDA shall be, without duplication,
(A)
up to $250,000,000 per fiscal year of
-13-
Expenses
Relating to a Unit Outage incurred within the first 12 months of any
planned or unplanned outage of any Unit by reason of any action by any
regulatory body or other Governmental Authority or to comply with any Applicable
Law, (B) up to $100,000,000 per fiscal year of Expenses Relating to a Unit
Outage incurred within the first 12 months of any planned outage of any
Unit for
purposes of expanding or upgrading such Unit and (C) solely for the purposes
of
calculating “Consolidated EBITDA” for purposes of Section 10.9, all
Expenses Relating to a Unit Outage incurred within the first 12 months
of any
unplanned outage of any Unit,
(xiii)solely
for the purposes of
calculating “Consolidated EBITDA” for purposes of Section 10.9, the
proceeds of any business interruption insurance and, without duplication
of such
amounts, all EBITDA Lost as a Result of a Unit Outage and all EBITDA Lost
as a
Result of a Grid Outage less, in all such cases, the absolute value of
Expenses
Relating to a Unit Outage (if negative); provided that the amount
calculated pursuant to this clause (xiii) shall not be less than
zero,
(xiv)solely
for the purposes of
calculating “Consolidated EBITDA” for purposes of Section 10.9, (i) prior
to the earlier of (x) March 31, 2011 and (y) the date that Oak Grove Unit
1 has
achieved a capacity factor of 70% for an entire fiscal quarter (such earlier
date, the “Oak Grove Unit 1 Deemed Completion Date”), the
amount of any loss attributable to Oak Grove Unit 1, (ii) prior to the
earlier
of (x) September 30, 2011 and (y) the date that Oak Grove Unit 2 has achieved
a
capacity factor of 70% for an entire fiscal quarter, the amount of any
loss
attributable to Oak Grove Xxxx 0 (xxx “Xxx Xxxxx Xxxx 0 Deemed
Completion Date”), and (iii) prior to the earlier of (x) December 31,
2010 and the date that Sandow Unit 5 has achieved a capacity factor of
70% for
an entire fiscal quarter (the “Sandow Unit 5 Deemed Completion
Date”), the amount of any loss attributable to Sandow Unit 5, in all
such cases, in an aggregate amount not to exceed $100,000,000 in any fiscal
year,
(xv)unusual
or non-recurring charges
(including unusual or non-recurring expenses), severance, relocation costs,
consolidation and closing costs, business optimization costs, transition
costs,
restructuring costs, signing, retention or completion bonuses, and curtailments
or modifications to pension and post-retirement employee benefit plans
for such
period,
(xvi)any
impairment charge or asset
write-off or write-down including impairment charges or asset write-offs
or
write-downs related to intangible assets, long-lived assets and Investments
in
debt and equity securities, in each case pursuant to GAAP, and the amortization
of intangibles arising pursuant to GAAP,
(xvii)cash
receipts (or any netting
arrangements resulting in increased cash receipts) not added in arriving
at
Consolidated EBITDA or Consolidated Net Income in any period to the extent
the
non-cash gains relating to such receipts were deducted in the calculation
of
Consolidated EBITDA pursuant to paragraph (b) below for any previous period
and
not added, and
(xviii)to
the extent covered by insurance
and actually reimbursed, or, so long as the Borrower has made a determination
that there exists reasonable evidence that such amount will in fact be
reimbursed by the insurer and only to the extent that such amount is (i)
not
denied by the applicable carrier in writing within 180 days and (ii) in
fact
reimbursed within 365 days of the date of such evidence (with a deduction
for
any amount so added
back to the extent not so reimbursed within 365 days), expenses with respect
to
liability or casualty events or business interruption,
less
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(b) without
duplication and to the extent included in arriving at such Consolidated
Net
Income for the Borrower and the Restricted Subsidiaries, the sum of the
following amounts for such period:
(i)non-cash
gains increasing
Consolidated Net-Income for such period (excluding any non-cash gain to
the
extent it represents the reversal of an accrual or reserve for a potential
cash
item that reduced Consolidated Net Income or Consolidated EBITDA in any
prior
period),
(ii)unusual
or non-recurring
gains,
(iii)cash
expenditures (or any netting
arrangements resulting in increased cash expenditures) not deducted in
arriving
at Consolidated EBITDA or Consolidated Net Income in any period to the
extent
non-cash losses relating to such expenditures were added in the calculation
of
Consolidated EBITDA pursuant to paragraph (a) above for any previous period
and
not deducted, and
(iv)the
amount of any minority interest
income consisting of Subsidiary losses attributable to minority equity
interests
of third parties in any non-Wholly Owned Subsidiary,
in
each case, as determined on a consolidated basis for the Borrower and the
Restricted Subsidiaries in accordance with GAAP; provided
that
(i) to
the extent included in Consolidated Net Income, there shall be excluded
in
determining Consolidated EBITDA any gain or loss resulting in such period
from
currency translation gains and losses related to currency remeasurements
of
Indebtedness or intercompany balances (including the net loss or gain resulting
from Hedging Obligations for currency exchange risk),
(ii) there
shall be included in determining Consolidated EBITDA for any period, without
duplication, (A) the Acquired EBITDA of any Person or business, or attributable
to any property or asset, acquired by the Borrower or any Restricted Subsidiary
during such period (but not the Acquired EBITDA of any related Person or
business or any Acquired EBITDA attributable to any assets or property,
in each
case to the extent not so acquired) to the extent not subsequently sold,
transferred, abandoned or otherwise disposed by the Borrower or such Restricted
Subsidiary (each such Person, business, property or asset acquired (including
pursuant to the Transactions) and not subsequently so disposed of, an
“Acquired Entity or Business”) and the Acquired EBITDA of any
Unrestricted Subsidiary that is converted into a Restricted Subsidiary
during
such period (each, a “Converted Restricted Subsidiary”), in
each case based on the actual Acquired EBITDA of such Pro Forma Entity
for such
period (including the portion thereof occurring prior to such acquisition
or
conversion) and (B) an adjustment in respect of each Pro Forma Entity equal
to the amount of the Pro Forma Adjustment with respect to such Pro Forma
Entity
for such period (including the portion thereof occurring prior to such
acquisition) as specified in a Pro Forma Adjustment Certificate and delivered
to
the Administrative Agent (for further delivery to the Lenders),
iii) there
shall be included in determining Consolidated EBITDA for any Test Period
that
(A) (i) ends on the Oak Grove Unit 1 Deemed Completion Date, an amount
equal to
the actual Consolidated EBITDA contributed through the operation of Oak
Grove
Unit 1 for the last fiscal quarter of such Test Period (as such amount
is
adjusted for seasonality in a manner determined
-15-
(in
good faith by the management of the Borrower, which determination shall
be based
on historical seasonality trends in the generation business of the Borrower)
multiplied by 4, (ii) ends on the last day of the first fiscal quarter
following the Oak Grove Unit 1 Deemed Completion Date, an amount equal
to the
actual Consolidated EBITDA contributed through the operation of Oak Grove
Unit 1
for the final two fiscal quarters of such Test Period (as such amount is
adjusted for seasonality in a manner determined in good faith by the management
of the Borrower, which determination shall be based on historical seasonality
trends in the generation business of the Borrower) multiplied by 2 and
(iii) ends on the last day of the second fiscal quarter following the Oak
Grove
Unit 1 Deemed Completion Date, an amount equal to the actual Consolidated
EBITDA
contributed through the operation of Oak Grove Unit 1 for the final three
fiscal
quarters of such Test Period (as such amount is adjusted for seasonality
in a
manner determined in good faith by the management of the Borrower, which
determination shall be based on historical seasonality trends in the generation
business of the Borrower) multiplied by 4/3, (B) (i) ends on the Oak
Grove Unit 2 Deemed Completion Date, an amount equal to the actual Consolidated
EBITDA contributed through the operation of Oak Grove Unit 2 for the last
fiscal
quarter of such Test Period (as such amount is adjusted for seasonality
in a
manner determined in good faith by the management of the Borrower, which
determination shall be based on historical seasonality trends in the generation
business of the Borrower) multiplied by 4, (ii) ends on the last day of
the first fiscal quarter following the Oak Grove Unit 2 Deemed Completion
Date,
an amount equal to the actual Consolidated EBITDA contributed through the
operation of Oak Grove Unit 2 for the final two fiscal quarters of such
Test
Period (as such amount is adjusted for seasonality in a manner determined
in
good faith by the management of the Borrower, which determination shall
be based
on historical seasonality trends in the generation business of the Borrower)
multiplied by 2 and (iii) ends on the last day of the second fiscal
quarter following the Oak Grove Unit 2 Deemed Completion Date, an amount
equal
to the actual Consolidated EBITDA contributed through the operation of
Oak Grove
Unit 2 for the final three fiscal quarters of such Test Period (as such
amount
is adjusted for seasonality in a manner determined in good faith by the
management of the Borrower, which determination shall be based on historical
seasonality trends in the generation business of the Borrower) multiplied
by 4/3, and (C) (i) ends on the Sandow Unit 5 Deemed Completion Date, an
amount
equal to the actual Consolidated EBITDA contributed through the operation
of
Sandow Unit 5 for the last fiscal quarter of such Test Period (as such
amount is
adjusted for seasonality in a manner determined in good faith by the management
of the Borrower, which determination shall be based on historical seasonality
trends in the generation business of the Borrower) multiplied by 4, (ii)
ends on the last day of the first fiscal quarter following the Sandow Unit
5
Deemed Completion Date, an amount equal to the actual Consolidated EBITDA
contributed through the operation of Sandow Unit 5 for the final two fiscal
quarters of such Test Period (as such amount is adjusted for seasonality
in a
manner determined in good faith by the management of the Borrower, which
determination shall be based on historical seasonality trends in the generation
business of the Borrower) multiplied by 2 and (iii) ends on the last day
of the second fiscal quarter following the Sandow Unit 5 Deemed Completion
Date,
an amount equal to the actual Consolidated EBITDA contributed through the
operation of Sandow Unit 5 for the final three fiscal quarters of such
Test
Period (as such amount is adjusted for seasonality in a manner determined
in
good faith by the management of the Borrower, which determination shall
be based
on historical seasonality trends in the generation business of the Borrower)
multiplied by 4/3,
(iv) to
the extent included in Consolidated Net Income, there shall be excluded
in
determining Consolidated EBITDA for any period the Disposed EBITDA of any
Person, property, business or asset (other than an Unrestricted Subsidiary)
sold, transferred, abandoned or otherwise disposed of, closed or classified
as
discontinued operations by the Borrower or any Restricted Subsidiary during
such
period (each such Person, property, business or asset so sold,
-16-
transferred,
abandoned or otherwise disposed of, or closed or so classified, a “Sold
Entity or Business”), and the Disposed EBITDA of any Restricted
Subsidiary that is converted into an Unrestricted Subsidiary during such
period
(each, a “Converted Unrestricted Subsidiary”), in each case
based on the actual Disposed EBITDA of such Sold Entity or Business or
Converted
Unrestricted Subsidiary for such period (including the portion thereof
occurring
prior to such sale, transfer or disposition, closure, classification or
conversion).
“Consolidated
EBITDA to Consolidated Interest Expense Ratio” shall mean, as of any
date of determination, the ratio of (a) Consolidated EBITDA for the most
recent Test Period ended on or prior to such date of determination to
(b) Consolidated Interest Expense for such Test Period; provided
that, for purposes of calculating the Consolidated EBITDA to Consolidated
Interest Expense Ratio for any period ending prior to the first anniversary
of
the Closing Date, Consolidated Interest Expense shall be an amount equal
to
actual Consolidated Interest Expense from the Closing Date through the
date of
determination multiplied by a fraction the numerator of which is 365 and
the
denominator of which is the number of days from the Closing Date through
the
date of determination. In the event that the Borrower or any
Restricted Subsidiary incurs, assumes, guarantees, repays, redeems, retires
or
extinguishes any Indebtedness (other than Indebtedness incurred under any
revolving credit facility that has not been permanently repaid) subsequent
to
the commencement of the period for which the Consolidated EBITDA to Consolidated
Interest Coverage Ratio is being calculated, but prior to or simultaneously
with
the event for which the calculation of the Consolidated EBITDA to Consolidated
Interest Coverage Ratio is made (the “Calculation Date”), then
the Consolidated EBITDA to Consolidated Interest Coverage Ratio shall be
calculated giving Pro Forma Effect to such incurrence, assumption, guarantee,
repayment, redemption, retirement or extinguishing of Indebtedness as if
the
same had occurred at the beginning of the applicable Test Period.
“Consolidated
Interest Expense” shall mean, with respect to any period, without
duplication, the sum of:
(1) consolidated
interest expense of the Borrower and the Restricted Subsidiaries for such
period, to the extent such expense was deducted (and not added back) in
computing Consolidated Net Income (including (a) amortization of original
issue discount resulting from the issuance of Indebtedness at less than
par,
(b) all commissions, discounts and other fees and charges owed with respect
to letters of credit, bankers’ acceptances or the Posting Facility or other
collateral posting facilities, (c) non-cash interest payments (but
excluding any non-cash interest expense attributable to the movement in
the xxxx
to market valuation of Hedging Obligations or other derivative instruments
pursuant to GAAP), (d) the interest component of Capitalized Lease
Obligations and (e) net payments, if any, pursuant to interest rate Hedging
Obligations with respect to Indebtedness, and excluding (u) accretion of
asset
retirement obligations and accretion or accrual of discounted liabilities
not
constituting Indebtedness, (v) any expense resulting from the discounting
of any Indebtedness in connection with the application of purchase accounting,
(w) all additional interest then owing pursuant to the Registration Rights
Agreement and any comparable “additional interest” with respect to other
securities, (x) amortization of reacquired Indebtedness, deferred financing
fees, debt issuance costs, commissions, fees and expenses, (y) any
expensing of bridge, commitment and other financing fees and
(z) commissions, discounts,
yield and other fees and charges (including any interest expense) related
to any
Permitted Receivables Financing); plus
(2) consolidated
capitalized interest of (A) the Borrower and the Restricted Subsidiaries,
in
each case for such period, whether paid or accrued;
less
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(3) interest
income for such period; plus
(4) all
cash dividends or other distributions paid (excluding items eliminated
in
consolidation) on any series of Preferred Stock during such period;
plus
(5) all
cash dividends or other distributions paid (excluding items eliminated
in
consolidation) on any series of Disqualified Stock during such
period.
For
purposes of this definition, interest on a Capitalized Lease Obligation
shall be
deemed to accrue at an interest rate reasonably determined by such Person
to be
the rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP.
“Consolidated
Net Income” shall mean, for any period, the net income (loss) of the
Borrower and the Restricted Subsidiaries for such period determined on
a
consolidated basis in accordance with GAAP, excluding, without
duplication,
(a) any
after-tax effect of extraordinary losses and gains for such period,
(b) Transaction
Expenses to the extent incurred on or prior to December 31, 2008,
(c) the
cumulative effect of a change in accounting principles during such
period,
(d) any
after-tax effect of income (or loss) from disposed, abandoned or discontinued
operations and any net after-tax gains or losses on disposal of disposed,
abandoned, transferred, closed or discontinued operations,
(e) any
after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions or abandonments other than
in the
ordinary course of business, as determined in good faith by the
Borrower,
(f) any
income (or loss) during such period of any Person that is an Unrestricted
Subsidiary, and any income (or loss) during such period of any Person that
is
not a Subsidiary or that is accounted for by the equity method of accounting;
provided that the Consolidated Net Income of the Borrower and the
Restricted Subsidiaries shall be increased by the amount of dividends or
distributions or other payments that are actually paid in cash (or to the
extent
converted into cash) to the Borrower or any Restricted Subsidiary during
such
period,
(g) solely
for the purpose of determining the Applicable Amount and Excess Cash Flow,
any
income (or loss) during such period of any Restricted Subsidiary (other
than any
Credit Party) to the extent that the declaration or payment of dividends
or
similar distributions by that Restricted Subsidiary of its net income is
not at
the date of determination wholly permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by the
operation of the terms of its Organizational Documents or any agreement,
instrument or Applicable Law applicable to that Restricted Subsidiary or
its
stockholders, unless such restriction with respect to the payment of dividends
or similar distributions has been legally waived; provided
that Consolidated Net Income of the Borrower and the Restricted Subsidiaries
will be increased by the amount of dividends or other distributions or
other
payments actually paid in cash (or to the extent converted into cash) to
the
Borrower or any Restricted Subsidiary during such period, to the extent
not
already included therein,
-18-
(h) effects
of all adjustments (including the effects of such adjustments pushed down
to the
Borrower and the Restricted Subsidiaries) in the Borrower’s consolidated
financial statements pursuant to GAAP resulting from the application of
purchase
accounting in relation to the Transactions or any consummated acquisition
whether consummated before or after the Closing Date or the amortization
or
write-off of any amounts thereof, net of taxes,
(i) any
net after-tax effect of income (or loss) for such period attributable to
the
early extinguishment of Indebtedness (other than Hedging
Obligations),
(j) any
net after-tax effect of any unrealized income (or loss) for such period
attributable to Hedging Obligations or other derivative
instruments,
(k) any
impairment charge or asset write-off or write-down including impairment
charges
or asset write-offs or write-downs related to intangible assets, long-lived
assets and investments in debt and equity securities to the extent relating
to
changes in commodity prices, in each case pursuant to GAAP to the extent
offset
by gains from Hedging Obligations,
(l) any
non-cash compensation expense recorded from grants of stock appreciation
or
similar rights, stock options, restricted stock or other rights, and any
cash
charges associated with the rollover, acceleration or payout of Stock or
Stock
Equivalents by management of the Borrower or any of its direct or indirect
parent companies in connection with the Transactions, and
(m) accruals
and reserves established or adjusted within twelve months
after the Closing Date that are so required to be established as a result
of the
Transactions in accordance with GAAP or changes as a result of adoption
of or
modification of accounting policies during such period.
“Consolidated
Secured Debt” shall mean Consolidated Total Debt secured by a Lien on
any assets of the Borrower or any Restricted Subsidiary.
“Consolidated
Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any date
of determination, the ratio of (a) Consolidated Secured Debt as of the last
date of the most recent Test Period ended on or prior to such date of
determination to (b) Consolidated EBITDA for such Test Period.
“Consolidated
Total Assets” shall mean, as of any date of determination, the amount
that would, in conformity with GAAP, be set forth opposite the caption
“total
assets” (or any like caption), after intercompany eliminations, on a
consolidated balance sheet of the Borrower and the Restricted Subsidiaries
at
such date.
“Consolidated
Total Debt” shall mean, as of any date of determination, (a) all
Indebtedness of the types described in clause (a), clause (b),
clause (d) (but, in the case of clause (d), only to the extent of
any unreimbursed drawings under any letter of credit) and clause (f) of
the definition thereof, in each case actually owing by the Borrower and
the
Restricted Subsidiaries on such date and to the extent appearing on the
balance
sheet of the Borrower determined on a consolidated basis in accordance
with GAAP
(provided that the amount of any Capitalized Lease Obligations or any
such Indebtedness issued at a discount to its face value shall be determined
in
accordance with GAAP) minus (b) the aggregate amount of all Unrestricted
Cash minus (c) all Deposit L/C Loans and Incremental Deposit L/C Loans
outstanding on such date of determination (but not to exceed the amount
of funds
on deposit in the Deposit L/C Loan Collateral Account on such date of
determination) minus (d) all Indebtedness related to any
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Permitted
Receivables Financing minus (e) solely for the purposes of calculating
“Consolidated Total Debt” for purposes of Section 10.9, (i) prior to the
Oak Grove Unit 1 Deemed Completion Date, the amount of Delayed Draw Term
Loans
or any other Indebtedness used in lieu of, or to refinance, such Delayed
Draw
Term Loans (so long as the aggregate amount of all such Delayed Draw Term
Loans
and other Indebtedness, when combined with the amounts described in clauses
(ii) and (iii) below, does not exceed $4,100,000,000), outstanding on
the last day of any Test Period that has been used to fund any expenditures
at
Oak Grove Unit 1, (ii) prior to the Oak Grove Unit 2 Deemed Completion
Date, the
amount of Delayed Draw Term Loans or any other Indebtedness used in lieu
of, or
to refinance, such Delayed Draw Term Loans (so long as the aggregate amount
of
all such Delayed Draw Term Loans and other Indebtedness, when combined
with the
amounts described in clauses (i) above and (iii) below, does not
exceed $4,100,000,000) outstanding on the last day of any Test Period that
has
been used to fund any expenditures at Oak Grove Unit 2, and (iii) prior
to the
Sandow Xxxx 0 Xxxxxx Xxxxxxxxxx Date, the amount of Delayed Draw Term Loans
or
any other Indebtedness used in lieu of, or to refinance, such Delayed Draw
Term
Loans (so long as the aggregate amount of all such Delayed Draw Term Loans
and
other Indebtedness, when combined with the amounts described in clauses
(i) and (ii) above, does not exceed $4,100,000,000) outstanding on
the last day of any Test Period that has been used to fund any expenditures
at
Sandow Unit 5.
“Consolidated
Total Debt to Consolidated EBITDA Ratio” shall
mean, as of any date of determination, the ratio of (a) Consolidated Total
Debt as of such date of determination to (b) Consolidated EBITDA for the
most
recent Test Period ended on or prior to such date of determination.
“Consolidated
Working Capital” shall mean, at any date, the excess of (a) the sum of
all amounts (other than cash, Permitted Investments and margin deposits
related
to commodity positions) that would, in conformity with GAAP, be set forth
opposite the caption “total current assets” (or any like caption) on a
consolidated balance sheet of the Borrower and the Restricted Subsidiaries
at
such date excluding the current portion of current and deferred income
taxes
over (b) the sum of all amounts (other than margin deposits related
to commodity positions) that would, in conformity with GAAP, be set forth
opposite the caption “total current liabilities” (or any like caption) on a
consolidated balance sheet of the Borrower and the Restricted Subsidiaries
on
such date, including deferred revenue but excluding, without duplication,
(i) the current portion of any Funded Debt, (ii) all Indebtedness
consisting of Loans, Posting Advances and Revolving Letter of Credit Exposure,
(iii) the current portion of interest, (iv) the current portion of current
and deferred income taxes and (v) the effects from applying purchase
accounting.
“Continuing
Director” shall mean, at any date, an individual (a) who is a
member of the board of directors of the Borrower on the date hereof,
(b) who, as of the date of determination, has been a member of such board
of directors for at least the twelve preceding months, (c) who has been
nominated to be a member of such board of directors, directly or indirectly,
by
a Sponsor or Persons nominated by a Sponsor or (d) who has been nominated
to be
a member of such board of directors by a majority of the other Continuing
Directors then in office.
“Contract
Consideration” shall have the meaning provided in the definition of
“Excess Cash Flow”.
“Contractual
Requirement” shall have the meaning provided in
Section 8.3.
“Converted
Restricted Subsidiary” shall have the meaning provided in the
definition of the term “Consolidated EBITDA”.
“Converted
Unrestricted Subsidiary” shall have the meaning provided in the
definition of the term “Consolidated EBITDA”.
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“Covered
Commodity” shall mean any energy, electricity, generation capacity,
power, heat rate, congestion, natural gas, nuclear fuel (including enrichment
and conversion), diesel fuel, fuel oil, other petroleum-based liquids,
coal,
lignite, weather, emissions and other environmental credits, waste by-products,
renewable energy credit, or any other energy related commodity or service
(including ancillary services and related risks (such as location
basis)).
“Credit
Documents” shall mean this Agreement, the Guarantee, the Security
Documents, each Letter of Credit, the Posting Facility Fee Letter and any
promissory notes issued by the Borrower hereunder.
“Credit
Event” shall mean and include the making (but not the conversion or
continuation) of a Loan, Posting Advance and the issuance of a Letter of
Credit.
“Credit
Facility” shall mean any of the Initial Term Loan Facility, the Delayed
Draw Term Loan Facility, any Incremental Term Loan Facility, the Revolving
Credit Facility, the Deposit L/C Loan Facility, any Incremental Deposit
L/C Loan
Facility, the Posting Facility and any Incremental Posting
Facility.
“Credit
Party” shall mean each of US Holdings, the Borrower, each of the
Subsidiary Guarantors and each other Subsidiary of the Borrower that is
a party
to a Credit Document.
“Cumulative
Consolidated Net Income” shall mean, for any period, Consolidated Net
Income for such period, taken as a single accounting
period. Cumulative Consolidated Net Income may be a positive or
negative amount.
“Cure
Amount” shall have the meaning provided in Section
11.15(a).
“Cure
Right” shall have the meaning provided in Section
11.15(a).
“Daily
Notice” shall have the meaning provided in Section
14.2(a).
“Dealer”
shall mean X. Xxxx & Company, in such capacity.
“Dealer
Swaps” shall mean the over-the-counter financial natural gas fixed for
floating swap transactions entered into between the Borrower and the Restricted
Subsidiaries, on the one hand, and the Dealer, on the other hand, from
time to
time during the term of the Posting Facility.
“Declined
Proceeds” shall have the meaning provided in Section
5.2(h).
“Deemed
Cash” shall have the meaning provided in Section
10.4(b).
“Deemed
Transactions” shall have the meaning provided in Section
14.7.
“Default”
shall mean, except as limited in Section 11.1(c), any event, act or condition
that with notice or lapse of time, or both, would constitute an Event of
Default.
“Defaulting
Lender” shall mean any Lender with respect to which a Lender Default
is
in effect.
“Default
Rate” shall have the meaning provided in Section
2.8(d).
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“Deferred
Net Cash Proceeds” shall have the meaning provided such term in the
definition of “Net Cash Proceeds”.
“Deferred
Net Cash Proceeds Payment Date” shall have the meaning provided such
term in the definition of “Net Cash Proceeds”.
“Delayed
Draw Commitment Fee” shall have the meaning provided in Section
4.1(b).
“Delayed
Draw Commitment Fee Rate” shall mean, with respect to the Available
Delayed Draw Term Loan Commitment applicable to Lenders with a Delayed
Draw Term
Loan Commitment, (a) on any day from and including the Closing Date to
but
excluding the date of the first anniversary of the Closing Date, 1.25%
per
annum and (b) on any day from and including the date of the first
anniversary of the Closing Date to but excluding the Delayed Draw Term
Loan
Commitment Termination Date, 1.50% per annum.
“Delayed
Draw Term Loan” shall have the meaning provided in Section
2.1(c).
“Delayed
Draw Term Loan Commitment” shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth opposite
such
Lender’s name on Schedule 1.1(a) as such Lender’s “Delayed Draw Term Loan
Commitment” and (b) in the case of any Lender that becomes a Lender after
the date hereof, the amount specified as such Lender’s “Delayed Draw Term Loan
Commitment” in the Assignment and Acceptance pursuant to which such Lender
assumed a portion of the Total Delayed Draw Term Loan Commitment, in each
case
as the same may be changed from time to time pursuant to the terms
hereof. The aggregate amount of the Delayed Draw Term Loan
Commitments as of the date hereof is $4,100,000,000.
“Delayed
Draw Term Loan Commitment Termination Date” shall mean the date that is
two years after the Closing Date; provided that if such date is not a
Business Day, the “Delayed Draw Term Loan Commitment Termination Date” will be
the next succeeding Business Day.
“Delayed
Draw Term Loan Facility” shall have the meaning provided in the
recitals to this Agreement.
“Delayed
Draw Term Loan Maturity Date” shall mean the date that is seven years
after the Closing Date; provided that if such date is not a Business Day,
the “Delayed Draw Term Loan Maturity Date” will be the next succeeding Business
Day.
“Delayed
Draw Term Loan Repayment Amount” shall have the meaning provided in
Section 2.5(b)(ii).
“Delayed
Draw Term Loan Repayment Date” shall have the meaning provided in
Section 2.5(b)(ii).
“Depositary
Bank” shall have the meaning provided in Section
3.9.
“Deposit
L/C Loan” shall have the meaning provided in Section
2.1(b).
“Deposit
L/C Loan Collateral Account” shall mean one or more Cash Collateral
Accounts or securities accounts established pursuant to, and subject
to the
terms of, Section 3.9.
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“Deposit
L/C Loan Collateral Account Balance” shall mean, at any time, the
aggregate amount on deposit in the Deposit L/C Loan Collateral
Account.
“Deposit
L/C Loan Commitment” shall mean, (a) in the case of each Lender
that is a Lender on the date hereof, the amount set forth opposite such
Lender’s
name on Schedule 1.1(a) as such Lender’s “Deposit L/C Loan Commitment”
and (b) in the case of any Lender that becomes a Lender after the date
hereof, the amount specified as such Lender’s “Deposit L/C Loan Commitment” in
the Assignment and Acceptance pursuant to which such Lender assumed a portion
of
the Total Deposit L/C Loan Commitment, in each case as the same may be
changed
from time to time pursuant to the terms hereof. The aggregate amount
of the Deposit L/C Loan Commitments as of the date hereof is
$1,250,000,000.
“Deposit
L/C Loan Facility” shall have the meaning provided in the recitals to
this Agreement.
“Deposit
L/C Loan Maturity Date” shall mean the date that is seven years after
the Closing Date; provided that if such date is not a Business Day, the
“Deposit L/C Loan Maturity Date” will be the next succeeding Business
Day.
“Deposit
L/C Maturity Date” shall mean the date that is three Business Days
prior to the Deposit L/C Loan Maturity Date.
“Deposit
L/C Obligations” shall mean, as at any date of determination, the
aggregate Stated Amount of all outstanding Deposit Letters of Credit plus
the aggregate principal amount of all Unpaid Drawings under all Deposit
Letters
of Credit. For all purposes of this Agreement, if on any date of
determination a Deposit Letter of Credit has expired by its terms but any
amount
may still be drawn thereunder by reason of the operation of Rule 3.14 of
the
ISP, such Deposit Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.
“Deposit
L/C Permitted Investments” shall mean:
(a) securities
issued or unconditionally guaranteed by the United States government or
any
agency or instrumentality thereof or funds that invest solely in such
securities; and
(b) time
deposits with, or domestic and LIBOR certificates of deposit or bankers’
acceptances issued by, Citibank, N.A.
“Deposit
Letter of Credit” shall mean each letter of credit issued pursuant to
Section 3.1(b)(i).
“Deposit
Letter of Credit Commitment” shall mean $1,250,000,000, as the same may
be reduced from time to time pursuant to Section 5.2(d).
“Deposit
Letter of Credit Issuer” shall mean (a) Citibank, N.A., any of its
Affiliates or any replacement or successor pursuant to Section 3.6,
(b) each issuer of an Existing Letter of Credit denoted as a “Deposit
Letter of Credit” on Schedule 1.1(b) and (c) at any time such Person who
shall become a Deposit Letter of Credit Issuer pursuant to Section 3.6
(it being understood that if any such Person ceases to be a Lender hereunder,
such Person will remain a Deposit Letter of Credit Issuer with respect
to any
Deposit Letters of Credit issued by such Person that remained outstanding
as of
the date such Person ceased to be a Lender). Any Deposit Letter of
Credit Issuer may, in its discretion, arrange for one or more Deposit Letters
of
Credit to be issued by Affiliates of such Deposit Letter of Credit Issuer,
and
in each such case the term “Deposit Letter of Credit Issuer” shall include any
such Affiliate or Lender with
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respect
to Deposit Letters of Credit issued by such Affiliate or
Lender. References herein and in the other Credit Documents to the
Deposit Letter of Credit Issuer shall be deemed to refer to the Deposit
Letter
of Credit Issuer in respect of the applicable Deposit Letter of Credit
or to all
Deposit Letter of Credit Issuers, as the context requires.
“Deposit
Letters of Credit Outstanding” shall mean, at any time, the sum of,
without duplication, (a) the aggregate Stated Amount of all outstanding
Deposit Letters of Credit and (b) the aggregate principal amount of all
Unpaid Drawings in respect of all Deposit Letters of Credit.
“Designated
Non-Cash Consideration” shall mean the fair market value of non-cash
consideration received by the Borrower or any Restricted Subsidiary in
connection with a Disposition pursuant to Section 10.4(b) or Section
10.4(m) that is designated as Designated Non-Cash Consideration pursuant to
a certificate of an Authorized Officer of the Borrower, setting forth the
basis
of such valuation (which amount will be reduced by the fair market value
of the
portion of the non-cash consideration converted to cash within 180 days
following the consummation of the applicable Disposition).
“Disposed
EBITDA” shall mean, with respect to any Sold Entity or Business or any
Converted Unrestricted Subsidiary for any period, the amount for such period
of
Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted
Subsidiary (determined as if references to the Borrower and the Restricted
Subsidiaries in the definition of Consolidated EBITDA were references to
such
Sold Entity or Business or Converted Unrestricted Subsidiary and its respective
Subsidiaries), all as determined on a consolidated basis for such Sold
Entity or
Business or Converted Unrestricted Subsidiary, as the case may be.
“Disposition”
shall have the meaning provided in Section 10.4.
“Disqualified
Stock” shall mean, with respect to any Person, any Stock or Stock
Equivalents of such Person which, by its terms, or by the terms of any
security
into which it is convertible or for which it is putable or exchangeable,
or upon
the happening of any event, matures or is mandatorily redeemable (other
than
solely for Stock or Stock Equivalents that is not Disqualified Stock),
other
than as a result of a change of control or asset sale so long as any rights
of
the holders thereof upon the occurrence of a change of control or asset
sale
event shall be subject to the prior repayment in full of the Loans, Posting
Advances and all other Obligations (other than Hedging Obligations under
Secured
Hedging Agreements and/or Secured Commodity Hedging Agreements, Cash Management
Obligations under Secured Cash Management Agreements or contingent
indemnification obligations for which no claim has been made that are accrued
and payable and the termination of the Commitments), pursuant to a sinking
fund
obligation or otherwise, or is redeemable at the option of the holder thereof
(other than as a result of a change of control or asset sale so long as
any
rights of the holders thereof upon the occurrence of a change of control
or
asset sale event shall be subject to the prior repayment in full of the
Loans,
Posting Advances and all other Obligations (other than Hedging Obligations
under
Secured Hedging Agreements and/or Secured Commodity Hedging Agreements,
Cash
Management Obligations under Secured Cash Management Agreements or contingent
indemnification obligations for which no claim has been made that are accrued
and payable and the termination of the Commitments), in whole or in part,
in
each case prior to the date that is ninety-one (91) days after the latest
Maturity Date of any Credit Facility hereunder; provided that if such
Stock or Stock Equivalents are issued to any plan for the benefit of employees
of the Borrower or any of its Subsidiaries or by any such plan to such
employees, such Stock or Stock Equivalents shall not constitute Disqualified
Stock solely because it may be required to be repurchased by the Borrower
(or
any direct or indirect parent company thereof) or any of its Subsidiaries
in
order to satisfy applicable statutory or regulatory obligations;
provided, further, that any Stock or Stock Equivalents held by any
present or former employee, officer, director, manager or consultant, of
the
Borrower, any of
-24-
its
Subsidiaries or any of its direct or indirect parent companies or any other
entity in which the Borrower or any Restricted Subsidiary has an Investment
and
is designated in good faith as an “affiliate” by the Board of Directors of the
Borrower, in each case pursuant to any stockholders’ agreement, management
equity plan or stock incentive plan or any other management or employee
benefit
plan or agreement shall not constitute Disqualified Stock solely because
it may
be required to be repurchased by the Borrower or any of its
Subsidiaries.
“Disregarded
Entity” shall mean any Domestic Subsidiary that is disregarded for U.S.
federal income tax purposes.
“Disruption
Fallbacks” shall mean, in such order, Fallback Reference Price,
Postponement, Negotiated Fallback, Fallback Reference Dealers and Calculation
Agent Determination.
“Dividends”
or “dividends” shall have the meaning provided in
Section 10.6.
“Dollars”
and “$” shall mean dollars in lawful currency of the United
States of America.
“Domestic
Subsidiary” shall mean each Subsidiary of the Borrower that is
organized under the laws of the United States or any state thereof, or the
District of Columbia.
“Drawing”
shall have the meaning provided in Section 3.4(b).
“EBITDA
Lost as a Result of a Grid Outage” shall mean, to the extent that any
transmission or distribution lines go out of service, the revenue not actually
earned by the Borrower and its Restricted Subsidiaries that would otherwise
have
been earned with respect to any Unit within the first 12 month period that
such
transmission or distribution lines were out of service had such transmission
or
distribution lines not been out of service during such period.
“EBITDA
Lost as a Result of a Unit Outage” shall mean, to the extent that any
Unit is out of service as a result of any unplanned outage or shut down,
the
revenue not actually earned by the Borrower and its Restricted Subsidiaries
that
would otherwise have been earned with respect to any such Unit during the
first
12 month period of any such outage or shut down had such Unit not been
out of
service during such period.
“EPC
Contract” shall have the meaning provided in Section
9.14(f).
“Employee
Benefit Plan” shall mean an employee benefit plan (as defined in
Section 3(3) of ERISA), other than a Foreign Plan, that is maintained or
contributed to by the Parent, US Holdings, Borrower or any Subsidiary (or,
with
respect to an employee benefit plan subject to Title IV of ERISA, any ERISA
Affiliate).
“Energy
Plaza Lease” shall mean that certain Lease Agreement, dated as of
February 14, 2002, by and between TXU Properties and U.S. Bank, N.A. and
associated documents.
“Environmental
CapEx” shall mean Capital Expenditures deemed reasonably necessary by
the Borrower or any Restricted Subsidiary or otherwise undertaken voluntarily
by
the Borrower or any Restricted Subsidiary, to comply with, or in anticipation
of
having to comply with, applicable Enviromental
Laws or Capital Expenditures otherwise undertaken voluntarily by the Borrower
or
any Restricted Subsidiary in connection with environmental
matters.
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“Environmental
Claims” shall mean any and all actions, suits, proceedings, orders,
decrees, demands, demand letters, claims, liens, notices of noncompliance,
violation or potential responsibility or investigation (other than reports
prepared by or on behalf of the Parent, US Holdings, the Borrower or any
other
Subsidiary of the Parent (a) in the ordinary course of such Person’s business or
(b) as required in connection with a financing transaction or an acquisition
or
disposition of Real Estate) or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under any
such
Environmental Law (hereinafter, “Claims”), including
(i) any and all Claims by Governmental Authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant
to any
applicable Environmental Law and (ii) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation
or
injunctive relief relating to the presence, release or threatened release
into
the environment of Hazardous Materials or arising from alleged injury or
threat
of injury to human health or safety (to the extent relating to human exposure
to
Hazardous Materials), or to the environment, including ambient air, indoor
air,
surface water, groundwater, land surface and subsurface strata and natural
resources such as wetlands.
“Environmental
Law” shall mean any applicable Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code and rule of common law
now or,
with respect to any post-Closing Date requirements of the Credit Documents,
hereafter in effect and in each case as amended, and any binding judicial
or
administrative interpretation thereof, including any binding judicial or
administrative order, consent decree or judgment, relating to the protection
of
the environment, including ambient air, indoor air, surface water, groundwater,
land surface and subsurface strata and natural resources such as wetlands,
or to
human health or safety (to the extent relating to human exposure to Hazardous
Materials), or Hazardous Materials.
“Equity
Contribution” shall have the meaning provided in the recitals to this
Agreement.
“Equity
Offering” shall mean any public or private sale of common stock or
Preferred Stock of the Borrower or any of its direct or indirect parent
companies (excluding Disqualified Stock), other than: (a) public
offerings with respect to the Borrower’s or any direct or indirect parent
company’s common stock registered on Form S-8, (b) issuances to any Subsidiary
of the Borrower or any such parent and (c) any Cure Amount.
“ERCOT”
shall mean the Electric Reliability Council of Texas or any other entity
succeeding thereto.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time. Section references to ERISA are to ERISA as in effect
at the date of this Agreement and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
“ERISA
Affiliate” shall mean each person (as defined in Section 3(9) of ERISA)
that together with the Borrower or any Subsidiary of the Borrower would
be
deemed to be a “single employer” within the meaning of Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of the
Code.
“Estimated
MTM Exposure” shall have the meaning provided in Section
14.2(b).
“Event
of Default” shall have the meaning provided in Section
11.
“Excess
Cash Flow” shall mean, for any period, an amount equal to the excess
of:
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(a) the
sum, without duplication, of
(i)Consolidated
Net Income for such
period,
(ii)an
amount equal to the amount of all
non-cash charges to the extent deducted in arriving at such Consolidated
Net
Income and cash receipts included in clauses (a) through (m) of
the definition of Consolidated Net Income and excluded in arriving at such
Consolidated Net Income,
(iii)decreases
in Consolidated Working
Capital and long-term accounts receivable for such period (other than any
such
decreases arising from acquisitions or Disposition by the Borrower and
the
Restricted Subsidiaries completed during such period or the application
of
purchase accounting),
(iv)an
amount equal to the aggregate net
non-cash loss on Dispositions by the Borrower and the Restricted Subsidiaries
during such period (other than Dispositions in the ordinary course of business)
to the extent deducted in arriving at such Consolidated Net Income,
(v)an
amount equal to the amount, if
any, by which the booked lease expense of the Borrower and its Restricted
Subsidiaries exceeds the actual cash lease payments of the Borrower and
its
Restricted Subsidiaries for such period, and
(vi)Commodity
Amounts received back by
the Borrower or any of its Restricted Subsidiaries during such period (and
which
do not then constitute Commodity Amounts) to the extent such amounts served
to
decrease Excess Cash Flow in a prior period;
over
(b) the sum, without duplication, of
(i) an
amount equal to the amount of all non-cash credits included in arriving
at such
Consolidated Net Income and cash charges included in clauses (a) through
(m) of the definition of Consolidated Net Income and included
in arriving
at such Consolidated Net Income,
(ii) without
duplication of amounts deducted pursuant to clause (xi) below in prior
fiscal years, the amount of Capital Expenditures or acquisitions of intellectual
property made in cash during such period, to the extent that such Capital
Expenditures or acquisitions were financed with internally generated cash
flow
of the Borrower and the Restricted Subsidiaries,
(iii) the
aggregate amount of all principal payments of Indebtedness of the Borrower
and
the Restricted Subsidiaries (including (A) the principal component of
payments in respect of Capitalized Lease Obligations, (B) the amount of any
repayment of Term Loans pursuant to Section 2.5 and (C) the
amount of a mandatory prepayment of Term Loans pursuant to Section
5.2(a)(i) to the extent required due to a Prepayment Event that resulted in
an increase to such Consolidated Net Income and not in excess of the amount
of
such increase, but excluding (v) all prepayments of Posting Advances,
(w) all other prepayments of Term Loans, (x) all prepayments of Deposit L/C
Loans, (y) all prepayments of Revolving Credit Loans and Swingline Loans
and (z)
all prepayments in respect of any other revolving credit facility, except
in the
case of clauses (v), (y) and (z) to the extent there is an
equivalent permanent reduction in commitments thereunder), to the extent
financed with internally generated cash flow of the Borrower and the Restricted
Subsidiaries,
-27-
(iv) an
amount equal to the aggregate net non-cash gain on Dispositions by the
Borrower
and the Restricted Subsidiaries during such period (other than Dispositions
in
the ordinary course of business) to the extent included in arriving at
such
Consolidated Net Income,
(v) increases
in Consolidated Working Capital and long-term accounts receivable for such
period (other than any such increases arising from acquisitions or Dispositions
by the Borrower and the Restricted Subsidiaries completed during such period
or
the application of purchase accounting),
(vi) without
duplication of amounts deducted pursuant to clauses (xii) and
(xiii) below in prior fiscal years, payments by the Borrower
and the
Restricted Subsidiaries during such period in respect of long-term liabilities
(including long-term non-current tax accounts) of the Borrower and the
Restricted Subsidiaries other than Indebtedness, to the extent not already
deducted from Consolidated Net Income,
(vii) without
duplication of amounts deducted pursuant to clause (xi) below in prior
fiscal years, the aggregate amount of cash consideration paid by the Borrower
and the Restricted Subsidiaries (on a consolidated basis) in connection
with
Investments (including acquisitions) made during such period pursuant to
Section 10.5 (other than Section 10.5(b)) to the extent that such
Investments were financed with internally generated cash flow of the Borrower
and the Restricted Subsidiaries (other than with the proceeds of clause
(a)(i) of the Applicable Amount),
(viii) the
amount of dividends paid during such period (on a consolidated basis) by
the
Borrower and the Restricted Subsidiaries pursuant to Section 10.6 to the
extent such dividends were financed with internally generated cash flow
of the
Borrower and the Restricted Subsidiaries (other than with the proceeds
of
clause (a)(i) of the Applicable Amount),
(ix) the
aggregate amount of expenditures actually made by the Borrower and the
Restricted Subsidiaries in cash during such period (including expenditures
for
the payment of financing fees) to the extent that such expenditures are
not
expensed during such period and are not deducted in calculating Consolidated
Net
Income,
(x) the
aggregate amount of any premium, make-whole or penalty payments actually
paid in
cash by the Borrower and the Restricted Subsidiaries during such period
that are
made in connection with any prepayment of Indebtedness to the extent that
such
payments are not deducted in calculating Consolidated Net Income,
(xi) without
duplication of amounts deducted from Excess Cash Flow in prior periods,
(A) the
aggregate consideration required to be paid in cash by the Borrower or
any
Restricted Subsidiary pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to
Permitted Acquisitions and other Investments, Capital Expenditures or
acquisitions of intellectual property to be consummated or made during
the
period of four consecutive fiscal quarters of the Borrower following the
end of
such period; provided that to the extent the aggregate amount of
internally generated cash actually utilized to finance such Permitted
Acquisitions and other Investments, Capital Expenditures or acquisitions
of
intellectual property during such period of four consecutive fiscal quarters
is
less than the Contract Consideration, the amount
of such shortfall shall be added to the calculation of Excess Cash Flow
at the
end of such period of four consecutive fiscal quarters,
(xii) without
duplication of amounts deducted pursuant to clauses (vi) above and
(xiii) below in prior fiscal years, the amount of taxes (including
penalties and interest) paid in cash or
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tax
reserves set aside or payable in cash (without duplication) by the Borrower
or
any Restricted Subsidiary in such period to the extent they exceed the
amount of
tax expense deducted in determining Consolidated Net Income for such
period,
(xiii) without
duplication of amounts deducted from Excess Cash Flow in prior periods
(except
to the extent any amounts are added to Excess Cash Flow pursuant to the
operation of the proviso set forth below in this clause (xiii) in any in
such period or in any prior periods), an amount equal to the aggregate
amount of
tax liabilities incurred and reserved in periods prior to the Closing Date
(“Reserved Taxes”) and expected to be paid in cash by the
Borrower or any Restricted Subsidiary during the period of four consecutive
fiscal quarters of the Borrower following the end of such period; provided
that,
to the extent that the aggregate amount of cash utilized to finance such
tax
liabilities during such period of four consecutive fiscal quarters is less
than
the Reserved Taxes, the amount of such shortfall shall be added to the
calculation of Excess Cash Flow at the end of such period of four consecutive
fiscal quarters,
(xiv) an
amount equal to the amount, if any, by which actual cash lease payments
exceed
booked lease expense for the Borrower or any Restricted Subsidiary for
such
period,
(xv) to
the extent not included in the determination of Consolidation Net Income,
the
aggregate amount of expenditures actually made in cash by the Borrower
or any
Restricted Subsidiary relating to the acquisition of nuclear fuel,
and
(xvi) Commodity
Amounts in excess of the Base Amount pledged, deposited or prepaid and
not
returned during such period to the extent financed with internally generated
cash flow.
For
purposes of clause (b)(xvi) above, (I) “Base Amount”
shall mean, with respect to determining Excess
Cash Flow for any Fiscal Year,
the aggregate amount of the Commodity Amounts as of the last day of the
immediately preceding Fiscal Year (but in no event less than the aggregate
amount of the Commodity Amounts as of December 31, 2007) as determined
by the
Borrower and certified in writing to the Administrative Agent in connection
with
the delivery of financial statements for the Fiscal Year ending on such
date
pursuant to Section 9.1(a), (II) “Commodity Amounts”
shall mean, at any time, collectively, the Commodity
Collateral Amounts and
Prepaid Commodity Amounts, (III) “Commodity Collateral Amounts”
shall mean, at any time, cash and Permitted Investments
pledged or deposited as
collateral or in margin accounts with or on behalf of brokers, credit clearing
organizations, independent system operators, regional transmission
organizations, pipelines, state agencies, federal agencies, futures contract
brokers, customers, trading counterparties, or any other parties or issuers
of
surety bonds by the Borrower or any Restricted Subsidiary as security under
Commodity Hedging Agreements, and (IV) “Prepaid Commodity
Amounts” shall mean, at any time, the cash amounts prepaid by the
Borrower or any Restricted Subsidiary in respect of purchases of any
fuel-related or power-related commodity.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and
rules and regulations promulgated thereunder.
“Exchange
Rate” shall mean on any day with respect to any currency, the rate at
which such currency may be exchanged into any other currency, as set forth
at
approximately 11:00 a.m. (Lodon time) on such day on the Reuters World
Currency
Page for such currency. In the event that such rate does not appear
on any Reuters World Currency Page, the Exchange Rate shall be determined
by
reference to such other publicly available service for displaying exchange
rates
as may be agreed upon by the Administrative Agent and the Borrower, or,
in the
absence of such agreement, such Exchange Rate shall instead be the arithmetic
average of the spot rates of exchange of the Administrative Agent in the
market
-29-
where
its foreign currency exchange operations in respect of such currency are
then
being conducted, at or about 10:00 a.m., local time, on such date for the
purchase of the relevant currency for delivery two Business Days
later.
“Excluded
Stock and Stock Equivalents” shall mean (i) any Stock or Stock
Equivalents with respect to which, in the reasonable judgment of the Collateral
Agent (confirmed in writing by notice to the Borrower and the Administrative
Agent), the cost or other consequences (including any adverse tax or accounting
consequences) of pledging such Stock or Stock Equivalents in favor of the
Secured Parties under the Security Documents shall be excessive in view
of the
benefits to be obtained by the Secured Parties therefrom, (ii) solely in
the case of any pledge of Voting Stock of any Foreign Subsidiary to secure
the
Obligations, any Stock or Stock Equivalents of any class of such Foreign
Subsidiary in excess of 65% of the outstanding Voting Stock of such class
(such
percentage to be adjusted upon any Change in Law as may be required to
avoid
adverse U.S. federal income tax consequences to US Holdings, the Borrower
or any
Subsidiary of the Borrower), (iii) any Stock or Stock Equivalents to the
extent the pledge thereof would violate any Applicable Law, (iv) in the
case of any Stock or Stock Equivalents of any Subsidiary of the Borrower
that is
not Wholly Owned by the Borrower or any Subsidiary Guarantor at the time
such
Subsidiary becomes a Subsidiary, any Stock or Stock Equivalents of each
such
Subsidiary to the extent (A) that a pledge thereof to secure the
Obligations is prohibited by any applicable Contractual Requirement (other
than
customary non-assignment provisions which are ineffective under the Uniform
Commercial Code or other Applicable Law or any Organizational Document),
(B) any Contractual Requirement prohibits such a pledge without the consent
of any other party; provided that this clause (B) shall not apply if
(x) such other party is a Credit Party or Wholly Owned Subsidiary or
(y) consent has been obtained to consummate such pledge (it being
understood that the foregoing shall not be deemed to obligate the Borrower
or
any Subsidiary of the Borrower to obtain any such consent)) and for so
long as
such Contractual Requirement or replacement or renewal thereof is in effect,
or
(C) a pledge thereof to secure the Obligations would give any other party
(other than a Credit Party or Wholly Owned Subsidiary) to any contract,
agreement, instrument or indenture governing such Stock or Stock Equivalents
the
right to terminate its obligations thereunder (other than customary
non-assignment provisions which are ineffective under the Uniform Commercial
Code or other applicable law), (v) the Stock or Stock Equivalents of any
Subsidiary of a Foreign Subsidiary, (vi) any Stock or Stock Equivalents of
any Subsidiary to the extent that (A) the pledge of such Stock or Stock
Equivalents would result in adverse tax or accounting consequences to the
Borrower or any Subsidiary as reasonably determined by the Borrower and
(B) such Stock or Stock Equivalents have been identified in writing to the
Collateral Agent by an Authorized Officer of the Borrower, (vii) the Stock
or
Stock Equivalents of any Unrestricted Subsidiary, or Immaterial Subsidiary
and
(viii) the Stock or Stock Equivalents of any Receivables Entity if, after
using commercially reasonable efforts, the Borrower is unable to obtain
the
consent of the funding sources under the applicable Permitted Receivables
Financing to the pledge of such Stock or Stock Equivalents.
“Excluded
Subsidiary” shall mean (a) each Domestic Subsidiary listed on
Schedule 1.1(d) hereto and each future Domestic Subsidiary, in each case,
for so long as any such Subsidiary does not constitute a Material Subsidiary,
(b) each Domestic Subsidiary that is not a Wholly Owned Subsidiary on any
date
such Subsidiary would otherwise be required to become a Subsidiary Guarantor
pursuant to the requirements of Section 9.11 (for so long as such
Subsidiary remains a non-Wholly Owned Restricted Subsidiary), (c) any
Disregarded Entity substantially all the assets of which consist of Stock
and
Stock Equivalents of Foreign Subsidiaries, (d) each Domestic Subsidiary
that is
prohibited by any applicable Contractual Requirement, Applicable Law or
Organizational Document from guaranteeing or granting Liens to secure the
Obligations at the time such Subsidiary becomes a Restricted Subsidiary
(and for
so long as such restriction or any replacement or renewal thereof is in
effect),
(e) each Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary,
(f) any other Domestic Subsidiary with respect to which, in the reasonable
judgment of the Administrative Agent (confirmed in writing by notice to
the
Borrower),
-30-
the
cost or other consequences (including any adverse tax or accounting
consequences) of guaranteeing the Obligations shall be excessive in view
of the
benefits to be obtained by the Secured Parties therefrom, (g) each Unrestricted
Subsidiary, (h) any Foreign Subsidiary, (i) any Receivables Entity and
(j) any Subsidiary to the extent that (A) the guarantee of the Obligations
by
would result in adverse tax or accounting consequences and (B) such
Subsidiaries have been identified in writing to the Collateral Agent by
an
Authorized Officer of the Borrower.
“Excluded
Taxes” shall mean, with respect to any Agent or any Lender,
(a) net income taxes and franchise and excise taxes (imposed in lieu of net
income taxes) imposed on such Agent or Lender, (b) any Taxes imposed on any
Agent or any Lender as a result of any current or former connection between
such
Agent or Lender and the jurisdiction of the Governmental Authority imposing
such
tax or any political subdivision or taxing authority thereof or therein
(other
than any such connection arising from such Agent or Lender having executed,
delivered or performed its obligations or received a payment under, or
having
been a party to or having enforced, this Agreement or any other Credit
Document), (c) any U.S. federal withholding tax that is imposed on amounts
payable to any Lender under the law in effect at the time such Lender becomes
a
party to this Agreement; provided that this subclause
(c) shall not apply to the extent that (x) the indemnity payments or
additional amounts any Lender would be entitled to receive (without regard
to
this subclause (c)) do not exceed the indemnity payment or additional
amounts that the person making the assignment, participation or transfer
to such
Lender would have been entitled to receive in the absence of such assignment
or
(y) any Tax is imposed on a Lender in connection with an interest in any
Loan, Posting Advance or other obligation that such Lender was required to
acquire pursuant to Section 13.8(a) or that such Lender acquired pursuant
to Section 13.7 (it being understood and agreed, for the avoidance of
doubt, that any withholding tax imposed on a Lender as a result of a Change
in
Law occurring after the time such Lender became a party to this Agreement
(or
designates a new lending office) shall not be an Excluded Tax) and (d)
any Tax
to the extent attributable to such Lender’s failure to comply with
Sections 5.4(d) and (e) (in the case of any Non-U.S. Lender)
or Section 5.4(h) (in the case of a U.S. Lender).
“Existing
Letters of Credit” shall mean the Letters of Credit listed on
Schedule 1.1(b).
“Existing
Letter of Credit Issuer” shall mean a Letter of Credit Issuer solely in
its capacity as an issuer of one or more Existing Letters of
Credit.
“Existing
Notes” shall mean:
· the
portion of the Borrower’s 6.125% Senior Notes due 2008 not
tendered;
· the
portion of the Borrower’s 7.000% Senior Notes due 2013 not
tendered;
· Pollution
Control Revenue Bonds—Brazos River Authority:
· 5.400%
Fixed Series 1994A due May 1, 2029;
· 7.700%
Fixed Series 1999A due April 1, 2033;
· 6.750%
Fixed Series 1999B due September 1, 2034 (remarketing date April 1,
2013);
· 7.700%
Fixed Series 1999C due March 1, 2032;
· Floating
Rate Series 2001A due October 1, 2030;
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· 5.750%
Fixed Series 2001C due May 1, 2036 (remarketing date November 1,
2011);
· Floating
Rate Series 2001D due May 1, 2033;
· Floating
Rate Taxable Series 2001I due December 1, 2036;
· Floating
Rate Series 2002A due May 1, 2037;
· 6.750%
Fixed Series 2003A due April 1, 2038 (remarketing date April 1,
2013);
· 6.300%
Fixed Series 2003B due July 1, 2032;
· 6.750%
Fixed Series 2003C due October 1, 2038;
· 5.400%
Fixed Series 2003D due October 1, 2029 (remarketing date October 1,
2014);
· 5.000%
Fixed Series 2006 due March 1, 2041;
· Pollution
Control Revenue Bonds—Sabine River Authority of Texas:
· 6.450%
Fixed Series 2000A due June 1, 2021;
· 5.500%
Fixed Series 2001A due May 1, 2022 (remarketing date November 1,
2011);
· 5.750%
Fixed Series 2001B due May 1, 2030 (remarketing date November 1,
2011);
· 5.200%
Fixed Series 2001C due May 1, 2028;
· 5.800%
Fixed Series 2003A due July 1, 2022;
· 6.150%
Fixed Series 2003B due August 1, 2022; and
· Pollution
Control Revenue Bonds—Trinity River Authority of Texas:
· 6.250%
Fixed Series 2000A due May 1, 2028.
“Existing
Notes Indentures” shall mean each of the indentures or other documents
containing the terms of the Existing Notes.
“Existing
Oncor Notes” shall mean:
· Oncor
Electric Delivery’s 6.375% Fixed Senior Notes, due 2012;
· Oncor
Electric Delivery’s 7.000% Fixed Senior Notes, due 2032;
· Oncor
Electric Delivery’s 6.375% Fixed Senior Notes, due 2015;
· Oncor
Electric Delivery’s 7.250% Fixed Senior Notes, due 2033; and
-32-
· Oncor
Electric Delivery’s 7.000% Fixed Debentures due 2022.
“Existing
Parent Notes” shall mean:
· US
Holdings’ Floating Rate Junior Subordinated Debentures, Series D, due
2037;
· US
Holdings’ 8.175% Fixed Junior Subordinated Debentures, Series E, due
2037;
· US
Holdings’ 7.460% Fixed Secured Bonds with amortizing payments to
2015;
· US
Holdings’ 7.480% Fixed Secured Bonds with amortizing payments to
2017;
· US
Holdings’ 9.580% Fixed Notes due in semi-annual installments to
2019;
· US
Holdings’ 8.254% Fixed Notes due in quarterly installments to 2021;
· the
Parent’s 5.550% Fixed Senior Notes, Series P, due 2014;
· the
Parent’s 6.500% Fixed Senior Notes, Series Q, due 2024;
· the
Parent’s 6.550% Fixed Senior Notes, Series R, due 2034;
· the
Parent’s Floating Convertible Senior Notes, due 2033;
· the
Parent’s 6.375% Senior Notes, Series C, due 2008; and
· the
portion of the Parent’s 4.800% Senior Notes, Series O, due 2009 not
tendered.
“Existing
Parent Notes Indentures” shall mean each of the indentures or other
documents containing the terms of the Existing Parent Notes.
“Existing
Tender Offer Notes” shall mean:
· the
portion of the Borrower’s 6.125% Senior Notes due 2008 not tendered;
and
· the
portion of the Borrower’s 7.000% Senior Notes due 2013 not
tendered.
“Expenses
Relating to a Unit Outage” shall mean an amount (which may be negative)
equal to (x) any expenses or other charges as a result of any outage or
shut-down of any Unit, including any expenses or charges relating to (a)
restarting any such Unit so that it may be placed back in service after
such
outage or shut-down, (b) purchases of power, natural gas or heat rate to
meet
commitments to sell, or offset a short position in, power, natural gas
or heat
rate that would otherwise have been met or offset from production generated
by
such Unit during the period of such outage or shut-down and (c) starting
up,
operating, maintaining and shutting down any other Unit that would not
otherwise
have been operating absent such outage or shut-down, including the fuel
and
other operating expenses, incurred to start-up, operate, maintain and shut-down
such Unit and that are required during the period of time that the shut-down
or
outaged Unit is out of service in order to meet the commitments of such
shut-down or outaged Unit to sell, or offset a short position in, power,
natural
gas or heat rate less (y) any expenses or
-33-
charges
not in fact incurred (including fuel and other operating expenses) that
would
have been incurred absent such outage or shut-down.
“Fallback
Reference Dealers” shall have the meaning provided in the Commodity
Definitions.
“Fallback
Reference Price” shall have the meaning provided in the Commodity
Definitions.
“Federal
Funds Effective Rate” shall mean, for any day, the weighted average of
the per annum rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers
on such
day, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York; provided that (a) if such day is not a Business
Day, the Federal Funds Effective 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 (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Effective Rate for such
day
shall be the average rate (rounded upward, if necessary, to a whole multiple
of
1/100 of 1%) charged to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
“Fee
Letter” shall mean the amended and restated fee letter, dated July 20,
2007, as amended, among Texas Energy Future Merger Sub Corp and Citigroup
Global
Markets Inc., Credit Suisse, Cayman Islands Branch, Credit Suisse Securities
(USA) LLC, Xxxxxxx Xxxxx Credit Partners L.P., JPMorgan Chase Bank, N.A.,
X.X.
Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxx Brothers Holdings
Inc.,
Xxxxxx Commercial Paper Inc., Xxxxxx Brothers Commercial Bank and Xxxxxx
Xxxxxxx
Senior Funding, Inc.
“Fees”
shall mean all amounts payable pursuant to, or referred to in, Sections
4.1, 14.7(b), 14.9(c) and
14.9(d).
“Financial
Officer” shall mean the Chief Financial Officer, the Treasurer,
Assistant Treasurer or any other senior financial officer of the
Borrower.
“Fiscal
Year” shall have the meaning provided in Section
9.10.
“Foreign
Asset Sale” shall have the meaning provided in Section
5.2(i).
“Foreign
Plan” shall mean any employee benefit plan,
program, policy, arrangement or agreement maintained or contributed to
by the
Borrower or any of its Subsidiaries with respect to employees employed
outside
the United States.
“Foreign
Recovery Event” shall have the meaning provided in Section
5.2(i).
“Foreign
Subsidiary” shall mean each Subsidiary of the Borrower that is not a
Domestic Subsidiary.
“Fronting
Fee” shall have the meaning provided in Section
4.1(d).
“Fund”
shall mean any Person (other than a natural person) that is (or will
be) engaged
in making, purchasing, holding or otherwise investing in commercial loans
and
similar extensions of credit in the ordinary course.
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“Funded
Debt” shall mean all indebtedness of the Borrower and the Restricted
Subsidiaries for borrowed money that matures more than one year from the
date of
its creation or matures within one year from such date that is renewable
or
extendable, at the option of the Borrower or any Restricted Subsidiary,
to a
date more than one year from such date or arises under a revolving credit
or
similar agreement that obligates the lender or lenders to extend credit
during a
period of more than one year from such date, including all amounts of Funded
Debt required to be paid or prepaid within one year from the date of its
creation and, in the case of the Borrower, Indebtedness in respect of the
Loans
and the Posting Advances.
“GAAP”
shall mean generally accepted accounting principles in the United States
of
America, as in effect from time to time; provided, however, that
if the Borrower notifies the Administrative Agent that the Borrower requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof
on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision
hereof
for such purpose), regardless of whether any such notice is given before
or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall
have been
withdrawn or such provision amended in accordance herewith.
“Goldman
Guarantor” shall mean The Xxxxxxx Xxxxx Group, Inc.
“Goldman
Posting Facility Guaranty” shall mean the guaranty dated as of the date
hereof made by the Goldman Guarantor in favor of the Borrower, substantially
in
the form of Exhibit N.
“Governmental
Authority” shall mean any nation, sovereign or government, any state,
province, territory or other political subdivision thereof, and any entity
or
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including a central
bank, stock exchange, PUCT or ERCOT.
“Granting
Lender” shall have the meaning provided in Section
13.6(g).
“Guarantee”
shall mean the Guarantee made by each Guarantor in favor of the Collateral
Agent
for the benefit of the Secured Parties, substantially in the form of Exhibit
B.
“Guarantee
Obligations” shall mean, as to any Person, any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness of any other
Person (the “primary obligor”) in any manner, whether directly
or indirectly, including any obligation of such Person, whether or not
contingent, (a) to purchase any such Indebtedness or any property constituting
direct or indirect security therefor, (b) to advance or supply funds (i)
for the
purchase or payment of any such Indebtedness or (ii) to maintain working
capital
or equity capital of the primary obligor or otherwise to maintain the net
worth
or solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness or (d) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof;
provided, however, that the term “Guarantee
Obligations” shall not include endorsements of instruments for deposit
or collection in the ordinary course of business or customary and reasonable
indemnity obligations in effect on the Closing Date or entered into in
connection with any acquisition or disposition of assets permitted under
this
Agreement (other than such obligations with respect to
Indebtedness). The amount of any Guarantee Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the Indebtedness
in respect of which such Guarantee Obligation is made or, if not stated
or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined
by such
Person in good faith.
-35-
“Guarantors”
shall mean (a) US Holdings, (b) each Domestic Subsidiary (other than
an Excluded Subsidiary) on the Closing Date and (c) each Domestic
Subsidiary that becomes a party to the Guarantee on or after the Closing
Date
pursuant to Section 9.11 or otherwise.
“Hazardous
Materials” shall mean (a) any petroleum or petroleum products spilled
or released into the environment, radioactive materials, friable asbestos,
urea
formaldehyde foam insulation, polychlorinated biphenyls, and radon gas;
(b) any
chemicals, materials or substances defined as or included in the definition
of
“hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely
hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic
pollutants”, “contaminants”, or “pollutants”, or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material
or
substance, for which a release into the environment is prohibited, limited
or
regulated by any Environmental Law.
“Hedge
Bank” shall mean any Person (other than US Holdings, the Borrower or
any other Subsidiary of the Borrower) that either (i) is a party to a
Commodity Hedging Agreement and a signatory to the Intercreditor Agreement
or
(ii) with respect to any other Hedging Agreement (other than a Commodity
Hedging Agreement) either (x) at the time it enters into a Secured Hedging
Agreement or (y) on the Closing Date, is a Lender or an Affiliate of a
Lender,
in its capacity as a party to a Secured Hedging Agreement.
“Hedging
Agreements” shall mean (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity
or
equity index swaps or options, bond or bond price or bond index swaps or
options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts,
or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, (b) any and
all transactions of any kind, and the related confirmations, which are subject
to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any
International Foreign Exchange Master Agreement or any other master agreement
(any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or
liabilities under any Master Agreement and (c) physical or financial
commodity contracts or agreements, power purchase or sale agreements, fuel
purchase or sale agreements, environmental credit purchase or sale agreements,
power transmission agreements, commodity transportation agreements, fuel
storage
agreements, netting agreements (including Netting Agreements), capacity
agreements and commercial or trading agreements, each with respect to the
purchase, sale or exchange of (or the option to purchase, sell or exchange),
transmission, transportation, storage, distribution, processing,
sale, lease or hedge of, any Covered Commodity, price or price indices
for any
such Covered Commodity or services or any other similar derivative agreements,
and any other similar agreements.
“Hedging
Obligations” shall mean, with respect to any Person, the obligations of
such Person under Hedging Agreements.
“Historical
Financial Statements” shall mean, as of the Closing Date, (a) the
audited consolidated balance sheets of the Borrower as of December 31,
2004, December 31, 2005 and December 31, 2006 and the audited
consolidated statements of income, stockholders’ equity and cash flows of the
Borrower for each of the fiscal years in the three year period ending
on
December 31, 2006 and (b) the unaudited consolidated balance sheets of the
Borrower for each subsequent fiscal quarter ended at
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least
45 days before the Closing Date and the unaudited consolidated statements
of
income, stockholders’ equity and cash flows of the Borrower for each such fiscal
quarter.
“Holdings”
shall mean Texas Energy Future Holdings Limited Partnership, a Delaware
limited
partnership, and its successors.
“Immaterial
Subsidiary” shall mean each Subsidiary of the Borrower that is not a
Material Subsidiary.
“Incremental
Amendment” shall have the meaning set forth in Section
2.14(g).
“Incremental
Deposit L/C Loan Commitment” shall mean, the commitment of any lender
to make Incremental Deposit L/C Loans of a particular tranche pursuant
to
Section 2.14(a).
“Incremental
Deposit L/C Loan Facility” shall mean each tranche of Incremental
Deposit L/C Loans made pursuant to Section 2.14.
“Incremental
Deposit L/C Loan Maturity Date” shall mean, with respect to any tranche
of Incremental Deposit L/C Loans made pursuant to Section 2.14, the final
maturity date thereof.
“Incremental
Deposit L/C Loans” shall have the meaning provided in Section
2.14(a).
“Incremental
Facility Closing Date” shall have the meaning provided in Section
2.14(g).
“Incremental
Posting Facility” shall have the meaning provided in Section
2.14(a).
“Incremental
Posting Facility Commitment” shall mean the commitment of any lender to
provide posting advances under any Incremental Posting Facility.
“Incremental
Posting Facility Maturity Date” shall mean, with respect to any
Incremental Posting Facility, the final maturity date thereof.
“Incremental
Revolving Commitment Increase” shall have the meaning provided in
Section 2.14(a).
“Incremental
Revolving Commitment Increase Lender” shall have the meaning provided
in Section 2.14(h).
“Incremental
Term Loan Commitment” shall mean the commitment of any lender to make
Incremental Term Loans of a particular tranche pursuant to Section
2.14(a).
“Incremental
Term Loan Facility” shall mean each tranche of Incremental Term Loans
made pursuant to Section 2.14.
“Incremental
Term Loan Maturity Date” shall mean, with respect to any tranche of
Incremental Term Loans made pursuant to Section 2.14, the final maturity
date thereof.
“Incremental
Term Loans” shall have the meaning provided in Section
2.14(a).
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“Indebtedness”
of any Person shall mean (a) all indebtedness of such Person for borrowed
money,
(b) all obligations of such Person evidenced by bonds, debentures, notes,
loan
agreements or other similar instruments, (c) the deferred purchase price
of
assets or services that in accordance with GAAP would be included as a
liability
on the balance sheet of such Person, (d) the face amount of all letters of
credit issued for the account of such Person and, without duplication,
all
drafts drawn thereunder, (e) all Indebtedness of any other Person secured
by any
Lien on any property owned by such Person, whether or not such Indebtedness
has
been assumed by such Person, (f) the principal component of all Capitalized
Lease Obligations of such Person, (g) net Hedging Obligations of such
Person, (h) without duplication, all Guarantee Obligations of such Person
and
(i) Disqualified Stock of such Person; provided that Indebtedness shall
not include (i) trade and other ordinary course payables and accrued
expenses arising in the ordinary course of business, (ii) deferred or
prepaid revenue, (iii) purchase price holdbacks in respect of a portion of
the purchase price of an asset to satisfy warranty or other unperformed
obligations of the respective seller, (iv) amounts payable by and between
the
Parent, US Holdings, the Borrower and any other Subsidiary of the Parent
in
connection with retail clawback or other regulatory transition issues and
(v)
any Indebtedness defeased by such Person or by any Subsidiary of such
Person. The amount of any net Hedging Obligations on any date shall
be deemed to be the Swap Termination Value. The amount of
Indebtedness of any Person for purposes of clause (e) shall be deemed to
be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness
and (ii) the fair market value of the property encumbered thereby as determined
by such Person in good faith.
“indemnified
liabilities” shall have the meaning provided in Section
13.5.
“Indemnified
Taxes” shall mean all Taxes (including Other Taxes) other than (i)
Excluded Taxes and (ii) any interest, penalties or expenses caused by an
Agent’s
or Lender’s gross negligence or willful misconduct.
“Initial
Baseload Assets” shall mean the assets comprising the following
generation facilities, each owned by the Borrower and its Restricted
Subsidiaries on the Closing Date:
|
·
|
Comanche
Peak Unit 1 shall mean the approximately 1,150 megawatt (net
load) nuclear
fueled power generation facility known as “Comanche Peak Unit 1” being
operated and owned by Luminant Generation Company LLC in Somervell
County
and Hood County, Texas;
|
|
·
|
Comanche
Peak Unit 2 shall mean the approximately 1,150 megawatt (net
load) nuclear
fueled power generation facility known as “Comanche Peak Unit 2” being
operated and owned by Luminant Generation Company LLC in Somervell
County
and Hood County, Texas;
|
|
·
|
Big
Xxxxx Unit 1 shall mean the approximately 575 megawatt (net
load)
lignite/coal fired power generation facility, excluding mining
properties,
known as “Big Xxxxx Unit1” being operated and owned by Big Xxxxx Power
Company LLC in Freestone County,
Texas;
|
|
·
|
Big
Xxxxx Unit 2 shall mean the approximately 575 megawatt (net
load)
lignite/coal fired power generation facility, excluding mining
properties,
known as “Big Xxxxx Unit 2” being operated and owned by Big Xxxxx Power
Company LLC in Freestone County,
Texas;
|
|
·
|
Monticello
Unit 1 shall mean the approximately 565 megawatt (net load)
lignite/coal
fired power generation facility, excluding mining properties,
known as
“Monticello Unit 1” being operated and owned by Luminant Generation
Company LLC in Xxxxx County, Franklin County and Xxxxxxx County,
Texas;
|
-38-
|
·
|
Monticello
Unit 2 shall mean the approximately 565 megawatt (net load)
lignite/coal
fired power generation facility, excluding mining properties,
known as
“Monticello Unit 2” being operated and owned by Luminant Generation
Company LLC in Xxxxx County, Franklin County and Xxxxxxx County,
Texas;
|
|
·
|
Monticello
Unit 3 shall mean the approximately 750 megawatt (net load)
lignite/coal
fired power generation facility, excluding mining properties,
known as
“Monticello Unit 3” being operated and owned by Luminant Generation
Company LLC in Xxxxx County, Franklin County and Xxxxxxx County,
Texas;
|
|
·
|
Xxxxxx
Lake Unit 1 shall mean the approximately 750 megawatt (net
load)
lignite/coal fired power generation facility, excluding mining
properties,
known as “Xxxxxx Lake Unit 1” being operated and owned by Luminant
Generation Company LLC in Panola County and Xxxx County,
Texas;
|
|
·
|
Xxxxxx
Lake Unit 2 shall mean the approximately 750 megawatt (net
load)
lignite/coal fired power generation facility, excluding mining
properties,
known as “Xxxxxx Lake Unit 2” being operated and owned by Luminant
Generation Company LLC in Panola County and Xxxx County,
Texas;
|
|
·
|
Xxxxxx
Lake Unit 3 shall mean the approximately 750 megawatt (net
load)
lignite/coal fired power generation facility, excluding mining
properties,
known as “Xxxxxx Lake Unit 3” being operated and owned by Luminant
Generation Company LLC in Panola County and Xxxx County,
Texas;
|
|
·
|
Oak
Grove Xxxx 0;
|
|
·
|
Xxx
Xxxxx Xxxx 0;
|
|
·
|
Sandow
Unit 4; and
|
|
·
|
Sandow
Unit 5.
|
“Initial
Financial Statements Delivery Date” shall mean the date on which
Section 9.1 Financials are delivered to the Administrative Agent for the
first
full fiscal quarter commencing after the Closing Date.
“Initial
Investors” shall have the meaning provided in the recitals to the
Agreement.
“Initial
Posting Advance Amount” shall have the meaning provided in Section
14.3(a).
“Initial
Term Loan” shall mean any Initial Tranche B-1 Term Loan, Initial
Tranche B-2 Term Loan or Initial Tranche B-3 Term Loan.
“Initial
Term Loan Commitment” shall mean, with respect to each Lender, such
Lender’s Initial Tranche B-1 Term Loan Commitment, Initial Tranche B-2 Term Loan
Commitment or Initial Tranche B-3 Term Loan Commitment.
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“Initial
Term Loan Facility” shall have the meaning provided in the recitals to
this Agreement.
“Initial
Term Loan Lender” shall mean a Lender with an Initial Term Loan
Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Maturity Date” shall mean the date that is seven years after
the Closing Date; provided that if such date is not a Business Day, the
“Initial Term Loan Maturity Date” will be the next succeeding Business
Day.
“Initial
Term Loan Repayment Amount” shall have the meaning provided in
Section 2.5(b)(i).
“Initial
Term Loan Repayment Date” shall have the meaning provided in Section
2.5(b)(i).
“Initial
Tranche B-1 Term Loan” shall have the meaning provided in Section
2.1(a)(i).
“Initial
Tranche B-1 Term Loan Commitment” shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth opposite
such
Lender’s name on Schedule 1.1(a) as such Lender’s “Initial Tranche B-1
Term Loan Commitment” and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender’s “Initial Tranche
B-1 Term Loan Commitment” in the Assignment and Acceptance pursuant to which
such Lender assumed a portion of the Total Initial Term Loan Commitment,
in each
case as the same may be changed from time to time pursuant to the terms
hereof. The aggregate amount of the Initial B-1 Term Loan Commitments
as of the Closing Date is $3,450,000,000.
“Initial
Tranche B-1 Term Loan Lender” shall mean a Lender with an Initial
Tranche B-1 Term Loan Commitment or an outstanding Initial Tranche B-1
Term
Loan.
“Initial
Tranche B-2 Term Loan” shall have the meaning provided in Section
2.1(a)(ii).
“Initial
Tranche B-2 Term Loan Commitment” shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth opposite
such
Lender’s name on Schedule 1.1(a) as such Lender’s “Initial Tranche B-2
Term Loan Commitment” and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender’s “Initial Tranche
B-2 Term Loan Commitment” in the Assignment and Acceptance pursuant to which
such Lender assumed a portion of the Total Initial Term Loan Commitment,
in each
case as the same may be changed from time to time pursuant to the terms
hereof. The aggregate amount of the Initial B-2 Term Loan Commitments
as of the Closing Date is $7,000,000,000.
“Initial
Tranche B-2 Term Loan Lender” shall mean a Lender with an Initial
Tranche B-2 Term Loan Commitment or an outstanding Initial Tranche B-2
Term
Loan.
“Initial
Tranche B-3 Term Loan” shall have the meaning provided in Section
2.1(a)(iii).
“Initial
Tranche B-3 Term Loan Commitment” shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth opposite
such
Lender’s name on Schedule 1.1(a) as such Lender’s “Initial Tranche B-3
Term Loan Commitment” and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender’s “Initial Tranche
B-3 Term
Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender
assumed a portion of the Total Initial Term Loan Commitment, in each case
as the
same may be changed from time to time pursuant to the terms
hereof. The aggregate amount of the Initial B-3 Term Loan Commitments
as of the Closing Date is $6,000,000,000.
“Initial
Tranche B-3 Term Loan Lender” shall mean a Lender with an Initial
Tranche B-3 Term Loan Commitment or an outstanding Initial Tranche B-3
Term
Loan.
“Intercreditor
Agreement” shall mean the Intercreditor Agreement, dated as of the
Closing Date, among the Collateral Agent, the Borrower and each Hedge
Bank party
to a Commodity
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Hedging
Agreement, whether on the Closing Date or at any time thereafter, substantially
in the form of Exhibit M.
“Interest
Period” shall mean, with respect to any Term Loan, Deposit L/C Loan,
Incremental Deposit L/C Loan or Revolving Credit Loan, the interest period
applicable thereto, as determined pursuant to
Section 2.9.
“Interim
Computation Date” shall mean any Business Day, as of which the relevant
MTM Exposure (based on the Actual MTM Exposure) has increased or decreased
by
$25,000,000 or more as compared to the MTM Exposure for the Relevant Prior
Computation Date.
“Investment”
shall mean, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of Stock, Stock
Equivalents, bonds, notes, debentures, partnership, limited liability company
membership or other ownership interests or other securities of any other
Person
(including any “short sale” or any sale of any securities at a time when such
securities are not owned by the Person entering into such sale), (b) the
making of any deposit with, or advance, loan or other extension of credit
to,
any other Person (including the purchase of property from another Person
subject
to an understanding or agreement, contingent or otherwise, to resell such
property to such Person) (including any partnership or joint venture),
(c) the entering into of any guarantee of, or other contingent obligation
with respect to, Indebtedness; or (d) the purchase or other acquisition (in
one transaction or a series of transactions) of all or substantially all
of the
property and assets or business of another Person or assets constituting
a
business unit, line of business or division of such Person; provided
that, in the event that any Investment is made by the Borrower or any Restricted
Subsidiary in any Person through substantially concurrent interim transfers
of
any amount through one or more other Restricted Subsidiaries, then such
other
substantially concurrent interim transfers shall be disregarded for purposes
of
Section 10.5.
“ISP”
shall mean, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time
of
issuance).
“Issuer
Documents” shall mean with respect to any Letter of Credit, the Letter
of Credit Request, and any other document, agreement and instrument entered
into
by a Letter of Credit Issuer and the Parent, US Holdings, the Borrower
or any
Subsidiary of the Parent (other than the Oncor Subsidiaries) or in favor
of a
Letter of Credit Issuer and relating to such Letter of Credit.
“Joint
Lead Arrangers and Bookrunners” shall mean Citigroup Global Markets
Inc., X.X. Xxxxxx Securities Inc., Xxxxxxx Sachs Credit Partners L.P.,
Xxxxxx
Xxxxxxx Senior Funding, Inc., Xxxxxx Brothers Inc. and Credit Suisse Securities
(USA) LLC.
“JV
Distribution Amount” shall mean, at any time, the aggregate amount of
cash dividends and other cash distributions received by the Borrower or
any
Restricted Subsidiary from any Minority
Investments or any Unrestricted Subsidiary since the Closing Date and prior
to
such time and only to the extent that neither the Borrower nor any Restricted
Subsidiary is under any obligation to repay such amount to such Minority
Investments or such Unrestricted Subsidiary.
“KKR”
shall mean each of Kohlberg Kravis Xxxxxxx & Co., L.P. and KKR
Associates, L.P.
“L/C
Obligations” shall mean the Revolving L/C Obligations and the Deposit
L/C Obligations.
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“Lender”
shall have the meaning provided in the preamble to this Agreement.
“Lender
Default” shall mean (a) the failure (which has not been cured) of a
Lender to make available its portion of any Borrowing or to fund its portion
of
any Unpaid Drawing under Section 3.4 that it is required to make
hereunder or (b) a Lender having notified the Administrative Agent (or,
with
respect to the Posting Facility, the Posting Agent) and/or the Borrower
that it
does not intend to comply with the obligations under Section 2.1(a),
2.1(b), 2.1(c), 2.1(d), 2.1(e)(ii), 3.4 or
14.4, as the case may
be, or (c) a Lender being deemed insolvent or
becoming the subject of a bankruptcy or insolvency proceeding.
“Letter
of Credit” shall mean each Deposit Letter of Credit and each Revolving
Letter of Credit.
“Letter
of Credit Issuer” shall mean, with respect to any Deposit Letter of
Credit, each Deposit Letter of Credit Issuer, and with respect to any Revolving
Letter of Credit, any Revolving Letter of Credit Issuer.
“Letter
of Credit Request” shall have the meaning provided in Section
3.2(a).
“Letters
of Credit Outstanding” shall mean, at any time, the sum of, without
duplication, (a) the aggregate Stated Amount of all outstanding Letters
of
Credit and (b) the aggregate principal amount of all Unpaid Drawings in
respect
of all Letters of Credit.
“Level I
Status” shall mean, on any date, the circumstance that the Consolidated
Total Debt to Consolidated EBITDA Ratio is greater than or equal to 6.0
to 1.00
as of such date.
“Level II
Status” shall mean, on any date, the circumstance that Level I
Status does not exist and the Consolidated Total Debt to Consolidated EBITDA
Ratio is greater than or equal to 5.0 to 1.00 as of such date.
“Level III
Status” shall mean, on any date, the circumstance that neither Level I
Status nor Level II Status exists and the Consolidated Total Debt to
Consolidated EBITDA Ratio is less than 5.0 to 1.00 as of such date.
“LIBOR
Loan” shall mean any Term Loan, Deposit L/C Loan, Incremental Deposit
L/C Loan or Revolving Loan bearing interest at a rate determined by reference
to
the LIBOR Rate.
“LIBOR
Rate” shall mean, for any Interest Period with respect to a LIBOR Loan
or for any Posting Interest Period with respect to a Posting Advance, as
applicable, the rate per annum equal to the British Bankers Association
LIBOR
Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
by
the Administrative Agent (or, with respect to the Posting Facility, the
Posting
Agent) from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period or such
Posting
Interest Period, as applicable, for deposits in dollars (for delivery on
the
first day of such Interest Period or such Posting Interest Period, as
applicable) with a term equivalent to such Interest Period or such Posting
Interest Period, as the case may be. If such rate is not available at
such time for any reason, then the “LIBOR Rate” for such Interest Period or such
Posting Interest Period, as applicable, shall be a rate per annum as may
be
agreed upon by the Borrower and the Administrative Agent (or, with respect
to
the Posting Facility, the Posting Agent) to be a rate at which deposits
in
dollars for delivery on the first day of such Interest Period or such Posting
Interest Period, as the case may be, in same day funds in the approximate
amount
of the LIBOR Loan or the Posting Advance, as applicable, being made, continued
or
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converted
by the Administrative Agent (or, with respect to the Posting Facility,
the
Posting Agent) and with a term equivalent to such Interest Period or Posting
Interest Period, as applicable, would be offered by the Administrative
Agent’s
London Branch (or, with respect to the Posting Facility, the Posting Agent)
to
major banks in the applicable London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior
to the commencement of such Interest Period.
“Lien”
shall mean any mortgage, pledge, security interest, hypothecation, assignment,
lien (statutory or other) or similar encumbrance (including any agreement
to
give any of the foregoing, any conditional sale or other title retention
agreement or any lease or license in the nature thereof); provided that
in no event shall an operating lease be deemed to be a Lien.
“Limited
Notes” shall have the meaning provided in Section
10.7(a).
“Loan”
shall mean any Revolving Credit Loan, Swingline Loan, Term Loan, Deposit
L/C
Loan or Incremental Deposit L/C Loan made by any Lender hereunder.
“Maintenance
Fee” shall have the meaning provided in the Posting Facility Fee
Letter.
“Management
Investors” shall mean the directors, management, officers and employees
of Parent and its Subsidiaries who are or become investors in Holdings,
any of
its direct or indirect parent entities or in the Parent at any time prior
to the
first anniversary of Closing Date.
“Mandatory
Borrowing” shall have the meaning provided in Section
2.1(e)(ii).
“Market
Disruption Event” shall have the meaning provided in Section
7.4(d)(i) of the Commodity Definitions without giving effect
to
Section 7.5(e) thereof.
“Master
Agreement” shall have the meaning provided in the definition of the
term “Hedging Agreement”.
“Material
Adverse Effect” shall mean any circumstances or conditions affecting
the business, assets, operations, properties or financial condition of
the
Borrower and its Subsidiaries, taken as a whole, that would, individually
or in
the aggregate, materially adversely affect (a) the ability of the Borrower
and the other Credit Parties, taken as a whole, to perform their payment
obligations under this Agreement or any of the other Credit Documents or
(b) the rights and remedies of the Administrative Agent, the Posting Agent
or the Collateral Agent and the Lenders under this Agreement or any of
the other
Credit Documents.
“Material
Subsidiary” shall mean, at any date of determination, each Restricted
Subsidiary of the Borrower (a) whose total assets (when combined with the
assets of such Restricted Subsidiary’s Subsidiaries, after eliminating
intercompany obligations) at the last day of the most recent Test Period
for
which Section 9.1 Financials have been delivered were equal to or greater
than
2.5% of the Consolidated Total Assets of the Borrower and the Restricted
Subsidiaries at such date or (b) whose total revenues (when combined with
the revenues of such Restricted Subsidiary’s Subsidiaries, after eliminating
intercompany obligations) during such Test Period were equal to or greater
than
2.5% of the consolidated revenues of the Borrower and the Restricted
Subsidiaries for such period, in each case determined in accordance with
GAAP;
provided that if, at any time and from time to time after the Closing
Date, Restricted Subsidiaries that are not Material Subsidiaries have,
in the
aggregate, (x) total assets (when combined with the assets of such Restricted
Subsidiary’s Subsidiaries, after eliminating intercompany obligations) at the
last day of such Test Period equal to or greater than 10.0% of the Consolidated
Total Assets of the Borrower and the Restricted Subsidiaries at such date
or (y)
total revenues (when combined with
-43-
the
revenues of such Restricted Subsidiary’s Subsidiaries, after eliminating
intercompany obligations) during such Test Period equal to or greater than
10.0%
of the consolidated revenues of the Borrower and the Restricted Subsidiaries
for
such period, in each case determined in accordance with GAAP, then the
Borrower
shall, on the date on which financial statements for such quarter are delivered
pursuant to this Agreement, designate in writing to the Administrative
Agent one
or more of such Restricted Subsidiaries as “Material Subsidiaries” so that such
condition no longer exists. It is agreed and understood that no
Receivables Entity shall be a Material Subsidiary.
“Maturity
Date” shall mean the Initial Term Loan Maturity Date, the Delayed Draw
Term Loan Maturity Date, the Deposit L/C Loan Maturity Date, the Revolving
Credit Maturity Date, any Incremental Term Loan Maturity Date, any Incremental
Deposit L/C Loan Maturity Date, the Posting Facility Maturity Date and
any
Incremental Posting Facility Maturity Date.
“Merger”
shall have the meaning provided in the recitals to this Agreement.
“Merger
Consideration” shall have the meaning provided in the recitals to this
Agreement.
“Merger
Funds” shall have the meaning provided in the recitals to this
Agreement.
“Merger
Sub” shall mean Texas Energy Future Merger Sub Corp., a Texas
corporation.
“Minimum
Borrowing Amount” shall mean (a) with respect to a Borrowing of LIBOR
Loans, $5,000,000 (or, if less, the entire remaining Commitments of any
applicable Credit Facility at the time of such Borrowing), (b) with respect
to a Borrowing of ABR Loans, $5,000,000 (or, if less, the entire remaining
Commitments of any applicable Credit Facility at the time of such Borrowing),
and (c) with respect to a Borrowing of Swingline Loans, $500,000 (or, if
less, the entire remaining Swingline Commitment at the time of such
Borrowing). It is understood that there shall be no Minimum Borrowing
Amount with respect to any Borrowing of a Posting Advance.
“Minimum
Equity Amount” shall have the meaning provided in the recitals to this
Agreement.
“Minority
Investment” shall mean any Person (other than a Subsidiary) in which
the Borrower or any Restricted Subsidiary owns Stock or Stock Equivalents,
including any joint venture (regardless of form of legal entity).
“Moody’s”
shall mean Xxxxx’x Investors Service, Inc. or any successor by merger or
consolidation to its business.
“Mortgage”
shall mean a mortgage or a deed of trust, deed to secure debt, trust
deed or
other security document entered into by the owner of a Mortgaged Property
and
the Collateral Agent for the benefit of the Secured Parties in respect
of that
Mortgaged Property, substantially in the form of Exhibit C (with such
changes thereto as may be necessary to account for local law matters)
or
otherwise in such form as agreed between the Borrower and the Collateral
Agent
or, in the case of any Mortgaged Property located outside the United
States of
America, in such form as agreed between the Borrower and the Collateral
Agent.
“Mortgaged
Property” shall mean (a) each Closing Date Mortgaged Property and each
Post-Closing Mortgaged Property and (b) all Real Estate with respect
to which a
Mortgage is required to be granted pursuant to Section
9.14.
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“MTM
Exposure” shall mean, for each Computation Date, an amount calculated
by the Posting Calculation Agent equal to the xxxx-to-market exposure (i.e.,
the
unrealized gain or loss) that a single counterparty in the position of
the
“fixed price” payor (or an equivalent position) would have on a combined basis
for all of the Deemed Transactions (inclusive of unpaid settlement amounts,
but
not termination amounts) as of such Calculation Date; provided that if
such single counterparty would be “out-of-the-money” (i.e., would have an
unrealized loss) on the Deemed Transactions, then the MTM Exposure shall
equal
zero.
“Multiemployer
Plan” shall mean a plan that is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA (i) to which any of the
Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate is then making or
has an
obligation to make contributions or (ii) with respect to which the Borrower,
any
Subsidiary of the Borrower or any ERISA Affiliate could incur liability
pursuant
to Title IV of ERISA.
“Narrative
Report” shall mean, with respect to the financial statements for which
such narrative report is required, a management’s discussion and analysis of the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries for the applicable period to which such financial
statements relate.
“Necessary
CapEx” shall mean Capital Expenditures that are required by Applicable
Law (other than Environmental Law) or otherwise undertaken voluntarily
for
health and safety reasons (other than as required by Environmental
Law). The term “Necessary CapEx” does not include any Capital
Expenditure undertaken primarily to increase the efficiency of, expand
or
re-power any power generation facility.
“Negotiated
Fallback” shall have the meaning set forth in Section 7.5(c)(iii) of
the Commodity Definitions; provided that the word “fifth” shall be
replaced with the word “third”.
“Net
Cash Proceeds” shall mean, with respect to any Prepayment Event, (a)
the gross cash proceeds (including payments from time to time in respect
of
installment obligations, if applicable) received by or on behalf of the
Borrower
or any Restricted Subsidiary in respect of such Prepayment Event, as the
case
may be, less (b) the sum of:
(i) the
amount, if any, of all taxes paid or estimated by the Borrower in good
faith to
be payable by the Borrower or any Restricted Subsidiary in connection with
such
Prepayment Event,
(ii) the
amount of any reasonable reserve established in accordance with GAAP against
any
liabilities (other than any taxes deducted pursuant to clause (i) above)
(x)
associated with the assets that are the subject of such Prepayment Event
and
(y) retained by the Borrower or any
Restricted Subsidiary (including any pension and other post-employment
benefit
liabilities and liabilities related to environmental matters or against
any
indemnification obligations associated with such transaction); provided
that the amount of any subsequent reduction of such reserve (other than
in
connection with a payment in respect of any such liability) shall be deemed
to
be Net Cash Proceeds of such Prepayment Event occurring on the date of
such
reduction,
(iii) the
amount of any Indebtedness (other than Indebtedness hereunder) secured
by a Lien
on the assets that are the subject of such Prepayment Event to the extent
that
the instrument creating or evidencing such Indebtedness requires that such
Indebtedness be repaid upon consummation of such Prepayment Event,
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(iv) in
the case of any Asset Sale Prepayment Event (other than any Asset Sale
Prepayment Event pursuant to Section 10.4(m) or Recovery Prepayment
Event, the amount of any proceeds of such Prepayment Event that the Borrower
or
any Restricted Subsidiary has reinvested (or intends to reinvest within
the
Reinvestment Period, has entered into an Acceptable Reinvestment Commitment
prior to the last day of the Reinvestment Period to reinvest or, with respect
to
any Recovery Prepayment Event, provided an Acceptable Reinvestment Commitment
or
a Restoration Certification prior to the last day of the Reinvestment Period)
in
the business of the Borrower or any Restricted Subsidiary (subject to Section
9.15), including for the repair, restoration or replacement of an asset
or
assets subject to a Recovery Prepayment Event; provided that any portion
of such proceeds that has not been so reinvested within such Reinvestment
Period
(with respect to such Prepayment Event, the “Deferred Net Cash
Proceeds”) shall, unless the Borrower or any Restricted Subsidiary has
entered into an Acceptable Reinvestment Commitment or provided a Restoration
Certification prior to the last day of such Reinvestment Period to reinvest
such
proceeds, (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment
Event or Recovery Prepayment Event occurring on the last day of such
Reinvestment Period or, if later, 180 days after the date the Borrower
or such
Restricted Subsidiary has entered into such Acceptable Reinvestment Commitment
or provided such Restoration Certification, as applicable (such last day
or
180th day,
as
applicable, the “Deferred Net Cash Proceeds Payment Date”), and
(y) be applied to the repayment of Term Loans in accordance with Section
5.2(a)(i),
(v) in
the case of any Asset Sale Prepayment Event with respect to Baseload
Assets pursuant to Section 10.4(m), the amount of any proceeds
of such Asset Sale Prepayment Event that the Borrower or any Restricted
Subsidiary has reinvested (or intends to reinvest within the Reinvestment
Period
or has entered into an Acceptable Reinvestment Commitment prior to the
last day
of the Reinvestment Period to reinvest) in other Baseload Assets;
provided that any Deferred Net Cash Proceeds with respect to such Asset
Sale Prepayment Event shall, unless the Borrower or any Restricted Subsidiary
has entered into an Acceptable Reinvestment Commitment prior to the last
day of
such Reinvestment Period to reinvest such proceeds, (x) be deemed to be
Net Cash
Proceeds of an Asset Sale Prepayment Event occurring on the Deferred Net
Cash
Proceeds Payment Date and (y) be applied to the repayment of Term Loans
in
accordance with Section 5.2(a)(i),
(vi) in
the case of any Asset Sale Prepayment Event or Recovery Prepayment Event
by a
non-Wholly Owned Restricted Subsidiary, the pro rata portion of the Net
Cash Proceeds thereof (calculated without regard to this clause (vi))
attributable to minority interests and not available for distribution to
or for
the account of the Borrower or a Wholly Owned Restricted Subsidiary as
a result
thereof, and
(vii) reasonable
and customary fees, commissions, expenses (including attorney’s fees, investment
banking fees, survey costs, title insurance premiums and recording charges,
transfer taxes, deed or mortgage recording taxes and other customary
expenses
and brokerage, consultant and other customary fees), issuance costs,
discounts
and other costs paid by the Borrower or any Restricted Subsidiary, as
applicable, in connection with such Prepayment Event, in each case only
to the
extent not already deducted in arriving at the amount referred to in
clause (a) above.
“Netting
Agreement” shall mean a netting agreement, master netting agreement or
other similar document having the same effect as a netting agreement
or master
netting agreement and, as applicable, any collateral annex, security
agreement
or other similar document related to any master netting agreement or
Permitted
Contract.
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“New
Build Program” shall have the meaning provided in the recitals to this
Agreement.
“Non-Consenting
Lender” shall have the meaning provided in Section
13.7(b).
“Non-Defaulting
Lender” shall mean and include each Lender other than a Defaulting
Lender.
“Non-Extension
Notice Date” shall have the meaning provided in
Section 3.2(b).
“Non-U.S.
Lender” shall mean any Agent or Lender that is not, for United States
federal income tax purposes, (a) an individual who is a citizen or resident
of the United States, (b) a corporation, partnership or entity treated as a
corporation or partnership created or organized in or under the laws of
the
United States, or any political subdivision thereof, (c) an estate whose
income is subject to U.S. federal income taxation regardless of its source
or
(d) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United
States
persons have the authority to control all substantial decisions of such
trust or
a trust that has a valid election in effect under applicable U.S. Treasury
regulations to be treated as a United States person.
“Notice
of Borrowing” shall mean a request of the Borrower in accordance with
the terms of Section 2.3 and substantially in the form of
Exhibit A or such other form as shall be approved by the
Administrative Agent (acting reasonably).
“Notice
of Conversion or Continuation” shall have the meaning provided in
Section 2.6.
“NYMEX”
shall mean the New York Mercantile Exchange or any successor by merger
or
consolidation to its business.
“Oak
Grove Unit 1” shall mean the approximately 817 megawatt (net load),
lignite coal-fired, power generation facility, known as “Oak Grove Unit 1”,
being developed by Oak Grove Management Company LLC in Xxxxxxxxx County,
Texas.
“Oak
Grove Unit 2” shall mean the approximately 837 megawatt (net load),
lignite coal-fired, power generation facility, known as “Oak Grove Unit 2”,
being developed by Oak Grove Management Company LLC in Xxxxxxxxx County,
Texas.
“Oak
Grove Unit 1 Deemed Completion Date” shall have the meaning provided in
the definition of Consolidated EBITDA.
“Oak
Grove Unit 2 Deemed Completion Date” shall have the meaning provided in
the definition of Consolidated EBITDA.
“Obligations”
shall mean all advances to, and debts, liabilities, obligations, covenants
and
duties of, any Credit Party arising under any Credit Document or otherwise
with
respect to any Loan, Posting Advance or Letter of Credit or under any
Secured
Cash Management Agreement, Secured Commodity Hedging Agreement or Secured
Hedging Agreement, in each case, entered into with US Holdings, the Borrower
or
any Restricted Subsidiary, whether direct or indirect (including those
acquired
by assumption), absolute or contingent, due or to become due, now existing
or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Credit Party of any proceeding under any
bankruptcy or insolvency law naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed
claims in
such proceeding. Without limiting the generality
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of
the foregoing, the Obligations of the Credit Parties under the Credit Documents
(and any of their Restricted Subsidiaries to the extent they have obligations
under the Credit Documents) include the obligation (including guarantee
obligations) to pay principal, interest, charges, expenses, fees, attorney
costs, indemnities and other amounts payable by any Credit Party under
any
Credit Document.
“Oncor
Credit Facility” shall mean the revolving credit agreement, dated as of
the date hereof, among Oncor, the lenders from time to time party thereto,
JPMorgan Chase Bank, N.A., as administrative agent, Citibank, N.A., as
syndication agent, and X.X. Xxxxxx Securities Inc., Citigroup Global Markets
Inc., Credit Suisse Securities (USA) LLC, Xxxxxxx Sachs Credit Partners
L.P.,
Xxxxxx Brothers Inc. and Xxxxxx Xxxxxxx Senior Funding, Inc., as joint
lead
arrangers and bookrunners.
“Oncor”
shall mean Oncor Electric Delivery Company LLC, a Delaware limited liability
company.
“Oncor
Subsidiaries” shall mean the Subsidiaries of Energy Future Intermediate
Holding Company LLC, a Delaware limited liability company.
“Organizational
Documents” shall mean, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent
or
comparable constitutive documents with respect to any non-U.S. jurisdiction),
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement and (c) with respect
to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and, if applicable, any agreement, instrument, filing or notice
with respect thereto filed in connection with its formation or organization
with
the applicable Governmental Authority in the jurisdiction of its formation
or
organization and, if applicable, any certificate or articles of formation
or
organization of such entity.
“Other
Taxes” shall mean any and all present or future stamp, registration,
documentary or any other excise, property or similar taxes (including interest,
fines, penalties, additions to tax and related expenses with regard thereto)
arising from any payment made or required to be made under this Agreement
or any
other Credit Document or from the execution or delivery of, registration
or
enforcement of, consummation or administration of, or otherwise with respect
to,
this Agreement or any other Credit Document.
“Overnight
Rate” shall mean, for any day, the greater of (a) the Federal Funds
Effective Rate and (b) an overnight rate determined by the Administrative
Agent,
the Revolving Letter of Credit Issuer, the Deposit Letter of Credit Issuer
or
the Swingline Lender, as the case may be, in accordance with banking industry
rules on interbank compensation.
“Parent”
shall mean TXU Corp., a Texas corporation.
“Parent
Senior Documents” shall mean either (a) the Parent Senior Exchange
Notes Documents or (b) the Parent Senior Interim Loan Documents, as the
case may
be.
“Parent
Senior Exchange Notes” shall mean senior unsecured exchange notes due
2017, to be issued in connection with the refinancing of the Parent Senior
Interim Loans or the exchange of the Parent Senior Term Loans under the
Parent
Senior Exchange Notes Indenture, in aggregate principal amount of up to
$4,500,000,000 (less the amount of any Parent Senior Interim Loans or
Borrower Senior Term Loans that remain outstanding after the issuance of
the
Parent Senior Exchange Notes), together with interest (including any “PIK”
interest amount), fees and all other amounts payable in connection
therewith.
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“Parent
Senior Exchange Notes Documents” shall mean the Parent Senior Exchange
Notes Indenture and other credit documents referred to therein.
“Parent
Senior Exchange Notes Indenture” shall mean the indenture to be entered
into in connection with the refinancing of the Parent Senior Interim Loans
or
the exchange of the Parent Senior Term Loans, among the Parent, the guarantors
party thereto and a trustee, pursuant to which the Parent Senior Exchange
Notes
shall be issued.
“Parent
Senior Facility” shall mean either (a) the Parent Senior Exchange
Notes, (b) the Parent Senior Interim Loans or (c) the Parent Senior Term
Loans,
as the case may be.
“Parent
Senior Interim Loan Agreement” shall mean the senior unsecured interim
loan agreement, dated as of the date hereof by and among the Parent, the
lenders
from time to time parties thereto, Xxxxxx Xxxxxxx Senior Funding, Inc.,
as
administrative agent, Xxxxxxx Sachs Credit Partners L.P., as syndication
agent,
and Xxxxxxx Xxxxx Credit Partners L.P., Xxxxxx Xxxxxxx Senior Funding,
Inc.,
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, XX Xxxxxx
Securities Inc., and Xxxxxx Brothers Inc., as joint lead arrangers and
bookrunners.
“Parent
Senior Interim Loan Documents” shall mean the Parent Senior Interim
Loan Agreement and the other credit documents referred to therein.
“Parent
Senior Interim Loans” shall have the meaning provided in the recitals
to this Agreement.
“ParentSenior
Term Loans” shall mean the “Senior Term Loans”, as defined in the
Parent Senior Interim Loan Agreement.
“Participant”
shall have the meaning provided in Section 13.6(c)(i).
“Participant
Register” shall have the meaning provided in Section
13.6(c)(iii).
“Participating
Receivables Grantor” shall mean the Borrower or any Restricted
Subsidiary that is or that becomes a participant or originator in a Permitted
Receivables Financing.
“Patriot
Act” shall have the meaning provided in Section
13.18.
“Payment
Instructions” shall mean standing instructions or ad hoc
instructions provided by the Borrower to the Posting
Agent and approved by
the Posting Agent (such approval not to be unreasonably withheld, conditioned
or
delayed).
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant
to
Section 4002 of ERISA, or any successor thereto.
“PE
Repaid Tranche B-3 Loans” shall have the meaning provided in Section
5.2(a)(i)(B).
“Pension
Act” shall mean the Pension Protection Act of 2006, as it presently
exists or as it may be amended from time to time.
“Perfection
Certificate” shall mean a certificate of the Borrower in the form of
Exhibit D or any other form approved by the Administrative
Agent.
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“Permitted
Acquisition” shall mean the acquisition, by merger or otherwise, by the
Borrower or any Restricted Subsidiary of assets (including assets constituting
a
business unit, line of business or division) or Stock or Stock Equivalents,
so
long as (a) such acquisition and all transactions related thereto shall be
consummated in accordance with Applicable Law, (b) if such acquisition
involves any Stock or Stock Equivalents, such acquisition shall result
in the
issuer of such Stock or Stock Equivalents and its Subsidiaries becoming
a
Restricted Subsidiary and a Subsidiary Guarantor, to the extent required
by
Section 9.11, (c) such acquisition shall result in the
Collateral Agent, for the benefit of the applicable Secured Parties, being
granted a security interest in any Stock, Stock Equivalent or any assets
so
acquired, to the extent required by Sections 9.11, 9.12 and/or
9.14, (d) after giving effect to such acquisition, the Borrower
and
the Restricted Subsidiaries shall be in compliance with Section 9.15,
(e) both before and after giving effect to such acquisition, no Default or
Event of Default shall have occurred and be continuing and (f) the Borrower
shall be in compliance, on a Pro Forma Basis, after giving effect to such
acquisition (including any Indebtedness assumed or permitted to exist or
incurred pursuant to Section 10.1, and any related Pro Forma Adjustment),
with the covenant set forth in Section 10.9.
“Permitted
Additional Debt” shall mean unsecured Indebtedness issued by the
Borrower or any other Guarantor, (a) the terms of which (i) do
not provide for any scheduled repayment, mandatory redemption or sinking
fund
obligation prior to the latest Maturity Date hereunder (other than customary
offers to purchase upon a change of control, asset sale or casualty or
condemnation event and customary acceleration rights after an event of
default)
and (ii) to the extent the same are subordinated, provide for customary
subordination to the Obligations under the Credit Documents, (b) the
covenants, events of default, guarantees and other terms of which (other
than
interest rate and redemption premiums), taken as a whole, are not more
restrictive to the Borrower and the Restricted Subsidiaries than those
herein
(or to the extent such Permitted Additional Debt constitutes refinancing
Indebtedness of the Borrower Senior Facility, those applicable to the Borrower
Senior Facility being so refinanced); provided that a certificate of an
Authorized Officer of the Borrower is delivered to the Administrative Agent
at
least five Business Days (or such shorter period as the Administrative
Agent may
reasonably agree) prior to the incurrence of such Indebtedness, together
with a
reasonably detailed description of the material terms and conditions of
such
Indebtedness or drafts of the documentation relating thereto, stating that
the
Borrower has determined in good faith that such terms and conditions satisfy
the
foregoing requirement shall be conclusive evidence that such terms and
conditions satisfy the foregoing requirement unless the Administrative
Agent
notifies the Borrower within such period that it disagrees with such
determination (including a reasonable description of the basis upon which
it
disagrees) and (c) of which no Subsidiary of the Borrower (other than a
Guarantor or any guarantor of the Indebtedness being refinanced by such
Permitted Additional Debt, if applicable) is an obligor.
“Permitted
Contract” shall have the meaning provided in Section
10.2(bb).
“Permitted
Holders” shall mean the Sponsors and the Management
Investors
“Permitted
Investments” shall mean:
(a) securities
issued or unconditionally guaranteed by the United States government or
any
agency or instrumentality thereof, in each case having maturities and/or
reset
dates of not more than 24 months from the date of acquisition
thereof;
(b) securities
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof or any political
subdivision of any such state or any public instrumentality thereof having
maturities of not more than 24 months from the date of acquisition thereof
and,
at the time of acquisition, having an investment grade
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rating
generally obtainable from either S&P or Xxxxx’x (or, if at any time neither
S&P nor Moody’s shall be rating such obligations, then from another
nationally recognized rating service);
(c) commercial
paper or variable or fixed rate notes maturing no more than 12 months after
the date of creation thereof and, at the time of acquisition, having a
rating of
at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither
S&P nor Moody’s shall be rating such obligations, an equivalent rating from
another nationally recognized rating service);
(d) time
deposits with, or domestic and LIBOR certificates of deposit or bankers’
acceptances maturing no more than two years after the date of acquisition
thereof issued by, any Lender or any other bank having combined capital
and
surplus of not less than $500,000,000 in the case of domestic banks and
$100,000,000 (or the dollar equivalent thereof) in the case of foreign
banks;
(e) repurchase
agreements with a term of not more than 90 days for underlying securities
of the type described in clauses (a), (b) and (d) above
entered into with any bank meeting the qualifications specified in clause
(d) above or securities dealers of recognized national
standing;
(f) marketable
short-term money market and similar funds (x) either having assets in excess
of
$500,000,000 or (y) having a rating of at least A-2 or P-2 from either
S&P
or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized rating
service);
(g) shares
of investment companies that are registered under the Investment Company
Act of
1940 and substantially all the investments of which are one or more of
the types
of securities described in clauses (a) through (f) above;
and
(h) in
the case of Investments by any Restricted Foreign Subsidiary or Investments
made
in a country outside the United States of America, other customarily utilized
high-quality Investments in the country where such Restricted Foreign Subsidiary
is located or in which such Investment is made.
“Permitted
Liens” shall mean:
(a) Liens
for taxes, assessments or governmental charges or claims not yet delinquent
or
that are being contested in good faith and by appropriate proceedings
for which
appropriate reserves have been established to the extent required by
and in
accordance with GAAP;
(b) Liens
in respect of property or assets of the Borrower or any Subsidiary of
the
Borrower imposed by Applicable Law, such as carriers’, warehousemen’s and
mechanics’ Liens and other similar Liens, arising in the ordinary course of
business or in connection with the construction or restoration of facilities
for
the generation, transmission or distribution of electricity, in each
case so
long as such Liens arise in the ordinary course of business and do not
individually or in the aggregate have a Material Adverse Effect;
(c) Liens
arising from judgments or decrees in circumstances not constituting an
Event of
Default under Section 11.11;
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(d) Liens
incurred or deposits made in connection with workers’ compensation, unemployment
insurance and other types of social security or similar legislation, or
to
secure the performance of tenders, statutory obligations, trade contracts
(other
than for payment of money), leases, statutory obligations, surety, stay,
customs
and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations, in each case incurred
in
the ordinary course of business (including in connection with the construction
or restoration of facilities for the generation, transmission or distribution
of
electricity) or otherwise constituting Investments permitted by Section
10.5;
(e) ground
leases or subleases, licenses or sublicenses in respect of real property
on
which facilities owned or leased by the Borrower or any of the Subsidiaries
of
the Borrower are located;
(f) easements,
rights-of-way, licenses, reservations, servitudes, permits, conditions,
covenants, rights of others, restrictions (including zoning restrictions),
oil,
gas and other mineral interests, royalty interests and leases, minor defects,
exceptions or irregularities in title or survey, encroachments, protrusions
and
other similar charges or encumbrances (including those to secure health,
safety
and environmental obligations), which do not interfere in any material
respect
with the business of the Borrower and the Subsidiaries of the Borrower,
taken as
a whole;
(g) any
exception on the title policies issued in connection with any Mortgaged
Property;
(h) any
interest or title of a lessor, sublessor, licensor, sublicensor or grantor
of an
easement or secured by a lessor’s, sublessor’s, licensor’s, sublicensor’s
interest or grantor of an easement under any lease, sublease, license,
sublicense or easement to be entered into by the Borrower or any Restricted
Subsidiary of the Borrower as lessee, sublessee, licensee, grantee or
sublicensee to the extent permitted by this Agreement;
(i) Liens
in favor of customs and revenue authorities arising as a matter of law
to secure
payment of customs duties in connection with the importation of
goods;
(j) Liens
on goods or inventory the purchase, shipment or storage price of which
is
financed by a documentary letter of credit or banker’s acceptance issued or
created for the account of the Borrower or any Subsidiary of the Borrower;
provided that such Lien secures only the
obligations of the Borrower or such Subsidiary in respect of such letter
of
credit or banker’s acceptance to the extent permitted under Section
10.1;
(k) leases,
licenses, subleases or sublicenses granted to others not interfering in
any
material respect with the business of the Borrower and the Subsidiaries
of the
Borrower, taken as a whole;
(l) Liens
arising from precautionary Uniform Commercial Code financing statement
or
similar filings made in respect of operating leases entered into by the
Borrower
or any Subsidiary of the Borrower;
(m) Liens
created in the ordinary course of business in favor of banks and other
financial
institutions over credit balances of any bank accounts of the Borrower
and the
Subsidiaries held at such banks or financial institutions, as the case
may be,
to facilitate the operation of cash pooling and/or interest set-off arrangements
in respect of such bank accounts in the ordinary course of
business;
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(n) Liens
arising under Section 9.343 of the Texas Uniform Commercial Code or similar
statutes of states other than Texas;
(o) Liens
on accounts receivable, other Receivables Facility Assets, or accounts
into
which collections or proceeds of Receivables Facility Assets are deposited,
in
each case arising in connection with a Permitted Receivables
Financing;
(p) any
zoning, land use, environmental or similar law or right reserved to or
vested in
any Governmental Authority to control or regulate the use of any real property
that does not materially interfere with the ordinary conduct of the business
of
the Borrower and the Subsidiaries of the Borrower, taken as a
whole;
(q) any
Lien arising by reason of deposits with or giving of any form of security
to any
Governmental Authority for any purpose at any time as required by Applicable
Law
as a condition to the transaction of any business or the exercise of any
privilege or license, or to enable the Borrower or any Subsidiary to maintain
self-insurance or to participate in any fund for liability on any insurance
risks;
(r) Liens,
restrictions, regulations, easements, exceptions or reservations of any
Governmental Authority applying to nuclear fuel;
(s) rights
reserved to or vested in any Governmental Authority by the terms of any
right,
power, franchise, grant, license or permit, or by any provision of Applicable
Law, to terminate or modify such right, power, franchise, grant, license
or
permit or to purchase or recapture or to designate a purchaser of any of
the
property of such person;
(t) Liens
arising under any obligations or duties affecting any of the property,
the
Borrower or any Restricted Subsidiary to any Governmental Authority with
respect
to any franchise, grant, license or permit which do not materially impair
the
use of such property for the purposes for which it is held;
(u) rights
reserved to or vested in any Governmental Authority to use, control or
regulate
any property of such person, which do not materially impair the use of
such
property for the purposes for which it is held;
(v) any
obligations or duties, affecting the property of US Holdings, the Borrower
or
any Restricted Subsidiary, to any Governmental Authority with respect
to any
franchise, grant, license or permit; and
(w) a
set-off or netting rights granted by the Borrower or any Subsidiary of
the
Borrower pursuant to any Hedging Agreements, Netting Agreements or Permitted
Contracts solely in respect of amounts owing under such agreements.
“Permitted
Receivables Financing” shall mean any of one or more receivables
financing programs as amended, supplemented, modified, extended, renewed,
restated or refunded from time to time, the obligations of which are
non-recourse (except for customary representations, warranties, covenants
and
indemnities and other customary forms of support, in each case made in
connection with such facilities) to the Borrower and the Restricted Subsidiaries
(other than a Receivables Entity) providing for the sale, conveyance,
or
contribution to capital of Receivables Facility Assets by Participating
Receivables Grantors in transactions purporting to be sales of Receivables
Facility Assets to either (a) a Person that is not a Restricted Subsidiary
or
(b) a Receivables Entity that in turn funds such purchase by the direct
-53-
or
indirect sale, transfer, conveyance, pledge, or grant of participation
or other
interest in such Receivables Facility Assets to a Person that is not a
Restricted Subsidiary. The transactions contemplated by the Existing
Securitization Documentation (as defined in the Security Agreement) shall
be
deemed to be a Permitted Receivables Financing.
“Permitted
Sale Leaseback” shall mean any Sale Leaseback existing on the Closing
Date or consummated by the Borrower or any Restricted Subsidiary after
the
Closing Date; provided that any such Sale Leaseback consummated after the
Closing Date not between (a) a Credit Party and another Credit Party or
(b) a Restricted Subsidiary that is not a Credit Party and another
Restricted Subsidiary that is not a Credit Party is consummated for fair
value
as determined at the time of consummation in good faith by (i) the Borrower
or such Restricted Subsidiary and (ii) in the case of any Sale Leaseback
(or series of related Sales Leasebacks) the aggregate proceeds of which
exceed
$100,000,000, the board of directors of the Borrower or such Restricted
Subsidiary (which such determination may take into account any retained
interest
or other Investment of the Borrower or such Restricted Subsidiary in connection
with, and any other material economic terms of, such Sale
Leaseback).
“Person”
shall mean any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise or any
Governmental Authority.
“PIK
Interest Amount” shall mean the aggregate principal amount of all
increases in outstanding principal amount of any Borrower Senior Facility
(or
any Refinanced Bridge Indebtedness), including any issuances of PIK Notes
(as
defined in each of the Senior Exchange Note Indenture or any similar document,
including any Refinanced Bridge Indebtedness Documentation) in connection
with
an election by the Borrower to pay interest on any Borrower Senior Facility
(or
any Refinanced Bridge Indebtedness) in kind.
“Plan”
shall mean an employee pension benefit plan (other than a Multiemployer
Plan)
-which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code or Section 302 of ERISA and is
maintained or contributed to by the Borrower, any Subsidiary or ERISA Affiliate
or with respect to which the Borrower or any Subsidiary could incur liability
pursuant to Title IV of ERISA.
“Platform”
shall have the meaning provided in Section 13.17(c).
“Pledge
Agreement” shall mean (a) the Pledge Agreement, entered into by the
Credit Parties party thereto and the Collateral Agent for the benefit
of the
Secured Parties, substantially in the form of Exhibit E on the
Closing Date, and (b) any other Pledge Agreement with respect to any
or all of
the Obligations delivered pursuant to Section 9.12.
“Post-Acquisition
Period” shall mean, with respect to any Specified Transaction, the
period beginning on the date such Specified Transaction is consummated
and
ending on the last day of the sixth full consecutive fiscal quarter immediately
following the date on which such Specified Transaction is
consummated.
“Post-Closing
Mortgaged Property” shall mean each Mortgaged Property designated as a
“Post-Closing Mortgaged Property” on Schedule 1.1(c).
“Posting
Advance” shall mean each advance under the Posting Facility made by
each Posting Lender pursuant to
Section 14.4.
“Posting
Advance Amount” shall have the meaning provided in Section
14.3(b).
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“Posting
Advance Date” shall mean (a) the Closing Date and (b) the first
Business Day following each Computation Date as to which a Posting Advance
Amount is determined pursuant to Section 14.3(b).
“Posting
Advances Outstanding” shall mean, with respect to any Posting Lender,
on any date of determination, an amount equal to the aggregate principal
amount
of all outstanding Posting Advances made by such Posting Lender.
“Posting
Agent” shall mean Xxxxxxx Xxxxx Credit Partners, L.P., as the
administrative agent with respect to the Posting Facility for the Posting
Lenders under this Agreement and the other Credit Documents, or any successor
posting agent pursuant to Section 12.
“Posting
Calculation Agent” shall mean X. Xxxx & Company, as the calculation
agent with respect to the Posting Facility for the Borrower and the Posting
Lenders under this Agreement and the other Credit Documents, or any successor
calculation agent pursuant to Section 12.
“Posting
Commitment” shall mean, (a) with respect to each Lender that is a
Lender on the date hereof, the percentage of the Actual MTM Exposure (the
“Posting Percentage”) set forth opposite such Lender’s name on
Schedule 1.1 (a) as such Lender’s “Posting Commitment”, and (b) in the
case of any Lender that becomes a Lender after the date hereof, the percentage
of the Actual MTM Exposure specified as such Lender’s “Posting Commitment” in
the Assignment and Acceptance pursuant to which such Lender assumed a portion
of
the Total Posting Commitment.
“Posting
Documentation Agent” shall mean Xxxxxxx Xxxxx Credit Partners L.P., in
such capacity.
“Posting
Facility” shall have the meaning provided in the recitals to this
Agreement.
“Posting
Facility Fee Letter” shall mean the fee letter with respect to the
Posting Facility, dated as of the date hereof, among the Borrower, Xxxxxxx
Sachs
Credit Partners, L.P. and X. Xxxx & Company.
“Posting
Facility Maturity Date” shall mean December 31, 2012.
“Posting
Facility Termination Date” shall mean the earlier to occur of (a) the
Posting Facility Maturity Date and (b) the date on which the Posting
Commitments
shall have terminated and no Posting Advances shall be outstanding.
“Posting
Interest Period” shall mean (a) initially, the period commencing on
(and including) the Closing Date to (but excluding) the first Weekly
Interest
Payment Date following the Closing Date and (b) thereafter, each period
commencing on (and including) a Weekly Interest Payment Date to (but
excluding)
the next Weekly Interest Payment Date.
“Posting
Lead Arranger and Bookrunner” shall mean Xxxxxxx Sachs Credit Partners
L.P., in such capacity.
“Posting
Lender” shall mean each Lender with a Posting Commitment at such
time.
“Posting
Percentage” shall have the meaning provided in the definition of
“Posting Commitment”.
“Posting
Repayment Amount” shall have the meaning provided in Section
14.3(b).
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“Posting
Repayment Date” shall mean the second Business Day following each
Computation Date as to which a Posting Repayment Amount is determined pursuant
to Section 14.3(b); provided that, with respect to any such
Computation Date, if the Borrower requests in writing (which may be via
email at
the address of the Posting Agent set forth on Schedule 13.2) to pay any
such Posting Repayment Amount on the first Business Day following such
Computation Date and such request is given to the Posting Agent by 11:00
a.m.
(New York time) on such first Business Day, then the Posting Repayment
Date
shall be such first Business Day following such Computation Date.
“Posting
Syndication Agent” shall mean Xxxxxxx Xxxxx Credit Partners L.P., in
such capacity.
“Postponement”
shall have the meaning set forth in the Commodity Definitions with two
Commodity
Business Days as the Maximum Days of Disruption (as each such term is defined
in
the Commodity Definitions).
“Preferred
Stock” shall mean any Stock or Stock Equivalents with preferential
rights of payment of dividends or upon liquidation, dissolution or winding
up.
“Prepayment
Event” shall mean any Asset Sale Prepayment Event or Recovery
Prepayment Event.
“Pro
Forma Adjustment” shall mean, for any Test Period that includes all or
any part of a fiscal quarter included in any Post-Acquisition Period, with
respect to the Acquired EBITDA of the applicable Pro Forma Entity or the
Consolidated EBITDA of the Borrower, the pro forma increase or decrease
in such
Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected
by
the Borrower in good faith as a result of (a) actions taken or to be taken,
prior to or during such Post-Acquisition Period for the purposes of realizing
reasonably identifiable and factually supportable cost savings or (b) any
additional costs incurred prior to or during such Post-Acquisition Period,
in
each case in connection with the combination of the operations of such
Pro Forma
Entity with the operations of the Borrower and the Restricted Subsidiaries;
provided that (A) at the election of the Borrower, such Pro Forma
Adjustment shall not be required to be determined for any Pro Forma Entity
to
the extent the aggregate consideration paid in connection with such acquisition
was less than $50,000,000 and (ii) so long as
such actions are taken, or to be taken, prior to or during such Post-Acquisition
Period or such costs are incurred prior to or during such Post-Acquisition
Period, as applicable, it may be assumed, for purposes of projecting such
pro forma increase or decrease to such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, that the applicable amount of such cost savings
will
be realizable during the entirety of such Test Period, or the applicable
amount
of such additional costs, as applicable, will be incurred during the entirety
of
such Test Period; provided, further that any such pro forma
increase or decrease to such Acquired EBITDA or such Consolidated EBITDA,
as the
case may be, shall be without duplication for cost savings or additional
costs
already included in such Acquired EBITDA or such Consolidated EBITDA, as
the
case may be, for such Test Period.
“Pro
Forma Adjustment Certificate” shall mean any certificate of an
Authorized Officer of the Borrower delivered pursuant to
Section 9.1(g) or setting forth the information described in
clause (iii) to Section 9.1(c).
“Pro
Forma Balance Sheet” shall have the meaning provided in Section
8.9.
“Pro
Forma Basis”, “Pro Forma Compliance” and “Pro
Forma Effect” shall mean, with respect to compliance with any test or
covenant hereunder, that (A) to the extent applicable, the Pro Forma
Adjustment
shall have been made and (B) all Specified Transactions and the following
transactions
-56-
in
connection therewith shall be deemed to have occurred as of the first day
of the
applicable period of measurement in such test or covenant: (a) income
statement items (whether positive or negative) attributable to the property
or
Person subject to such Specified Transaction, (i) in the case of a
Disposition of all or substantially all Stock in any Subsidiary of the
Borrower
or any division, product line, or facility used for operations of the Borrower
or any Subsidiary of the Borrower, shall be excluded, and (ii) in the case
of a
Permitted Acquisition or Investment described in the definition
of “Specified Transaction”, shall be included, (b) any retirement or
repayment of Indebtedness, and (c) any incurrence or assumption of Indebtedness
by the Borrower or any Restricted Subsidiary in connection therewith (it
being
agreed that if such Indebtedness has a floating or formula rate, such
Indebtedness shall have an implied rate of interest for the applicable
period
for purposes of this definition determined by utilizing the rate that is
or
would be in effect with respect to such Indebtedness as at the relevant
date of
determination); provided that, without limiting the application of the
Pro Forma Adjustment pursuant to (A) above (but without duplication thereof),
the foregoing pro forma adjustments may be applied to any such test or
covenant
solely to the extent that such adjustments are consistent with the definition
of
Consolidated EBITDA and give effect to events (including operating expense
reductions) that are (i) (x) directly attributable to such transaction,
(y) expected to have a continuing impact on the Borrower and the Restricted
Subsidiaries and (z) factually supportable or (ii) otherwise
consistent with the definition of Pro Forma Adjustment.
“Pro
Forma Entity” shall have the meaning provided in the definition of the
term “Acquired EBITDA”.
“Pro
Forma Financial Statements” shall have the meaning provided in
Section 8.9.
“Project”
shall have the meaning provided in Section 9.14(f).
“Projections”
shall have the meaning provided in Section 9.1(h).
“PUCT”
shall mean the Public Utility Commission of Texas or any successor.
“Qualifying
IPO” shall mean the issuance by Parent, Holdings or any direct or
indirect parent of Holdings of its common Stock in an underwritten primary
public offering (other than a public offering pursuant to a registration
statement on Form S-8) pursuant to an effective registration statement
filed
with the SEC in accordance with the Securities Act (whether alone or in
connection with a secondary public offering).
“Real
Estate” shall have the meaning provided in
Section 9.1(e).
“Receivables
Entity” shall mean any Person formed solely for the purpose of
(i) facilitating or entering into one or more Permitted Receivables
Financings, and (ii) in each case, engaging in activities reasonably
related or
incidental thereto. TXU Receivables Company, a Delaware corporation,
shall be deemed to be a Receivables Entity.
“Receivables
Facility Assets” shall mean presently existing and hereafter arising or
originated Accounts, Payment Intangibles and Chattel Paper (as each such
term is
defined in the UCC) owed or payable to any Participating Receivables
Grantor,
and to the extent related to or supporting any Accounts, Chattel Paper
or
Payment Intangibles, or constituting a receivable, all General Intangibles
and
other forms of obligations and receivables owed or payable to any Participating
Receivables Grantor, including the right to payment of any interest,
finance
charges, late payment fees or other charges with respect thereto (the
foregoing,
collectively, being “receivables”), all of such Participating
Receivables Grantor’s rights as an unpaid vendor (including rights in any goods
the sale of which gave rise to any receivables), all security interests
or liens
and property subject to such security interests or liens from time
-57-
to
time purporting to secure payment of any receivables or other items described
in
this definition, all guarantees, letters of credit, security agreements,
insurance and other agreements or arrangements from time to time supporting
or
securing payment of any receivables or other items described in this definition,
all customer deposits with respect thereto, all rights under any contracts
giving rise to or evidencing any receivables or other items described in
this
definition, and all documents, books, records and information (including
computer programs, tapes, disks, data processing software and related property
and rights) relating to any receivables or other items described in this
definition or to any obligor with respect thereto, and all proceeds of
the
foregoing. Receivables Facility Assets shall be deemed to include the
“Receivable Assets” as defined in the Existing Securitization Documentation (as
defined in the Security Agreement) as in effect on the Closing
Date.
“Receivables
Fees” means distributions or payments made directly or by means of
discounts with respect to any accounts receivable or participation interest
therein issued or sold in connection with, and other fees paid to a Person
that
is not a Restricted Subsidiary in connection with any Permitted Receivables
Financing.
“Recovery
Event” shall mean (a) any damage to, destruction of or other casualty
or loss involving any property or asset or (b) any seizure, condemnation,
confiscation or taking (or transfer under threat of condemnation) under
the
power of eminent domain of, or any requisition of title or use of or relating
to, or any similar event in respect of, any property or asset.
“Recovery
Prepayment Event” shall mean the receipt of cash proceeds with respect
to any settlement or payment in connection with any Recovery Event in respect
of
any property or asset of the Borrower or any Restricted Subsidiary;
provided that the term “Recovery Prepayment Event” shall not include any
Asset Sale Prepayment Event.
“Refinanced
Deposit L/C Loans” shall have the meaning provided in
Section 13.1.
“Refinanced
Term Loans” shall have the meaning provided in Section
13.1.
“Refinancing”
shall have the meaning provided in the recitals to this Agreement.
“Refinanced
Bridge Indebtedness” shall have the meaning provided in Section
10.1(i).
“Refinanced
Bridge Indebtedness Documentation” shall mean any notes, indentures,
loan agreements and/or other documentation or instruments governing any
Refinanced Bridge Indebtedness.
“Register”
shall have the meaning provided in Section 13.6(b)(iv).
“Registration
Rights Agreement” shall mean the registration rights agreement related
to the Borrower Senior Exchange Notes or any Refinanced Bridge Indebtedness
and,
with respect to any additional notes issued pursuant to the Borrower
Senior
Exchange Notes Indenture or any Refinanced Bridge Indebtedness Documentation,
one or more registration rights agreements between the Borrower and the
other
parties thereto, relating to rights given by the Borrower to the purchasers
of
such additional notes to register such additional notes under the Securities
Act.
“Regulation T”
shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
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“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and
any
successor to all or a portion thereof establishing margin
requirements.
“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
“Reimbursement
Date” shall have the meaning provided in Section
3.4(a).
“Reinvestment
Period” shall mean 15 months following the date of receipt of Net Cash
Proceeds of an Asset Sale Prepayment Event or Recovery Prepayment
Event.
“Rejection
Notice” shall have the meaning provided in Section
5.2(h).
“Related
Parties” shall mean, with respect to any specified Person, such
Person’s Affiliates and the directors, officers, employees, agents, trustees and
advisors of such Person and any Person that possesses, directly or indirectly,
the power to direct or cause the direction of the management or policies
of such
Person, whether through the ability to exercise voting power, by contract
or
otherwise.
“Relevant
Prior Computation Date” shall mean, with respect to any Business Day,
whichever of the following has more closely preceded such Business
Day: (a) the immediately preceding Weekly Computation Date or (b) the
immediately preceding Interim Computation Date.
“Repaid
Indebtedness” shall mean:
· the
portion of the Parent’s 4.800% Fixed Senior Notes Series O due 2009
tendered;
· the
portion of the Borrower’s 6.125% Fixed Senior Notes due 2008
tendered;
· the
portion of the Borrower’s 7.000% Fixed Senior Notes due 2013
tendered;
· the
Borrower’s Floating Rate Senior Notes due 2008;
· Oncor
Electric Delivery’s Floating Senior Notes due 2008; and
· the
credit facilities listed on Schedule 1.1(f).
“Repaid
Tranche B-3 Loans” shall have the meaning provided in Section
5.1(b).
“Repayment
Amount” shall mean an Initial Term Loan Repayment
Amount, a Delayed Draw Term Loan Repayment Amount and the amount of any
installment of Incremental Term Loans scheduled to be repaid on any
date.
“Replacement
Deposit L/C Loans” shall have the meaning provided in
Section 13.1.
“Replacement
Term Loans” shall have the meaning provided in Section
13.1.
“Reportable
Event” shall mean an event described in Section 4043 of ERISA and the
regulations thereunder, other than any event as to which the thirty day
notice
period has been waived.
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“Required
Delayed Draw Term Loan Lenders” shall mean, at any date, Non-Defaulting
Lenders having or holding a majority of the sum of (a) the aggregate
outstanding principal amount of the Delayed Draw Term Loans (excluding
Delayed
Draw Term Loans held by Defaulting Lenders) at such date and (b) the
Adjusted Available Delayed Draw Term Loan Commitment at such date.
“Required
Deposit L/C Loan Lenders” shall mean, at any date, Lenders having or
holding a majority of the sum of the aggregate outstanding principal amount
of
the Initial Deposit L/C Loans at such date.
“Required
Initial Term Loan Lenders” shall mean, at any date, Lenders having or
holding a majority of the aggregate outstanding principal amount of the
Initial
Term Loans at such date.
“Required
Initial Tranche B-1 Term Loan Lenders” shall mean, at any date, Lenders
having or holding a majority of the aggregate outstanding principal amount
of
the Initial Tranche B-1 Term Loans at such date.
“Required
Initial Tranche B-2 Term Loan Lenders” shall mean, at any date, Lenders
having or holding a majority of aggregate outstanding principal amount
of the
Initial Tranche B-2 Term Loans at such date.
“Required
Initial Tranche B-3 Term Loan Lenders” shall mean, at any date, Lenders
having or holding a majority of the aggregate outstanding principal amount
of
the Initial Tranche B-3 Term Loans at such date.
“Required
Lenders” shall mean, at any date, Non-Defaulting Lenders having or
holding a majority of the sum of (a) the outstanding amount of the Term
Loans in
the aggregate at such date, (b) the outstanding amount of the Deposit L/C
Loans
and Incremental Deposit L/C Loans in the aggregate at such date, (c) the
Adjusted Available Delayed Draw Term Loan Commitment at such date, (d)(i)
the
Adjusted Total Revolving Credit Commitment at such date or (ii) if the
Total Revolving Credit Commitment has been terminated or for the purposes
of
acceleration pursuant to Section 11, the outstanding principal amount of
the Revolving Credit Loans and Revolving Letter of Credit Exposure (excluding
the Revolving Credit Loans and Revolving Letter of Credit Exposures of
Defaulting Lenders) in the aggregate at such date and (e) the Applicable
Posting Facility Amount (it being understood that, for purposes of determining
the vote of any Posting Lender hereunder, the portion of the Applicable
Posting
Facility Amount that such Posting Lender holds at any time shall equal
such
Posting Lender’s Posting Percentage of the Applicable Posting Facility Amount
and any calculation of the Applicable Posting Facility Amount shall exclude
the
Posting Percentage of any Defaulting Lender).
“Required
Posting Lenders” shall mean, at any date, Non-Defaulting Lenders
holding a majority of the Adjusted Total Posting Commitment at such date
or, if
the Total Posting Commitment has been terminated, Aggregate Posting Advances
Outstanding at such time (excluding Posting Advances Outstanding of Defaulting
Lenders).
“Required
Revolving Credit Lenders” shall mean, at any date, Non-Defaulting
Lenders holding a majority of the Adjusted Total Revolving Credit Commitment
at
such date (or, if the Total Revolving Credit Commitment has been terminated
at
such time, a majority of the Revolving Credit Exposure (excluding Revolving
Credit Exposure of Defaulting Lenders) at such time).
“Restoration
Certification” shall mean, with respect to any Recovery Prepayment
Event, a certification made by an Authorized Officer of the Borrower
or any
Restricted Subsidiary, as
-60-
applicable,
to the Administrative Agent prior to the end of the Reinvestment Period
certifying (a) that the Borrower or such Restricted Subsidiary intends
to use
the proceeds received in connection with such Recovery Prepayment Event
to
repair, restore or replace the property or assets in respect of which such
Recovery Prepayment Event occurred, (b) the approximate costs of completion
of
such repair, restoration or replacement and (c) that such repair, restoration
or
replacement will be completed within the later of (x) fifteen months after
the
date on which cash proceeds with respect to such Recovery Prepayment Event
were
received and (y) 180 days after delivery of such Restoration
Certification.
“Restricted
Foreign Subsidiary” shall mean a Foreign Subsidiary that is a
Restricted Subsidiary.
“Restricted
Subsidiary” shall mean any Subsidiary of the Borrower other than an
Unrestricted Subsidiary.
“Retained
Declined Proceeds” shall have the meaning provided in
Section 5.2(h).
“Revolving
Credit Commitment” shall mean, (a) with respect to each Lender that is
a Lender on the date hereof, the amount set forth opposite such Lender’s name on
Schedule 1.1(a) as such Lender’s “Revolving Credit Commitment”, as such
Revolving Credit Commitment may be reduced from time to time pursuant to
the
terms hereof, (b) in the case of any Lender that becomes a Lender after
the date
hereof, the amount specified as such Lender’s “Revolving Credit Commitment” in
the Assignment and Acceptance pursuant to which such Lender assumed a portion
of
the Total Revolving Credit Commitment, as such Revolving Credit Commitment
may
be reduced from time to time pursuant to the terms hereof and (c) in the
case of
any Lender that increases its Revolving Credit Commitment or becomes an
Incremental Revolving Commitment Increase Lender, in each case pursuant
to
Section 2.14, the amount specified in the applicable Incremental
Amendment, as such Revolving Credit Commitment may be reduced from time
to time
pursuant to the terms hereof. The aggregate amount of Revolving
Credit Commitments as of the date hereof is $2,700,000,000.
“RevolvingCreditCommitment
Fee” shall have the meaning provided in Section
4.1(a).
“Revolving
CreditCommitment Fee Rate” shall mean, with respect to
the Available Revolving Commitment applicable to the Revolving Credit
Lenders,
on any date, the rate per annum set forth below based upon the Status
in effect on such day:
Status
|
Revolving
Credit Commitment Fee Rate
|
Level
I Status
|
0.50%
|
Level
II Status
|
0.50%
|
Level
III Status
|
0.375%
|
Notwithstanding
the foregoing, the term “Revolving Credit Commitment Fee Rate” shall mean 0.50%
during the period from and including the Closing Date to but excluding
the
Initial Financial Statements Delivery Date.
“Revolving
Credit Commitment Percentage” shall mean at any time, for each Lender,
the percentage obtained by dividing (a) such Lender’s Revolving Credit
Commitment at such time by (b) the amount of the Total Revolving Credit
Commitment at such time; provided that at any time when the Total
Revolving Credit Commitment shall have been terminated, each Lender’s Revolving
Credit
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Commitment
Percentage shall be the percentage obtained by dividing (a) such Lender’s
Revolving Credit Exposure at such time by (b) the Revolving Credit Exposure
of all Lenders at such time.
“Revolving
Credit Exposure” shall mean, with respect to any Lender at any time,
the sum of (a) the aggregate principal amount of the Revolving Credit Loans
of such Lender then outstanding, (b) such Lender’s Revolving Letter of Credit
Exposure at such time and (c) such Lender’s Revolving Credit Commitment
Percentage of the aggregate principal amount of all outstanding Swingline
Loans.
“Revolving
Credit Facility” shall have the meaning provided in the recitals to
this Agreement.
“Revolving
Credit Lender” shall mean, at any time, any Lender that has a Revolving
Credit Commitment at such time.
“Revolving
Credit Loans” shall have the meaning provided in Section
2.1(d).
“Revolving
Credit Maturity Date” shall mean the date that is six years after the
Closing Date, or if such date is not a Business Day, the next succeeding
Business Day.
“Revolving
Credit Termination Date” shall mean the earlier to occur of
(a) the Revolving Credit Maturity Date and (b) the date on which the
Revolving Credit Commitments shall have terminated, no Revolving Credit
Loans
shall be outstanding and the Revolving Letters of Credit Outstanding shall
have
been reduced to zero or Cash Collateralized.
“Revolving
L/C Borrowing” shall mean an extension of credit resulting from a
drawing under any Revolving Letter of Credit which has not been reimbursed
on
the date when made or refinanced as a Borrowing.
“Revolving
L/C Maturity Date” shall mean the date that is three Business Days
prior to the Maturity Date.
“Revolving
L/C Obligations” shall mean, as at any date of determination, the
aggregate Stated Amount of all outstanding Revolving Letters of Credit
plus the aggregate principal amount of all Unpaid Drawings under
all
Revolving Letters of Credit, including all Revolving L/C
Borrowings. For all purposes of this Agreement, if on any date of
determination a Revolving Letter of Credit has expired by its terms but
any
amount may still be drawn thereunder by reason of the operation of Rule
3.14 of
the ISP, such Revolving Letter of Credit shall be deemed to be “outstanding” in
the amount so remaining available to be drawn.
“Revolving
L/C Participant” shall have the meaning provided in
Section 3.3(a).
“Revolving
L/C Participation” shall have the meaning provided in
Section 3.3(a).
“Revolving
Letter of Credit” shall mean each letter of credit issued pursuant to
Section 3.1(a)(i).
“Revolving
Letter of Credit Commitment” shall mean $1,500,000,000, as the same may
be reduced from time to time pursuant to Section 4.2(c).
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“Revolving
Letter of Credit Exposure” shall mean, with respect to any Revolving
Credit Lender, at any time, the sum of (a) the principal amount of any
Unpaid
Drawings under Revolving Letters of Credit in respect of which such Lender
has
made (or is required to have made) payments to the Revolving Letter of
Credit
Issuer pursuant to Section 3.4(a) at such time and (b) such Lender’s
Revolving Credit Commitment Percentage of the Revolving Letters of Credit
Outstanding at such time (excluding the portion thereof consisting of Unpaid
Drawings under Revolving Letters of Credit in respect of which the Lenders
have
made (or are required to have made) payments to the Revolving Letter of
Credit
Issuer pursuant to Section 3.4(a)).
“Revolving
Letter of Credit Fee” shall have the meaning provided in
Section 4.1(c).
“Revolving
Letter of Credit Issuer” shall mean (a) Citibank, N.A., any of its
Affiliates or any replacement or successor pursuant to Section 3.6,
(b) JPMorgan Chase Bank, N.A., any of its Affiliates or any replacement
or
successor pursuant to Section 3.6, (c) each issuer of an
Existing Letter of Credit denoted as a “Revolving Letter of Credit” on
Schedule 1.1(b) and (d) at any time such Person who shall become a
Revolving Letter of Credit Issuer pursuant to Section 3.6 (it being
understood that if any such Person ceases to be a Revolving Lender hereunder,
such Person will remain a Revolving Letter of Credit Issuer with respect
to any
Revolving Letters of Credit issued by such Person that remained outstanding
as
of the date such Person ceased to be a Lender). Any Revolving Letter
of Credit Issuer may, in its discretion, arrange for one or more Revolving
Letters of Credit to be issued by Affiliates of such Revolving Letter of
Credit
Issuer, and in each such case the term “Revolving Letter of Credit Issuer” shall
include any such Affiliate or Lender with respect to Revolving Letters
of Credit
issued by such Affiliate or Lender. References herein and in the
other Credit Documents to the Revolving Letter of Credit Issuer shall be
deemed
to refer to the Revolving Letter of Credit Issuer in respect of the applicable
Letter of Credit or to all Revolving Letter of Credit Issuers, as the context
requires.
“Revolving
Letters of Credit Outstanding” shall mean, at any time, the sum of,
without duplication, (a) the aggregate Stated Amount of all outstanding
Revolving Letters of Credit and (b) the aggregate principal amount of all
Unpaid Drawings in respect of all Revolving Letters of Credit.
“S&P”
shall mean Standard & Poor’s Ratings Services or any successor by
merger or consolidation to its business.
“Sale
Leaseback” shall mean any transaction or series of related transactions
pursuant to which the Borrower or any Restricted Subsidiary (a) sells,
transfers
or otherwise disposes of any property, real or personal, whether now owned
or
hereafter acquired, and (b) as part of such transaction, thereafter rents
or
leases such property or other property that it intends to use for substantially
the same purpose or purposes as the property being sold, transferred or
disposed.
“Sandow
Unit 4” shall mean the approximately 557 megawatt (net load) lignite
fired power generation facility, excluding mining properties, known as
“Sandow
Unit 4” being operated and owned by Luminant Generation Company LLC in Xxxxx
County, Texas.
“Sandow
Unit 5” shall mean the approximately 565 megawatt (net load), lignite
coal-fired, circulating fluidized bed powder generation facility known
as
“Sandow Unit 5” being developed by Sandow Power Company LLC in Xxxxx County,
Texas.
“Sandow
Unit 5 Deemed Completion Date” shall have the meaning provided in the
definition of Consolidated EBITDA.
“Scheduled
Dispositions” shall have the meaning provided in Section
10.4(j).
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“SEC”
shall mean the Securities and Exchange Commission or any successor
thereto.
“Section
9.1 Financials” shall mean the financial statements delivered, or
required to be delivered, pursuant to Section 9.1(a) or (b)
together with the accompanying officer’s certificate delivered, or required to
be delivered, pursuant to Section 9.1(c).
“Secured
Cash Management Agreement” shall mean any agreement relating to Cash
Management Services that is entered into by and between the Borrower or
any
Restricted Subsidiary and any Cash Management Bank.
“Secured
Commodity Hedging Agreement” shall mean any Commodity Hedging Agreement
that is entered into by and between the Borrower or any Restricted Subsidiary
and any Hedge Bank.
“Secured
Hedging Agreement” shall mean any Hedging Agreement that is entered
into by and between the Borrower or any Restricted Subsidiary and any Hedge
Bank.
“Secured
Parties” shall mean the Administrative Agent, the Posting Agent, the
Collateral Agent, the Letter of Credit Issuers, each Lender, each Hedge
Bank
that is party to any Secured Hedging Agreement or a Secured Commodity Hedging
Agreement, as applicable, each Cash Management Bank that is a party to
a Secured
Cash Management Agreement and each sub-agent pursuant to Section 12
appointed by the Administrative Agent or the Posting Agent with respect
to
matters relating to the Credit Facilities or by the Collateral Agent with
respect to matters relating to any Security Document.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
“Securitization”
shall mean a public or private offering by a Lender or any of its Affiliates
or
their respective successors and assigns of securities or notes which represent
an interest in, or which are collateralized, in whole or in part, by the
Loans,
Posting Advances and the Lender’s rights under the Credit
Documents.
“Security
Agreement” shall mean the Security Agreement entered into by the
Borrower, the other grantors party thereto and the Collateral Agent for
the
benefit of the Secured Parties, substantially in the form of
Exhibit F.
“Security
Documents” shall mean, collectively, (a) the Security Agreement,
(b) the Pledge Agreement, (c) the Mortgages, (d) the Intercreditor Agreement
and
(e) each other security agreement or other instrument or document executed
and delivered pursuant to Section 9.11, 9.12 or 9.14
or pursuant to any other such Security Documents or otherwise to secure
or
perfect the security interest in any or all of the Obligations.
“Shell
Wind” shall mean a joint venture with Shell Wind Energy Inc. in which
the Borrower and the Restricted Subsidiaries have up to a 50% ownership
interest
relating to the joint development of a 3000 megawatt wind project in
Texas,
which project is being undertaken in light of governmental actions promoting
the
use and construction of renewable energy project.
“Shortfall
Amount” shall mean an amount (which amount may be less than zero), as
of any date of determination, equal to (a) an amount of interest that
would have
accrued on the funds on deposit in the Deposit L/C Loan Collateral Account
from
the Closing Date through the date of determination if such funds had
earned a
return equal to the one-month LIBOR Rate (assuming successive one
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month
Interest Periods for the applicable period) less 0.12% per
annumless (b) the actual aggregate amount of interest, dividends,
distributions and other earnings on the funds on deposit in the Deposit
L/C Loan
Collateral Account from the Closing Date through the date of determination,
less (c) the aggregate amount of Shortfall Payments made by the
Administrative Agent on or prior to such date, plus (d) the aggregate
amount of Shortfall Payments made by the Borrower on or prior to such
date.
“Shortfall
Payment” shall have the meaning provided in Section
2.8(j).
“Sold
Entity or Business” shall have the meaning provided in the definition
of the term “Consolidated EBITDA”.
“Solvent”
shall mean, with respect to any Person, that as of the Closing Date,
(a) (i) the sum of such Person’s debt (including contingent liabilities)
does not exceed the present fair saleable value of such Person’s present assets,
(ii) such Person’s capital is not unreasonably small in relation to its business
as contemplated on the Closing Date and (iii) such Person has not incurred
and
does not intend to incur, or believe that it will incur, debts including
current
obligations beyond its ability to pay such debts as they become due (whether
at
maturity or otherwise) and (b) such Person is “solvent” within the meaning given
that term and similar terms under applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition, the
amount of any contingent liability at any time shall be computed as the
amount
that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or
matured liability (irrespective of whether such contingent liabilities
meet the
criteria for accrual under Statement of Financial Accounting Standard No.
5).
“Specified
Revolving Letter of Credit Commitment” shall mean, with respect to any
Revolving Letter of Credit Issuer, (i) in the case of Citibank, N.A. (or
any of
its Affiliates), 50% of the Revolving Letter of Credit Commitment, (ii)
in the
case of JPMorgan Chase Bank, N.A. (or any of its Affiliates), 50% of the
Revolving Letter of Credit Commitment, (iii) in the case of each Existing
Letter
of Credit Issuer, in its capacity as such, 0% (exclusive of Existing Letters
of
Credit) of the Revolving Letter of Credit Commitment and (iv) in the case
of any
other Revolving Letter of Credit Issuer, 100% of the Revolving Letter of
Credit
Commitment or such lower percentage as is specified in the agreement pursuant
to which such Person becomes a Revolving Letter of Credit Issuer entered
into
pursuant to Section 3.6(a) hereof.
“Specified
Subsidiary” shall mean, at any date of determination (a) any Material
Subsidiary or (b) any Unrestricted Subsidiary, in either case (i) whose
total assets (when combined with the assets of such Subsidiary’s Subsidiaries,
after eliminating intercompany obligations) at the last day of the Test
Period
ending on the last day of the most recent fiscal period for which Section
9.1
Financials have been delivered were equal to or greater than 10% of the
Consolidated Total Assets of the Borrower and the Subsidiaries of the
Borrower
at such date, or (ii) whose total revenues (when combined with the revenues
of such Subsidiary’s Subsidiaries, after eliminating intercompany obligations)
during such Test Period were equal to or greater than 10% of the consolidated
revenues of the Borrower and the Subsidiaries of the Borrower for such
period,
in each case determined in accordance with GAAP, and (c) each other
Unrestricted Subsidiary that is the subject of an Event of Default under
Section 11.5 and that, when such Subsidiary’s total assets (when
combined with the assets of such Subsidiary’s Subsidiaries, after eliminating
intercompany obligations) or total revenues (when combined with the revenues
of
such Subsidiary’s Subsidiaries, after eliminating intercompany obligations) are
aggregated with the total combined assets or total combined revenues,
as
applicable, of each other Unrestricted Subsidiary that is the subject
of an
Event of Default under Section 11.5, would constitute a Specified
Subsidiary under clause (b) above.
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“Specified
Transaction” shall mean, with respect to any period, any Investment,
any Disposition of assets, Permitted Sale Leaseback, incurrence or repayment
of
Indebtedness, dividend, Subsidiary designation, Incremental Term Loan,
Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase
or other
event that by the terms of this Agreement requires “Pro Forma Compliance” with a
test or covenant hereunder or requires such test or covenant to be calculated
on
a “Pro Forma Basis”.
“Sponsors”
shall mean any of KKR, TPG, Citigroup Global Markets Inc., Xxxxxx Xxxxxxx
&
Co. Incorporated, Xxxxxxx, Sachs & Co. and Xxxxxx Brothers Inc., and each of
their respective Affiliates, but excluding portfolio companies of any of
the
foregoing.
“SPV”
shall have the meaning provided in Section 13.6(g).
“Stated
Amount” of any Letter of Credit shall mean the maximum amount from time
to time available to be drawn thereunder, determined without regard to
whether
any conditions to drawing could then be met.
“Stated
Maturity” shall mean, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment
of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to
repay, redeem or repurchase any such interest or principal prior to the
date
originally scheduled for payment thereof; provided that, with respect to
any pollution control revenue bonds or similar instruments, the Stated
Maturity
of any series thereof shall be deemed to be the date set forth in any instrument
governing such Indebtedness for the remarketing of such
Indebtedness.
“Status”
shall mean, as to the Borrower as of any date, the existence of Level I
Status, Level II Status or Level III Status, as the case may be, on such
date. Changes in Status resulting from changes in the Consolidated
Total Debt to Consolidated EBITDA Ratio shall become effective as of the
first
day following each date that (a) Section 9.1 Financials are delivered to
the Administrative Agent under Section 9.1 and (b) an officer’s
certificate is delivered by the Borrower to the Administrative Agent setting
forth, with respect to such Section 9.1 Financials, the then-applicable
Status, and shall remain in effect until the next change to be effected
pursuant
to this definition; provided that each determination ofthe
Consolidated Total Debt to Consolidated EBITDA Ratio pursuant to this definition
shall be made as of the end of the Test Period ending at the end of the
fiscal
period covered by the relevant Section 9.1 Financials.
“Stock”
shall mean shares of capital stock or shares in the capital, as the case
may be
(whether denominated as common stock or preferred stock or ordinary shares
or
preferred shares, as the case may be), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
“Stock
Equivalents” shall mean all securities convertible into or exchangeable
for Stock and all warrants, options or other rights to purchase or subscribe
for
any Stock, whether or not presently convertible, exchangeable or
exercisable.
“Subsidiary”
of any Person shall mean and include (a) any corporation more than 50%
of whose
Stock of any class or classes having by the terms thereof ordinary voting
power
to elect a majority of the directors of such corporation (irrespective
of
whether or not at the time Stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries and (b) any limited
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liability
company, partnership, association, joint venture or other entity of which
such
Person directly or indirectly through Subsidiaries has more than a 50%
equity
interest at the time or is a controlling general partner. Unless
otherwise expressly provided, all references herein to a “Subsidiary” shall mean
a Subsidiary of the Borrower.
“Subsidiary
Guarantor” shall mean each Guarantor that is a Subsidiary of the
Borrower.
“Successor
Borrower” shall have the meaning provided in Section
10.3(a).
“Survey”
shall mean a survey of any Mortgaged Property (and all improvements thereon)
based on aerial photography that is (a) (i) prepared by a licensed surveyor
or
engineer, (ii) dated (or redated) not earlier than six months prior to
the date
of delivery thereof, (iii) certified by the surveyor (in a manner reasonable
in
light of the size, type and location of the Real Estate covered thereby)
to the
Administrative Agent, the Collateral Agent and the title insurance company
issuing the corresponding Mortgage, (iv) complying in all material respects
with
the applicable detail requirements of the American Land Title Association
as
such requirements are in effect on the date of preparation of such survey,
taking into account the size, type and location of the Real Estate covered
thereby and (v) sufficient for the title insurance company to remove (to the
extent permitted by Applicable Law) all standard survey exceptions from
the
title insurance policy (or commitment) relating to such Mortgaged Property
and
issue such endorsements, to the extent available in the applicable jurisdiction,
as the Collateral Agent may reasonably request or (b) otherwise reasonably
acceptable to the Collateral Agent, taking into account the size, type
and
location of the Real Estate covered thereby.
“Swap
Termination Value” shall mean, in respect of any one or more Hedging
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date
on or
after the date such Hedging Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s),
and (b)
for any date prior to the date referenced in clause (a), the amount(s)
determined as the xxxx-to-market value(s) for such Hedging Agreements,
as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedging Agreements
(which
may include a Lender or any Affiliate of a Lender).
“Swingline
Commitment” shall mean $700,000,000.
“Swingline
Lender” shall mean Citibank, N.A., in its capacity as lender of
Swingline Loans hereunder, or any replacement or successor thereto.
“Swingline
Loans” shall have the meaning provided in
Section 2.1(e).
“Swingline
Maturity Date” shall mean, with respect to any Swingline Loan, the date
that is three Business Days prior to the Revolving Credit Maturity
Date.
“Syndication
Agent” shall mean JPMorgan Chase Bank, N.A., together with its
affiliates, as syndication agent for the Lenders under this Agreement and
the
other Credit Documents.
“Taxes”
shall mean any and all present or future taxes, duties, levies, imposts,
assessments, deductions, withholdings or other similar charges imposed
by any
Governmental Authority whether computed on a separate, consolidated, unitary,
combined or other basis and any interest, fines, penalties or additions
to tax
with respect to the foregoing.
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“TCEH”
shall have the meaning provided in the preamble to this Agreement.
“Term
Loan” shall mean an Initial Term Loan, a Delayed Draw Term Loan or an
Incremental Term Loan, as applicable.
“Test
Period” shall mean, for any determination under this Agreement, the
four consecutive fiscal quarters of the Borrower then last ended and for
which
Section 9.1 Financials have been or were required to have been
delivered.
“Title
Company” shall mean any title insurance company as shall be retained by
Borrower and reasonably acceptable to the Administrative Agent.
“Total
Commitment” shall mean the sum of the Total Initial Term Loan
Commitment, the Total Delayed Draw Term Loan Commitment, the Total Incremental
Term Loan Commitment, the Total Deposit L/C Loan Commitment, the Total
Incremental Deposit L/C Loan Commitment, the Total Revolving Credit Commitment,
the Total Posting Commitment and the Total Incremental Posting Facility
Commitment.
“Total
Credit Exposure” shall mean, at any date, the sum, without duplication,
of (a) the Total Revolving Credit Commitment at such date (or if the Total
Revolving Credit Commitment shall have terminated on such date, the aggregate
Revolving Credit Exposure of all Revolving Credit Lenders at such date),
(b) the
Available Delayed Draw Term Loan Commitment at such date, (c) the aggregate
outstanding principal amount of all Term Loans at such date, (d) the aggregate
outstanding principal amount of all Deposit L/C Loans and all Incremental
Deposit L/C Loans at such date and (e) the Aggregate Posting Advances
Outstanding.
“Total
Delayed Draw Term Loan Commitment” shall mean the sum of the Delayed
Draw Term Loan Commitments of all the Lenders.
“Total
Deposit L/C Loan Commitment” shall mean the sum of the Deposit L/C Loan
Commitments of all the Lenders.
“Total
Incremental Deposit L/C Loan Commitment” shall mean the sum of the
Incremental Deposit L/C Loan Commitments of any tranche of Incremental
Deposit
L/C Loans of all Lenders providing such tranche of Incremental Deposit
L/C
Loans.
“Total
Incremental Posting Facility Commitment” shall mean the sum of the
Incremental Posting Facility Commitments of each Incremental Posting
Facility of
all the Lenders providing such Incremental Posting Facility.
“Total
Incremental Term Loan Commitment” shall mean the sum of the Incremental
Term Loan Commitments of any tranche of Incremental Term Loans of all
the
Lenders providing such tranche of Incremental Term Loans.
“Total
Initial Term Loan Commitment” shall mean the sum of the Initial Term
Loan Commitments of all Lenders.
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“Total
Initial Tranche B-2 Term Loan Commitment” shall mean the sum of the
Initial Tranche B-2 Term Loan Commitments of all Lenders.
“Total
Initial Tranche B-3 Term Loan Commitment” shall mean the sum of the
Initial Tranche B-3 Term Loan Commitments of all Lenders.
“Total
Posting Commitment” shall mean, at any date, the Actual MTM
Exposure.
“Total
Revolving Credit Commitment” shall mean the sum of the Revolving Credit
Commitments of all the Lenders.
“TPG”
shall mean TPG Capital, L.P.
“Trading
Affiliates” shall have the meaning provided in Section
14.11.
“Transaction
Expenses” shall mean any fees or expenses incurred or paid by Holdings,
Merger Sub, the Parent or any of their respective Subsidiaries in connection
with the Transactions, this Agreement and the other Credit Documents and
the
transactions contemplated hereby and thereby.
“Transactions”
shall mean, collectively, the transactions contemplated by this Agreement
(including the entering into and funding hereunder), the Permitted Receivables
Financing entered into on the Closing Date, the Parent Senior Interim Loan
Documents, the Borrower Senior Interim Loan Documents, the Merger, the
Equity
Contribution, the Oncor Credit Facility, the Refinancing, the payment of
fees
and expenses in connection therewith and the consummation of any other
transaction connected with the foregoing.
“Transferee”
shall have the meaning provided in Section 13.6(e).
“Treasury
Rate” shall mean at any date, the yield to maturity as of such date
of
United States Treasury securities with a constant maturity (as compiled
and
published in the most recent Federal Reserve Statistical Release H.15 (519)
that
has become publicly available at least two Business Days prior to such
date (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from such
date
to the date which is three years following
the Closing Date; provided, however, that if the period from such
date to the date which is three years following the Closing Date is less
than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be
used.
“TXU
Properties” shall mean TXU Properties Company, a Texas
corporation.
“Type”
shall mean, (a) as to any Term Loan, its nature as an ABR Loan or a LIBOR
Loan,
(b) as to any Deposit L/C Loan or Incremental Deposit L/C Loan, its nature
as an
ABR Loan or a LIBOR Loan, and (c) as to Revolving Credit Loan, its nature
as an
ABR Loan or a LIBOR Loan.
“UCC”
shall mean the Uniform Commercial Code of the State of New York or the
State of
Texas, as applicable, or of any other state the laws of which are required
to be
applied in connection with the perfection of security interests in any
Collateral.
“Unfunded
Current Liability” of any Plan shall mean the amount, if any, by which
the Accumulated Benefit Obligation (as defined under Statement of Financial
Accounting Standards No. 87 (“SFAS 87”)) under the Plan as of
the close of its most recent plan year, determined in accordance with SFAS
87 as
in effect on the date hereof, exceeds the fair market value of the assets
allocable thereto.
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“Unit”
shall mean an individual power plant generation system comprised of all
necessary physically connected generators, reactors, boilers, combustion
turbines and other prime movers operated together to independently generate
electricity.
“Upside
Amount” shall mean an amount, as of any date of determination, equal to
(a) the actual aggregate amount of interest, dividends, distributions and
other
earnings on the funds on deposit in the Deposit L/C Loan Collateral Account
from
the Closing Date through the date of determination (but only for the portion
of
such period during which amounts on deposit in the Deposit L/C Loan Collateral
Account are not invested in Deposit L/C Permitted Investments), less (b)
an amount of interest that would have accrued on the funds on deposit in
the
Deposit L/C Loan Collateral Account from the Closing Date through the date
of
determination (but only for the portion of such period during which amounts
on
deposit in the Deposit L/C Loan Collateral Account are not invested in
Deposit
L/C Permitted Investments) if such funds had earned a return equal to on
the
one-month LIBOR Rate (assuming successive one month Interest Periods for
the
applicable period) less 0.12% per annum, less (c) the aggregate
amount of Upside Amount Payments made by the Borrower on or prior to such
date.
“Upside
Amount Payment” shall have the meaning provided in Section
3.9.
“Unpaid
Drawing” shall have the meaning provided in Section
3.4(a).
“Unrestricted
Cash” shall mean, without duplication, (a) all cash and cash
equivalents (in each case, free and clear of all Liens, other than nonconsensual
Liens permitted by Section 10.2 and Liens permitted by
Sections 10.2(j) and (bb) and clauses (i) and
(ii) of Section 10.2(o)) included
in the
cash and cash equivalents accounts listed on the consolidated balance sheet
of
the Borrower and the Restricted Subsidiaries as at such date and (b) all margin
deposits related to commodity positions listed as assets on the consolidated
balance sheet of the Borrower and the Restricted Subsidiaries.
“Unrestricted
Subsidiary” shall mean (a) any Subsidiary of the Borrower that is
formed or acquired after the Closing Date; provided that at such time (or
promptly thereafter) the Borrower designates such Subsidiary an Unrestricted
Subsidiary in a written notice to the Administrative Agent, (b) any Restricted
Subsidiary subsequently designated as an Unrestricted Subsidiary by the
Borrower
in a written notice to the Administrative Agent; provided that in the
case of (a) and (b), (x) such designationshall be deemed to be an
Investment (or reduction in an outstanding Investment, in the case of a
designation of an Unrestricted Subsidiary as a Restricted Subsidiary) on
the
date of such designation in an amount equal to the net book value of the
investment therein and such designation shall be permitted only to the
extent
permitted under Section 10.5 on the date of such designation and (y) no
Default or Event of Default would result from such designation after giving
Pro
Forma Effect thereto and (c) each Subsidiary of an Unrestricted
Subsidiary. No Subsidiary may be designated as an Unrestricted
Subsidiary if, after such designation, it would be a “Restricted Subsidiary” for
the purpose of the Borrower Senior Documents or any Refinanced Bridge
Indebtedness Documentation. The Borrower may, by written notice to
the Administrative Agent, re-designate any Unrestricted Subsidiary as a
Restricted Subsidiary, and thereafter, such Subsidiary shall no longer
constitute an Unrestricted Subsidiary, but only if (x) to the extent such
Subsidiary has outstanding Indebtedness on the date of such designation,
immediately after giving effect to such designation, the Borrower shall
be in
compliance, on a Pro Forma Basis, after giving effect to the incurrence
of such
Indebtedness, with the covenant set forth in Section 10.9 and (y) no
Default or Event of Default would result from such re-designation. On
or promptly after the date of its formation, acquisition, designation or
re-designation, as applicable, each Unrestricted Subsidiary (other than
an
Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered
into a
tax sharing agreement containing terms that, in the reasonable judgment
of the
Administrative Agent, provide for an appropriate allocation of tax liabilities
and benefits.
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“US
Holdings” shall have the meaning provided in the preamble to this
Agreement.
“U.S.
Lender” shall have the meaning provided in Section
5.4(h).
“Voting
Stock” shall mean, with respect to any Person, such Person’s Stock or
Stock Equivalents having the right to vote for the election of directors
or
other governing body of such Person under ordinary circumstances.
“Weekly
Computation Date” shall mean each Tuesday or, if such Tuesday is not a
Business Day, the next succeeding Business Day.
“Weekly
Interest Payment Date” shall mean each Wednesday or, if such Wednesday
is not a Business Day, the next succeeding Business Day.
“Wholly
Owned” shall mean, with respect to the ownership by a Person of a
Subsidiary, that all of the Stock of such Subsidiary (other than directors’
qualifying shares or nominee or other similar shares required pursuant
to
Applicable Law) are owned by such Person or another Wholly Owned Subsidiary
of
such Person.
1.2. Other
Interpretive Provisions
. With
reference to this Agreement and each other Credit Document, unless otherwise
specified herein or in such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The
words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import
when used in any Credit Document shall refer to such Credit Document as
a whole
and not to any particular provision thereof.
(c) Article,
Section, Exhibit and Schedule references are to the Credit Document in
which
such reference appears.
(d) The
term “including” is by way of example and not limitation.
(e) The
term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings,
however
evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to and
including”.
(g) Section
headings herein and in the other Credit Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement
or
any other Credit Document.
1.3. Accounting
Terms
.
(a) All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios
and other financial calculations) required to be submitted pursuant to
this
Agreement shall be prepared in conformity with, GAAP.
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(b) Notwithstanding
anything to the contrary herein, for purposes of determining compliance
with any
test or covenant contained in this Agreement with respect to any period
during
which any Specified Transaction occurs, the Consolidated Total Debt to
Consolidated EBITDA Ratio, the Consolidated EBITDA to Consolidated Interest
Expense Ratio and the Consolidated Secured Debt to Consolidated EBITDA
Ratio
shall each be calculated with respect to such period and such Specified
Transaction on a Pro Forma Basis.
1.4. Rounding
. Any
financial ratios required to be maintained by the Borrower pursuant to
this
Agreement (or required to be satisfied in order for a specific action to
be
permitted under this Agreement) shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more
than the
number of places by which such ratio is expressed herein and rounding the
result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.5. References
to Agreements, Laws, Etc.
Unless
otherwise expressly provided herein, (a) references to organizational documents,
agreements (including the Credit Documents) and other Contractual Requirements
shall be deemed to include all subsequent amendments, restatements, amendment
and restatements, extensions, supplements and other modifications thereto,
but
only to the extent that such amendments, restatements, amendment and
restatements, extensions, supplements and other modifications are permitted
by
any Credit Document; and (b) references to any Requirement of Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Requirement of Law.
1.6. Times
of Day
. Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
1.7. Timing
of Payment of Performance
. When
the payment of any obligation or the performance of any covenant, duty
or
obligation is stated to be due or performance required on a day which is
not a
Business Day, the date of such payment (other than as described in the
definition of Interest Period) or performance shall extend to the immediately
succeeding Business Day.
1.8. Currency
Equivalents Generally
. For
purposes of determining compliance under Sections 10.4, 10.5 and
10.6 with respect to any amount denominated in any
currency other than
Dollars (other than with respect to (a) any amount derived from the financial
statements of the Borrower and the Subsidiaries of the Borrower or (b)
any
Indebtedness denominated in a currency other than Dollars), such amount
shall be
deemed to equal the Dollar equivalent thereof based on the average Exchange
Rate
for such other currency for the most recent twelve-month period immediately
prior to the date of determination determined in a manner consistent with
that
used in calculating Consolidated EBITDA for the related period. For
purposes of determining compliance with Sections 10.1, 10.2 and
10.5, with respect to any amount of Indebtedness in
a currency other than
Dollars, compliance will be determined at the time of incurrence or advancing
thereof using the Dollar equivalent thereof at the Exchange Rate in effect
at
the time of such incurrence or advancement.
1.9. Classification
of Loans, Posting Advances and Borrowings
. For
purposes of this Agreement, Loans and Posting Advances may be classified
and
referred to by Class (e.g., a “Revolving Credit Loan”) or by Type (e.g.,
a “LIBOR Loan”) or by Class and Type (e.g., a “LIBOR Revolving Credit
Loan”). Borrowings also may be classified and referred to by Class (e.g.,
a
“Revolving Credit Borrowing”) or by Type (e.g., a “LIBOR
Borrowing”) or by Class and Type (e.g., a “LIBOR Revolving Credit
Borrowing”).
1.10. Hedging
Agreements
. For
the avoidance of doubt, it is understood that the following Hedging Agreements
and/or Commodity Hedging Agreements shall not be deemed speculative
or
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entered
into for speculative purposes for any purpose of this Agreement: (a)
any Commodity Hedging Agreement intended, at inception of execution, to
hedge or
manage any of the risks related to existing and/or forecasted power generation
or load of the Borrower or the Restricted Subsidiaries (whether owned or
contracted) and (b) any Hedging Agreement intended, at inception of execution,
(i) to hedge or manage the interest rate exposure associated with any debt
securities, debt facilities or leases (existing or forecasted) of the Borrower
or the Restricted Subsidiaries, (ii) for foreign exchange or currency exchange
management, (iii) to manage commodity portfolio exposure associated with
changes in interest rates or (iv) to hedge any exposure that the Borrower
or the
Restricted Subsidiaries may have to counterparties under other Hedging
Agreements such that the combination of such Hedging Agreements is not
speculative taken as a whole.
SECTION
2. Amount
and Terms of Credit
.
2.1. Commitments
.
(a) Subject
to and upon the terms and conditions herein set forth,
(i) each
Lender having an Initial Tranche B-1 Term Loan Commitment severally, but
not
jointly, agrees to make a loan or loans (each, an “Initial Tranche B-1
Term Loan” and, collectively, the “Initial Tranche B-1 Term
Loans”) in Dollars on the Closing Date to the Borrower, which Initial
Tranche B-1 Term Loans shall not exceed (A) for any such Lender the Initial
Tranche B-1 Term Loan Commitment of such Lender and (B) in the aggregate,
the
Total Initial Tranche B-1 Term Loan Commitment;
(ii) each
Lender having an Initial Tranche B-2 Term Loan Commitment severally, but
not
jointly, agrees to make a loan or loans (each, an “Initial Tranche B-2 Term
Loan” and, collectively, the “Initial Tranche B-2 Term Loans”)
in Dollars on the Closing Date to the Borrower, which Initial Tranche B-2
Term
Loans shall not exceed (A) for any such Lender the Initial Tranche B-2
Term Loan
Commitment of such Lender and (B) in the aggregate, the Total Initial Tranche
B-2 Term Loan Commitment;
(iii) each
Lender having an Initial Tranche B-3 Term Loan Commitment severally agrees,
but
not jointly, to make a loan or loans (each, an “Initial Tranche B-3 Term
Loan” and, collectively, the “Initial Tranche B-3 Term
Loans”) in Dollars on the Closing Date to the Borrower, which Initial
Tranche B-3 Term Loans shall not exceed (A) for any such Lender the Initial
Tranche B-3 Term Loan Commitment of such Lender and (B) in the aggregate,
the
Total Initial Tranche B-3 Term Loan Commitment.
Such
Initial Term Loans (i) shall be made on the Closing Date, (ii) may, at
the
option of the Borrower, be incurred and maintained as and/or converted
into, ABR
Loans or LIBOR Loans; provided that all such Initial Term Loans made by
each of the Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Initial Term Loans of
the same
Type, (iii) may be repaid or prepaid in accordance with the provisions
hereof,
but once repaid or prepaid may not be reborrowed, (iv) shall not exceed
for any
such Lender, the Initial Term Loan Commitment of such Lender and (v) shall
not
exceed, in the aggregate, the Total Initial Term Loan Commitments.
(b) Subject
to and upon the terms and conditions herein set forth, each Lender having
a
Deposit L/C Loan Commitment severally, but not jointly, agrees to make
a loan or
loans (each, a “Deposit L/C Loan” and, collectively, the
“Deposit L/C Loans”) in Dollars on the Closing Date to
the
Borrower, which Deposit L/C Loans (i) shall not exceed, for any such Lender,
the
Deposit L/C Loan Commitment of such Lender, (ii) shall not exceed, in the
aggregate, the Total Deposit L/C Loan Commitment,
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(iii)
shall be made on the Closing Date, (iv) may, at the option of the Borrower,
be
incurred and maintained as, and/or converted into, ABR Loans or LIBOR Loans;
provided that all such Deposit L/C Loans made by each of the Lenders
pursuant to the same Borrowing shall, unless otherwise specifically provided
herein, consist entirely of Deposit L/C Loans of the same Type and (v)
may be
repaid or prepaid in accordance with the provisions hereof, but once repaid
or
prepaid may not be reborrowed.
(c) Subject
to and upon the terms and conditions herein set forth, each Lender having
a
Delayed Draw Term Loan Commitment severally, but not jointly, agrees to
make a
loan or loans (each, a “Delayed Draw Term Loan” and,
collectively, the “Delayed Draw Term Loans”) in Dollars to the
Borrower from time to time on and after the Closing Date until, but not
including, the Delayed Draw Term Loan Commitment Termination Date, which
Delayed
Draw Term Loans (i) shall not exceed, for any such Lender, the Available
Delayed
Draw Term Loan Commitment of such Lender, (ii) shall not exceed, in the
aggregate, the Total Delayed Draw Term Loan Commitment, (iii) may, at the
option
of the Borrower, be incurred and maintained as, and/or converted into,
ABR Loans
or LIBOR Loans; provided that all such Delayed Draw Term Loans made by
each of the Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Delayed Draw Term Loans
of the
same Type and (iv) may be repaid or prepaid in accordance with the provisions
hereof, but once repaid or prepaid may not be reborrowed.
(d) Subject
to and upon the terms and conditions herein set forth, each Lender having
a
Revolving Credit Commitment severally, but not jointly, agrees to make
a loan or
loans (each a “Revolving Credit Loan” and, collectively, the
“Revolving Credit Loans”) in Dollars to the Borrower, which
Revolving Credit Loans (A) shall be made at any time and from time to time
on and after the Closing Date and prior to the Revolving Credit Termination
Date, (B) may, at the option of the Borrower, be incurred and maintained
as, and/or converted into, ABR Loans or LIBOR Loans; provided that all
Revolving Credit Loans made by each of the Lenders pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist
entirely
of Revolving Credit Loans of the same Type, (C) may be repaid and
reborrowed in accordance with the provisions hereof, (D) shall not, for
any
Lender at any time, after giving effect thereto and to the application
of the
proceeds thereof, result in such Lender’s Revolving Credit Exposure at such time
exceeding such Lender’s Revolving Credit Commitment at suchtime, (E) shall
not, after giving effect thereto and to the application of the proceeds
thereof,
result at any time in the aggregate amount of the Lenders’ Revolving Credit
Exposures at such time exceeding the Total Revolving Credit Commitment
then in
effect, and (F) shall not exceed $250,000,000 in Revolving Credit Loans
in the
aggregate on the Closing Date to fund the Merger Funds.
(e) (1) Subject
to and upon the terms and conditions herein set forth, the Swingline Lender
in
its individual capacity agrees, at any time and from time to time on and
after
the Closing Date and prior to the Swingline Maturity Date, to make a loan
or
loans (each a “Swingline Loan” and, collectively, the
“Swingline Loans”) in Dollars to the Borrower, which
Swingline
Loans (i) shall be ABR Loans, (ii) shall have the benefit of the
provisions of Section 2.1(e)(ii), (iii) shall not exceed at any time
outstanding the Swingline Commitment, (iv) shall not, after giving effect
thereto and to the application of the proceeds thereof, result at any time
in
the aggregate amount of the Lenders’ Revolving Credit Exposures at such time
exceeding the Total Revolving Credit Commitment then in effect and (v) may
be repaid and reborrowed in accordance with the provisions
hereof. The Swingline Lender shall not make any Swingline Loan after
receiving a written notice from the Borrower or the Required Lenders stating
that a Default or Event of Default exists and is continuing until such
time as
the Swingline Lender shall have received written notice (i) of rescission
of all such notices from the party or parties originally delivering such
notice
or (ii) of the waiver of such Default or Event of Default in accordance
with the provisions of Section 13.1 or (iii) that such Default or
Event of Default is no longer continuing.
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(ii) On
any Business Day, the Swingline Lender may, in its sole discretion, give
notice
to the Revolving Credit Lenders, with a copy to the Borrower and the
Administrative Agent, that all then-outstanding Swingline Loans shall be
funded
with a Borrowing of Revolving Credit Loans, in which case Revolving Credit
Loans
constituting ABR Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be made on the immediately succeeding Business Day by
all Revolving Credit Lenders prorata based on each such
Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall
be applied directly to the Swingline Lender to repay the Swingline Lender
for
such outstanding Swingline Loans. Each Revolving Credit Lender hereby
irrevocably agrees to make such Revolving Credit Loans upon one Business
Day’s
notice pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified to it in
writing
by the Swingline Lender notwithstanding (i) that the amount of the Mandatory
Borrowing may not comply with the minimum amount for each Borrowing specified
in
Section 2.2, (ii) whether any conditions specified in Section 7
are then satisfied, (iii) whether a Default or an Event of Default has
occurred
and is continuing, (iv) the date of such Mandatory Borrowing or (v) any
reduction in the Total Revolving Credit Commitment after any such Swingline
Loans were made. In the event that, in the sole judgment of the
Swingline Lender, any Mandatory Borrowing cannot for any reason be made
on the
date otherwise required above (including as a result of the commencement
of a
proceeding under the Bankruptcy Code in respect of the Borrower), each
Revolving
Credit Lender hereby agrees that it shall forthwith purchase from the Swingline
Lender (without recourse or warranty) such participation of the outstanding
Swingline Loans as shall be necessary to cause each such Lender to share
in such
Swingline Loans ratably based upon their respective Revolving Credit Commitment
Percentages; provided that all principal and interest payable on such
Swingline Loans shall be for the account of the Swingline Lender until
the date
the respective participation is purchased and, to the extent attributable
to the
purchased participation, shall be payable to the Lender purchasing same
from and
after such date of purchase.
(iii) Resignation
of Swingline Lender. The Swingline Lender may resign as Swingline
Lender upon 60 days’ prior written notice to the Administrative Agent, the
Lenders and the Borrower. If the Swingline Lender shall resign, then
the Borrower may appoint from among the Lenders a successor Swingline Lender,
whereupon such successor Swingline Lender shall succeed to the rights,
powers
and duties of the replaced or resigning Swingline Lender under this Agreement
and the otherCredit Documents, and the term “Swingline Lender” shall mean such
successor or such new Swingline Lender effective upon such
appointment. The acceptance of any appointment as a Swingline Lender
hereunder shall be evidenced by an agreement entered into by such successor,
in
a form satisfactory to the Borrower and the Administrative Agent. If
the Swingline Lender resigns as Swingline Lender, it shall retain all rights
of
the Swingline Lender provided for hereunder with respect to Swingline Loans
made
by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Revolving Credit Loans and fund
risk
participations in outstanding Swingline Loans.
(f) Each
Lender may at its option make any LIBOR Loan by causing any domestic or
foreign
branch or Affiliate of such Lender to make such Loan; provided that
(A) any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan and (B) in exercising such option, such Lender
shall use its reasonable efforts to minimize any increased costs to the
Borrower
resulting therefrom (which obligation of the Lender shall not require it
to
take, or refrain from taking, actions that it determines would result in
increased costs for which it will not be compensated hereunder or that
it
determines would be otherwise disadvantageous to it and in the event of
such
request for costs for which compensation is provided under this Agreement,
the
provisions of Section 2.10 shall apply).
2.2. Minimum
Amount of Each Borrowing; Maximum Number of Borrowings
. The
aggregate principal amount of (i) each Borrowing of Loans (other than Swingline
Loans and Posting Advances) shall be in a minimum amount of at least the
Minimum
Borrowing Amount for such Type of
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Term
Loans and in a multiple of $1,000,000 in excess thereof (except borrowings
to
repay Unpaid Drawings under Revolving Letters of Credit) and (ii) Swingline
Loans shall be in a minimum amount of at least the Minimum Borrowing Amount
for
Swingline Loans and in a multiple of $100,000 in excess thereof (except
Mandatory Borrowings). More than one Borrowing may be incurred on any
date; provided that at no time shall there be outstanding more than (i)
25, in the case of Revolving Loans, (ii) five, in the case of Initial Term
Loans, (iii) five, in the case of Delayed Draw Term Loans, and (iv) five,
in the
case of Deposit L/C Loans, Borrowings of LIBOR Loans under this
Agreement.
2.3. Notice
of Borrowing; Determination of Class of Loans
.
(a) The
Borrower shall give the Administrative Agent at the Administrative Agent’s
Office (i) prior to 1:00 p.m. (New York City time) at least three Business
Days’
prior written notice (or telephonic notice promptly confirmed in writing)
of the
Borrowing of Initial Term Loans if all or any of such Initial Term Loans
are to
be initially LIBOR Loans, and (ii) prior written notice (or telephonic
notice
promptly confirmed in writing) prior to 10:00 a.m. (New York City time)
on the
date of the Borrowing of Initial Term Loans if all or any of such Initial
Term
Loans are to be ABR Loans. Such notice (together with each notice of
a Borrowing of Deposit L/C Loans pursuant to Section 2.3(b), each notice
of Borrowing of Delayed Draw Term Loans pursuant to Section 2.3(c), each
notice of Borrowing of Revolving Credit Loans pursuant to Section 2.3(d)
and each notice of a Borrowing of Swingline Loans pursuant to Section
2.3(e), each a “Notice of Borrowing”) shall specify (i) the
aggregate principal amount of the Initial Term Loans to be made, (ii) the
date
of the Borrowing (which shall be the Closing Date) and (iii) whether the
Initial
Term Loans shall consist of ABR Loans and/or LIBOR Loans and, if the Initial
Term Loans are to include LIBOR Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall promptly give each
applicable Lender written notice (or telephonic notice promptly confirmed
in
writing) of the proposed Borrowing of Initial Term Loans, of such Lender’s
proportionate share thereof and of the other matters covered by the related
Notice of Borrowing.
(b) The
Borrower shall give the Administrative Agent at the Administrative Agent’s
Office (i) prior to 1:00 p.m. (New York City time) at least three Business
Days’
prior written notice (or telephonic notice promptly confirmed in writing)
of the
Borrowing of Deposit L/C Loans if all or any of such Deposit L/C Loans
are to be
initially LIBOR Loans, and (ii) prior written notice (or telephonic notice
promptly confirmed in writing) prior to 10:00 a.m. (New York City time)
on the
date of the Borrowing of Deposit L/C Loans if all or any of such Deposit
L/C
Loans are to be ABR Loans. Such Notice of Borrowing shall specify (i)
the aggregate principal amount of the Deposit L/C Loans to be made, (ii)
the
date of the Borrowing (which shall be the Closing Date) and (iii) whether
the
Deposit L/C Loans shall consist of ABR Loans and/or LIBOR Loans and, if
the
Deposit L/C Loans are to include LIBOR Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall promptly
give each applicable Lender written notice (or telephonic notice promptly
confirmed in writing) of the proposed Borrowing of Deposit L/C Loans, of
such
Lender’s proportionate share thereof and of the other matters covered by the
related Notice of Borrowing.
(c) Whenever
the Borrower desires to borrow Delayed Draw Term Loans hereunder, it shall
give
the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00
p.m. (New York City time) at least three Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Delayed
Draw Term Loans if all or any of such Delayed Draw Term Loans are to be
initially LIBOR Loans, and (ii) prior to 1:00 p.m. (New York City time)
at least
one Business Day’s prior written notice (or telephonic notice promptly confirmed
in writing) of each Borrowing of Delayed Draw Term Loans if all or any
of such
Delayed Draw Term Loans are to be ABR Loans (or prior to 10:00 a.m. (New
York City time) on the date of Borrowing in the case of a Borrowing of
Delayed
Draw Term Loans to be made on the Closing Date initially as ABR
Loans). Each such Notice of
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Borrowing
shall specify (i) the aggregate principal amount of the Delayed Draw Term
Loans
to be made pursuant to such Borrowing, (ii) the date of Borrowing (which
shall
be a Business Day) and (iii) whether the Borrowing shall consist of ABR
Loans or
LIBOR Loans and, if LIBOR Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall promptly give each applicable
Lender written notice (or telephonic notice promptly confirmed in writing)
of
each proposed Borrowing of Delayed Draw Term Loans, of such Lender’s
proportionate share thereof and of the other matters covered by the related
Notice of Borrowing.
(d) Whenever
the Borrower desires to incur Revolving Credit Loans (other than Mandatory
Borrowings or borrowings to repay Unpaid Drawings under Revolving Letters
of
Credit), the Borrower shall give the Administrative Agent at the Administrative
Agent’s Office, (i) prior to 1:00 p.m. (New York City time) at least three
Business Days’ prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Revolving Credit Loans if all or any of such
Revolving Credit Loans are to be initially LIBOR Loans and (ii) prior to
1:00 p.m. (New York City time) at least one Business Day’s prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing
of
Revolving Credit Loans if all or any of such Revolving Credit Loans are
to be
ABR Loans. Each such Notice of Borrowing shall specify (i) the
aggregate principal amount of the Revolving Credit Loans to be made pursuant
to
such Borrowing, (ii) the date of the Borrowing (which shall be a Business
Day)
and (iii) whether the Borrowing shall consist of ABR Loans and/or LIBOR
Loans and, if LIBOR Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall promptly give each Revolving
Credit Lender written notice (or telephonic notice promptly confirmed in
writing) of each proposed Borrowing of Revolving Credit Loans, of such
Lender’s
Revolving Credit Commitment Percentage thereof and of the other matters
covered
by the related Notice of Borrowing.
(e) Whenever
the Borrower desires to incur Swingline Loans hereunder, the Borrower shall
give
the Swingline Lender and the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of Swingline Loans
prior
to 3:00 p.m. (New York City time) or such later time as may be agreed by
the Swingline Lender on the date of such Borrowing. Each such notice
shall specify (i) the aggregate principal amount of the Swingline Loans
to be
made pursuant to such Borrowing and (ii) the date of Borrowing (which shall
be a
Business Day). If necessary, the Administrative Agent shall promptly
give the Swingline Lender written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing of Swingline Loans and
of the
other matters covered by the related Notice of Borrowing.
(f) Mandatory
Borrowings shall be made upon the notice specified in
Section 2.1(e)(ii), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings
as set
forth in such Section.
(g) Borrowings
of Revolving Credit Loans to reimburse Unpaid Drawings under Revolving
Letters
of Credit shall be made upon the notice specified in
Section 3.4(a).
(h) Without
in any way limiting the obligation of the Borrower to confirm in writing
any
notice it may give hereunder by telephone, the Administrative Agent may
act
prior to receipt of written confirmation without liability upon the basis
of
such telephonic notice believed by the Administrative Agent in good faith
to be
from an Authorized Officer of the Borrower.
2.4. Disbursement
of Funds
.
(a) No
later than 2:00 p.m. (New York City time) on the date specified in each
Notice of Borrowing (including Mandatory Borrowings and Borrowings of Revolving
Credit Loans to reimburse Unpaid Drawings under Revolving Letters of Credit),
each Lender will make available its pro rata
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portion,
if any, of each Borrowing requested to be made on such date in the manner
provided below; provided that all Swingline Loans shall be made available
in the full amount thereof by the Swingline Lender no later than 3:30 p.m.
(New York City time) on the date requested; provided, further,
that on the Closing Date, such funds may be made available at such earlier
time
as may be agreed among the Lenders, the Borrower and the Administrative
Agent
for the purpose of consummating the Transactions.
(b) Each
Lender shall make available all amounts it is to fund to the Borrower under
any
Borrowing for its applicable Commitments in immediately available funds
to the
Administrative Agent at the Administrative Agent’s Office in Dollars, and the
Administrative Agent will (except in the case of Mandatory Borrowings and
Borrowings of Revolving Credit Loans to reimburse Unpaid Drawings under
Revolving Letters of Credit) make available to the Borrower, by depositing
to an
account designated by the Borrower to the Administrative Agent the aggregate
of
the amounts so made available in Dollars. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of any such
Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made
on
such date, the Administrative Agent may assume that such Lender has made
such
amount available to the Administrative Agent on such date of Borrowing,
and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower
a
corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative
Agent has made available such amount to the Borrower, the Administrative
Agent
shall be entitled to recover such corresponding amount from such
Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor the Administrative
Agent shall promptly notify the Borrower and the Borrower shall immediately
pay
such corresponding amount to the Administrative Agent in Dollars. The
Administrative Agent shall also be entitled to recover from such Lender
or the
Borrower interest on such corresponding amount in respect of each day from
the
date such corresponding amount was made available by the Administrative
Agent to
the Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if paid by such
Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable
rate of interest or fees, calculated in accordance with Section 2.8, for
the respective Loans.
(c) Nothing
in this Section 2.4 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights
that
the Borrower may have against any Lender as a result of any default by
such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
2.5. Repayment
of Loans; Evidence of Debt
.
(a) The
Borrower shall repay to the Administrative Agent, for the benefit of the
applicable Lenders, (i) on the Initial Term Loan Maturity Date, the
then-outstanding Initial Term Loans, (ii) on the Delayed Draw Term Loan
Maturity
Date, the then-outstanding Delayed Draw Term Loans, (iii) on the Deposit
L/C
Loan Maturity Date, the then-outstanding Deposit L/C Loans, (iv) on the
relevant
maturity date for any tranche of Incremental Term Loans, any then outstanding
Incremental Term Loans of such tranche, (v) on the relevant maturity date
for
any tranche of Incremental Deposit L/C Loans, any then outstanding Incremental
Deposit L/C Loans of such tranche, (vi) on the Revolving Credit Maturity
Date,
all then outstanding Revolving Credit Loans and (vii) on the Swingline
Maturity
Date, all then outstanding Swingline Loans.
(b) The
Borrower shall repay to the Administrative Agent, in Dollars, (i) for the
benefit of the Lenders of Initial Term Loans, on the last Business Day
of each
March, June, September and December commencing December 31, 2007 (each,
an
“Initial Term Loan Repayment Date”), an
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aggregate
principal amount equal to 0.25% of the aggregate principal amount of all
Initial
Term Loans outstanding on the Closing Date (each, an “Initial Term Loan
Repayment Amount”) (which payments shall be reduced as a result of
prepayments to Initial Term Loans in accordance with Section 5.2(c)) and
(ii) for the benefit of the Lenders of Delayed Draw Term Loans, on the
last
Business Day of each March, June, September and December commencing with
the
first such date to occur following the Delayed Draw Term Loan Commitment
Termination Date (each, a “Delayed Draw Term Loan Repayment
Date”), an aggregate principal amount equal to 0.25% of the aggregate
principal amount of all Delayed Draw Term Loans outstanding on the Delayed
Draw
Term Loan Commitment Termination Date (each, a “Delayed Draw Term Loan
Repayment Amount”) (which payments shall be reduced as a result of
prepayments to Delayed Draw Term Loans in accordance with Section
5.2(c)).
(c) In
the event any Incremental Term Loans or Incremental Deposit L/C Loans are
made,
such Incremental Term Loans or Incremental Deposit L/C Loans, as applicable,
shall be repaid in amounts and on dates as agreed between the Borrower
and the
relevant Lenders of such Incremental Term Loans or Incremental Deposit
L/C
Loans, subject to the requirements set forth in Section
2.14.
(d) Each
Lender shall maintain in accordance with its usual practice an account
or
accounts evidencing the indebtedness of the Borrower to the appropriate
lending
office of such Lender resulting from each Loan made by such lending office
of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such lending office of such Lender from time to time
under
this Agreement.
(e) The
Administrative Agent shall maintain the Register pursuant to
Section 13.6(b), and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount of each
Loan
made hereunder, whether such Loan is an Initial Term Loan, a Delayed Draw
Term
Loan, an Incremental Term Loan (and the relevant tranche thereof), a Deposit
L/C
Loan, an Incremental Deposit L/C Loan (and the relevant tranche thereof),
a
Revolving Credit Loan or Swingline Loan, as applicable, the Type of each
Loan
made and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
the
Borrower to each Lender or the Swingline Lender hereunder and (iii) the
amount
of any sum received by the Administrative Agent hereunder from the Borrower
and
each Lender’s share thereof.
(f) The
entries made in the Register and accounts and subaccounts maintained pursuant
to
clauses (d) and (e) of this Section 2.5 shall, to the
extent permitted by Applicable Law, be prima facie evidence of the existence
and
amounts of the obligations of the Borrower therein recorded; provided,
however, that the failure of any Lender or the Administrative
Agent to
maintain such account, such Register or such subaccount, as applicable,
or any
error therein, shall not in any manner affect the obligation of the Borrower
to
repay (with applicable interest) the Loans made to the Borrower by such
Lender
in accordance with the terms of this Agreement.
2.6. Conversions
and Continuations
.
(a) Subject
to the penultimate sentence of this clause 1, (x) the Borrower shall have
the option on any Business Day to convert all or a portion equal to at
least the
Minimum Borrowing Amount of the outstanding principal amount of Initial
Term
Loans, Delayed Draw Term Loans, Deposit L/C Loans, Incremental Term Loans,
Incremental Deposit L/C Loans or Revolving Credit Loans of one Type into
a
Borrowing or Borrowings of another Type and (y) the Borrower shall have
the
option on any Business Day to continue the outstanding principal amount
of any
LIBOR Loans as LIBOR Loans for an additional Interest Period; provided
that (i) no partial conversion of LIBOR Loans shall reduce the outstanding
principal amount of LIBOR Loans made pursuant to a single Borrowing to less than
the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into
LIBOR
Loans if a Default or Event
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of
Default is in existence on the date of the conversion and the Administrative
Agent has or the Required Lenders have determined in its or their sole
discretion not to permit such conversion, (iii) LIBOR Loans may not be
continued as LIBOR Loans for an additional Interest Period if a Default
or Event
of Default is in existence on the date of the proposed continuation and
the
Administrative Agent has or the Required Lenders have determined in its
or their
sole discretion not to permit such continuation, (iv) Borrowings resulting
from
conversions pursuant to this Section 2.6 shall be limited in number as
provided in Section 2.2 and (v) Swingline Loans may not be converted
to LIBOR Loans. Each such conversion or continuation shall be
effected by the Borrower by giving the Administrative Agent at the
Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least
(i) three Business Days’, in the case of a continuation of, or conversion to,
LIBOR Loans or (ii) one Business Day’s in the case of a conversion into ABR
Loans, prior written notice (or telephonic notice promptly confirmed in
writing)
(each, a “Notice of Conversion or Continuation”) specifying the
Loans to be so converted or continued, the Type of Loans to be converted
into or
continued and, if such Loans are to be converted into, or continued as,
LIBOR
Loans, the Interest Period to be initially applicable thereto (if no Interest
Period is selected, the Borrower shall be deemed to have selected an Interest
Period of one month’s duration). The Administrative Agent shall give
each applicable Lender notice as promptly as practicable of any such proposed
conversion or continuation affecting any of its Loans.
(b) If
any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans and the Administrative Agent has or the
Required
Lenders have determined in its or their sole discretion not to permit such
continuation, such LIBOR Loans shall be automatically converted on the
last day
of the current Interest Period into ABR Loans. If upon the expiration
of any Interest Period in respect of LIBOR Loans, the Borrower has failed
to
elect a new Interest Period to be applicable thereto as provided in
clause (a) above, the Borrower shall be deemed to
have elected to convert such Borrowing of LIBOR Loans into a Borrowing
of ABR
Loans, effective as of the expiration date of such current Interest
Period.
(c) Notwithstanding
anything to the contrary herein, the Borrower may deliver a Notice of Conversion
or Continuation pursuant to which the Borrower elects to irrevocably continue
the outstanding principal amount of any Term Loans subject to an interest
rate
Hedging Agreement as LIBOR Loans for each Interest Period until the expiration
of the term of such applicable Hedging Agreement.
2.7. Pro
Rata Borrowings
. Each
Borrowing of Initial Term Loans under this Agreement shall be made by the
Lenders pro
rata on the basis of their then-applicable Initial Term Loan
Commitments. Each Borrowing of Delayed Draw Term Loans under this
Agreement shall be made by the Lenders pro rata
on
the basis of their then-applicable Delayed Draw Term Loan
Commitments. Each Borrowing of Deposit L/C Loans under this Agreement
shall be made by the Lenders pro rata
on
the basis of their then-applicable Deposit L/C Loan Commitments. Each
Borrowing of Revolving Credit Loans under this Agreement shall be made
by the
Lenders pro rata on the basis of their then applicable Revolving Credit
Commitments. It is understood that (a) no Lender shall be responsible
for any default by any other Lender in its obligation to make Loans hereunder
and that each Lender severally but not jointly shall be obligated to make
the
Loans provided to be made by it hereunder, regardless of the failure of
any
other Lender to fulfill its commitments hereunder and (b) failure by a
Lender to
perform any of its obligations under any of the Credit Documents shall
not
release any Person from performance of its obligation under any Credit
Document.
2.8. Interest
.
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(a) The
unpaid principal amount of each ABR Loan shall bear interest from the date
of
the Borrowing thereof until maturity (whether by acceleration or otherwise)
at a
rate per annum that shall at all times be the Applicable ABR Margin
plus the ABR, in each case, in effect from time to time.
(b) The
unpaid principal amount of each LIBOR Loan shall bear interest from the
date of
the Borrowing thereof until maturity thereof (whether by acceleration or
otherwise) at a rate per annum that shall at all times be the
Applicable LIBOR Margin plus the relevant LIBOR Rate, in each case in
effect from time to time.
(c) The
unpaid average amount of the Aggregate Posting Advances Outstanding during
each
Posting Interest Period shall bear interest from and including the first
date of
such period to but excluding the first date of the next succeeding Weekly
Interest Period at a rate per annum that shall at all times be the relevant
LIBOR Rate for such Posting Interest Period.
(d) If
all or a portion of (i) the principal amount of any Loan or Posting Advance
or (ii) any interest payable thereon or any other amount hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
(the “Default Rate”) that is (x) in the case of overdue
principal, the rate that would otherwise be applicable thereto plus 2% or
(y) in the case of any overdue interest or other amounts due hereunder, to
the extent permitted by Applicable Law, the rate described in
Section 2.8(a) (or, in the case of the Posting Facility, the rate
described in Section 2.8(c)) plus 2% from the date of such
non-payment to the date on which such amount is paid in full (after as
well as
before judgment).
(e) Interest
on each Loan and on each Posting Advance shall accrue from and including
the
date of any Borrowing to but excluding the date of any repayment thereof
and
shall (including Posting Advances) be payable in Dollars; provided that
any Loan that is repaid on the same date on which it is made shall bear
interest
for one day. Except as provided below, interest shall be payable (i)
in respect of each ABR Loan, quarterly in arrears on the tenth Business
Day
following the end of each March, June, September and December, (ii) in
respect
of each LIBOR Loan, on the last day of each Interest Period applicable
thereto
and, in the case of an Interest Period in excess of three months, on each
date
occurring at three-month intervals after the first day of such Interest
Period,
(iii) in respect of each Loan, (A) on any prepayment; provided that
interest on ABR Loans shall only become due pursuant to this subclause
(A) if
the aggregate principal amount of the ABR Loans then outstanding is repaid
in
full, (B) at maturity (whether by acceleration or otherwise) and (C) after
such
maturity, on demand, and (iv) in respect of each Posting Advance, on each
Weekly
Interest Payment Date to the Posting Agent, for the account of the relevant
Posting Lenders, the amount of interest applicable to the Posting Interest
Period ending on such Weekly Interest Payment Date as computed pursuant
to
Section 2.8(c) of this Agreement; provided that, to the extent any
such interest payment on any Posting Advance is subject to a netting and/or
settlement agreement, such interest payment shall be applied, paid or otherwise
netted and/or settled, on behalf of the Borrower, as required
thereunder.
(f) All
computations of interest hereunder shall be made in accordance with
Section 5.5.
(g) The
Administrative Agent, upon determining the interest rate for any Borrowing
of
LIBOR Loans, shall promptly notify the Borrower and the relevant Lenders
thereof. Each such determination shall, absent clearly demonstrable
error, be final and conclusive and binding on all parties hereto.
(h) The
Posting Agent, upon determining the LIBOR Rate for each Posting Interest
Period,
shall promptly notify the Borrower and the Posting Calculation Agent of
such
determination by
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no
later than 10:00 a.m. (New York City time) on the relevant Weekly Interest
Payment Date. Notice of such amount may be provided by email at the
address set forth on Schedule 13.2.
(i) In
the event that the Administrative Agent or the Borrower determine that
any
Section 9.1 Financials previously delivered were incorrect or inaccurate
and
such inaccuracy, if corrected, would have led to the application of a higher
Applicable ABR Margin or Applicable LIBOR Margin for any period (an
“Applicable Period”) than the Applicable ABR Margin or
Applicable LIBOR Margin applied for such Applicable Period, then (i) the
Borrower shall as soon as practicable deliver to the Administrative Agent
the
correct Section 9.1 Financials for such Applicable Period, (ii) the Applicable
ABR Margin or Applicable LIBOR Margin, as the case may be, shall be determined
as if the pricing level for such higher Applicable ABR Margin or Applicable
LIBOR Margin, as the case may be, were applicable for such Applicable Period,
and (iii) the Borrower shall within 15 days after delivery of such financial
statements pay to the Administrative Agent the accrued additional interest
owing
as a result of such increased Applicable ABR Margin or Applicable LIBOR
Margin,
as the case may be, for such Applicable Period, which payment shall be
promptly
applied by the Administrative Agent in accordance with this
Agreement. This Section 2.8(i) shall not limit the rights of
the Administrative Agent and Lenders with respect to Section 2.8(d) and
Section 11.
(j) Within
20 Business Days following the end of each March, June, September and December
(commencing with December 31, 2007), (i) if the Shortfall Amount at the
end of
such month is positive, the Administrative Agent shall pay to the Borrower
an
amount equal to such Shortfall Amount and (ii) if the Shortfall Amount
at the
end of such month is negative, the Administrative Agent shall deliver notice
to
the Borrower of such Shortfall Amount and, within 10 Business Days of receipt
of
such notice, the Borrower shall pay to the Administrative Agent an amount
equal
to such Shortfall Amount (each such payment under clause (i) or (ii), a
“Shortfall Payment”); provided that in no event shall the
Borrower be obligated to make Shortfall Payments to the Administrative
Agent
that, in the aggregate, exceed the greater of (x) the aggregate amount
of
Shortfall Payments made by the Administrative Agent to the Borrower from
the
Closing Date through any such date of determination and (y) the Upside
Amount as
of the date of such determination (each such payment made pursuant to this
clause (y) in excess of the amount in clause (x), an “Upside Amount
Payment”).
2.9. Interest
Periods
. At
the time the Borrower gives a Notice of Borrowing or Notice of Conversion
or
Continuation in respect of the making of, or conversion into or continuation
as,
a Borrowing of LIBOR Loans in accordance with Section 2.6(a), the
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of the Interest Period applicable
to such
Borrowing, which Interest Period shall, at the option of the Borrower be
a one,
two, three or six or (if available to all relevant Lenders participating
in the
relevant Credit Facility) a nine or twelve month period or a period of
less than
one month; provided that, notwithstanding the foregoing, the initial
Interest Period beginning on the Closing Date may be for a period of less
than
one month if agreed upon by the Borrower and the Administrative
Agent.
Notwithstanding
anything to the contrary contained above:
(a) the
initial Interest Period for any Borrowing of LIBOR Loans shall commence
on the
date of such Borrowing (including the date of any conversion from a Borrowing
of
ABR Loans) and each Interest Period occurring thereafter in respect of
such
Borrowing shall commence on the day on which the next preceding Interest
Period
expires;
(b) if
any Interest Period relating to a Borrowing of LIBOR Loans begins on the
last
Business Day of a calendar month or begins on a day for which there is
no
numerically corresponding day
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in
the calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of the calendar month at the end of
such
Interest Period;
(c) if
any Interest Period would otherwise expire on a day that is not a Business
Day,
such Interest Period shall expire on the next succeeding Business Day;
provided that if any Interest Period in respect of a LIBOR Loan would
otherwise expire on a day that is not a Business Day but is a day of the
month
after which no further Business Day occurs in such month, such Interest
Period
shall expire on the next preceding Business Day;
(d) the
Borrower shall not be entitled to elect any Interest Period in respect
of any
LIBOR Loan if such Interest Period would extend beyond the applicable Maturity
Date of such Loan; and
(e) Posting
Interest Periods shall be governed by Section 14.
2.10. Increased
Costs, Illegality, Etc.
(a) In
the event that (x) in the case of clause (i) below, the
Administrative Agent (or, in the case of the Posting Facility, the Posting
Agent) or (y) in the case of clauses (ii) and (iii)
below, any Lender shall have reasonably determined (which determination
shall,
absent clearly demonstrable error, be final and conclusive and binding
upon all
parties hereto):
(i) on
any date for determining the LIBOR Rate for any Interest Period or on the
date
for determining the LIBOR Rate for any Posting Interest Period that (x)
deposits in the principal amounts and currencies of the Loans or Posting
Advances, as applicable, comprising such LIBOR Borrowing or Posting Advance,
as
the case may be, are not generally available in the relevant market or
(y) by
reason of any changes arising on or after the Closing Date affecting the
interbank LIBOR market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of
LIBOR Rate; or
(ii) at
any time, that such Lender shall incur increased costs or reductions in
the
amounts received or receivable hereunder with respect to any LIBOR Loans
or with
respect to any Posting Advances (other than any increase or reduction
attributable to (i) Taxes indemnifiable under Section 5.4,
(ii) net income taxes and franchise and excise taxes (imposed in lieu of
net income taxes) imposed on any Agent or Lender or (iii) Taxes included
under clauses (c) and (d) of the definition of “Excluded Taxes”)
because of (x) any change since the date hereof in any Applicable Law (or
in the
interpretation or administration thereof and including the introduction
of any
new Applicable Law), such as, for example, without limitation, a change
in
official reserve requirements, and/or (y) other circumstances affecting
the
interbank LIBOR market or the position of such Lender in such market;
or
(iii) at
any time, that the making or continuance of any LIBOR Loan or the making
of any
Posting Advance has become unlawful as a result of compliance by such Lender
in
good faith with any Applicable Law (or would conflict with any such Applicable
Law not having the force of law even though the failure to comply therewith
would not be unlawful), or has become impracticable as a result of a contingency
occurring after the date hereof that materially and adversely affects the
interbank LIBOR market;
then,
and in any such event, such Lender (or the Administrative Agent (or, in
the case
of the Posting Facility, the Posting Agent), in the case of
clause (i) above) shall within a reasonable time thereafter give
notice (if by telephone, confirmed in writing) to the Borrower and to the
Administrative Agent (or, in the case of the Posting Facility, the Posting
Agent) of such determination (which notice the Administrative
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Agent
(or the Posting Agent, as applicable) shall promptly transmit to each of
the
other Lenders). Thereafter (x) in the case of
clause (i) above, LIBOR Loans or Posting Advances, as applicable,
shall no longer be available until such time as the Administrative Agent
(or the
Posting Agent, as applicable) notifies the Borrower and the Lenders that
the
circumstances giving rise to such notice by the Administrative Agent (or
the
Posting Agent, as applicable) no longer exist (which notice the Administrative
Agent (or the Posting Agent, as applicable) agrees to give at such time
when
such circumstances no longer exist), and any Notice of Borrowing or Notice
of
Conversion given by the Borrower with respect to LIBOR Loans or any notice
given
by the Posting Calculation Agent with respect to any Posting Advances,
that have
not yet been incurred shall be deemed rescinded by the Borrower or the
Posting
Calculation Agent, as applicable, (y) in the case of
clause (ii) above, the Borrower shall pay to such Lender, promptly
after receipt of written demand therefor such additional amounts (in the
form of
an increased rate of or a different method of calculating, interest or
otherwise, as such Lender in its reasonable discretion shall determine)
as shall
be required to compensate such Lender for such increased costs or reductions
in
amounts receivable hereunder (it being agreed that a written notice as
to the
additional amounts owed to such Lender, showing in reasonable detail the
basis
for the calculation thereof, submitted to the Borrower by such Lender shall,
absent clearly demonstrable error, be final and conclusive and binding
upon all
parties hereto) and (z) in the case of subclause (iii) above,
the Borrower shall take one of the actions specified in
Section 2.10(b) as promptly as possible and, in any event, within
the time period required by Applicable Law.
(b) At
any time that any LIBOR Loan or any Posting Advance is affected by the
circumstances described in Section 2.10(a)(ii) or (iii), the
Borrower may (and in the case of a LIBOR Loan or a Posting Advance, as
the case
may be, affected pursuant to Section 2.10(a)(iii) shall) either (x) if
the affected LIBOR Loan or the affected Posting Advance, as the case may
be, is
then being made pursuant to a Borrowing, cancel such Borrowing by giving
the
Administrative Agent (or the Posting Agent, as applicable) telephonic notice
(confirmed promptly in writing) thereof on the same date that the Borrower
was
notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or
(y) if the affected LIBOR Loan or the affected Posting Advance, as the case
may be, is then outstanding, upon at least three Business Days’ notice to the
Administrative Agent (or the Posting Agent, as applicable) require the
affected
Lender to convert each such LIBOR Loan or such Posting Advance, as the
case may
be, into an ABR Loan; provided that if more than one Lender is affected
at any time, then all affected Lenders must be treated in the same manner
pursuant to this Section 2.10(b).
(c) If,
after the date hereof, any Change in Law relating to capital adequacy of
any
Lender or compliance by any Lender or its parent with any Change in Law
relating
to capital adequacy occurring after the date hereof, has or would have
the
effect of reducing the rate of return on such Lender’s or its parent’s or its
Affiliate’s capital or assets as a consequence of such Lender’s commitments or
obligations hereunder to a level below that which such Lender or its parent
or
its Affiliate could have achieved but for such Change in Law (taking into
consideration such Lender’s or its parent’s policies with respect to capital
adequacy), then from time to time, promptly after demand by such Lender
(with a
copy to the Administrative Agent (or with respect to the Posting Facility,
the
Posting Agent), the Borrower shall pay to such Lender such additional amount
or
amounts as will compensate such Lender or its parent for such reduction,
it
being understood and agreed, however, that a Lender shall not be entitled
to
such compensation as a result of such Lender’s compliance with, or pursuant to
any request or directive to comply with, any Applicable Law as in effect
on the
date hereof. Each Lender, upon determining in good faith that any
additional amounts will be payable pursuant to this Section 2.10(c), will
give prompt written notice thereof to the Borrower, which notice shall
set forth
in reasonable detail the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not, subject to
Section 2.13, release or diminish the Borrower’s obligations to pay
additional amounts pursuant to this Section 2.10(c) upon receipt of
such notice.
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2.11. Compensation
. If
(i) any payment of principal of any LIBOR Loan is made by the Borrower
to or for
the account of a Lender other than on the last day of the Interest Period
for
such LIBOR Loan as a result of a payment or conversion pursuant to Section
2.5, 2.6, 2.10, 5.1, 5.2 or 13.7, as a
result of acceleration of the maturity of the Loans pursuant to Section
11 or for any other reason, (ii) any Borrowing of LIBOR Loans is not
made as
a result of a withdrawn Notice of Borrowing, (iii) any ABR Loan is
not converted into a LIBOR Loan as a result of a withdrawn Notice of Conversion
or Continuation, (iv) any LIBOR Loan is not continued as a LIBOR Loan,
as the
case may be, as a result of a withdrawn Notice of Conversion or Continuation
or
(v) any prepayment of principal of any LIBOR Loan is not made as a result
of a
withdrawn notice of prepayment pursuant to Section 5.1 or
5.2, the Borrower shall, after receipt of a written request
by such
Lender (which request shall set forth in reasonable detail the basis for
requesting such amount), pay to the Administrative Agent for the account
of such
Lender any amounts required to compensate such Lender for any additional
losses,
costs or expenses that such Lender may reasonably incur as a result of
such
payment, failure to convert, failure to continue or failure to prepay,
including
any loss, cost or expense (excluding loss of anticipated profits) actually
incurred by reason of the liquidation or reemployment of deposits or other
funds
acquired by any Lender to fund or maintain such LIBOR Loan. It is
agreed and understood that the provisions of this Section 2.11 shall not
apply
to any Posting Advances.
2.12. Change
of Lending Office
. Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b),
3.5 or 5.4 with respect to such Lender, it
will, if requested by
the Borrower use reasonable efforts (subject to overall policy considerations
of
such Lender) to designate another lending office for any Loans or any Posting
Advances affected by such event; provided that such designation is made
on such terms that such Lender and its lending office suffer no economic,
legal
or regulatory disadvantage, with the object of avoiding the consequence
of the
event giving rise to the operation of any such Section. Nothing in
this Section 2.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Lender provided in Section 2.10, 3.5
or 5.4.
2.13. Notice
of Certain Costs
. Notwithstanding
anything in this Agreement to the contrary, to the extent any notice required
by
Section 2.10, 2.11, 3.5 or 5.4 is given by any
Lender more than 180 days after such Lender has knowledge (or should have
had knowledge) of the occurrence of the event giving rise to the additional
cost, reduction in amounts, loss, tax or other additional amounts described
in
such Sections, such Lender shall not be entitled to compensation under
Section 2.10, 2.11, 3.5 or 5.4, as the case may
be, for any such amounts incurred or accruing prior to the 181st day prior
to
the giving of such notice to the Borrower.
2.14. Incremental
Facilities
.
(a) The
Borrower may, at any time or from time to time after the Closing Date,
by notice
to the Administrative Agent (whereupon the Administrative Agent shall promptly
deliver a copy to each of the Lenders), request (i) one or more additional
tranches of term loans (the “Incremental Term Loans”), (ii) one
or more additional tranches of deposit l/c loans (the “Incremental
Deposit L/C Loans”), (iii) one or more increases in the amount of the
Revolving Credit Commitments (each such increase, an “Incremental
Revolving Commitment Increase”) or (iv) one or more incremental
commodity cash collateral posting facilities (each, an “Incremental
Posting Facility”); provided that (A) both at the time of any
such request and after giving effect to the effectiveness of any Incremental
Amendment referred to below, no Default or Event of Default shall exist
and at
the time that any such Incremental Term Loan, Incremental Deposit L/C Loan,
Incremental Revolving Commitment Increase or Incremental Posting Facility
is
made or effected (and after giving effect thereto), no Default or Event
of
Default shall exist and the conditions in Section 7.1 shall be
satisfied and (B) the Borrower shall be in compliance with
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the
covenant set forth in Section 10.9 determined on a Pro Forma Basis as of
the date of the making of such Incremental Term Loan, Incremental Deposit
L/C
Loans, Incremental Revolving Commitment Increase or the entering into such
Incremental Posting Facility, as the case may be, and as of the last day
of the
most recent Test Period, in each case as if such Incremental Term Loans,
Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment
Increase
or Incremental Posting Facility, as applicable, had been outstanding on
the last
day of such Test Period for testing compliance therewith.
(b) Each
tranche of Incremental Term Loans, each tranche of Incremental Deposit
L/C Loans
and each Incremental Revolving Commitment Increase shall be in an aggregate
principal amount that is not less than $50,000,000 (provided that such
amount may be less than $50,000,000 if such amount represents all remaining
availability under the limit set forth in the next
sentence). Notwithstanding anything to the contrary herein, the
aggregate amount of all Incremental Term Loans, Incremental Deposit L/C
Loans
and the Incremental Revolving Commitment Increases shall not exceed
$2,000,000,000.
(c) The
Incremental Term Loans (i) shall rank pari passu in right of payment and
of
security with the Revolving Credit Loans, the Initial Term Loans, the Delayed
Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall
not
mature earlier than the Initial Term Loan Maturity Date, (iii) shall have
interest rates and amortization schedules determined by the Borrower and
the
lenders thereof and (iv) may have terms and conditions different from those
of
the Initial Term Loans and the Delayed Draw Term Loans; provided that,
except with respect to the differences set forth in clauses (ii) and
(iii) above, any differences must be reasonably acceptable to
the
Administrative Agent.
(d) The
Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment
and
of security with the Revolving Credit Loans, the Initial Term Loans, the
Delayed
Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall
not
mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have
interest rates and amortization schedules determined by the Borrower and
the
lenders thereof and (iv) may have terms and conditions different from those
of
the Deposit L/C Loans; provided that, except with respect to the
differences set forth in clauses (ii) and (iii) above, any
differences must be reasonably acceptable to the Administrative
Agent.
(e) Each
Incremental Posting Facility shall rank pari passu in right of payment
and of
security with the Revolving Credit Loans, the Initial Term Loans, the Delayed
Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each
notice from the Borrower pursuant to this Section 2.14 shall set forth
the requested amount and proposed terms of the relevant Incremental Term
Loans,
Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases
or
Incremental Posting Facilities. Incremental Term Loans and
Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment
Increases and Incremental Posting Facilities may be provided, by any existing
Lender (it being understood that (i) no existing Lender will have an obligation
to make a portion of any Incremental Term Loan, Incremental Deposit L/C
Loan or
any Incremental Posting Facility, (ii) no existing Lender with a Revolving
Credit Commitment will have any obligation to provide a portion of any
Incremental Revolving Commitment Increase and (iii) the Borrower shall
have no
obligation to offer any existing Lender the opportunity to provide any
such
Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving
Credit Increases or Incremental Posting Facilities) or by any other bank
or
other financial institution (any such other bank or other financial institution
being called an “Additional Lender”); provided that the
Administrative Agent shall have consented (not to be unreasonably withheld)
to
such Lender’s or Additional Lender’s making such Incremental Term Loans,
Incremental Deposit L/C Loans or providing
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such
Incremental Revolving Commitment Increases if such consent would be required
under Section 13.6(b) for an assignment of Loans or Commitments, as
applicable, to such Lender or Additional Lender.
(g) Commitments
in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental
Revolving Commitment Increases and Incremental Posting Facilities shall
become
Commitments (or in the case of an Incremental Revolving Commitment Increase
to
be provided by an existing Lender with a Revolving Credit Commitment, an
increase in such Lender’s applicable Revolving Credit Commitment) under this
Agreement pursuant to an amendment (an “Incremental Amendment”)
to this Agreement (which shall be substantially in the form of Exhibit L
to this Agreement) and, as appropriate, the other Credit Documents, executed
by
the Borrower, each Lender agreeing to provide such Commitment, if any,
each
Additional Lender, if any, except with respect to any Incremental Posting
Facility, the Administrative Agent and, with respect to any Incremental
Posting
Facility, the relevant posting and calculation agents. The Incremental
Amendment
may, subject to Section 2.14(c), (d) or (e) as the case may
be, without the consent of any other Lenders, effect such amendments to
this
Agreement and the other Credit Documents as may be necessary, in the reasonable
opinion of the Administrative Agent and the Borrower, to effect the provisions
of this Section. The effectiveness of any Incremental Amendment shall be
subject
to the satisfaction on the date hereof (each an “Incremental Facility
Closing Date”) of the conditions in Section 7.1 and such
other conditions as the parties thereto shall agree. The Borrower may
use the proceeds of the Incremental Term Loans, Incremental Deposit L/C
Loans,
Incremental Revolving Commitment Increases and Incremental Posting Facilities
for any purpose not prohibited by this Agreement.
(h) No
Lender shall be obligated to provide any Incremental Term Loans, Incremental
Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental
Posting Facilities, unless it so agrees and the Borrower shall not be obligated
to offer any existing Lender the opportunity to provide any Incremental
Term
Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases
or
Incremental Posting Facilities. Upon each increase in the Revolving
Credit Commitments pursuant to this Section, each Lender with a Revolving
Credit
Commitment immediately prior to such increase will automatically and without
further act be deemed to have assigned to each Lender providing a portion
of the
Incremental Revolving Commitment Increase (each an “Incremental
Revolving Commitment Increase Lender”) in respect of such increase, and
each such Incremental Revolving Commitment Increase Lender will automatically
and without further act be deemed to have assumed, a portion of such Lender’s
participations hereunder in outstanding Revolving Letters of Credit and
Swingline Loans such that, after giving effect to each such deemed assignment
and assumption of participations, the percentage of the aggregate outstanding
(i) participations hereunder in Revolving Letters of Credit and
(ii) participations hereunder in Swingline Loans held by each Lender with a
Revolving Credit Commitment (including each such Incremental Revolving
Commitment Increase Lender) will equal the percentage of the aggregate
Revolving
Credit Commitments of all Lenders represented by such Lender’s Revolving Credit
Commitment. If, on the date of such increase, there are any Revolving
Credit Loans outstanding, such Revolving Credit Loans shall on or prior
to the
effectiveness of such Incremental Revolving Commitment Increase be prepaid
from
the proceeds of additional Revolving Credit Loans made hereunder (reflecting
such increase in Revolving Credit Commitments), which prepayment shall
be
accompanied by accrued interest on the Revolving Credit Loans being prepaid
and
any costs incurred by any Lender in accordance with
Section 2.11. The Administrative Agent and the Lenders
hereby agree that the minimum borrowing, pro rata borrowing and pro
rata payment requirements contained elsewhere in this Agreement shall
not
apply to the transactions effected pursuant to the immediately preceding
sentence.
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SECTION
3. Letters
of Credit
.
3.1. Issuance
of Letters of Credit
.
(a) Revolving
Letters of Credit. (2) Subject to and upon the terms
and conditions herein set forth, at any time and from time to time on and
after
the Closing Date and prior to the Revolving L/C Maturity Date, each Revolving
Letter of Credit Issuer agrees, in reliance upon the agreements of the
Revolving
Credit Lenders set forth in this Section 3, to issue upon the request of
the Borrower and for the direct or indirect benefit of the Borrower and
the
Restricted Subsidiaries and for the direct or indirect benefit of the Parent
and
its other Subsidiaries (excluding the Oncor Subsidiaries) so long as the
aggregate Stated Amount of all Letters of Credit issued for the Parent
and its
other Subsidiaries’ benefit does not exceed $250,000,000, a letter of credit or
letters of credit (the “Revolving Letters of Credit” and each,
a “Revolving Letter of Credit”) in such form and with such
Issuer Documents as may be approved by the Revolving Letter of Credit Issuer
in
its reasonable discretion; provided that the Borrower shall be a
co-applicant, and jointly and severally liable with respect to each Revolving
Letter of Credit issued for the account of the Parent and its other
Subsidiaries, US Holdings or a Restricted Subsidiary.
(ii) Notwithstanding
the foregoing, (A) no Revolving Letter of Credit shall be issued the Stated
Amount of which, when added to the Revolving Letters of Credit Outstanding
at
such time, would exceed the Revolving Letter of Credit Commitment then
in
effect; (B) no Revolving Letter of Credit shall be issued the Stated Amount
of which would cause the aggregate amount of the Revolving Credit Exposures
at
such time to exceed the Total Revolving Credit Commitment then in effect;
(C)
each Revolving Letter of Credit shall have an expiration date occurring
no later
than the earlier of (x) one year after the date of issuance thereof, unless
otherwise agreed upon by the Administrative Agent and the Revolving Letter
of
Credit Issuer, or as provided under Section 3.2(b) and (y) the Revolving
L/C Maturity Date; (D) each Revolving Letter of Credit shall be denominated
in Dollars; (E) no Revolving Letter of Credit shall be issued if it would
be illegal under any Applicable Law for the beneficiary of the Revolving
Letter
of Credit to have a Revolving Letter of Credit issued in its favor; (F) no
Revolving Letter of Credit shall be issued after the Revolving Letter of
Credit
Issuer has received a written notice from the Borrower or the
Administrative Agent or the Required Lenders stating that a Default or
an Event
of Default has occurred and is continuing until such time as the Revolving
Letter of Credit Issuer shall have received a written notice (x) of
rescission of such notice from the party or parties originally delivering
such
notice, (y) of the waiver of such Default or Event of Default in accordance
with the provisions of Section 13.1 or (z) that such Default or
Event of Default is no longer continuing; and (G) other than in the case
of
Existing Letters of Credit, no Revolving Letter of Credit shall be issued
by a
Revolving Letter of Credit Issuer the Stated Amount of which, when added
to the
Revolving Letters of Credit Outstandings with respect to such Revolving
Letter
of Credit Issuer, would exceed the Specified Revolving Letter of Credit
Commitment of such Revolving Letter of Credit Issuer then in
effect.
(b) Deposit
Letters of Credit. (3) Subject to and upon the terms
and conditions herein set forth, at any time and from time to time on and
after
the Closing Date and prior to the Deposit L/C Maturity Date, the Deposit
Letter
of Credit Issuer agrees to issue upon the request of and for the account
of the
Borrower and the Restricted Subsidiaries and for the direct or indirect
benefit
of the Parent and its other Subsidiaries (excluding the Oncor Subsidiaries)
so
long as the aggregate Stated Amount of all Letters of Credit issued for
the
Parent and its other Subsidiaries’ (excluding the Oncor Subsidiaries) benefit
does not exceed $250,000,000, a letter of credit or letters of credit (the
“Deposit Letters of Credit” and each a “Deposit Letter
of Credit”) in such form and with such Issuer Documents as may be
approved by the Deposit Letter of Credit Issuer in its reasonable discretion;
provided that the Borrower shall be a co-applicant, and be jointly and
severally liable, with respect to each Deposit Letter of Credit issued
for the
account of the Parent and its other Subsidiaries, US Holdings or a Restricted
Subsidiary.
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(ii) Notwithstanding
the foregoing, (A) no Deposit Letter of Credit shall be issued the Stated
Amount
of which, when added to the Deposit Letters of Credit Outstanding at such
time,
would exceed the Deposit L/C Loan Collateral Account Balance, (B) each
Deposit
Letter of Credit shall have an expiration date occurring no later than
the
earlier of (x) one year after the date of issuance thereof, unless otherwise
agreed upon by the Administrative Agent and the Deposit Letter of Credit
Issuer
or as provided under Section 3.2(b) and (y) the Deposit L/C Maturity
Date, (C) each Deposit Letter of Credit shall be denominated in Dollars,
(D) no
Deposit Letter of Credit shall be issued if it would be illegal under any
Applicable Law for the beneficiary of the Deposit Letter of Credit to have
a
Deposit Letter of Credit issued in its favor, and (E) no Deposit Letter
of
Credit shall be issued after the Deposit Letter of Credit Issuer has received
a
written notice from the Borrower or the Administrative Agent or the Required
Lenders stating that a Default or an Event of Default has occurred and
is
continuing until such time as the Deposit Letter of Credit Issuer shall
have
received a written notice (x) of rescission of such notice from the party
or
parties originally delivering such notice, (y) of the waiver of such Default
or
Event of Default in accordance with the provisions of Section 13.1 or (z)
that such Default or Event of Default is no longer continuing.
3.2. Letter
of Credit Requests
.
(a) Whenever
the Borrower desires that a Letter of Credit be issued, the Borrower shall
give
the Administrative Agent and the applicable Letter of Credit Issuer a Letter
of
Credit Request by no later than 1:00 p.m. (New York City time) at least two
(or such lesser number as may be agreed upon by the Administrative Agent
and
such Letter of Credit Issuer) Business Days prior to the proposed date
of
issuance. Each notice shall be executed by the Borrower, shall
specify whether such Letter of Credit is to be a Revolving Letter of Credit
or
Deposit Letter of Credit and shall be in the form of Exhibit G, or
such other form (including by electronic or fax transmission) as agreed
between
the Borrower, the Administrative Agent and the applicable Letter of Credit
Issuer (each a “Letter of Credit Request”).
(b) If
the Borrower so requests in any applicable Letter of Credit Request, any
Letter
of Credit Issuer may, in its sole and absolute discretion, agree to issue
a
Letter of Credit that has automatic extension provisions (each, an
“Auto-Extension Letter of Credit”); provided that any
such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer
to
prevent any such extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice
to
the beneficiary thereof not later than a day (the “Non-Extension Notice
Date”) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by a
Letter of Credit Issuer, the Borrower shall not be required to make a specific
request to such Letter of Credit Issuer for any such extension. Once
an Auto-Extension Letter of Credit has been issued, the Borrower and, in
the
case of Revolving Letters of Credit, the Revolving Credit Lenders shall
be
deemed to have authorized (but may not require) such Letter of Credit Issuer
to
permit the extension of such Letter of Credit at any time to an expiry
date not
later than, in the case of any Revolving Letter of Credit, the Revolving
L/C
Maturity Date, and in the case of any Deposit Letter of Credit, the Deposit
L/C
Maturity Date; provided, however, that such Letter of Credit
Issuer shall not permit any such extension if (A) such Letter of Credit
Issuer
has determined that it would not be permitted, or would have no obligation,
at
such time to issue such Letter of Credit in its revised form (as extended)
under
the terms hereof (by reason of the provisions of clause (ii) of either
Sections 3.1(a) or (b), as applicable, or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before
the
day that is five Business Days before the Non-Extension Notice Date from
the
Administrative Agent or the Borrower that one or more of the applicable
conditions specified in Section 7 are not then satisfied, and in each
such case directing such Letter of Credit Issuer not to permit such
extension.
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(c) Each
Letter of Credit Issuer shall, at least once each week, provide the
Administrative Agent a list of all Letters of Credit (including any Existing
Letter of Credit) issued by it that are outstanding at such time and specifying
whether such Letters of Credit are Revolving Letters of Credit or Deposit
Letters of Credit; provided that upon written request from the
Administrative Agent, such Letter of Credit Issuer shall thereafter notify
the
Administrative Agent in writing on each Business Day of all Letters of
Credit
issued on the prior Business Day by such Letter of Credit Issuer and specifying
whether such Letters of Credit are Revolving Letters of Credit or Deposit
Letters of Credit.
(d) The
making of each Letter of Credit Request shall be deemed to be a representation
and warranty by the Borrower that the Letter of Credit may be issued in
accordance with, and will not violate the requirements of, Section
3.1(a)(ii) or Section 3.1(b)(ii), as applicable.
3.3. Revolving
Letter of Credit Participations
.
(a) Immediately
upon the issuance by the Revolving Letter of Credit Issuer of any Revolving
Letter of Credit (and on the Closing Date in respect of Existing Letters
of
Credit denoted as “Revolving Letters of Credit” on Schedule 1.1(b)), the
Revolving Letter of Credit Issuer shall be deemed to have sold and transferred
to each Revolving Credit Lender (each such Revolving Credit Lender, in
its
capacity under this Section 3.3, a “Revolving L/C
Participant”), and each such Revolving L/C Participant shall be deemed
irrevocably and unconditionally to have purchased and received from the
Revolving Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation (each a “Revolving L/C
Participation”), to the extent of such Revolving L/C Participant’s
Revolving Credit Commitment Percentage, in each Revolving Letter of Credit,
each
substitute therefor, each drawing made thereunder and the obligations of
the
Borrower under this Agreement with respect thereto, and any security therefor
or
guaranty pertaining thereto.
(b) In
determining whether to pay under any Revolving Letter of Credit, the Revolving
Letter of Credit Issuer shall have no obligation relative to the Revolving
L/C
Participants other than to confirm that (i) any documents required to be
delivered under such Revolving Letter of Credit have been delivered, (ii)
the
Revolving Letter of Credit Issuer has examined the documents with reasonable
care and (iii) the documents appear to comply on their face with the
requirements of such Revolving Letter of Credit. Any action taken or
omitted to be taken by the Revolving Letter of Credit Issuer under or in
connection with any Revolving Letter of Credit issued by it, if taken or
omitted
in the absence of gross negligence or willful misconduct, shall not create
for
the Revolving Letter of Credit Issuer any resulting liability.
(c) Whenever
the Revolving Letter of Credit Issuer receives a payment in respect of
an unpaid
reimbursement obligation as to which the Administrative Agent has received
for
the account of the Revolving Letter of Credit Issuer any payments from
the
Revolving L/C Participants, the Revolving Letter of Credit Issuer shall
pay to
the Administrative Agent and the Administrative Agent shall promptly pay
to each
Revolving L/C Participant that has paid its Revolving Credit Commitment
Percentage of such reimbursement obligation, in Dollars and in immediately
available funds, an amount equal to such Revolving L/C Participant’s share
(based upon the proportionate aggregate amount originally funded by such
Revolving L/C Participant to the aggregate amount funded by all Revolving
L/C
Participants) of the principal amount so paid in respect of such reimbursement
obligation and interest thereon accruing after the purchase of the respective
Revolving L/C Participations at the Overnight Rate.
(d) The
obligations of the Revolving L/C Participants to make payments to the
Administrative Agent for the account of the Revolving Letter of Credit
Issuer
with respect to Revolving Letters of Credit shall be irrevocable and not
subject
to counterclaim, set-off or other defense or any other
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qualification
or exception whatsoever and shall be made in accordance with the terms
and
conditions of this Agreement under all circumstances, including under any
of the
following circumstances:
(i) any
lack of validity or enforceability of this Agreement or any of the other
Credit
Documents;
(ii) the
existence of any claim, set-off, defense or other right that the Borrower
may
have at any time against a beneficiary named in a Revolving Letter of Credit,
any transferee of any Revolving Letter of Credit (or any Person for whom
any
such transferee may be acting), the Administrative Agent, the Revolving
Letter
of Credit Issuer, any Lender or other Person, whether in connection with
this
Agreement, any Revolving Letter of Credit, the transactions contemplated
herein
or any unrelated transactions (including any underlying transaction between
the
Borrower and the beneficiary named in any such Revolving Letter of
Credit);
(iii) any
draft, certificate or any other document presented under any Revolving
Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect
or any statement therein being untrue or inaccurate in any respect;
(iv) the
surrender or impairment of any security for the performance or observance
of any
of the terms of any of the Credit Documents; or
(v) the
occurrence of any Default or Event of Default;
provided,
however, that no Revolving L/C Participant shall be obligated to pay to
the Administrative Agent for the account of the Revolving Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any unreimbursed amount
arising from any wrongful payment made by the Revolving Letter of Credit
Issuer
under a Revolving Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Revolving Letter
of
Credit Issuer.
3.4. Agreement
to Repay Letter of Credit Drawings
.
(a) The
Borrower hereby agrees to reimburse the applicable Letter of Credit Issuer,
by
making payment in Dollars to the Administrative Agent in immediately available
funds, for any payment or disbursement made by such Letter of Credit Issuer
under any Letter of Credit (each such amount so paid until reimbursed,
an
“Unpaid Drawing”) (i) within two Business Days of the date
of such payment or disbursement, if such Letter of Credit Issuer provides
notice
to the Borrower of such payment or disbursement prior to 10:00 a.m.
(New York City time) on such next succeeding Business Day from the date of
such payment or disbursement or (ii) if such notice is received after such
time,
on the second Business Day following the date of receipt of such notice
(such
required date for reimbursement under clause (i) or (ii), as applicable,
the
“Reimbursement Date”), with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, from and including the date
of such
payment or disbursement to but excluding the Reimbursement Date, at the
per
annum rate for each day equal to the Overnight Rate; provided that,
notwithstanding anything contained in this Agreement to the contrary,
(i) in the case of any Unpaid Drawings under any Revolving Letters of
Credit, (A) unless the Borrower shall have notified the Administrative
Agent and
the relevant Letter of Credit Issuer prior to 10:00 a.m. (New York City
time) on the Reimbursement Date that the Borrower intends to reimburse
the
relevant Letter of Credit Issuer for the amount of such drawing with funds
other
than the proceeds of Revolving Loans, the Borrower shall be deemed to have
given
a Notice of Borrowing requesting that, with respect to Revolving Letters
of
Credit, the Lenders with Revolving Credit Commitments make Revolving Credit
Loans (which shall be ABR Loans) on the Reimbursement Date in the amount
of such
Unpaid Drawing and (B) the Administrative Agent shall promptly notify each
Revolving Credit Lender of such drawing and the amount of its
Revolving
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Credit
Loan to be made in respect thereof (without regard to the Minimum Borrowing
Amount), and each Revolving L/C Participant shall be irrevocably obligated
to
make a Revolving Credit Loan to the Borrower in the manner deemed to have
been
requested in the amount of its Revolving Credit Commitment Percentage of
the
applicable Unpaid Drawing by 2:00 p.m. (New York City time) on such
Reimbursement Date by making the amount of such Revolving Credit Loan available
to the Administrative Agent and the Administrative Agent shall use the
proceeds
of such Revolving Credit Loans solely for purpose of reimbursing the relevant
Letter of Credit Issuer for the related Unpaid Drawing or (ii), in the
case of
any Unpaid Drawing under any Deposit Letter of Credit, unless the Borrower
shall
have notified the Administrative Agent and the relevant Letter of Credit
Issuer
prior to 10:00 a.m. (New York City time) on the Reimbursement Date that
the
Borrower intends to reimburse the relevant Letter of Credit Issuer for
the
amount of such drawing with its own funds, the Collateral Agent shall promptly
cause the amounts on deposit in the Deposit L/C Loan Collateral Account
to be
applied to repay in full the amount of such Unpaid Drawing.
In
the event that the Borrower fails to Cash Collateralize any Revolving Letter
of
Credit that is outstanding on the Revolving Credit Termination Date, the
full
amount of the Revolving Letters of Credit Outstanding in respect of such
Revolving Letter of Credit shall be deemed to be an Unpaid Drawing subject
to
the provisions of this Section 3.4 except that the Revolving Letter of
Credit Issuer shall hold the proceeds received from the Lenders as contemplated
above as cash collateral for such Revolving Letter of Credit to reimburse
any
Drawing under such Revolving Letter of Credit and shall use such proceeds
first,
to reimburse itself for any Drawings made in respect of such Revolving
Letter of
Credit following the Revolving L/C Maturity Date, second, to the extent
such
Revolving Letter of Credit expires or is returned undrawn while any such
cash
collateral remains, to the repayment of obligations in respect of any Revolving
Credit Loans that have not been paid at such time and third, to the Borrower
or
as otherwise directed by a court of competent jurisdiction.
(b) The
obligations of the Borrower under this Section 3.4 to reimburse the
Letter of Credit Issuers with respect to Unpaid Drawings (including, in
each
case, interest thereon) shall be absolute and unconditional under any and
all
circumstances and irrespective of any set-off, counterclaim or defense
to
payment that the Borrower or any other Person may have or have had against
any
Letter of Credit Issuer, the Administrative Agent or any Lender (including
in
its capacity as a Revolving L/C Participant), including any defense based
upon
the failure of any drawing under a Letter of Credit (each a
“Drawing”) to conform to the terms of the Letter of Credit or
any non-application or misapplication by the beneficiary of the proceeds
of such
Drawing; provided that the Borrower shall not be obligated to reimburse
any Letter of Credit Issuer for any wrongful payment made by such Letter
of
Credit Issuer under the Letter of Credit issued by it as a result of acts
or
omissions constituting willful misconduct or gross negligence on the part
of
such Letter of Credit Issuer.
3.5. Increased
Costs
. If
after the date hereof, the adoption of any Applicable Law, or any change
therein, 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 actual compliance by a Letter
of
Credit Issuer or any Revolving L/C Participant with any request or directive
made or adopted after the date hereof (whether or not having the force
of law),
by any such authority, central bank or comparable agency shall either (a)
impose, modify or make applicable any reserve, deposit, capital adequacy
or
similar requirement against letters of credit issued by any Letter of Credit
Issuer, or any Revolving L/C Participant’s Revolving L/C Participation therein,
or (b) impose on any Letter of Credit Issuer or any Revolving L/C Participant
any other conditions or liabilities affecting its obligations under this
Agreement in respect of Letters of Credit or Revolving L/C Participations
therein or any Letter of Credit or such Revolving L/C Participant’s Revolving
L/C Participation therein, and the result of any of the foregoing is to
increase
the cost to such Letter of Credit Issuer or such Revolving L/C
Partici
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pant
of issuing, maintaining or participating in any Letter of Credit, or to
reduce
the amount of any sum received or receivable by such Letter of Credit Issuer
or
such Revolving L/C Participant hereunder (other than any such increase
or
reduction attributable to (i) taxes indemnifiable under Section 5.4, (ii)
net income taxes and franchise and excise taxes (imposed in lieu of net
income
taxes) imposed on any Agent or Lender or (iii) Taxes described in clauses
(c) and (d) of the definition of “Excluded Taxes”) in respect of
Letters of Credit or Revolving L/C Participations therein, then, promptly
after
receipt of written demand to the Borrower by such Letter of Credit Issuer
or
such Revolving L/C Participant, as the case may be (a copy of which notice
shall
be sent by such Letter of Credit Issuer or such Revolving L/C Participant
to the
Administrative Agent), the Borrower shall pay to such Letter of Credit
Issuer or
such Revolving L/C Participant such additional amount or amounts as will
compensate such Letter of Credit Issuer or such Revolving L/C Participant
for
such increased cost or reduction, it being understood and agreed, however,
that
any Letter of Credit Issuer or a Revolving L/C Participant shall not be
entitled
to such compensation as a result of such Person’s compliance with, or pursuant
to any request or directive to comply with, any such Applicable Law as
in effect
on the date hereof. A certificate submitted to the Borrower by the
relevant Letter of Credit Issuer or a Revolving L/C Participant, as the
case may
be (a copy of which certificate shall be sent by such Letter of Credit
Issuer or
such Revolving L/C Participant to the Administrative Agent), setting forth
in reasonable detail the basis for the determination of such additional
amount
or amounts necessary to compensate such Letter of Credit Issuer or such
Revolving L/C Participant as aforesaid shall be conclusive and binding
on the
Borrower absent clearly demonstrable error.
3.6. New
or Successor Letter of Credit Issuer
.
(a) Any
Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 30
days’
prior written notice to the Administrative Agent, the Lenders and the
Borrower. The Borrower may add Revolving Letter of Credit Issuers
and/or Deposit Letter of Credit Issuers at any time upon notice to the
Administrative Agent. If a Letter of Credit Issuer shall resign or be
replaced, or if the Borrower shall decide to add a new Letter of Credit
Issuer
under this Agreement, then the Borrower may appoint from among the Lenders
a
successor issuer of Letters of Credit under the applicable Credit Facility
or a
new Letter of Credit Issuer under the applicable Credit Facility, as the
case
may be, or, with the consent of the Administrative Agent (such consent
not to be
unreasonably withheld), another successor or new issuer of Letters of Credit
under the applicable Credit Facility, whereupon such successor issuer shall
succeed to the rights, powers and duties of the replaced or resigning Letter
of
Credit Issuer under this Agreement and the other Credit Documents, or such
new
issuer of Letters of Credit shall be granted the rights, powers and duties
of a
Revolving Letter of Credit Issuer or Deposit Letter of Credit Issuer, as
applicable, hereunder, and the term “Revolving Letter of Credit Issuer” or
“Deposit Letter of Credit Issuer”, as applicable, shall mean such successor or
include such new issuer of Letters of Credit under the applicable Credit
Facility effective upon such appointment. At the time such
resignation or replacement shall become effective, the Borrower shall pay
to the
resigning or replaced Letter of Credit Issuer all accrued and unpaid fees
owing
to such Letter of Credit Issuer pursuant to Section
4.1(d). The acceptance of any appointment as a Letter of Credit
Issuer hereunder whether as a successor issuer or new issuer of Letters
of
Credit in accordance with this Agreement, shall be evidenced by an agreement
entered into by such new or successor issuer of Letters of Credit, in a
form
satisfactory to the Borrower and the Administrative Agent and, from and
after
the effective date of such agreement, such new or successor issuer of Letters
of
Credit shall become a “Revolving Letter of Credit Issuer” or “Deposit Letter of
Credit Issuer”, as applicable, hereunder. After the resignation or
replacement of a Letter of Credit Issuer hereunder, the resigning or replaced
Letter of Credit Issuer shall remain a party hereto and shall continue
to have
all the rights and obligations of a Letter of Credit Issuer under this
Agreement
and the other Credit Documents with respect to Letters of Credit issued
by it
prior to such resignation or replacement, but shall not be required to
issue
additional Letters of Credit. In connection with any resignation or
replacement pursuant to this clause (a) (but, in case of any such
resignation, only to the extent that a successor issuer of Letters of Credit
shall
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have
been appointed), either (i) the Borrower, the resigning or replaced Letter
of
Credit Issuer and the successor issuer of Letters of Credit shall arrange
to
have any outstanding Letters of Credit issued by the resigning or replaced
Letter of Credit Issuer replaced with Letters of Credit issued by the successor
issuer of Letters of Credit or (ii) in the case of Revolving Letters of
Credit,
the Borrower shall cause the successor issuer of Revolving Letters of Credit,
if
such successor issuer is reasonably satisfactory to the replaced or resigning
Revolving Letter of Credit Issuer, to issue “back-stop” Revolving Letters of
Credit naming the resigning or replaced Revolving Letter of Credit Issuer
as
beneficiary for each outstanding Revolving Letter of Credit issued by the
resigning or replaced Revolving Letter of Credit Issuer, which new Revolving
Letters of Credit shall have a face amount equal to the Revolving Letters
of
Credit being back-stopped and the sole requirement for drawing on such
new
Revolving Letters of Credit shall be a drawing on the corresponding back-stopped
Revolving Letters of Credit. After any resigning or replaced Letter
of Credit Issuer’s resignation or replacement as Letter of Credit Issuer, the
provisions of this Agreement relating to a Letter of Credit Issuer shall
inure
to its benefit as to any actions taken or omitted to be taken by it (A)
while it
was a Letter of Credit Issuer under this Agreement or (B) at any time with
respect to Letters of Credit issued by such Letter of Credit
Issuer.
(b) To
the extent that there are, at the time of any resignation or replacement
as set
forth in clause (a) above, any outstanding Letters of Credit, nothing
herein shall be deemed to impact or impair any rights and obligations of
any of
the parties hereto with respect to such outstanding Letters of Credit
(including, without limitation, any obligations related to the payment
of Fees
or the reimbursement or funding of amounts drawn), except that the Borrower,
the
resigning or replaced Letter of Credit Issuer and the successor issuer
of
Letters of Credit shall have the obligations regarding outstanding Letters
of
Credit described in clause (a) above.
3.7. Role
of Letter of Credit Issuer
. Each
Lender and the Borrower agree that, in paying any Drawing under a Letter
of
Credit, the relevant Letter of Credit Issuer shall not have any responsibility
to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire
as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. None of the Letter of
Credit Issuers, the Administrative Agent, any of their respective affiliates
nor
any correspondent, participant or assignee of any Letter of Credit Issuer
shall
be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Required Lenders;
(ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit
or
Issuer Document. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter
of Credit; provided that this assumption is not intended to, and shall
not, preclude the Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. None of the Letter of Credit Issuers, the Administrative
Agent, any of their respective affiliates nor any correspondent, participant
or
assignee of any Letter of Credit Issuer shall beliable or responsible for
any of
the matters described in Section 3.3(d); provided that anything in
such Section to the contrary notwithstanding, the Borrower may have a claim
against a Letter of Credit Issuer, and such Letter of Credit Issuer may
be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as
opposed to consequential or exemplary, damages suffered by the Borrower
which
the Borrower proves were caused by such Letter of Credit Issuer’s willful
misconduct or gross negligence or such Letter of Credit Issuer’s willful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with
the
terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, each Letter of Credit Issuer 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,
and no
Letter of Credit Issuer shall be responsible for the validity or sufficiency
of
any instrument transferring or assigning or purporting to transfer or assign
a
Let
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ter
of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or
in part, which may prove to be invalid or ineffective for any
reason.
3.8. Cash
Collateral
.
(a) Upon
the request of the Required Lenders or the Administrative Agent if, as of
the Revolving L/C Maturity Date, there are any Revolving Letters of Credit
Outstanding, the Borrower shall immediately Cash Collateralize the then
Revolving Letters of Credit Outstanding.
(b) If
any Event of Default shall occur and be continuing, the Revolving Credit
Lenders
with Revolving Letter of Credit Exposure representing greater than 50%
of the
total Revolving Letter of Credit Exposure or the Administrative Agent may
require that the Revolving L/C Obligations be Cash Collateralized.
(c) For
purposes of this Section 3.8, Section 5.2(b) and Section
11, “Cash Collateralize” means to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of the Revolving
Letter
of Credit Issuer and the Revolving Credit Lenders, as collateral for the
Revolving L/C Obligations, cash or deposit account balances in an amount
equal
to 100% of the amount of the Revolving Letters of Credit Outstanding required
to
be Cash Collateralized pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Revolving Letter
of
Credit Issuer (which documents are hereby consented to by the Revolving
Credit
Lenders). Derivatives of such terms have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for
the benefit of the Revolving Letter of Credit Issuer and the Revolving
L/C
Participants, a security interest in all such cash, deposit accounts and
all
balances therein and all proceeds of the documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Revolving Letters
of
Credit Issuer (which documents are hereby consented to by the Revolving
Credit
Lenders). Such cash collateral shall be maintained in blocked,
interest bearing deposit accounts established by and in the name of the
Administrative Agent.
3.9. Deposit
L/C Loan Collateral Account
. On
the Closing Date, the Borrower shall establish the Deposit L/C Loan Collateral
Account for the purpose of cash collateralizing the Borrower’s obligations to
the Deposit Letter of Credit Issuer in respect of the Deposit Letters of
Credit. On the Closing Date, the proceeds of the Deposit L/C Loans,
together with other funds (if any) provided by the Borrower, shall be deposited
into the Deposit L/C Loan Collateral Account such that, and the Borrower
agrees
that at all times thereafter, and shall immediately cause additional funds
to be
deposited and held in the Deposit L/C Loan Collateral Account from time
to time
in order that, the Deposit L/C Loan Collateral Account Balance shall at
least
equal the Deposit Letters of Credit Outstanding. The Borrower hereby
grants to the Collateral Agent, for the benefit of the Deposit Letter of
Credit
Issuer, a security interest in the Deposit L/C Loan Collateral Account
and all
cash and balances therein and all proceeds of the foregoing, as security
for the
Deposit L/C Obligations (and, in addition, grants a security interest therein,
for the benefit of the Secured Parties as collateral security for the
Obligations; provided that amounts on deposit in the Deposit L/C Loan
Collateral Account shall be applied, first, to repay the Deposit L/C Obligations
and, then, all other Obligations). Except as expressly provided
herein or in any other Credit Document, no Person shall have the right
to make
any withdrawal from the Deposit L/C Loan Collateral Account or to exercise
any
right or power with respect thereto; provided that at any time the
Borrower shall fail to reimburse any Deposit Letter of Credit Issuer for
any
Unpaid Drawing in accordance with Section 3.4(a), the Borrower hereby
absolutely, unconditionally and irrevocably agrees that the Collateral
Agent
shall be entitled to instruct the depositary bank (the “Depositary
Bank”) of the Deposit L/C Loan Collateral Account to withdraw therefrom
and pay to the Administrative Agent for account of such Deposit Letter
of Credit
Issuer amounts equal to such Unpaid Drawings. Amounts in the Deposit
L/C Loan Collateral Ac
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count
shall be invested by the Depositary Bank in the manner as instructed by
the
Administrative Agent (and agreed to by the Depositary Bank). To the
extent amounts are invested in Deposit L/C Permitted Investments, the Borrower
shall bear the risk of loss of principal with respect to any such
investments. To the extent amounts are invested in anything other
than Deposit L/C Permitted Investments, the Administrative Agent shall
bear the
risk of loss of principal with respect to any such investments. So
long as no Event of Default shall have occurred and be continuing, upon
at least
three Business Days’ prior written notice to the Collateral Agent and the
Administrative Agent, the Borrower may, at any time and from time to time,
request release of and payment to the Borrower of (and the Collateral Agent
hereby agrees to instruct the Depositary Bank to release and pay to the
Borrower) any amounts on deposit in the Deposit L/C Loan Collateral Account
in
excess of the Deposit Letter of Credit Commitment (reduced by the aggregate
amounts withdrawn by the Deposit Letter of Credit Issuer and not subsequently
deposited by the Borrower), (provided that the Collateral Agent shall
have received prior confirmation of the amount of such excess from the
Administrative Agent). In addition, the Collateral Agent hereby
agrees to instruct the Depositary Bank to release and pay to the Borrower
amounts (if any) remaining on deposit in the Deposit L/C Loan Collateral
Account
after the termination or cancellation of all Deposit Letters of Credit
and the
repayment in full of all outstanding Deposit L/C Loans and Deposit L/C
Obligations.
3.10. Existing
Letters of Credit
. Subject
to the terms and conditions hereof, (a) each Existing Letter of Credit
that is
outstanding on the Closing Date, listed on Schedule 1.1(b) and denoted
thereon as a “Deposit Letter of Credit” shall, effective as of the Closing Date
and without any further action by the Borrower, be continued as a Deposit
Letter
of Credit hereunder and from and after the Closing Date shall be deemed
a
Deposit Letter of Credit for all purposes hereof and shall be subject to
and
governed by the terms and conditions hereof and (b) each Existing Letter
of
Credit that is outstanding on the Closing Date, listed on
Schedule 1.1(b) and denoted thereon as a “Revolving Letter of
Credit” shall, effective as of the Closing Date and without any further action
by the Borrower, be continued as a Revolving Letter of Credit hereunder
and from
and after the Closing Date shall be deemed a Revolving Letter of Credit
for all
purposes hereof and shall be subject to and governed by the terms and conditions
hereof.
3.11. Applicability
of ISP and UCP
. Unless
otherwise expressly agreed by the relevant Letter of Credit Issuer and
the
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall
apply to each Standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published
by the
International Chamber of Commerce at the time of issuance, shall apply
to each
Commercial Letter of Credit, and in each case to the extent not inconsistent
with the above referred rules, the laws of the State of New York shall
apply to each Letter of Credit.
3.12. Conflict
with Issuer Documents
. In
the event of any conflict between the terms hereof and the terms of any
Issuer
Document, the terms hereof shall control.
3.13. Letters
of Credit Issued for Others
. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of
any
obligations of, or is for the account of, the Parent or its other Subsidiaries,
US Holdings or a Restricted Subsidiary, the Borrower shall be obligated
to
reimburse the relevant Letter of Credit Issuer hereunder for any and all
drawings under such Letter of Credit. The Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of
the
Parent or its other Subsidiaries, US Holdings or such Restricted Subsidiaries
inures to the benefit of the Borrower, and that the Borrower’s business derives
substantial benefits from the businesses of the Parent and its other
Subsidiaries, US Holdings or such Restricted Subsidiaries.
SECTION
4. Fees;
Commitments
.
4.1. Fees
.
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(a) The
Borrower agrees to pay to the Administrative Agent in Dollars, for the
account
of each Revolving Credit Lender (in each case pro rata according to the
respective Revolving Credit Commitments of all such Lenders), a commitment
fee
(the “Revolving Credit Commitment Fee”) for each day from the
Closing Date to the Revolving Credit Termination Date. Each Revolving
Credit Commitment Fee shall be payable by the Borrower (x) quarterly in
arrears on the tenth Business Day following the end of each March, June,
September and December (for the three-month period (or portion thereof)
ended on
such day for which no payment has been received) and (y) on the Revolving
Credit Termination Date (for the period ended on such date for which no
payment
has been received pursuant to clause (x) above), and shall be computed
for each day during such period at a rate per annum equal to the
applicable Revolving Credit Commitment Fee Rate in effect on such day on
the
applicable portion of the Available Revolving Commitment in effect on such
day.
(b) The
Borrower agrees to pay to the Administrative Agent in Dollars, for the
account
of each Lender with an Available Delayed Draw Term Loan Commitment, a commitment
fee (the “Delayed Draw Commitment Fee”) for each day from the
Closing Date to the Delayed Draw Term Loan Commitment Termination
Date. Each Delayed Draw Commitment Fee shall be payable (x) quarterly
in arrears on the tenth Business Day following the end of each March, June,
September and December (for the three-month period (or portion thereof)
ended on
such day for which no payment has been received) and (y) on the Delayed
Draw
Term Loan Commitment Termination Date (for the period ended on such date
for
which no payment has been received pursuant to clause (x) above), and
shall be computed for each day during such period at a rate per annum
equal to the Delayed Draw Commitment Fee Rate in effect on such day on
the
Available Delayed Draw Term Loan Commitment in effect on such day.
(c) The
Borrower agrees to pay to the Administrative Agent in Dollars for the account
of
each Revolving Credit Lender pro rata on the basis of their respective
Revolving Letter of Credit Exposure, a fee in respect of each Revolving
Letter
of Credit (the “Revolving Letter of Credit Fee”), for the
period from the date of issuance of such Revolving Letter of Credit to
the
termination date of such Revolving Letter of Credit computed at the per
annum rate for each day equal to the Applicable LIBOR Margin for Revolving
Credit Loans minus the Fronting Fee on the average daily Stated Amount of
such Revolving Letter of Credit. Such Revolving Letter of Credit Fees
shall be due and payable (x) quarterly in arrears on the tenth Business Day
following the end of each March, June, September and December and (y) on
the date upon which the Total Revolving Credit Commitment terminates and
the
Revolving Letters of Credit Outstanding shall have been reduced to
zero.
(d) The
Borrower agrees to pay to each Letter of Credit Issuer a fee in respect
of each
Letter of Credit issued by it (the “Fronting Fee”), for the
period from the date of issuance of such Letter of Credit to the termination
date of such Letter of Credit, computed at the rate for each day equal
to 0.125%
per annum on the average daily Stated Amount of such Letter of Credit
(or at such other rate perannum as agreed in writing between the Borrower
and
such Letter of Credit Issuer). Such Fronting Fees shall be due and
payable by the Borrower (x) quarterly in arrears on the tenth Business Day
following the end of each March, June, September and December and (y) (1)
in the case of Revolving Letters of Credit, on the date upon which the
Total
Revolving Credit Commitment terminates and the Revolving Letters of Credit
Outstanding shall have been reduced to zero and (2) in the case of Deposit
Letters of Credit, the Deposit L/C Loan Maturity Date or, if earlier, the
date
upon which the Deposit Letters of Credit Commitment terminates and the
Deposit
Letter of Credit Outstanding shall have been reduced to zero.
(e) The
Borrower agrees to pay directly to the Letter of Credit Issuer upon each
issuance of, drawing under, and/or amendment of, a Letter of Credit issued
by it
such amount as the Letter of Credit Issuer and the Borrower shall have
agreed
upon for issuances of, drawings under or amendments of, letters of credit
issued
by it.
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(f) The
Borrower agrees to pay to the Posting Lead Arranger and Bookrunner in Dollars,
the Maintenance Fee (as provided in, and at the times set forth in, the
Posting
Facility Fee Letter and this Agreement) for the period from and including
the
Closing Date to the Posting Facility Termination Date.
(g) The
Borrower agrees to pay directly to the Administrative Agent for its own
account
the administrative agent fees as set forth in the Fee Letter.
(h) Notwithstanding
the foregoing, the Borrower shall not be obligated to pay any amounts to
any
Defaulting Lender pursuant to this Section 4.1.
4.2. Voluntary
Reduction of Revolving Credit Commitments; Delayed Draw Term Loan Commitments;
and Revolving Letter of Credit Commitments
.
(a) Upon
at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at the Administrative
Agent’s
Office (which notice the Administrative Agent shall promptly transmit to
each of
the Revolving Credit Lenders), the Borrower shall have the right, without
premium or penalty, on any day, permanently to terminate or reduce the
Revolving
Credit Commitments in whole or in part; provided that (a) any such
reduction shall apply proportionately and permanently to reduce the Revolving
Credit Commitments, as applicable, of each of the Revolving Credit Lenders,
(b) any partial reduction pursuant to this Section 4.2 shall be in
the amount of at least the Minimum Borrowing Amount and (c) after giving
effect to such termination or reduction and to any prepayments of the Revolving
Credit Loans or cancellation or Cash Collateralization of Revolving Letters
of
Credit made on the date thereof in accordance with this Agreement (including
pursuant to Section 5.2(b)), the aggregate amount of the Revolving Credit
Lenders’ Revolving Credit Exposures shall not exceed the Total Revolving Credit
Commitment.
(b) Upon
at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at the Administrative
Agent’s
Office (which notice the Administrative Agent shall promptly transmit to
each of
the Lenders holding Delayed Draw Term Loan Commitments), the Borrower shall
have
the right, without premium or penalty, on any day, permanently to terminate
or
reduce the Delayed Draw Term Loan Commitments in whole or in part;
provided that (a) any such reduction shall apply proportionately and
permanently to reduce the Delayed Draw Term Loan Commitment of each of
the
Lenders and (b) any partial reduction pursuant to this Section 4.2 shall
be in the amount of at least the Minimum Borrowing Amount.
(c) Upon
at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent and the Revolving Letter
of
Credit Issuer (which notice the Administrative Agent shall promptly transmit
to
each of the Revolving Credit Lenders), the Borrower shall have the right,
without premium or penalty, on any day, permanently to terminate or reduce
the
Revolving Letter of Credit Commitment in whole or in part; provided that,
after giving effect to such termination or reduction, (i) the Revolving
Letters of Credit Outstanding shall not exceed the Revolving Letter of
Credit
Commitment and (ii) the Revolving Letters of Credit Outstanding (other
than with
respect to Existing Letters of Credit) with respect to each Revolving Letter
of
Credit Issuer shall not exceed the Revolving Letter of Credit Commitment
of such
Revolving Letter of Credit Issuer.
4.3. Mandatory
Termination of Commitments
.
(a) The
Total Initial Term Loan Commitment shall terminate on the earlier of
(i) 5:00 p.m. (New York City time) on July 10, 2008 and
(ii) 5:00 p.m. (New York time) upon the making of the Initial
Term Loans on the Closing Date.
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(b) The
Total Deposit L/C Loan Commitment shall terminate on the earlier of
(i) 5:00 p.m. (New York City time) on July 10, 2008 and
(ii) 5:00 p.m. (New York time) upon the making of the Deposit L/C
Loans on the Closing Date.
(c) The
Total Delayed Draw Term Loan Commitment shall terminate at 5:00 p.m. (New
York time) on the Delayed Draw Term Loan Commitment Termination
Date.
(d) The
Total Revolving Credit Commitment shall terminate at 5:00 p.m. (New York
time) on the Revolving Credit Maturity Date.
(e) The
Swingline Commitment shall terminate at 5:00 p.m. (New York time) on
the Swingline Maturity Date.
(f) The
Incremental Term Loan Commitment for any tranche shall, unless otherwise
provided in the documentation governing such Incremental Term Loan Commitment,
terminate at 5:00 p.m. (New York City time) upon the making of the
Incremental Term Loans for such tranche on the Incremental Facility Closing
Date
for such tranche.
(g) The
Incremental Deposit L/C Loan Commitment for any tranche shall, unless otherwise
provided in the documentation governing such Incremental Deposit L/C Loan
Commitment, terminate at 5:00 p.m. (New York City time) upon the making
of the
Incremental Deposit L/C Loans for such tranche on the Incremental Facility
Closing Date for such tranche.
SECTION
5. Payments
.
5.1. Voluntary
Prepayments
. ii) The
Borrower shall have the right to prepay Term Loans, Deposit L/C Loans,
Incremental Deposit L/C Loans, Revolving Credit Loans and Swingline Loans,
without premium or penalty, subject to Sections 5.1(b) and 5.1(c),
in whole or in part, from time to time on the following terms and
conditions: (a) the Borrower shall give the Administrative Agent at
the Administrative Agent’s Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to make such prepayment, the amount
of such
prepayment and, in the case of LIBOR Loans, the specific Borrowing(s) pursuant
to which made, which notice shall be given by the Borrower no later than
(i) in
the case of Term Loans, Deposit L/C Loans, Incremental Deposit L/C Loans
or
Revolving Credit Loans, 1:00 p.m. (New York City time) (x) one Business
Day
prior to (in the case of ABR Loans) or (y) three Business Days prior to
(in the
case of LIBOR Loans), or (ii) in the case of Swingline Loans, 1:00 p.m.
(New
York City time), the date of such prepayment and shall promptly be transmitted
by the Administrative Agent to each of the relevant Lenders or the Swingline
Lender, as the case may be, (b) each partial prepayment of any Borrowing
of Term
Loans, Deposit L/C Loans, Incremental Deposit L/C Loans or Revolving Credit
Loans shall be in a multiple of $1,000,000 and in an aggregate principal
amount
of at least $5,000,000 and each partial prepayment of Swingline Loans shall
be
in a multiple of $100,000 and in an aggregate principal amount of at least
$500,000; provided that no partial prepayment of LIBOR Loans made
pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans
made
pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount
for LIBOR Loans and (c) any prepayment of LIBOR Loans pursuant to this
Section 5.1 on any day other than the last day of an Interest Period
applicable thereto shall be subject to compliance by the Borrower with
the
applicable provisions of Section 2.11. Each prepayment in
respect of any tranche of Term Loans pursuant to this Section 5.1 shall
be (a) applied to the Class or Classes of Term Loans in such manner as
the
Borrower may determine and (b) applied to reduce Initial Term Loan Repayment
Amounts, Delayed Draw Term Loan Repayment Amounts and/or Incremental Term
Loan
Repayment Amounts, as the case may be, in each case in such order as the
Borrower may determine. All prepayments under this Section 5.1
shall also be subject to the provisions of Section 5.2(d) or (e),
as applicable. At the Borrower’s election in connection with any
pre
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payment
pursuant to this Section 5.1, such prepayment shall not be applied to any
Loan of a Defaulting Lender.
(b) In
the event that the Initial Tranche B-3 Term Loans are repaid (the
“RepaidTranche B-3 Loans”) prior to the date
which is 3 years following the Closing Date in whole or in part (other
than
pursuant to Section 5.2(a)(ii)), the Borrower shall pay to Term Lenders
having such Repaid Tranche B-3 Loans, the Applicable Premium as of the
date of
such prepayment; provided that prior to the date which is 3 years
following the Closing Date, the Borrower may, at its option, on one or
more
occasions repay up to 35% of the aggregate principal amount of the Initial
Tranche B-3 Term Loans subject to a prepayment premium on the principal
amount
of Initial Tranche B-3 Term Loans being prepaid equal to the LIBOR Rate
for an
interest period of three months plus the Applicable LIBOR Margin in
effect on such date, plus accrued and unpaid interest thereon to the date
of such repayment, with the net cash proceeds of one or more Equity Offerings;
provided that (i) that at least 50% of the sum of the original aggregate
principal amount of Initial Tranche B-3 Term Loans remains outstanding
immediately after the occurrence of each such repayment and (ii) that each
such
repayment occurs within 90 days of the date of closing of each such Equity
Offering.
(c) In
the event that, prior to the date which is 3 years following the Closing
Date,
there shall occur any amendment, amendment and restatement or other modification
of this Agreement which reduces the Applicable ABR Margin or the Applicable
LIBOR Margin with respect to the Initial Tranche B-2 Term Loans or any
prepayment or refinancing of the Initial Tranche B-2 Term Loans with proceeds
of
new term loans having lower applicable margins or applicable yield (after
giving
effect to any premiums paid on such new term loans) than the Applicable
ABR
Margin or the Applicable LIBOR Margin for the Initial Tranche B-2 Term
Loans as
of the Closing Date, each such amendment, amendment and restatement,
modification, prepayment or refinancing, as the case may be, shall be
accompanied by a fee or prepayment premium, as applicable, equal to (i)
3%, if
such amendment, amendment and restatement, modification, prepayment or
refinancing, as the case may be, occurs after the Closing Date but prior
to the
first anniversary of the Closing Date, (ii) 2%, if such amendment, amendment
and
restatement, modification, prepayment or refinancing, as the case may be,
occurs
on or after the first anniversary of the Closing Date but prior to the
second
anniversary of the Closing Date and (iii) 1%, if such amendment, amendment
and
restatement, modification, prepayment or refinancing, as the case may be,
occurs
on or after the second anniversary of the Closing Date but prior to the
third
anniversary of the Closing Date. As a condition to effectiveness of
any assignment pursuant to Section 13.7(b) in respect of any amendment,
amendment and restatement or modification to this Agreement effective prior
to
the third anniversary of the ClosingDate that has the effect of reducing
the
Applicable ABR Margin or Applicable LIBOR Margin for the Initial Tranche
B-2
Term Loans from the Applicable ABR Margin or Applicable LIBOR Margin in
effect
on the Closing Date, the Borrower shall pay to such Non-Consenting Lender
of
Initial Tranche B-2 Term Loans a premium equal to the premium that would
apply
if such Non-Consenting Lender’s Initial Tranche B-2 Term Loans being assigned
were being prepaid and subject to the premium set forth in the immediately
preceding sentence.
5.2. Mandatory
Prepayments
.
(a) Term
Loan Prepayments. (1) (A) On each occasion that a
Prepayment Event occurs, the Borrower shall, within three Business Days
after
the occurrence of such Prepayment Event (or, in the case of Deferred Net
Cash
Proceeds, within three Business Days after the Deferred Net Cash Proceeds
Payment Date), prepay, in accordance with clauses (c) and (d)
below, Term Loans in a principal amount equal to 100% of the Net Cash Proceeds
from such Prepayment Event. (B) In the event that any Initial Tranche
B-3 Term Loans are repaid (the “PE RepaidTranche
B-3Loans”) prior to the third an
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niversary
of the Closing Date pursuant to this Section 5.2(a)(i), the Borrower
shall pay to Term Lenders having such PE Repaid Tranche B-3 Loans, the
Applicable Premium as of the date of such prepayment.
(ii) Not
later than the date that is ninety days after the last day of any fiscal
year
(commencing with and including the fiscal year ending on or about December
31,
2008), the Borrower shall prepay, in accordance with clauses (c) and
(d) below, Term Loans in a principal amount equal to (x) 50%
of Excess
Cash Flow for such fiscal year; provided that (A) the percentage in this
Section 5.2(a)(ii) shall be reduced to 25% if, on the date that such
prepayment is required to be made, the Consolidated Total Debt to Consolidated
EBITDA Ratio is less than or equal to 6.00 to 1.0 but greater than 4.75
to 1.0
and (B) no prepayment of any Term Loans shall be required under this Section
5.2(a)(ii) if, on the date that such prepayment is required to be made, the
Consolidated Total Debt to Consolidated EBITDA Ratio is less than or equal
to
4.75 to 1.00, minus (y) the principal amount of Term Loans voluntarily
prepaid pursuant to Section 5.1 during such fiscal year.
(b) Repayment
of Revolving Credit Loans. If on any date the aggregate amount of
the Lenders’ Revolving Credit Exposures (collectively, the “Aggregate
Revolving Credit Outstandings”) for any reason exceeds 100% of the
Total Revolving Credit Commitment then in effect, the Borrower shall forthwith
repay on such date the principal amount of any Swingline Loans and, after
all
Swingline Loans have been paid in full, the Revolving Credit Loans in an
amount
necessary to eliminate such deficiency. If, after giving effect to
the prepayment of all outstanding Swingline Loans and Revolving Credit
Loans,
the Aggregate Revolving Credit Outstandings exceed the Total Revolving
Credit
Commitment then in effect, the Borrower shall Cash Collateralize the Revolving
L/C Obligations to the extent of such excess.
(c) Application
to Repayment Amounts. Subject to Section 5.2(h), each
prepayment of Term Loans required by Sections 5.2(a)(i) and
(ii) shall be allocated pro rata among the Initial Term Loans,
the Delayed Draw Term Loans and the Incremental Term Loans based upon the
applicable remaining Repayment Amounts due in respect thereof and be applied
to
reduce the scheduled Repayment Amounts in direct order of maturity;
provided that, subject to the pro rata application to Repayment Amounts
within any Class of Term Loans, the Borrower may allocate such prepayment
in its
sole discretion among the Class or Classes of Term Loans as the Borrower
may
specify. Subject to Section 5.2(h), with respect to each such
prepayment, the Borrower will, not later than the date specified in Section
5.2(a) for making such prepayment, give the Administrative Agent telephonic
notice (promptly confirmed in writing and which shall include a calculation
of
the amount of such prepayment to be applied to eachClass of Term Loans)
requesting that the Administrative Agent provide notice of such prepayment
to
each Lender of Term Loans.
(d) Application
to Term Loans, Deposit L/C Loans and Incremental Deposit L/C
Loans. With respect to each prepayment of Term Loans, Deposit L/C
Loans and Incremental Deposit L/C Loans elected to be made by the Borrower
pursuant to Section 5.1 or, in the case of the Term Loans only, required
by Sections 5.2(a)(i) and (ii), the Borrower may designate the
Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant
to
which made; provided that (x) the Borrower pays any amounts, if any,
required to be paid pursuant to Section 2.11 with respect to prepayments
of LIBOR Loans made on any date other than the last day of the applicable
Interest Period and (y) no prepayment made pursuant to Section 5.1 or
Section 5.2(a)(i) and (a)(ii) of Delayed Draw Term Loans shall be
applied to the Delayed Draw Term Loans of any Defaulting Lender. In
the absence of a Rejection Notice or a designation by the Borrower as described
in the preceding sentence, the Administrative Agent shall, subject to the
above,
make such designation in its reasonable discretion with a view, but no
obligation, to minimize breakage costs owing under Section
2.11. Upon any prepayment of Deposit L/C Loans, the Deposit
Letter of Credit Commitment shall be reduced by an amount equal to such
prepayment and the
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Borrower
shall be permitted to withdraw an amount up to the amount of such prepayment
from the Deposit L/C Loan Collateral Account to complete such prepayment;
provided that after giving effect to such withdrawal, the Deposit Letters
of Credit Outstanding at such time would not exceed the Deposit L/C Loan
Collateral Account Balance.
(e) Application
to Revolving Credit Loans. With respect to each prepayment of
Revolving Credit Loans elected to be made by the Borrower pursuant to Section
5.1 or required by Section 5.2(b), the Borrower may designate (i) the
Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant
to
which made and (ii) the Revolving Credit Loans to be prepaid; provided
that (x) each prepayment of any Loans made pursuant to a Borrowing shall
be
applied pro rata among such Loans; and (y) notwithstanding the
provisions of the preceding clause (x), no prepayment made pursuant to
Section 5.1 or Section 5.2(b) of Revolving Credit Loans shall be
applied to the Revolving Credit Loans of any Defaulting Lender. In
the absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its reasonable discretion with a view, but no obligation,
to
minimize breakage costs owing under Section 2.11.
(f) LIBOR
Interest Periods. In lieu of making any payment pursuant to this
Section 5.2 in respect of any LIBOR Loan other than on the last day
of the Interest Period therefor so long as no Event of Default shall have
occurred and be continuing, the Borrower at its option may deposit with
the
Administrative Agent an amount equal to the amount of the LIBOR Loan to
be
prepaid and such LIBOR Loan shall be repaid on the last day of the Interest
Period therefor in the required amount. Such deposit shall be held by
the Administrative Agent in a corporate time deposit account established
on
terms reasonably satisfactory to the Administrative Agent, earning interest
at
the then customary rate for accounts of such type. Such deposit shall
constitute cash collateral for the LIBOR Loans to be so prepaid; provided
that the Borrower may at any time direct that such deposit be applied to
make
the applicable payment required pursuant to this
Section 5.2.
(g) Minimum
Amount. No prepayment shall be required pursuant to
Section 5.2(a)(i) in the case of any Prepayment Event yielding Net
Cash Proceeds of less than $5,000,000 in the aggregate and (ii) unless and
until the amount at any time of Net Cash Proceeds from Prepayment Events
required to be applied at or prior to such time pursuant to such Section
and not
yet applied at or prior to such time to prepay Term Loans pursuant to such
Section exceeds (x) $25,000,000 for a single Prepayment Event or (y)
$100,000,000 in the aggregate for all Prepayment Events (other than those
that
are either under the threshold specified in subclause (i) or over the
threshold specified in subclause (ii)(x)) in any one fiscal year, at
which time all such Net Cash Proceeds referred to in this subclause (ii)
with respect to such fiscal year shall be applied as a prepayment in accordance
with this Section 5.2.
(h) Rejection
Right. The Borrower shall notify the Administrative Agent in
writing of any mandatory prepayment of Term Loans required to be made pursuant
to Section 5.2(a), in each case at least three Business Days prior to the
date of such prepayment. Each such notice shall specify the date of
such prepayment and provide a reasonably detailed calculation of the amount
of
such prepayment. The Administrative Agent will promptly notify each
Lender holding Term Loans of the contents of the Borrower’s prepayment notice
and of such Lender’s pro rata share of the prepayment. Each
Lender may reject all or a portion of its pro rata share of any such
prepayment of Term Loans required to be made pursuant to Section 5.2(a)
(such declined amounts, the “Declined Proceeds”) by providing
written notice (each, a “Rejection Notice”) to the
Administrative Agent and the Borrower no later than 5:00 p.m. (New York
time)
one Business Day after the date of such Lender’s receipt of notice from the
Administrative Agent regarding such prepayment. Each Rejection Notice
shall specify the principal amount of the mandatory prepayment of Term
Loans to
be rejected by such Lender. If a Lender fails to deliver a Rejection
Notice to the Administrative Agent within the time frame specified above
or such
Rejection Notice fails
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to
specify the principal amount of the Term Loans to be rejected, any such
failure
will be deemed an acceptance of the total amount of such prepayment of
Term
Loans. Any Declined Proceeds remaining thereafter shall be retained
by the Borrower (“Retained Declined Proceeds”).
(i) Foreign
Net Cash Proceeds and Excess Cash Flow. Notwithstanding any other
provisions of this Section 5.2, (i) to the extent that any or all of
the Net Cash Proceeds from a Recovery Prepayment Event (a “Foreign
Recovery Event”) of, or any Disposition by, a Restricted Foreign
Subsidiary giving rise to an Asset Sale Prepayment Event (a “Foreign
Asset Sale”) or any amount included in Excess Cash Flow and
attributable to Foreign Subsidiaries are prohibited or delayed by applicable
local law from being repatriated to the United States, such portion of
the Net
Cash Proceeds or Excess Cash Flow so affected will not be required to be
applied
to repay Term Loans at the times provided in this Section 5.2 but may be
retained by the applicable Restricted Foreign Subsidiary so long, but only
so
long, as the applicable local law will not permit repatriation to the United
States (the Borrower hereby agreeing to cause the applicable Restricted
Foreign
Subsidiary to promptly take all actions required by the applicable local
law to
permit such repatriation), and once such repatriation of any of such affected
Net Cash Proceeds or Excess Cash Flow is permitted under the applicable
local
law, such repatriation will be immediately effected and such repatriated
Net
Cash Proceeds will be promptly (and in any event not later than two Business
Days after such repatriation) applied (net of additional taxes payable
or
reserved against as a result thereof) to the repayment of the Term Loans
as
required pursuant to this Section 5.2 and (ii) to the extent that
the Borrower has determined in good faith that repatriation of any of or
all the
Net Cash Proceeds of any Foreign Recovery Event, any Foreign Asset Sale
or
Excess Cash Flow would have a material adverse tax consequence with respect
to
such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess
Cash
Flow so affected may be retained by the applicable Restricted Foreign
Subsidiary; provided that, in the case of this clause (ii), on or
before the date on which any Net Cash Proceeds or Excess Cash Flow so retained
would otherwise have been required to be applied to reinvestments or prepayments
pursuant to Section 5.2(a), (x) the Borrower applies an amount equal
to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or
prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received
by the Borrower rather than such Restricted Foreign Subsidiary, less the
amount
of additional taxes that would have been payable or reserved against if
such Net
Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the
Net
Cash Proceeds or Excess Cash Flow that would be calculated if received
by such
Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow are
applied to the repayment of Indebtedness of a Restricted Foreign
Subsidiary.
5.3. Method
and Place of Payment
.
(a) Except
as otherwise specifically provided herein, all payments under this Agreement
shall be made by the Borrower without set-off, counterclaim or deduction
of any
kind, to the Administrative Agent for the ratable account of the Lenders
entitled thereto, the Letter of Credit Issuer or the Swingline Lender entitled
thereto, as the case may be, not later than 2:00 p.m. (New York City time),
in each case, on the date when due and shall be made in immediately available
funds at the Administrative Agent’s Office or at such other office as the
Administrative Agent shall specify for such purpose by notice to the Borrower,
it being understood that written or facsimile notice by the Borrower to
the
Administrative Agent to make a payment from the funds in the Borrower’s account
at the Administrative Agent’s Office shall constitute the making of such payment
to the extent of such funds held in such account. All repayments or
prepayments of any Loans (whether of principal, interest or otherwise)
hereunder
and all other payments under each Credit Document shall be made in
Dollars. The Administrative Agent will thereafter cause to be
distributed on the same day (if payment was actually received by the
Administrative Agent prior to 2:00 p.m. (New York City time) or, otherwise,
on the next Business Day) like funds relating to the payment of principal
or
interest or fees ratably to the Lenders entitled thereto.
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(b) Any
payments under this Agreement that are made later than 2:00 p.m. (New York
City time) shall be deemed to have been made on the next succeeding Business
Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be
extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate
in effect
immediately prior to such extension.
5.4. Net
Payments
.
(a) Any
and all payments made by or on behalf of the Borrower or any Guarantor
under
this Agreement or any other Credit Document shall be made free and clear
of, and
without deduction or withholding for or on account of, any Indemnified
Taxes; provided that if the Borrower or any Guarantor or
the Administrative Agent (or, in the case of the Posting Facility, the
Posting
Agent) shall be required by Applicable Law to deduct or withhold any Indemnified
Taxes from such payments, then (i) the sum payable by the Borrower or any
Guarantor shall be increased as necessary so that after making all required
deductions and withholdings (including deductions or withholdings applicable
to
additional sums payable under this Section 5.4) the Administrative
Agent, the Collateral Agent, the Posting Agent or any Lender (which term shall
include each Letter of Credit Issuer and the Swingline Lender for purposes
of
Section 5.4 and for the purposes of the definition of Excluded Taxes), as
the case may be, receives an amount equal to the sum it would have received
had
no such deductions or withholdings been made, (ii) the Borrower or such
Guarantor or the Administrative Agent (or, in the case of the Posting Facility,
the Posting Agent) shall make such deductions or withholdings and (iii) the
Borrower or such Guarantor or the Administrative Agent (or, in the case
of the
Posting Facility, the Posting Agent) shall timely pay the full amount deducted
or withheld to the relevant Governmental Authority within the time allowed
and
in accordance with Applicable Law. Whenever any Indemnified Taxes are
payable by the Borrower or such Guarantor, as promptly as possible thereafter,
the Borrower or Guarantor shall send to the Administrative Agent (or, in
the
case of the Posting Facility, the Posting Agent) for its own account or
for the
account of such Lender, as the case may be, a certified copy of an original
official receipt (or other evidence acceptable to such Lender, acting
reasonably) received by the Borrower or such Guarantor showing payment
thereof.
(b) The
Borrower shall timely pay and shall indemnify and hold harmless the
Administrative Agent, the Posting Agent, the Collateral Agent and each
Lender
with regard to any Other Taxes (whether or not such Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental
Authority).
(c) The
Borrower shall indemnify and hold harmless the Administrative Agent, the
Posting
Agent, the Collateral Agent and each Lender within fifteen Business Days
after
written demand therefor, for the full amount of any Indemnified Taxes imposed
on
the Administrative Agent, the Posting Agent, the Collateral Agent or such
Lender
as the case may be, on or with respect to any payment by or on account
of any
obligation of the Borrower or any Guarantor hereunder or under any other
Credit
Document (including Indemnified Taxes imposed or asserted on or attributable
to
amounts payable under this Section 5.4) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate setting forth reasonable detail as to the
amount of such payment or liability delivered to the Borrower by a Lender,
the
Administrative Agent, the Posting Agent or the Collateral Agent (as applicable)
on its own behalf or on behalf of a Lender shall be conclusive absent manifest
error.
(d) Any
Non-U.S. Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower
is
resident for tax purposes, or under
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any
treaty to which such jurisdiction is a party, with respect to payments
hereunder
or under any other Credit Document shall, to the extent it is legally able
to do
so, deliver to the Borrower (with a copy to the Administrative Agent (or,
in the
case of the Posting Facility, the Posting Agent)), at the time or times
prescribed by Applicable Law or reasonably requested by the Borrower or
the
Administrative Agent (or, in the case of the Posting Facility, the Posting
Agent), such properly completed and executed documentation prescribed by
Applicable Law as will permit such payments to be made without withholding
or at
a reduced rate of withholding. A Lender’s obligation under the prior
sentence shall apply only if the Borrower or the Administrative Agent has
made a
request for such documentation. In addition, any Lender, if requested
by the Borrower or the Administrative Agent (or, in the case of the Posting
Facility, the Posting Agent), shall deliver such other documentation prescribed
by Applicable Law or reasonably requested by the Borrower or the Administrative
Agent (or, in the case of the Posting Facility, the Posting Agent) as will
enable the Borrower or the Administrative Agent (or, in the case of the
Posting
Facility, the Posting Agent) to determine whether or not such Lender is
subject
to backup withholding or information reporting requirements.
(e) Each
Non-U.S. Lender with respect to any Loan or Posting Advance made to the
Borrower
shall, to the extent it is legally entitled to do so:
(i) deliver
to the Borrower and the Administrative Agent (or, in the case of the Posting
Facility, the Posting Agent), prior to the date on which the first payment
to
the Non-U.S. Lender is due hereunder, two copies of (x) in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, United States Internal Revenue Service Form W-8BEN (together
with a certificate substantially in the form of Exhibit Q representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Borrower, any interest payment
received by such non-U.S. Lender under this Agreement or any other Credit
Document is not effectively connected with the conduct of a trade or business
in
the United States and is not a controlled foreign corporation related to
the
Borrower (within the meaning of Section 864(d)(4) of the Code)), (y)
Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the
Borrower under this Agreement or (z) if a Non-U.S. Lender does not act or
ceases to act for its own account with respect to any portion of anysums
paid or
payable to such Lender under any of the Credit Documents (for example,
in the
case of a typical participation or where Non-U.S. Lender is a pass through
entity) Internal Revenue Service Form W-8IMY and all necessary attachments
(including the forms described in clauses (x) and (y) above, as
required); and
(ii) deliver
to the Borrower and the Administrative Agent (or, in the case of the Posting
Facility, the Posting Agent) two further copies of any such form or
certification (or any applicable successor form) on or before the date
that any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered
by
it to the Borrower.
If
in any such case any Change in Law has occurred prior to the date on which
any
such delivery would otherwise be required that renders any such form
inapplicable or would prevent such Non-U.S. Lender from duly completing
and
delivering any such form with respect to it, such Non-U.S. Lender shall
promptly
so advise the Borrower and the Administrative Agent (or, in the case of
the
Posting Facility, the Posting Agent).
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(f) If
any Lender, the Administrative Agent, the Posting Agent or the Collateral
Agent,
as applicable, determines, in its sole discretion, that it had received
and
retained a refund of an Indemnified Tax (including an Other Tax) for which
a
payment has been made by the Borrower pursuant to this Agreement, which
refund
in the good faith judgment of such Lender, the Administrative Agent, the
Posting
Agent or the Collateral Agent, as the case may be, is attributable to such
payment made by the Borrower, then the Lender, the Administrative Agent,
the
Posting Agent or the Collateral Agent, as the case may be, shall reimburse
the
Borrower for such amount (net of all out-of-pocket expenses of such Lender,
the
Administrative Agent, the Posting Agent or the Collateral Agent, as the
case may
be, and without interest other than any interest received thereon from
the
relevant Governmental Authority with respect to such refund) as the Lender,
Administrative Agent, the Posting Agent or the Collateral Agent, as the
case may
be, determines in its sole discretion to be the proportion of the refund
as will
leave it, after such reimbursement, in no better or worse position (taking
into
account expenses or any taxes imposed on the refund) than it would have
been in
if the payment had not been required; provided that the Borrower, upon
the request of the Lender, the Administrative Agent, the Posting Agent
or the
Collateral Agent, agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Lender, the Administrative Agent, the Posting
Agent or the Collateral Agent in the event the Lender, the Administrative
Agent,
the Posting Agent or the Collateral Agent is required to repay such refund
to
such Governmental Authority. A Lender, the Administrative Agent, the
Posting Agent or the Collateral Agent shall claim any refund that it determines
is available to it, unless it concludes in its sole discretion that it
would be
adversely affected by making such a claim. Neither the Lender, the
Administrative Agent, the Posting Agent nor the Collateral Agent shall
be
obliged to disclose any information regarding its tax affairs or computations
to
any Credit Party in connection with this clause (f) or any other
provision of this Section 5.4.
(g) If
the Borrower determines that a reasonable basis exists for contesting a
Tax,
each Lender or Agent, as the case may be, shall use reasonable efforts
to
cooperate with the Borrower as the Borrower may reasonably request in
challenging such Tax. Subject to the provisions of Section
2.12, each Lender and Agent agrees to use reasonable efforts to cooperate
with the Borrower as the Borrower may reasonably request to minimize any
amount
payable by the Borrower or any Guarantor pursuant to this Section
5.4. The Borrower shall indemnify and hold each Lender and Agent
harmless against any out-of-pocket expenses incurred by such Person in
connection with any request made by the Borrower pursuant to this Section
5.4(g). Nothing in this Section 5.4(g) shall obligate any
Lender or Agent to take any action that such Person, in its sole judgment,
determines may result in a material detriment to such Person.
(h) Each
Lender and Agent with respect to any Loan or Posting Advance made to the
Borrower that is a United States person under Section 7701(a)(30) of the
Code
(each, a “U.S. Lender”) shall deliver to the Borrower and the
Administrative Agent (or, in the case of the Posting Facility, the Posting
Agent) two United States Internal Revenue Service Forms W-9 (or substitute
or
successor form), properly completed and duly executed, certifying that
such
Lender or Agent is exempt from United States backup withholding (i) on
or prior
to the Closing Date (or on or prior to the date it becomes a party to this
Agreement), (ii) on or before the date that such form expires or becomes
obsolete, (iii) after the occurrence of a change in the Agent’s or Lender’s
circumstances requiring a change in the most recent form previously delivered
by
it to the Borrower and the Administrative Agent (or, in the case of the
Posting
Facility, the Posting Agent) and (iv) from time to time thereafter if reasonably
requested by the Borrower or the Administrative Agent (or, in the case
of the
Posting Facility, the Posting Agent).
(i) The
agreements in this Section 5.4 shall survive the termination of this
Agreement and the payment of the Loans, Posting Advances and all other
amounts
payable hereunder.
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5.5. Computations
of Interest and Fees
.
(a) Except
as provided in the next succeeding sentence, interest on LIBOR Loans, Posting
Advances and ABR Loans shall be calculated on the basis of a 360-day year
for
the actual days elapsed. Interest on ABR Loans in respect of which
the rate of interest is calculated on the basis of the Administrative Agent’s
prime rate and interest on overdue interest shall be calculated on the
basis of
a 365- (or 366-, as the case may be) day year for the actual days
elapsed.
(b) Fees
(other than the Maintenance Fee) and the average daily Stated Amount of
Letters
of Credit shall be calculated on the basis of a 360-day year for the actual
days
elapsed.
(c) The
Maintenance Fee shall be calculated by the Posting Calculation Agent in
the
manner set forth in the Posting Facility Fee Letter.
(d) Whenever
the Posting Calculation Agent makes a determination or calculation under
this
Agreement or in respect of the transactions contemplated hereby, the Posting
Calculation Agent shall make such determination or calculation (i) in good
faith, (ii) in a commercially reasonable manner, (iii) with respect to
calculations or determinations involving transaction valuations, consistent
with
its practices and procedures for valuing similar transactions and (iv)
in
consultation with the Borrower. The Borrower may, acting in good
faith, dispute a calculation or determination by the Posting Calculation
Agent
which it believes is inaccurate (provided that the Borrower shall make
any determination or calculation relating to such dispute in a commercially
reasonable manner). In the event of such a dispute, the Borrower and
the Posting Calculation Agent shall first endeavor to resolve such
dispute. If the Borrower and the Posting Calculation Agent are unable
to resolve such dispute within five Business Days, the Borrower and Posting
Calculation Agent shall mutually select a dealer (with respect to commodity
related calculations) or a financial institution (with respect to financial
calculations) that customarily acts as a calculation agent for similar
transactions to act as Posting Calculation Agent with respect to the issue
in
dispute. If the Borrower and the Posting Calculation Agent cannot
agree on a dealer or financial institution within one Business Day, then
each
shall appoint a dealer or financial institution and the appointed dealers
or
financial institutions shall together appoint a third dealer or financial
institution as Posting Calculation Agent for making the relevant determination,
and the decision of such Person shall be final and binding upon the
parties. The dealers or financial institutions selected by a party
shall not be parties to this Agreement or Affiliates of a party to this
Agreement. It is understood and agreed that, for the avoidance of
doubt, the Disclaimer for Xxxx-to-Market Calculation (set forth in
Exhibit O hereto) does not limit the Borrower’s rights under this
Section 5.5(d).
5.6. Limit
on Rate of Interest
.
(a) No
Payment Shall Exceed Lawful Rate. Notwithstanding any other term
of this Agreement, the Borrower shall not be obligated to pay any interest
or
other amounts under or in connection with this Agreement or otherwise in
respect
of the Obligations in excess of the amount or rate permitted under or consistent
with any applicable law, rule or regulation.
(b) Payment
at Highest Lawful Rate. If the Borrower is not obliged to make a
payment that it would otherwise be required to make, as a result of Section
5.6(a), the Borrower shall make such payment to the maximum extent permitted
by or consistent with applicable laws, rules and regulations.
(c) Adjustment
if Any Payment Exceeds Lawful Rate. If any provision of this
Agreement or any of the other Credit Documents would obligate the Borrower
to
make any payment of interest or other amount payable to any Lender in an
amount
or calculated at a rate that would be prohib
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ited
by any Applicable Law, then notwithstanding such provision, such amount
or rate
shall be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so prohibited
by
Applicable Law, such adjustment to be effected, to the extent necessary,
by
reducing the amount or rate of interest required to be paid by the Borrower
to
the affected Lender under Section 2.8.
(d) Spreading. In
determining whether the interest hereunder is in excess of the amount or
rate
permitted under or consistent with any Applicable Law, the total amount
of
interest shall be spread throughout the entire term of this Agreement until
its
payment in full.
(e) Notwithstanding
the foregoing, and after giving effect to all adjustments contemplated
thereby,
if any Lender shall have received from the Borrower an amount in excess
of the
maximum permitted by any Applicable Law, then the Borrower shall be entitled,
by
notice in writing to the Administrative Agent to obtain reimbursement from
that
Lender in an amount equal to such excess, and pending such reimbursement,
such
amount shall be deemed to be an amount payable by that Lender to the
Borrower.
SECTION
6. Conditions
Precedent to Initial Borrowing
.
The
initial Borrowing under this Agreement is subject to the satisfaction of
the
following conditions precedent, except as otherwise agreed between the
Borrower
and the Administrative Agent.
6.1. Credit
Documents
. The
Administrative Agent (or, in the case of clause (f), the Posting Agent)
shall have received:
(a) this
Agreement, executed and delivered by a duly authorized officer of US Holdings,
the Borrower, each Agent, each Lender and each Letter of Credit
Issuer;
(b) the
Guarantee, executed and delivered by a duly authorized officer of each
Guarantor
as of the Closing Date;
(c) the
Pledge Agreement, executed and delivered by a duly authorized officer of
each
pledgor party thereto as of the Closing Date;
(d) the
Security Agreement, executed and delivered by a duly authorized officer
of each
grantor party thereto as of the Closing Date;
(e) the
Intercreditor Agreement, executed and delivered by a duly authorized officer
of
the Borrower, the Collateral Agent and any Hedge Bank party to a Secured
Commodity Hedging Agreement as of the Closing Date; and
(f) the
Posting Facility Fee Letter, executed and delivered by a duly authorized
officer
of the Borrower, Xxxxxxx Sachs Credit Partners L.P. and X. Xxxx &
Company.
6.2. Collateral
.
(a) All
outstanding Stock of the Borrower directly owned by US Holdings and all
Stock of
each Subsidiary of the Borrower directly owned by the Borrower or any Subsidiary
Guarantor, in each case, as of the Closing Date, shall have been pledged
pursuant to the Pledge Agreement (except that such Credit Parties shall
not be
required to pledge any Excluded Stock and Stock Equivalents) and
the
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Collateral
Agent shall have received all certificates, if any, representing such securities
pledged under the Pledge Agreement, accompanied by instruments of transfer
and
undated stock powers endorsed in blank.
(b) All
Indebtedness of the Borrower and each Subsidiary of the Borrower that is
owing
to the Borrower or a Subsidiary Guarantor shall, to the extent exceeding
$10,000,000 in aggregate principal amount, be evidenced by one or more
global
promissory notes and shall have been pledged pursuant to the Pledge Agreement,
and the Collateral Agent shall have received all such promissory notes,
together
with instruments of transfer with respect thereto endorsed in
blank.
(c) All
documents and instruments, including Uniform Commercial Code or other applicable
personal property and financing statements, reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by any Security Document to be executed on the Closing
Date and perfect such Liens to the extent required by, and with the priority
required by, such Security Document shall have been delivered to the Collateral
Agent in proper form for filing, registration or recording and none of
the
Collateral shall be subject to any other pledges, security interests or
mortgages, except for Liens permitted hereunder.
(d) US
Holdings and the Borrower shall deliver to the Collateral Agent a completed
Perfection Certificate, executed and delivered by an Authorized Officer
of US
Holdings and the Borrower, together with all attachments contemplated
thereby.
(e) The
Guarantee shall be in full force and effect.
(f) (2) With
respect to each Closing Date Mortgaged Property, a Mortgage, executed and
delivered by a duly authorized officer of each mortgagor party thereto
as of the
Closing Date;
(ii) All
documents and instruments, including Uniform Commercial Code or other applicable
fixture security financing statements, reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens intended
to be
created by any such Mortgage and perfect such Liens to the extent required
by,
and with the priority required by, such Mortgage shall have been delivered
to
the Collateral Agent in proper form for filing, registration or recording
and
none of Closing Date Mortgaged Property shall be subject to any other pledges,
secured interests or mortgages, except Liens expressly permitted by Section
10.2
or otherwise consented to by the Collateral Agent;
(iii) The
Collateral Agent shall have received (A) a policy or policies of title
insurance
(or a marked up commitment for title insurance having the same effect),
issued
by the Title Company insuring the Lien of each such Mortgage as a valid
Lien on
the Mortgaged Property described therein, free of any other Liens except
as
permitted by Section 10.2 or consented to by the Collateral Agent,
together with such endorsements and reinsurance as the Collateral Agent
may
reasonably request having the effect of a valid, issued and binding title
insurance policy, and (B) evidence reasonably acceptable to the Collateral
Agent
of payment of all title insurance premiums, search and examination charges,
escrow charges and related charges, fees, costs and expenses required for
the
issuance of the title insurance policies referred to above;
(iv) Written
opinions of legal counsel in the states in which each such Closing Date
Mortgaged Property is located in form and substance reasonably acceptable
to the
Collateral Agent; and
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(v) With
respect to each Closing Date Mortgaged Property, a completed Federal Emergency
Management Agency Standard Flood Hazard Determination, subject, however,
to the
provisions of Section 9.14(d).
Notwithstanding
anything to the contrary herein, with respect to any Collateral (other
than
Collateral consisting of the Stock of the Borrower and the Stock of any
Domestic
Subsidiary required to be pledged pursuant to Section 6.2(a)), the
security interest in which may not be perfected by the filing of a Uniform
Commercial Code financing statement, if the granting and/or perfection
of the
Collateral Agent’s security interest in such Collateral may not be accomplished
on or prior to the Closing Date without undue burden or expense and without
the
taking of any action that goes beyond commercial reasonableness, then the
delivery of documents and instruments for granting and/or perfection of
such
security interest shall not constitute a condition precedent to the initial
Credit Event to occur on the Closing Date. To the extent that any
such security interest is not so granted and/or perfected on or prior to
the
Closing Date, then US Holdings and the Borrower each agrees to deliver
or cause
to be delivered such documents and instruments, and take or cause to be
taken
such other actions as may be required to grant and perfect such security
interests, on or prior to the date that is 120 days (or 180 days in the
case of
Collateral consisting of mining properties) after the Closing Date or such
longer period of time as may be agreed to by the Collateral Agent in its
sole
discretion.
6.3. Legal
Opinions
. The
Administrative Agent shall have received the executed legal opinions of
(a) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special New York counsel to US
Holdings and the Borrower, substantially in the form of Exhibit H-1,
(b) Xxxxxx & Xxxxxx LLP, special Texas counsel to US Holdings and the
Borrower, substantially in the form of Exhibit H-2, (c) Hunton &
Xxxxxxxx LLP, special Texas regulatory counsel to US Holdings and
the Borrower,
substantially in the form of Exhibit H-3 and (d) Xxxxxxxxx & Xxxxxxx
LLP, special FERC and NRC counsel regulatory counsel to US Holdings and
the
Borrower, substantially in the form of Exhibit H-4. US
Holdings, the Borrower, the other Credit Parties and the Administrative
Agent
hereby instruct such counsel to deliver such legal opinions.
6.4. Refinancing
. Concurrently
with the initial Borrowing hereunder, the Refinancing shall have been
consummated.
6.5. Equity
Investments
. The
Equity Contribution, which, to the extent constituting Stock or Stock
Equivalents of the Parent other than common Stock, shall be on terms and
conditions and pursuant to documentation reasonably satisfactory to the
Joint
Lead Arrangers and Bookrunners to the extent material to the interests
of the
Lenders, in an amount not less than the Minimum Equity Amount shall have
been
made, or substantially simultaneously with the initial Credit Event hereunder,
shall be made.
6.6. Closing
Certificates
. The
Administrative Agent shall have received a certificate of the Credit Parties,
dated the Closing Date, substantially in the form of Exhibit I, with
appropriate insertions, executed by an Authorized Officer of each Credit
Party,
and attaching the documents referred to in Section 6.7.
6.7. Authorization
of Proceedings of Each Credit Party
. The
Administrative Agent shall have received (a) a copy of the resolutions,
in form
and substance reasonably satisfactory to the Administrative Agent, of the
board
of directors, other managers or general partner of each Credit Party (or
a duly
authorized committee thereof) authorizing (i) the execution, delivery and
performance of the Credit Documents (and any agreements relating thereto)
to
which it is a party and (ii) in the case of the Borrower, the extensions
of
credit contemplated hereunder and (b) true and complete copies of the
Organizational Documents of each Credit Party as of the Closing
Date.
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6.8. Fees
. The
Agents shall have received the fees in the amounts previously agreed in
writing
by the Agents to be received on the Closing Date and all expenses (including
the
reasonable fees, disbursements and other charges of counsel) payable by
the
Credit Parties for which invoices have been presented prior to the Closing
Date
shall have been paid.
6.9. Representations
and Warranties
. On
the Closing Date, (a) there shall be no breach of any representation made
by the Parent in the Acquisition Agreement that is (i) material to the
interests of the Lenders and (ii) the breach of which would give Holdings
and/or Merger Sub the right to terminate their respective obligations
thereunder, and (b) the representations and warranties made by the Credit
Parties in Section 8.1(a), Section 8.2, Section 8.5 and
Section 8.7, as they relate to the Credit Parties
at such time, shall be
true and correct in all material respects.
6.10. Acquisition
Agreement
. The
Administrative Agent shall have received a fully executed or conformed
copy of
the Acquisition Agreement which shall be in full force and effect.
6.11. Solvency
Certificate
. On
the Closing Date, the Administrative Agent shall have received a certificate
from an Authorized Officer of the Borrower to the effect that after giving
effect to the consummation of the Transactions, the Borrower on a consolidated
basis with its Subsidiaries is Solvent.
6.12. Merger
. Concurrently
with the initial Credit Event hereunder, the Merger shall have been consummated
in accordance with the terms of the Acquisition Agreement, without giving
effect
to any modifications, amendments or express waivers thereto that are materially
adverse to the Lenders (including, without limitation, the definition of,
and
representations, warranties and conditions relating to, the absence of
any
“Company Material Adverse Effect” therein) without the reasonable consent of the
Joint Lead Arrangers and Bookrunners.
6.13. Pro
Forma Financial Statements
. The
Administrative Agent shall have received to Pro Forma Financial
Statements.
6.14. Patriot
Act
. The
Joint Lead Arrangers and Bookrunners and the Posting Lead Arranger and
Bookrunner shall have received such documentation and information as is
reasonably requested in writing at least 10 days prior to the Closing Date
by
the Administrative Agent about US Holdings, the Borrower and the Subsidiary
Guarantors mutually agreed to be required by U.S. regulatory authorities
under
applicable “know your customer” and anti-money laundering rules and regulations,
including, without limitation, the Patriot Act.
6.15. Insurance
. The
Administrative Agent shall have received a copy of, or a certificate as
to
coverage under, the insurance policies required by Section 9.3 and the
applicable provisions of the Security Documents, each of which shall be
endorsed
or otherwise amended to name the Collateral Agent, on behalf of the Secured
Partners, as “loss payee” and “mortgagee” under any casualty insurance policies,
and the Secured Parties, as “additional insureds”, under any liability insurance
policies.
SECTION
7. Conditions
Precedent to All Credit Events
.
The
agreement of each Lender to make any Loan or Posting Advance requested
to be
made by it on any date (excluding Mandatory Borrowings and Revolving Credit
Loans required to be made by the Revolving Credit Lenders in respect of
Unpaid
Drawings pursuant to Section 3.4), and the obligation of any Letter of
Credit Issuer to issue Letters of Credit on any date, is subject to the
satisfaction of the following conditions precedent:
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7.1. No
Default; Representations and Warranties
. At
the time of each Credit Event and also after giving effect thereto (other
than
any Credit Event on the Closing Date) (a) no Default or Event of Default
shall have occurred and be continuing and (b) all representations and warranties
made by any Credit Party contained herein or in the other Credit Documents
shall
be true and correct in all material respects with the same effect as though
such
representations and warranties had been made on and as of the date of such
Credit Event (except where such representations and warranties expressly
relate
to an earlier date, in which case such representations and warranties shall
have
been true and correct in all material respects as of such earlier
date).
7.2. Notice
of Borrowing
.
(a) Prior
to the making of each Term Loan, the Administrative Agent shall have received
a
Notice of Borrowing (whether in writing or by telephone) meeting the
requirements of Section 2.3, which Notice of Borrowing, in the case of
any borrowing of Delayed Draw Term Loans (other than the Borrowing on the
Closing Date) shall contain a description setting forth the categories
and the
amounts of expenditures under such categories under the New Build Program
that
are to be funded with the proceeds of such Delayed Draw Term Loans.
(b) Prior
to the making of each Deposit L/C Loan or Incremental Deposit L/C Loan,
the
Administrative Agent shall have received a Notice of Borrowing (whether
in
writing or by telephone) meeting the requirements of Section
2.3.
(c) Prior
to the making of each Revolving Credit Loan (other than any Revolving Credit
Loan made pursuant to Section 3.4(a)) and each Swingline Loan (excluding
Mandatory Borrowings), the Administrative Agent shall have received a Notice
of
Borrowing (whether in writing or by telephone) meeting the requirements
of
Section 2.3.
(d) Prior
to the issuance of each Revolving Letter of Credit, the Administrative
Agent and
the Revolving Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 3.2(a).
(e) Prior
to the issuance of each Deposit Letter of Credit, the Administrative Agent
and
the Deposit Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 3.2(b).
The
acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders
that all
the applicable conditions specified in Section 7 above have been
satisfied as of that time.
SECTION
8. Representations,
Warranties and Agreements
.
In
order to induce the Lenders and the Letter of Credit Issuers to enter into
this
Agreement, to make the Loans, to make Posting Advances and issue or participate
in Letters of Credit as provided for herein, each of US Holdings and the
Borrower makes (on the Closing Date and on each other date as required
or
otherwise set forth in this Agreement) the following representations and
warranties to, and agreements with, the Lenders and the Letter of Credit
Issuers, all of which shall survive the execution and delivery of this
Agreement, the making of the Loans, the making of the Posting Advances
and the
issuance of the Letters of Credit:
8.1. Corporate
Status; Compliance with Laws
. Each
of US Holdings, the Borrower and each Material Subsidiary of the Borrower
that
is a Restricted Subsidiary (a) is a duly organized and
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validly
existing corporation or other entity in good standing (as applicable) under
the
laws of the jurisdiction of its organization and has the corporate or other
organizational power and authority to own its property and assets and to
transact the business in which it is engaged, (b) has duly qualified and is
authorized to do business and is in good standing (if applicable) in all
jurisdictions where it is required to be so qualified, except where the
failure
to be so qualified could not reasonably be expected to result in a Material
Adverse Effect and (c) is in compliance with all Applicable Laws, except
to the
extent that the failure to be in compliance could not reasonably be expected
to
result in a Material Adverse Effect.
8.2. Corporate
Power and Authority
. Each
Credit Party has the corporate or other organizational power and authority
to
execute, deliver and carry out the terms and provisions of the Credit Documents
to which it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and performance
of
the Credit Documents to which it is a party. Each Credit Party has
duly executed and delivered each Credit Document to which it is a party
and each
such Credit Document constitutes the legal, valid and binding obligation
of such
Credit Party enforceable in accordance with its terms, subject to the effects
of
bankruptcy, insolvency, fraudulent conveyance, reorganization and other
similar
laws relating to or affecting creditors’ rights generally and general principles
of equity (whether considered in a proceeding in equity or law).
8.3. No
Violation
. Neither
the execution, delivery or performance by any Credit Party of the Credit
Documents to which it is a party nor the compliance with the terms and
provisions thereof nor the consummation of the Merger and the other transactions
contemplated hereby and thereby will (a) contravene any applicable
provision of any material Applicable Law (including material Environmental
Laws), (b) result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation
or
imposition of (or the obligation to create or impose) any Lien upon any
of the
property or assets of US Holdings, the Borrower or any Restricted Subsidiary
(other than Liens created under the Credit Documents or Liens subject to
the
Intercreditor Agreement) pursuant to the terms of any material indenture
(including the Existing Notes Indentures), loan agreement, lease agreement,
mortgage, deed of trust or other material agreement or instrument to which
US
Holdings, the Borrower or any Restricted Subsidiary is a party or by which
it or
any of its property or assets is bound (any such term, covenant, condition
or
provision, a “Contractual Requirement”) other than any such
breach, default or Lien that could not reasonably be expected to result
in a
Material Adverse Effect, or (c) violate any provision of the Organizational
Documents of US Holdings, the Borrower or any Restricted
Subsidiary.
8.4. Litigation
. Except
as set forth on Schedule 8.4, there are no actions, suits or proceedings
(including Environmental Claims) pending or, to the knowledge of the Borrower,
threatened with respect to US Holdings, the Borrower or any of the Restricted
Subsidiaries that could reasonably be expected to result in a Material
Adverse
Effect.
8.5. Margin
Regulations
. Neither
the making of any Loan or Posting Advance hereunder nor the use of the
proceeds
thereof will violate the provisions of Regulation T, U or X of the
Board.
8.6. Governmental
Approvals
. The
execution, delivery and performance of the Merger Agreement or any Credit
Document does not require any consent or approval of, registration or filing
with, or other action by, any Governmental Authority, except for (i) such
as have been obtained or made and are in full force and effect, (ii) filings
and
recordings in respect of the Liens created pursuant to the Security Documents
and (iii) such licenses, approvals, authorizations or consents the failure
of
which to obtain or make could not reasonably be expected to have a Material
Adverse Effect and (iv) the PUCT filing reporting the Merger and actions
regarding the commitments made to the PUCT and state legislature of the
State of
Texas relating to the Merger.
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8.7. Investment
Company Act
. None
of the Credit Parties is an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
8.8. True
and Complete Disclosure
.
(a) None
of the written factual information and written data (taken as a whole)
heretofore or contemporaneously furnished by or on behalf of US Holdings,
the
Borrower, any of the Subsidiaries of the Borrower or any of their respective
authorized representatives to the Administrative Agent, the Posting Agent,
any
Joint Lead Arranger and Bookrunner, the Posting Lead Arranger and Bookrunner
and/or any Lender on or before the Closing Date (including all such information
and data contained in the Credit Documents) for purposes of or in connection
with this Agreement or any transaction contemplated herein contained any
untrue
statement of any material fact or omitted to state any material fact necessary
to make such information and data (taken as a whole) not materially misleading
at such time in light of the circumstances under which such information
or data
was furnished, it being understood and agreed that for purposes of this
Section 8.8(a), such factual information and data shall not include
projections or estimates (including financial estimates, forecasts and
other
forward-looking information) and information of a general economic or general
industry nature.
(b) The
projections (including financial estimates, forecasts and other forward-looking
information) contained in the information and data referred to in Section
8.8(a) were prepared in good faith based upon estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Agents and Lenders that such projections as to future events are
not to
be viewed as facts and that actual results during the period or periods
covered
by any such projections may differ from the projected results and such
differences may be material.
8.9. Financial
Condition; Financial Statements
. The
Historical Financial Statements present fairly in all material respects
the
consolidated financial position of the Borrower and its consolidated
Subsidiaries at the respective dates of said information, statements and
results
of operations for the respective periods covered thereby subject, in the
case of
the unaudited financial information, to changes resulting from audit, normal
year-end audit adjustments and the absence of footnotes. The
unaudited pro forma consolidated balance sheet of US Holdings and its
consolidated Subsidiaries as at June 30, 2007 (including the notes thereto)
(the
“Pro Forma Balance Sheet”) and the unaudited pro forma
consolidated statement of operations of US Holdings and its consolidated
Subsidiaries for the 12-month period ending on such date (together with
the Pro
Forma Balance Sheet, the “Pro Forma Financial Statements”),
copies of which have heretofore been furnished to the Administrative Agent,
have
been prepared based on the historical financial statements of US Holdings
and
have been prepared in good faith, based on assumptions believed by US Holdings
to be reasonable as of the date of delivery thereof, and, subject to the
qualifications and limitations contained in the notes attached thereto,
present
fairly in all material respects on a Pro Forma Basis the estimated financial
position of US Holdings and its consolidated Subsidiaries as at June 30,
2007
and their estimated results of operations for the period covered
thereby. The financial statements referred to in this
Section 8.9 have been prepared in accordance with GAAP consistently
applied except to the extent provided in the notes to said financial
statements. There has been no Material Adverse Effect since the
Closing Date.
8.10. Tax
Matters
. Except
where the failure of which could not be reasonably expected to have a Material
Adverse Effect, (a) each of US Holdings, the Borrower and each of the Restricted
Subsidiaries has filed all federal income Tax returns and all other Tax
returns,
domestic and foreign, required to be filed by it and has paid all material
Taxes
payable by it that have become due (whether or not shown on such Tax return),
other than those (i) not yet delinquent or (ii) contested in good
faith as to which adequate reserves have been provided to the extent required
by
law and in accordance
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with
GAAP, (b) each of US Holdings, the Borrower and each of the Restricted
Subsidiaries has provided adequate reserves in accordance with GAAP for
the
payment of, all federal, state, provincial and foreign Taxes not yet due
and
payable and (c) each of US Holdings, the Borrower and each of the Restricted
Subsidiaries has satisfied all of its Tax withholding obligations.
8.11. Compliance
with ERISA
.
(a) Each
Employee Benefit Plan is in compliance with ERISA, the Code and any Applicable
Law; no Reportable Event has occurred (or is reasonably likely to occur)
with
respect to any Plan; no Multiemployer Plan is insolvent or in reorganization
(or
is reasonably likely to be insolvent or in reorganization), and no written
notice of any such insolvency or reorganization has been given to the Borrower
or any ERISA Affiliate; no Plan has an accumulated or waived funding deficiency
(or is reasonably likely to have such a deficiency); on and after the
effectiveness of the Pension Act, each Plan has satisfied the minimum funding
standards (within the meaning of Section 412 of the Code or Section 302
of
ERISA) applicable to such Plan, and there has been no determination that
any
such Plan is, or is expected to be, in “at risk” status (within the meaning of
Section 4010(d)(2) of ERISA); none of the Borrower or any ERISA Affiliate
has
incurred (or is reasonably likely to incur) any liability to or on account
of a
Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201
or 4204 of ERISA or Section 4971 or 4975 of the Code; no proceedings have
been instituted (or are reasonably likely to be instituted) to terminate
or to
reorganize any Plan or to appoint a trustee to administer any Plan, and
no
written notice of any such proceedings has been given to the Borrower or
any
ERISA Affiliate; and no Lien imposed under the Code or ERISA on the assets
of
the Borrower or any ERISA Affiliate exists (or is reasonably likely to
exist)
nor has the Borrower or any ERISA Affiliate been notified in writing that
such a
Lien will be imposed on the assets of the Parent, US Holdings, the Borrower
or
any ERISA Affiliate on account of any Plan, except to the extent that a
breach
of any of the representations, warranties or agreements in this Section
8.11(a) would not result, individually or in the aggregate, in an amount of
liability that would be reasonably likely to have a Material Adverse
Effect. No Plan has an Unfunded Current Liability that would,
individually or when taken together with any other liabilities referenced
in
this Section 8.11(a), be reasonably likely to have a Material Adverse
Effect. With respect to Plans that are Multiemployer Plans, the
representations and warranties in this Section 8.11(a), other than any
made with respect to (i) liability under Section 4201 or 4204 of ERISA or
(ii) liability for termination or reorganization of such Multiemployer
Plans
under ERISA, are made to the best knowledge of the Borrower.
(b) All
Foreign Plans are in compliance with, and have been established, administered
and operated in accordance with, the terms of such Foreign Plans and Applicable
Law, except for any failure to so comply, establish, administer or operate
the
Foreign Plans as would not reasonably be expected to have a Material Adverse
Effect. All contributions or other payments which are due with
respect to each Foreign Plan have been made in full and there are no funding
deficiencies thereunder, except to the extent any such events would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.12. Subsidiaries
. Schedule
8.12 lists each Subsidiary of US Holdings (and the direct and indirect
ownership interest of US Holdings therein), in each case existing on the
Closing
Date (after giving effect to the Transactions). Each Material
Subsidiary as of the Closing Date has been so designated on Schedule
8.12.
8.13. Intellectual
Property
. Each
of US Holdings, the Borrower and the Restricted Subsidiaries has good and
marketable title to, or a valid license or right to use, all patents,
trademarks, servicemarks, trade names, copyrights and all applications
therefor
and licenses thereof, and all other intellectual property rights, free
and clear
of all Liens (other than Liens permitted by Section 10.2), that
are
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necessary
for the operation of their respective businesses as currently conducted,
except
where the failure to have any such title, license or rights could not reasonably
be expected to have a Material Adverse Effect.
8.14. Environmental
Laws
. Except
as could not reasonably be expected to have a Material Adverse
Effect: (a) US Holdings, the Borrower and the Restricted Subsidiaries
and all Real Estate are in compliance with all Environmental Laws; (b)
US
Holdings, the Borrower and the Restricted Subsidiaries have, and have timely
applied for renewal of, all permits under Environmental Law to construct
and
operate their facilities as currently constructed; (c) except as set forth
on
Schedule 8.4, neither US Holdings, the Borrower nor any Restricted
Subsidiary is subject to any pending or, to the knowledge of the Borrower,
threatened Environmental Claim or any other liability under any Environmental
Law including any such Environmental Claim or, to the knowledge of the
Borrower,
any other liability under Environmental Law related to, or resulting from
the
business or operations of any predecessor in interest of any of them; (d);
neither US Holdings, the Borrower nor any Restricted Subsidiary is conducting
or
financing or is required to conduct or finance, any investigation, removal,
remedial or other corrective action pursuant to any Environmental Law at
any
location; (e) to the knowledge of the Borrower, no Hazardous Materials have
been released into the environment at, on or under any Real Estate currently
owned or leased by US Holdings, the Borrower or any Restricted Subsidiary,
(f)
neither the US Holdings, the Borrower nor any Restricted Subsidiary has
treated,
stored, transported, released or disposed or arranged for disposal or transport
for disposal of Hazardous Materials at, on, under or from any currently
or
formerly owned or leased Real Estate and (g) neither US Holdings, the Borrower
nor any Restricted Subsidiary has treated, stored, transported, released
or
disposed or arranged for disposal or transport for disposal of Hazardous
Materials at, on, under or from any currently or, to the knowledge of the
Borrower, formerly owned or leased Real Estate or facility.
8.15. Properties
. Except
as set forth on Schedule 8.15, US Holdings, the Borrower and the
Restricted Subsidiaries have good and indefeasible title to or valid leasehold
or easement interests in all properties that are necessary for the operation
of
their respective businesses as currently conducted, free and clear of all
Liens
(other than any Liens permitted by this Agreement) and except where the
failure
to have such good title could not reasonably be expected to have a Material
Adverse Effect.
8.16. Solvency
. On
the Closing Date, after giving effect to the Transactions, immediately
following
the making of each Loan and Posting Advance on such date and after giving
effect
to the application of the proceeds of such Loans and Posting Advances,
the
Borrower on a consolidated basis with its Subsidiaries will be
Solvent.
SECTION
9. Affirmative
Covenants
.
The
Borrower hereby covenants and agrees that on the Closing Date (immediately
after
giving effect to the Merger) and thereafter, until the Total Commitments
and all
Letters of Credit have terminated (unless such Letters of Credit have been
collateralized on terms and conditions reasonably satisfactory to the applicable
Letter of Credit Issuer following the termination of the Revolving Credit
Commitments or the repayment of the Deposit L/C Loans, as the case may
be) and
the Loans, Posting Advances and Unpaid Drawings, together with interest,
fees
and all other Obligations (other than Hedging Obligations under Secured
Hedging
Agreements and/or Secured Commodity Hedging Agreements, Cash Management
Obligations under Secured Cash Management Agreements or contingent
indemnification obligations for which no claim has been made), are paid
in
full:
9.1. Information
Covenants
. The
Borrower will furnish to the Administrative Agent (which shall promptly
make
such information available to the Posting Agent and the Lenders in
accor
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dance
with its customary practice):
(a) Annual
Financial Statements. As soon as available and in any event on or
before the date on which such financial statements are required to be filed
with
the SEC (after giving effect to any permitted extensions) (or, if such
financial
statements are not required to be filed with the SEC, on or before the
date that
is 90 days after the end of each such fiscal year (or, in the case of financial
statements for the fiscal year ended December 31, 2007, on or before the
date
that is 120 days after the end of such fiscal year)), the consolidated
balance
sheet of the Borrower and its consolidated Subsidiaries and, if different,
the
Borrower and the Restricted Subsidiaries, in each case as at the end of
such
fiscal year, and the related consolidated statements of operations and
cash
flows for such fiscal year, setting forth comparative consolidated figures
for
the preceding fiscal years (or, in lieu of such audited financial statements
of
the Borrower and the Restricted Subsidiaries, a detailed reconciliation,
reflecting such financial information for the Borrower and the Restricted
Subsidiaries, on the one hand, and the Borrower and its consolidated
Subsidiaries, on the other hand), all in reasonable detail and prepared
in
accordance with GAAP, and, in each case, (i) except with respect to any
such
reconciliation, certified by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to
the
scope of audit or as to the status of the Borrower and its consolidated
Subsidiaries as a going concern, together in any event with a certificate
of
such accounting firm stating that in the course of its regular audit of
the
Borrower and its consolidated Subsidiaries, such accounting firm has obtained
no
knowledge of any Event of Default relating to Section 10.9 that has
occurred and is continuing or, if in the opinion of such accounting firm
such an
Event of Default has occurred and is continuing, a statement as to the
nature
thereof, (ii) certified by an Authorized Officer of the Borrower as fairly
presenting in all material respects the financial condition, results of
operations, stockholders’ equity and cash flows of the Borrower and its
consolidated Subsidiaries (or the Borrower and the Restricted Subsidiaries,
as
the case may be) in accordance with GAAP and (iii) accompanied by a Narrative
Report with regard thereto.
(b) Quarterly
Financial Statements. As soon as available and in any event on or
before the date on which such financial statements are required to be filed
with
the SEC (after giving effect to any permitted extensions) with respect
to each
of the first three quarterly accounting periods in each fiscal year of
the
Borrower (or, if such financial statements are not required to be filed
with the
SEC, on or before the date that is 45 days after the end of each such quarterly
accounting period (or, in the case of financial statements for the fiscal
quarters ended September 30, 2007 and March 31, 2008, on or before the date
that is 60 days after the end of such fiscal quarter)), the consolidated
balance
sheets of the Borrower and its consolidated Subsidiaries and, if different,
the
Borrower and the Restricted Subsidiaries, in each case as at the end of
such
quarterly period and the related consolidated statements of operations
for such
quarterly accounting period and for the elapsed portion of the fiscal year
ended
with the last day of such quarterly period, and the related consolidated
statement of cash flows for such quarterly accounting period and for the
elapsed
portion of the fiscal year ended with the last day of such quarterly period,
and
setting forth comparative consolidated figures for the related periods
in the
prior fiscal year or, in the case of such consolidated balance sheet, for
the
last day of the prior fiscal year (or, in lieu of such unaudited financial
statements of the Borrower and the Restricted Subsidiaries, a detailed
reconciliation reflecting such financial information for the Borrower and
the
Restricted Subsidiaries, on the one hand, and the Borrower and its consolidated
Subsidiaries, on the other hand), all of which shall be (i) certified by an
Authorized Officer of the Borrower as fairly presenting in all material
respects
the financial condition, results of operations, stockholders’ equity and cash
flows of the Borrower and its consolidated Subsidiaries (or the Borrower
and the
Restricted Subsidiaries, as the case may be) in accordance with GAAP, subject
to
changes resulting from audit, normal year-end audit adjustments and absence
of
footnotes and (ii) accompanied by a Narrative Report with respect
thereto.
(c) Officer’s
Certificates. At the time of the delivery of the financial
statements provided for in Section 9.1(a) and (b), a certificate
of an Authorized Officer of the Borrower to the effect that no Default
or Event
of Default exists or, if any Default or Event of Default does exist, specifying
the na
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ture
and extent thereof, which certificate shall set forth (i) the calculations
required to establish whether the Borrower and its Restricted Subsidiaries
were
in compliance with the provisions of Section 10.9 as at the end of such
fiscal
year or period, as the case may be (including calculations in reasonable
detail
of any amount added back to Consolidated EBITDA pursuant to clause
(a)(xii), clause (a)(xiii) or clause (iii) of the final
proviso of the definition thereof and any amount excluded from Consolidated
Net
Income pursuant to clause (k) of the definition thereof), (ii) a
specification of any change in the identity of the Restricted Subsidiaries
and
Unrestricted Subsidiaries as at the end of such fiscal year or period,
as the
case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries,
respectively, provided to the Lenders on the Closing Date or the most recent
fiscal year or period, as the case may be, (iii) the then applicable Status
and (iv) the amount of any Pro Forma Adjustment not previously set forth in
a Pro Forma Adjustment Certificate or any change in the amount of a Pro
Forma
Adjustment set forth in any Pro Forma Adjustment Certificate previously
provided
and, in either case, in reasonable detail, the calculations and basis
therefor. At the time of the delivery of the financial statements
provided for in Section 9.1(a), (A) a certificate of an Authorized
Officer of the Borrower setting forth in reasonable detail the Applicable
Amount
and the Applicable Equity Amount as at the end of the fiscal year to which
such
financial statements relate and (B) a certificate of an Authorized Officer
of
the Borrower setting forth the information required pursuant to Section
1 of the
Perfection Certificate or confirming that there has been no change in such
information since the Closing Date or the date of the most recent certificate
delivered pursuant to this clause (c)(B), as the case may
be.
(d) Notice
of Default; Litigation. Promptly after an Authorized Officer of
the Borrower or any Restricted Subsidiary obtains knowledge thereof, notice
of
(i) the occurrence of any event that constitutes a Default or Event of
Default,
which notice shall specify the nature thereof, the period of existence
thereof
and what action the Borrower proposes to take with respect thereto and
(ii) any
litigation, regulatory or governmental proceeding pending against the Borrower
or any Restricted Subsidiary that could reasonably be expected to be determined
adversely and, if so determined, to result in a Material Adverse
Effect.
(e) Environmental
Matters. Promptly after obtaining knowledge of any one or more of
the following environmental matters, unless such environmental matters
known to
the Borrower and the Restricted Subsidiaries would not, individually, or
when
aggregated with all other such matters, be reasonably expected to result
in a
Material Adverse Effect, notice of:
(i) any
pending or threatened Environmental Claim against any Credit Party or any
Real
Estate or any Credit Party or any predecessor in interest of the Borrower
or any
Restricted Subsidiary or any other Person for which any Credit Party is
alleged
to be liable by contract or operation of law;
(ii) any
condition or occurrence on any Real Estate that (x) could reasonably be
expected
to result in noncompliance by any Credit Party with any applicable Environmental
Law or (y) could reasonably be anticipated to form the basis of any
Environmental Claim against any Credit Party or any Real Estate;
(iii) any
condition or occurrence on any Real Estate or any circumstance that could
reasonably be anticipated to cause such Real Estate to be subject to any
restrictions on the ownership, occupancy, use or transferability of such
Real
Estate under any Environmental Law that would be inconsistent with the
present
use or operation of such Real Estate; and
(iv) the
conduct of any investigation, or any removal, remedial or other corrective
action in response to the actual or alleged presence, release or threatened
release into the environment of any Hazardous Material on, at, under or
from any
Real Estate.
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All
such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence, removal or remedial or other corrective
action and the response thereto. The term “Real
Estate” shall mean any interest in land, buildings and improvements
owned, leased or otherwise held by any Credit Party, but excluding all
operating
fixtures and equipment.
(f) Other
Information. Promptly upon filing thereof, copies of any filings
(including on Form 10-K, 10-Q or 8-K) or registration statements with, and
reports to, the SEC or any analogous Governmental Authority in any relevant
jurisdiction by US Holdings, the Borrower or any Restricted Subsidiary
(other
than amendments to any registration statement (to the extent such registration
statement, in the form it becomes effective, is delivered to the Administrative
Agent), exhibits to any registration statement and, if applicable, any
registration statements on Form S-8) and copies of all financial statements,
proxy statements, notices and reports that US Holdings, the Borrower or
any
Restricted Subsidiary shall send to the holders of any publicly issued
debt of
US Holdings, the Borrower and/or any Restricted Subsidiary (including the
Borrower Senior Exchange Notes (whether publicly issued or not)) in their
capacity as such holders (in each case to the extent not theretofore delivered
to the Administrative Agent pursuant to this Agreement) and, with reasonable
promptness, such other information (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of any Lender (acting
through the Administrative Agent) may reasonably request in writing from
time to
time.
(g) Pro
Forma Adjustment Certificate. Not later than any date on which
financial statements are delivered with respect to any Test Period in which
a
Pro Forma Adjustment is made, a certificate of an Authorized Officer of
the
Borrower setting forth the amount of such Pro Forma Adjustment and, in
reasonable detail, the calculations and basis therefor.
(h) Projections. Within
ninety days after the commencement of each fiscal year of the Borrower
(or, in
the case of the budget for the fiscal year beginning January 1, 2008, within
120
days after the commencement of such fiscal year), a reasonably detailed
consolidated budget for the following fiscal year as customarily prepared
by
management of the Borrower for its internal use (including a projected
consolidated balance sheet of the Borrower and the Restricted Subsidiaries
as of
the end of the following fiscal year, the related consolidated statements
of
projected cash flow and projected income and a summary of the material
underlying assumptions applicable thereto) (collectively, the
“Projections”), which Projections shall in each case be
accompanied by a certificate of an Authorized Officer of the Borrower stating
that such Projections have been prepared in good faith on the basis of
the
assumptions stated therein, which assumptions were believed to be reasonable
at
the time of preparation of such Projections, it being understood that actual
results may vary from such Projections.
(i) Completion
Date. The Borrower shall provide notice to the Administrative
Agent within 30 days after each of Oak Grove Xxxx 0, Xxx Xxxxx Xxxx 0 and
Sandow
Unit 5 achieves a 70% capacity factor for one full fiscal quarter.
Notwithstanding
the foregoing, the obligations in clauses (a), (b) and (f)
of this Section 9.1 may be satisfied with respect to financial
information of the Borrower and the Restricted Subsidiaries by furnishing
(A)
the applicable financial statements of US Holdings, the Parent or any direct
or
indirect parent of the Parent or (B) the Borrower’s (or US Holdings’, the
Parent’s or any direct or indirect parent thereof), as applicable, Form 10-K or
10-Q, as applicable, filed with the SEC; provided that, with respect to
each of subclauses (A) and (B) of this paragraph, to the extent
such information relates to US Holdings, the Parent or a parent of the
Parent,
such information is accompanied by consolidating or other information that
explains in reasonable detail the differences between the information relating
to US Holdings, the Parent or such parent, on the one hand, and the information
relating to the Borrower and the Restricted Subsidiaries on a standalone
basis,
on the other hand.
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9.2. Books,
Records and Inspections
. The
Borrower will, and will cause each Restricted Subsidiary to, permit officers
and
designated representatives of the Administrative Agent or the Required
Lenders
(as accompanied by the Administrative Agent) to visit and inspect any of
the
properties or assets of the Borrower or such Restricted Subsidiary in
whomsoever’s possession to the extent that it is within such party’s control to
permit such inspection (and shall use commercially reasonable efforts to
cause
such inspection to be permitted to the extent that it is not within such
party’s
control to permit such inspection), and to examine the books and records
of the
Borrower and any such Restricted Subsidiary and discuss the affairs, finances
and accounts of the Borrower and of any such Restricted Subsidiary with,
and be
advised as to the same by, its and their officers and independent accountants,
all at such reasonable times and intervals and to such reasonable extent
as the
Administrative Agent or Required Lenders may desire (and subject, in the
case of
any such meetings or advice from such independent accountants, to such
accountants’ customary policies and procedures); provided that, excluding
any such visits and inspections during the continuation of an Event of
Default
(a) only the Administrative Agent, whether on its own or in conjunction
with the
Required Lenders, may exercise rights of the Administrative Agent and the
Lenders under this Section 9.2, (b) the Administrative Agent shall
not exercise such rights more than two times in any calendar year and (c)
only
one such visit shall be at the Borrower’s expense; providedfurther
that when an Event of Default exists, the Administrative Agent (or any
of its
representatives or independent contractors) or any representative of any
Lender
may do any of the foregoing at the expense of the Borrower at any time
during
normal business hours and upon reasonable advance notice. The
Administrative Agent and the Required Lenders shall give the Borrower the
opportunity to participate in any discussions with the Borrower’s independent
public accountants.
9.3. Maintenance
of Insurance
. The
Borrower will, and will cause each Material Subsidiary that is a Restricted
Subsidiary to, at all times maintain in full force and effect, pursuant
to
self-insurance arrangements or with insurance companies that the Borrower
believes (in the good faith judgment of the management of the Borrower,
as
applicable) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance in at least such amounts (after
giving
effect to any self-insurance which the Borrower believes (in the good faith
judgment of management of the Borrower, as applicable) is reasonable and
prudent
in light of the size and nature of its business) and against at least such
risks
(and with such risk retentions) as the Borrower believes (in the good faith
judgment of management of the Borrower, as applicable) is reasonable and
prudent
in light of the size and nature of its business; and will furnish to the
Administrative Agent, upon written reasonable request from the Administrative
Agent, information presented in reasonable detail as to the insurance so
carried. With respect to each Mortgaged Property, obtain flood
insurance in such total amount as the Administrative Agent may from time
to time
require, if at any time the area in which any improvements located on any
Mortgaged Property is designated a “flood hazard area” in any Flood Insurance
Rate Map published by the Federal Emergency Management Agency (or any successor
agency), and otherwise comply with the National Flood Insurance Program
as set
forth in the Flood Disaster Protection Act of 1973, as amended from time
to
time.
9.4. Payment
of Taxes
. The
Borrower will pay and discharge, and will cause each of the Restricted
Subsidiaries to pay and discharge, all Taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon
any
properties belonging to it, prior to the date on which penalties attach
thereto,
and all lawful claims in respect of any Taxes imposed, assessed or levied
that,
if unpaid, could reasonably be expected to become a material Lien upon
any
properties of the Borrower or any Restricted Subsidiary of the Borrower;
provided that neither the Borrower nor any such Restricted Subsidiary
shall be required to pay any such tax, assessment, charge, levy or claim
that is
being contested in good faith and by proper proceedings if it has maintained
adequate reserves (in the good faith judgment of management of the Borrower)
with respect thereto in accordance with GAAP or the failure to pay could
not
reasonably be expected to result in a Material Adverse Effect.
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9.5. Consolidated
Corporate Franchises
. The
Borrower will do, and will cause each Material Subsidiary that is a Restricted
Subsidiary to do, or cause to be done, all things necessary to preserve
and keep
in full force and effect its existence, corporate rights and authority,
except
to the extent that the failure to do so could not reasonably be expected
to have
a Material Adverse Effect; provided, however, that the Borrower
and the Restricted Subsidiaries may consummate any transaction permitted
under
Section 10.3, 10.4 or 10.5.
9.6. Compliance
with Statutes, Regulations, Etc.
The
Borrower will, and will cause each Restricted Subsidiary to, comply with
all
Applicable Laws applicable to it or its property, including all governmental
approvals or authorizations required to conduct its business, and to maintain
all such governmental approvals or authorizations in full force and effect,
in
each case except where the failure to do so could not reasonably be expected
to
have a Material Adverse Effect.
9.7. ERISA
. iii) Promptly
after the Borrower or any ERISA Affiliate knows or has reason to know of
the
occurrence of any of the following events that, individually or in the
aggregate
(including in the aggregate such events previously disclosed or exempt
from
disclosure hereunder, to the extent the liability therefor remains outstanding),
would be reasonably likely to have a Material Adverse Effect, the Borrower
will
deliver to the Administrative Agent a certificate of an Authorized Officer
or
any other senior officer of the Borrower setting forth details as to such
occurrence and the action, if any, that the Borrower or such ERISA Affiliate
is
required or proposes to take, together with any notices (required, proposed
or
otherwise) given to or filed with or by the Borrower, such ERISA Affiliate,
the
PBGC, a Plan participant (other than notices relating to an individual
participant’s benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency has been incurred or an application is to be made to
the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension
of any
amortization period under Section 412 of the Code with respect to a Plan;
that a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or will result in a lien under ERISA or the
Code;
that proceedings will be or have been instituted to terminate a Plan having
an
Unfunded Current Liability (including the giving of written notice thereof);
that a proceeding has been instituted against the Borrower or an ERISA
Affiliate
pursuant to Section 515 of ERISA to collect a delinquent contribution to
a Plan;
that the PBGC has notified the Borrower or any ERISA Affiliate of its intention
to appoint a trustee to administer any Plan; that the Borrower or any ERISA
Affiliate has failed to make a required installment or other payment pursuant
to
Section 412 of the Code with respect to a Plan; or that the Borrower or
any
ERISA Affiliate has incurred or will incur (or has been notified in writing
that
it will incur) any liability (including any contingent or secondary liability)
to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515,
4062,
4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the
Code.
(b) Promptly
following any request therefor, on and after the effectiveness of the Pension
Act, the Borrower will deliver to the Administrative Agent copies of
(i) any documents described in Section 101(k) of ERISA that the Borrower
and any of the Restricted Subsidiaries or any ERISA Affiliate may request
with
respect to any Multiemployer Plan and (ii) any notices described in Section
101(l) of ERISA that the Borrower and any of the Restricted Subsidiaries
or any
ERISA Affiliate may request with respect to any Multiemployer Plan;
provided that if the Borrower, any of such Restricted Subsidiaries or any
ERISA Affiliate has not requested such documents or notices from the
administrator or sponsor of the applicable Multiemployer Plan, the Borrower,
the
applicable Restricted Subsidiary(ies) or the ERISA Affiliate(s) shall promptly
make a request for such documents or notices from such administrator or
sponsor
and shall provide copies of such documents and notices promptly after receipt
thereof.
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(c) Upon
the reasonable request of the Administrative Agent, the Borrower shall
deliver
to the Administrative Agent copies of: (i) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by
the
Borrower or any ERISA Affiliate with the Internal Revenue Service with
respect
to each Plan, (ii) the most recent actuarial valuation report for each
Plan, (iii) all notices received by the Borrower or any ERISA Affiliate
from a
Multiemployer Plan sponsor or any governmental agency and (iv) such other
documents or governmental reports or filings relating to any Employee Benefit
Plan as the Administrative Agent shall reasonably request.
9.8. Maintenance
of Properties
. The
Borrower will, and will cause the Restricted Subsidiaries to, keep and
maintain
all property material to the conduct of its business in good working order
and
condition, ordinary wear and tear excepted, except to the extent that the
failure to do so could reasonably be expected to have a Material Adverse
Effect.
9.9. Transactions
with Affiliates
. The
Borrower will conduct, and cause the Restricted Subsidiaries to conduct,
all
transactions with any of its Affiliates (other than transactions between
or
among the Borrower and the Restricted Subsidiaries and, between or among
the
Borrower, the Restricted Subsidiaries and to the extent in the ordinary
course
or consistent with past practice the Parent and any of its other Subsidiaries,
including the Oncor Subsidiaries) on terms that are, taken as a whole,
substantially as favorable to the Borrower or such Restricted Subsidiary
as it
would obtain in a comparable arm’s-length transaction with a Person that is not
an Affiliate; provided that the foregoing restrictions shall not apply
to
(a) the
payment of customary fees to the Sponsors for management, monitoring,
consulting, advisory, underwriting, placement and financial services rendered
to
the Parent, US Holdings, the Borrower and the other Subsidiaries of the
Parent
and customary investment banking fees paid to the Sponsors for services
rendered
to the Parent, US Holdings, the Borrower and the other Subsidiaries of
the
Parent in connection with divestitures, acquisitions, financings and other
transactions, whether or not consummated,
(b) transactions
permitted by Section 10.6,
(c) the
Transactions and the payment of the Transaction Expenses,
(d) the
issuance of Stock or Stock Equivalents of the Borrower (or any direct or
indirect parent thereof) to the management of the Borrower (or any direct
or
indirect parent thereof) or any Subsidiary of the Borrower in connection
with
the Transactions or pursuant to arrangements described in clause (f) of
this Section 9.9,
(e) loans,
advances and other transactions between or among the Borrower, any Subsidiary
of
the Borrower or any joint venture (regardless of the form of legal entity)
in
which the Borrower or any Subsidiary of the Borrower has invested (and
which
Subsidiary or joint venture would not be an Affiliate of the Borrower but
for
the Borrower’s or such Subsidiary’s Subsidiary ownership of Stock or Stock
Equivalents in such joint venture or Subsidiary) to the extent permitted
under
Section 10,
(f) payments,
advances or loans (or cancellation of loans), employment and severance
arrangements and health and benefit plans or agreements between the Parent,
US
Holdings, the Borrower and the other Subsidiaries of the Parent and their
respective officers, employees or consultants (including management and
employee
benefit plans or agreements, stock option plans and other compensatory
arrangements) in the ordinary course of business,
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(g) payments
by the Borrower (and any direct or indirect parent thereof), and the
Subsidiaries of the Parent pursuant to tax sharing agreements among the
Borrower
(and any such parent), and the Subsidiaries of the Borrower on customary
terms
to the extent attributable to the ownership or operation of the Borrower
and the
Subsidiaries of the Parent,
(h) the
payment of customary fees and reasonable out of pocket costs to, and indemnities
provided on behalf of, directors, managers, consultants, officers and employees
of the Borrower (or, to the extent attributable to the ownership of the
Borrower
by such parent, any direct or indirect parent thereof) and the Subsidiaries
of
the Borrower in the ordinary course of business,
(i) the
payment of indemnities and reasonable expenses incurred by the Sponsors
and
their Affiliates in connection with services provided to the Borrower (or
any
direct or indirect parent thereof), or any of the Subsidiaries of the
Borrower,
(j) the
issuance of Stock or Stock Equivalents (other than Disqualified Stock)
of the
Borrower (or any direct or indirect parent thereof) to Holdings, any Permitted
Holder or to any director, officer, employee or consultant,
(k) sales
of Receivables Facility Assets in connection with any Permitted Receivables
Financing and
(l) transactions
pursuant to permitted agreements in existence on the Closing Date and set
forth
on Schedule 9.9 or any amendment thereto to the extent such an amendment
(together with any other amendment or supplemental agreements) is not adverse,
taken as a whole, to the Lenders in any material respect.
9.10. End
of Fiscal Years; Fiscal Quarters
. The
Borrower will, for financial reporting purposes, cause (a) each of its,
and the
Restricted Subsidiaries’ fiscal years to end on December 31 of each year (each a
“Fiscal Year”) and (b) each of its, and the Restricted
Subsidiaries’, fiscal quarters to end on dates consistent with such fiscal
year-end and the Borrower’s past practice; provided, however, that
the Borrower may, upon written notice to the Administrative Agent change
the
financial reporting convention specified above to any other financial reporting
convention reasonably acceptable to the Administrative Agent, in which
case the
Borrower and the Administrative Agent will, and are hereby authorized by
the
Lenders to, make any adjustments to this Agreement that are necessary in
order
to reflect such change in financial reporting.
9.11. Additional
Guarantors and Grantors
. Subject
to any applicable limitations set forth in the Guarantee and the Security
Documents, the Borrower will cause each direct or indirect Domestic Subsidiary
of the Borrower (excluding any Excluded Subsidiary) formed or otherwise
purchased or acquired after the date hereof (including pursuant to a Permitted
Acquisition) and each other Domestic Subsidiary of the Borrower that ceases
to
constitute an Excluded Subsidiary to, within 30 days from the date of such
formation, acquisition or cessation, as applicable (or such longer period
as the
Administrative Agent may agree in its reasonable discretion), execute a
supplement to each of the Guarantee, the Pledge Agreement and the Security
Agreement in order to become a Guarantor under such Guarantee, a pledgor
under
the Pledge Agreement and a grantor under such Security Agreement.
9.12. Pledge
of Additional Stock and Evidence of Indebtedness
.
(a) Subject
to any applicable limitations set forth in the Pledge Agreement, the Borrower
will pledge, and, if applicable, will cause each other Subsidiary Guarantor
(or
Person required to become a Subsidiary Guarantor pursuant to Section
9.11), to pledge to the Collateral Agent for the benefit
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of
the Secured Parties, (i) all the Stock and Stock Equivalents (other than
any
Excluded Stock and Stock Equivalents) of each Subsidiary owned by the Borrower
or any Subsidiary Guarantor (or Person required to become a Subsidiary
Guarantor
pursuant to Section 9.11), in each case formed or otherwise purchased or
acquired after the Closing Date, pursuant to a supplement to the Pledge
Agreement substantially in the form of Annex A thereto, (ii) all evidences
of Indebtedness in excess of $10,000,000 received by the Borrower or any
Subsidiary Guarantor (or Person required to become a Subsidiary Guarantor
pursuant to Section 9.11), in each case pursuant to a supplement to the
Pledge Agreement substantially in the form of Annex A thereto, and (iii)
any
global promissory notes executed after the Closing Date evidencing Indebtedness
in excess of $10,000,000 of the Borrower and the Subsidiaries of the Borrower
that is owing to the Borrower or any Subsidiary Guarantor (or Person required
to
become a Subsidiary Guarantor pursuant to Section 9.11), in each case
pursuant to a supplement to the Pledge Agreement in the form of Annex A
thereto.
(b) The
Borrower agrees that all Indebtedness in excess of $10,000,000 of the Borrower
and the Subsidiaries of the Borrower and is owing to the Borrower or to
any
Subsidiary Guarantor shall be evidenced by one or more global promissory
notes.
9.13. Use
of Proceeds
. The
Borrower will use the proceeds of the Letters of Credit and the proceeds
of the
Loans and Posting Advances for the purposes set forth in the recitals to
this
Agreement.
9.14. Further
Assurances
.
(a) The
Borrower will, and will cause each other Credit Party to, execute any and
all
further documents, financing statements, agreements and instruments, and
take
all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents)
that
may be required under any Applicable Law, or that the Collateral Agent
or the
Required Lenders may reasonably request, in order to grant, preserve, protect
and perfect the validity and priority of the security interests created
or
intended to be created by the applicable Security Documents, all at the
expense
of US Holdings, the Borrower and the Restricted Subsidiaries.
(b) Subject
to any applicable limitations set forth in the Security Documents (including
in
any Mortgage) and in Section 6.2, if any assets (including any owned Real
Estate or improvements thereto (but not any leased Real Estate or any Stock
of
Stock Equivalents of any Subsidiary) or any interest therein) with a book
value
in excess of $20,000,000 (in the case of Real Estate) or $10,000,000 (in
the
case of all other assets) are acquired by the Borrower or any Subsidiary
Guarantor after the Closing Date (other than assets constituting Collateral
under the Security Documents that become subject to the Lien of any Security
Document upon acquisition thereof or assets subject to a Lien granted pursuant
to Section 10.2(d) or 10.2(g)) that are of the nature secured by
any Security Document, the Borrower will notify the Collateral Agent (who
shall
thereafter notify the Lenders) thereof and, if requested by the Collateral
Agent, will cause such assets to be subjected to a Lien securing the applicable
Obligations and will take, and cause the other Credit Parties to take,
such
actions as shall be necessary or reasonably requested by the Collateral
Agent,
as soon as commercially reasonable but in no event later than 120 days
(or 180
days in the case of Collateral consisting of mining properties), unless
extended
by the Collateral Agent in its sole discretion, to grant and perfect such
Liens
consistent with the applicable requirements of the Security Documents,
including
actions described in paragraph (a) of this Section, all at the expense of
the Credit Parties.
(c) Any
Mortgage delivered to the Collateral Agent in accordance with the preceding
clause (b) shall be accompanied by those items set forth in Section
6.2(f) hereof to the extent that the items in Section 6.2(f) are
customary for the type of assets covered by such Mortgage. Any items
that are
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customary
for the type of assets covered by such Mortgage may be delivered within
a
commercially reasonable period of time after the delivery of a Mortgage
if they
are not reasonably available at the time the Mortgage is delivered.
(d) With
respect to any Post-Closing Mortgaged Property, within 120 days (or 180
days in
the case of Collateral consisting of mining properties), unless extended
by the
Collateral Agent in its sole discretion, the Borrower will deliver, or
cause to
be delivered, to the Collateral Agent (i) a Mortgage with respect to each
Post-Closing Mortgaged Property, executed by a duly authorized officer
of each
obligor party thereto, (ii) title insurance of the type described in
Section 6.2(f)(iii) with respect to each such Mortgaged Property and
(iii) for each Post-Closing Mortgaged Property consisting of a nuclear or
coal-fired power plant, a Survey; provided that, notwithstanding the foregoing,
with respect to the oil, gas and other mineral interests described in item
4
under part B of Schedule 1.1(c), the Post-Closing Mortgages will describe
the mortgaged mineral interests in the manner customary for the mortgaging
of
similar mineral interests in similar transactions and there will be no
title
insurance or Surveys in connection with such Post-Closing Mortgaged Properties.
Within 180 days after the granting of each Mortgage with respect to a Closing
Date Mortgaged Property, the Borrower shall deliver to the Collateral Agent
a
Survey with respect to such Closing Date Mortgaged Property constituting
a
nuclear or coal fired power generation station. The Borrower, within
30 days of the Closing Date, will deliver, or cause to be delivered, (i)
to the
extent not delivered pursuant to Section 6.2(f)(v), a completed Federal
Emergency Management Agency Standard Flood Determination with respect to
each
Closing Date Mortgaged Property, in each case in form and substance reasonably
satisfactory to the Collateral Agent, (ii) evidence of flood insurance
with
respect to each Closing Date Mortgaged Property, to the extent and in amounts
required by Applicable Laws, in each case in form and substance
reasonably satisfactory to the Collateral Agent and (iii) revised insurance
certificates of the type required to be delivered pursuant to Section 6.15
to
reflect that such insurance covers all Mortgaged Property and designating
the
amount of insurance applicable to each such Mortgaged Property, in each
case in
form and substance reasonably acceptable to the Collateral Agent.
(e) Notwithstanding
anything herein to the contrary, if the Collateral Agent determines in
its
reasonable judgment (confirmed in writing to the Borrower and the Administrative
Agent) that the cost or other consequences (including adverse tax and accounting
consequences) of creating or perfecting any Lien on any property is excessive
in
relation to the benefits afforded to the Secured Party thereby, then such
property may be excluded from the Collateral for all purposes of the Credit
Documents.
(f) Within
140 days after Final Completion of construction (as defined in the applicable
engineering, procurement and constructions contract, "EPC
Contract") of each of the Oak Grove (which, for the purposes of this
Section 9.14(f), shall include Xxx Xxxxx Xxxx 0 xxx Xxx Xxxxx Unit 2) and
Sandow
Unit 5 construction projects (each, a “Project”), the Borrower
shall, or shall cause the applicable Credit Party to deliver to the Collateral
Agent (i) a title insurance bring down and endorsements to the title insurance
policy insuring the Mortgaged Property upon which such Project was constructed
amending such title insurance policy to update the policy to a then current
date
and reflect that such policy shall be free and clear of all mechanics,
material-men or other similar liens, except to the extent the same constitute
Liens expressly permitted pursuant to Section 10.2, (ii) all lien waivers
from the contractors and subcontractors relating to such Project as shall
be
required to be delivered pursuant to the applicable EPC Contract and shall
use
commercially reasonable efforts to deliver to the Collateral Agent such
other
lien waivers from such contractors and subcontractors as shall be reasonably
requested by the Collateral Agent and (iii) a Survey of such Mortgaged
Property
to the extent necessary for the title insurance company to omit any survey
exceptions to the title insurance policy (including any bring-downs or
en
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dorsements
required pursuant to clause (i) of this Section 9.14(f)) with respect to
such
Mortgaged Property.
9.15. Changes
in Business
. The
Borrower and the Restricted Subsidiaries, taken as a whole, will not
fundamentally and substantively alter the character of their business,
taken as
a whole, from the business conducted by the Borrower and the Restricted
Subsidiaries, taken as a whole, on the Closing Date and other business
activities incidental or reasonably related to any of the
foregoing.
9.16. Independent
Review of New Build Program
. The
Borrower will take all commercially reasonable actions to permit the
Administrative Agent to conduct, prior to the initial Borrowing under the
Delayed Draw Term Loan Facility, expert independent review (subject to
compliance with Section 13.16 and at the sole cost and expense of the
Administrative Agent) of the compliance of the New Build Program with all
Applicable Laws (including state and federal Environmental Laws and regulatory
laws and regulations). It is understood that the foregoing covenant
shall not constitute a condition to any Borrowing under the Delayed Draw
Term
Loan Facility.
SECTION
10. Negative
Covenants
.
The
Borrower hereby covenants and agrees that on the Closing Date (immediately
after
consummation of the Merger) and thereafter, until the Total Commitments
and all
Letters of Credit have terminated (unless such Letters of Credit have been
collateralized on terms and conditions reasonably satisfactory to the applicable
Letter of Credit Issuer following the termination of the Revolving Credit
Commitments or the repayment of the Deposit L/C Loans, as the case may
be) and
the Loans, Posting Advances and Unpaid Drawings, together with interest,
fees
and all other Obligations (other than Hedging Obligations under Secured
Hedging
Agreements and/or Secured Commodity Hedging Agreements, Cash Management
Obligations under Secured Cash Management Agreement or contingent
indemnification obligations for which no claim has been made), are paid
in
full:
10.1. Limitation
on Indebtedness
. The
Borrower will not, and will not permit the Restricted Subsidiaries to,
create,
incur, assume or suffer to exist any Indebtedness;
provided that the Borrower and any Restricted Subsidiary
may incur Indebtedness (and all premiums (if any), interest (including
post-petition interest), fees, expenses, charges and additional or contingent
interest with regard to such Indebtedness), (x) if immediately before and
after
giving effect to such incurrence, no Default shall have occurred and be
continuing and (y) on a Pro Forma Basis, after giving effect to such incurrence,
the Consolidated EBITDA to Consolidated Interest Expense Ratio shall be
at least
2.0 to 1.0; provided, further, that Restricted Subsidiaries that
are not Subsidiary Guarantors may not incur Indebtedness under this provision
in
an aggregate principal amount outstanding at any time, when combined with
the
total amount of outstanding Indebtedness incurred by Restricted Subsidiaries
that are not Subsidiary Guarantors pursuant to Sections 10.1(d),
10.1(j), 10.1 (k) and 10.1(n), exceeding
$1,250,000,000.
Notwithstanding
the foregoing, the limitations set forth in the immediately preceding paragraph
shall not apply to any of the following items:
(a) Indebtedness
arising under the Credit Documents;
(b) subject
to compliance with Section 10.5, Indebtedness of the Borrower or any
Restricted Subsidiary owed to the Borrower or any Restricted Subsidiary;
provided that all such Indebtedness of any Credit Party owed to any
Person that is not a Credit Party shall be subordinated to the Obligations
on
terms reasonably satisfactory to the Administrative Agent;
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(c) Indebtedness
in respect of any bankers’ acceptance, bank guarantees, letter of credit,
warehouse receipt or similar facilities entered into in the ordinary course
of
business (including in respect of construction and restoration activities
and in
respect of workers compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or self-insurance
or other
Indebtedness with respect to reimbursement-type obligations regarding workers
compensation claims);
(d) subject
to compliance with Section 10.5, Guarantee Obligations incurred by
(i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or
any other Restricted Subsidiary that is permitted to be incurred under
this
Agreement (except that a Restricted Subsidiary that is not a Credit Party
may
not, by virtue of this Section 10.1(d) guarantee Indebtedness that
such Restricted Subsidiary could not otherwise incur under this Section
10.1) and (ii) the Borrower in respect of Indebtedness of Restricted
Subsidiaries that is permitted to be incurred under this Agreement;
provided that (A) if the Indebtedness being guaranteed under this
Section 10.1(d) is subordinated to the Obligations, such Guarantee
Obligations shall be subordinated to the Guarantee of the Obligations on
terms
at least as favorable to the Lenders as those contained in the subordination
of
such Indebtedness, (B) no guarantee by any Restricted Subsidiary of the
Borrower
Senior Facility, any Refinanced Bridge Indebtedness or any Permitted Additional
Debt shall be permitted unless such Restricted Subsidiary shall have also
provided a guarantee of the Obligations substantially on the terms set
forth in
the Guarantee and (C) the aggregate amount of Guarantee Obligations incurred
by
Restricted Subsidiaries that are not Subsidiary Guarantors under this clause
(d), when combined with the total amount of Indebtedness incurred by
Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to
Sections 10.1(j), 10.1(k) and 10.1(n) and the first
paragraph of Section 10.1, shall not exceed $1,250,000,000 at any time
outstanding;
(e) Guarantee
Obligations (i) incurred in the ordinary course of business (including
in
respect of construction or restoration activities) in respect of obligations
of
(or to) suppliers, customers, franchisees, lessors and licensees or (ii)
otherwise constituting Investments permitted by Sections 10.5(d),
10.5(g), 10.5(i), 10.5(q), 10.5(t) and
10.5(v);
(f) (i)
Indebtedness (including Indebtedness arising under Capital Leases) incurred
to
finance the purchase price, cost of design, acquisition, construction,
repair,
restoration, replacement, expansion, installation or improvement of fixed
or
capital assets or otherwise in respect of Capital Expenditures, so long
as such
Indebtedness, except in the case of Environmental CapEx or Necessary CapEx,
is
incurred within 270 days of the acquisition, construction, repair,
restoration, replacement, expansion, installation or improvement of such
fixed
or capital assets or incurrence of such Capital Expenditure,
(ii) Indebtedness arising under Capital Leases entered into in connection
with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital
Leases, other than Capital Leases in effect on the date hereof and Capital
Leases entered into pursuant to subclauses (i) and (ii)
above; provided, that the aggregate amount of Indebtedness incurred
pursuant to this clause (iii) at any time outstanding shall not
exceed $400,000,000 and (iv) any modification, replacement, refinancing,
refunding, renewal or extension of any Indebtedness specified in subclause
(i), (ii) or (iii) above; provided that, except to the
extent otherwise expressly permitted hereunder, the principal amount thereof
does not exceed the principal amount thereof outstanding immediately prior
to
such modification, replacement, refinancing, refunding, renewal or extension
except by an amount equal to
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the
unpaid accrued interest and premium thereon plus the reasonable amounts
paid in respect of fees and expenses incurred in connection with such
modification, replacement, refinancing, refunding, renewal or
extension;
(g) Indebtedness
outstanding on the date hereof listed on Schedule 10.1 and the
Existing Notes and any modification, replacement, refinancing, refunding,
renewal or extension thereof; provided that except to the extent
otherwise expressly permitted hereunder, in the case of any such modification,
replacement, refinancing, refunding, renewal or extension, (w) the principal
amount thereof does not exceed the principal amount thereof outstanding
immediately prior to such modification, replacement, refinancing, refunding,
renewal or extension except by an amount equal to the unpaid accrued interest
and premium thereon plus the reasonable amounts paid in respect of fees
and
expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension, (x) the direct and contingent
obligors with respect to such Indebtedness are not changed (y)(1) except
in the
case of Existing Notes with a Stated Maturity (as of the Closing Date)
prior to
the latest Maturity Date of any Credit Facility hereunder, no portion of
such
Indebtedness matures prior to the latest Maturity Date of any Credit Facility
hereunder and (2) in the case of the Existing Notes with a Stated Maturity
(as
of the Closing Date) prior to the latest Maturity Date of any Credit Facility,
no portion of such Indebtedness matures prior to the Stated Maturity of
such
Existing Notes as of the Closing Date and (z) if the Indebtedness being
refinanced, or any guarantee thereof, constituted subordinated Indebtedness,
then such replacement or refinancing Indebtedness, or such guarantee,
respectively, shall be subordinated to the Obligations to substantially
the same
extent;
(h) Indebtedness
in respect of Hedging Agreements; provided that (i) other than in the
case of Commodity Hedging Agreements, such Hedging Agreements are not entered
into for speculative purposes (as determined by the Borrower in its reasonable
discretion acting in good faith) and (ii) any speculative Commodity Hedging
Agreements must be entered into in the ordinary course of business and
shall be
consistent with past practice;
(i) Indebtedness
and Guarantee Obligations in respect of any Borrower Senior Facility in
an
aggregate principal amount not to exceed $6,750,000,000 plus the PIK
Interest Amount and (ii) any modification, replacement, refinancing, refunding,
renewal or extension thereof (including Permitted Additional Notes, the
Borrower
Senior Term Loans and/or Borrower Senior Exchange Notes); provided that,
except to the extent otherwise expressly permitted hereunder, (A) the principal
amount of any Indebtedness modified, replaced, refinanced, refunded, renewed
or
extended pursuant to this clause (ii) does not exceed the principal
amount thereof outstanding immediately prior to such modification, replacement,
refinancing, refunding, renewal or extension except by an amount equal
to the
unpaid accrued interest and premium thereon and any PIK Interest Amounts
plus other reasonable amounts paid and fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding,
renewal
or extension, (B) the direct and contingent obligor with respect to such
Indebtedness is not changed, (C) such Indebtedness shall have a final maturity
date equal to or later than six months after the latest Maturity Date of
any
Credit Facility and (D) the terms and conditions (including, if applicable,
as
to collateral but excluding as to interest rate and prepayment premium)
of any
such modified, replaced, refinanced, refunded, renewed or extended Indebtedness,
taken as a whole, are not materially less favorable to the Lenders than
the
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terms
and conditions of this Agreement; provided that a certificate of an
Authorized Officer of the Borrower delivered to the Administrative Agent
at
least five Business Days prior to the incurrence of such Indebtedness,
together
with a reasonably detailed description of the material terms and conditions
of
such Indebtedness or drafts of the documentation relating thereto, stating
that
the Borrower has determined in good faith that such terms and conditions
satisfy
the foregoing requirement shall be conclusive evidence that such terms
and
conditions satisfy the foregoing requirement unless the Administrative
Agent
notifies the Borrower within such five Business Day period that it disagrees
with such determination (including a reasonable description of the basis
upon
which it disagrees) (such modified, replacement, refinanced, refunded,
renewed
or extended Indebtedness, “Refinanced Bridge
Indebtedness”);
(j) (i) Indebtedness
of a Person or Indebtedness attaching to assets of a Person that, in either
case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that
survives a merger with such Person or any of its Subsidiaries) or Indebtedness
attaching to assets that are acquired by the Borrower or any Restricted
Subsidiary, in each case after the Closing Date as the result of a Permitted
Acquisition; provided that
(x) such
Indebtedness existed at the time such Person became a Restricted Subsidiary
or
at the time such assets were acquired and, in each case, was not created
in
anticipation thereof,
(y) such
Indebtedness is not guaranteed in any respect by the Borrower or any Restricted
Subsidiary (other than by any such Person that so becomes a Restricted
Subsidiary or is the survivor of a merger with such Person or any of its
Subsidiaries), and
(z)(A) the
Stock and Stock Equivalents of such Person are pledged to the Collateral
Agent
to the extent required under Section 9.12, (B) such Person executes a
supplement to each of the Guarantee and the Security Documents (or alternative
guarantee and security arrangements in relation to the Obligations reasonably
acceptable to the Collateral Agent) to the extent required under Section
9.11, 9.12 or 9.14, as applicable; and (C) to the extent that
the assets of such Person that are required to become Collateral under
Section 9.11, 9.12 or 9.14 are subject to a Lien securing
such Indebtedness, such Lien shall be subject to an intercreditor arrangement
in
relation to the Obligations on terms and conditions reasonably satisfactory
to
the Collateral Agent providing that such Lien shall rank junior to the
Lien
securing the Obligations; provided, further, that the requirements
of this subclause (z) shall not apply to any Indebtedness of the type
that could have been incurred under Section 10.1(f);
(ii) any
modification, replacement, refinancing, refunding, renewal or extension
of any
Indebtedness specified in subclause (i) above; provided that,
except to the extent otherwise expressly permitted hereunder, (x) the principal
amount of any such Indebtedness does not exceed the principal amount thereof
outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension except by an amount equal to the unpaid
accrued
interest and premium thereon plus the reasonable amounts paid in respect
of fees and expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension, (y) the direct and contingent
obligors with respect to such Indebtedness are not changed and (z) if the
Indebtedness being refinanced, or any guarantee thereof, constituted
subordinated Indebtedness, then such replacement or refinancing Indebtedness,
or
such guarantee, respectively, shall be subordinated to the Obligations
to
substantially the same extent; and
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(iii) the
aggregate amount of Indebtedness incurred under this Section 10.1(j) (A)
shall not exceed $400,000,000 at any time outstanding and (B) by Restricted
Subsidiaries that are not Subsidiary Guarantors, when combined with the
total
amount of Indebtedness incurred by Restricted Subsidiaries that are not
Subsidiary Guarantors pursuant to Sections 10.1(d), 10.1(k) and
10.1(n) and the first paragraph of Section 10.2, shall not exceed
$1,250,000,000 at any time outstanding;
(k) (ii) Permitted
Additional Debt and Indebtedness of Restricted Subsidiaries that otherwise
meets
the requirements of the definition of Permitted Additional Debt except
for the
fact that it is incurred by a non-Credit Party incurred to finance a Permitted
Acquisition; provided that
(x) if
such Indebtedness is incurred by a Restricted Subsidiary that is not a
Credit
Party, such Indebtedness is not guaranteed in any respect by the Borrower
or any
other Guarantor except as permitted under Section 10.5, and
(y) (A)
the Borrower or such other relevant Credit Party pledges the Stock and
Stock
Equivalents of any Person acquired in such Permitted Acquisition (the
“acquired Person”) to the Collateral Agent to the extent
required under Section 9.12 and (B) such acquired Person executes a
supplement to the Guarantee and the Security Documents (or alternative
guarantee
and security arrangements in relation to the Obligations reasonably acceptable
to the Collateral Agent) to the extent required under Sections 9.11,
9.12 or 9.14, as applicable;
(ii) any
modification, replacement, refinancing, refunding, renewal or extension
of any
Indebtedness specified in subclause (i) above; provided that,
except to the extent otherwise expressly permitted hereunder, (x) the principal
amount of any such Indebtedness does not exceed the principal amount thereof
outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension except by an amount equal to the unpaid
accrued
interest and premium thereon plus the reasonable amounts paid in respect
of fees and expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension and (y) the direct and contingent
obligors with respect to such Indebtedness are not changed; and
(iii) the
aggregate amount of Indebtedness incurred under this Section 10.1(k) (A)
shall
not exceed $750,000,000 at any time outstanding, unless, on a Pro Forma
Basis
after giving effect to the incurrence of such Indebtedness and the application
of proceeds thereof, the Consolidated Total Debt to Consolidated EBITDA
Ratio is
no greater than 7.0 to 1.0 and (B) by Restricted Subsidiaries that are
not
Subsidiary Guarantors, when combined with the total amount of Indebtedness
incurred by Restricted Subsidiaries that are not Subsidiary Guarantors
pursuant
to Sections 10.1(d), 10.1(j) and 10.1(n) and the first
paragraph of Section 10.1, shall not exceed $1,250,000,000 at any time
outstanding;
(l) Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds
and
completion guarantees and similar obligations not in connection with money
borrowed, in each case provided in the ordinary course of business (including
in
respect of construction or restoration activities) or consistent with past
practice or in respect of coal mine reclamation, including those incurred
to
secure health, safety and environmental obligations in the ordinary course
of
business (including in respect of construction or restoration activities)
or
consistent with past practice;
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(m) (i)
Indebtedness incurred in connection with any Permitted Sale Leaseback and
(ii) any modification, replacement, refinancing, refunding, renewal or
extension of any Indebtedness specified in subclause (i) above;
provided that, except to the extent otherwise permitted hereunder,
(x) the principal amount of any such Indebtedness is not increased above
the principal amount thereof outstanding immediately prior to such modification,
replacement, refinancing, refunding, renewal or extension except by an
amount
equal to the unpaid accrued interest and premium thereon plus the
reasonable amounts paid in respect of fees and expenses incurred in connection
with such modification, replacement, refinancing, refunding, renewal or
extension and (y) the direct and contingent obligors with respect to such
Indebtedness are not changed;
(n) (i)
additional Indebtedness and (ii) any modification, replacement,
refinancing, refunding, renewal or extension of any Indebtedness specified
in
subclause (i) above; provided that the aggregate amount of
Indebtedness incurred and remaining outstanding pursuant to this
clause (n) shall not at any time exceed $1,000,000,000;
provided that the aggregate amount of Indebtedness incurred by
Restricted
Subsidiaries that are not Subsidiary Guarantors under this Section
10.1(n), when combined with the total amount of Indebtedness incurred by
Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to
Section 10.1(d), 10.1(j) and 10.1(k) and the first
paragraph of Section 10.1, shall not exceed $1,250,000,000 at any time
outstanding;
(o) Indebtedness
in respect of Permitted Additional Debt to the extent that the Net Cash
Proceeds
therefrom are, immediately after the receipt thereof, applied to the prepayment
of Term Loans in the manner set forth in Section 5.2(c) (including any
modification, replacement, refinancing, refunding, renewal or extension
of any
such Indebtedness that, itself, constitutes Permitted Additional
Debt);
(p) Cash
Management Obligations and other Indebtedness in respect of overdraft
facilities, employee credit card programs, netting services, automatic
clearinghouse arrangements and other cash management and similar arrangements
in
the ordinary course of business;
(q) (i)
Indebtedness incurred in the ordinary course of business in respect of
obligations of the Borrower or any Restricted Subsidiary to pay the deferred
purchase price of goods or services or progress payments in connection
with such
goods and services, including turbines, transformers and similar equipment
and
(ii) Indebtedness in respect of intercompany obligations of the Borrower
or any
Restricted Subsidiary with the Borrower or any Restricted Subsidiary of
the
Borrower in respect of accounts payable incurred in connection with goods
sold
or services rendered in the ordinary course of business and not in connection
with the borrowing of money;
(r) Indebtedness
arising from agreements of the Borrower or any Restricted Subsidiary providing
for indemnification, adjustment of purchase price or similar obligations
(including earn-outs), in each case entered into in connection with Permitted
Acquisitions, other Investments and the Disposition of any business, assets
or
Stock or Stock Equivalents permitted hereunder;
(s) Indebtedness
of the Borrower or any Restricted Subsidiary consisting of (i) obligations
to
pay insurance premiums or (ii) take or pay obligations contained in supply
agreements, in each case arising in the ordinary course of business (including
in respect of construction or restoration activities);
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(t) Indebtedness
representing deferred compensation to employees, consultants or independent
contractors of the Borrower (or, to the extent such work is done for the
Borrower or its Subsidiaries, any direct or indirect parent thereof) and
the
Restricted Subsidiaries incurred in the ordinary course of
business;
(u) Indebtedness
consisting of promissory notes issued by any Credit Party to current or
former
officers, managers, consultants, directors and employees (or their respective
spouses, former spouses, successors, executors, administrators, heirs,
legatees
or distributees) to finance the purchase or redemption of Stock or Stock
Equivalents of the Borrower (or any direct or indirect parent thereof)
permitted
by Section 10.6(b);
(v) Indebtedness
consisting of obligations of the Borrower and the Restricted Subsidiaries
under
deferred compensation or other similar arrangements incurred by such Person
in
connection with the Transactions and Permitted Acquisitions or any other
Investment permitted hereunder;
(w) Indebtedness
in respect of Permitted Receivables Financings;
(x) Indebtedness
of the Borrower or any Restricted Subsidiary to the Parent or any of its
other
Subsidiaries in the aggregate amount at any time outstanding not in excess
of
$25,000,000; and
(y) all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges, and additional or contingent interest on obligations described
in
clauses (a) through (x) above.
For
purposes of determining compliance with this Section 10.1, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness described in the proviso to the first paragraph
of
this Section 10.1 and clauses (a) through (y) above, the
Borrower shall, in its sole discretion, classify and reclassify or later
divide,
classify or reclassify such item of Indebtedness (or any portion thereof)
and
will only be required to include the amount and type of such Indebtedness
in one
or more of the above paragraph or clauses; provided that (i) all
Indebtedness outstanding under the Credit Documents will be deemed at all
times
to have been incurred in reliance only on the exception in clause (a) of
Section 10.1 and (ii) all Indebtedness outstanding under the Borrower
Senior Facility or any Refinanced Bridge Indebtedness will be deemed at
all
times to have been incurred in reliance only on the exception of clause
(i) of Section 10.1.
10.2. Limitation
on Liens
. The
Borrower will not, and will not permit the Restricted Subsidiaries to,
create,
incur, assume or suffer to exist any Lien upon any property or assets of
any
kind (real or personal, tangible or intangible) of the Borrower or such
Restricted Subsidiary, whether now owned or hereafter acquired,
except:
(a) Liens
securing the Obligations arising under the Credit Documents;
(b) Liens
on the Collateral securing obligations under Secured Cash Management Agreements,
Secured Hedging Agreements and Secured Commodity Hedging Agreements;
provided that (i) such obligations shall be secured by the Liens granted
in favor of the Collateral Agent in the manner set forth in, and be otherwise
subject to (and in compliance with), the Intercreditor Agreement and governed
by
the applicable Security Documents and (ii) such agreements were not entered
into
for speculative purposes (as determined by the Borrower in its reasonable
discretion acting in good faith) and, in the
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case
of any Secured Commodity Hedging Agreement or any Secured Hedging Agreement
of
the type described in clause (c) of the definition of “Hedging Agreement”,
entered into in order to hedge against or manage fluctuations in the price
or
availability of any Covered Commodity);
(c) Permitted
Liens;
(d) Liens
securing Indebtedness permitted pursuant to Section 10.1(f);
provided that (x) except with respect to any Indebtedness incurred
in
connection with Environmental CapEx or Necessary CapEx, such Liens attach
concurrently with or within two hundred and seventy (270) days after completion
of the acquisition, construction, repair, restoration, replacement, expansion,
installation or improvement (as applicable) of the property subject to
such
Liens and (y) such Liens attach at all times only to the assets so financed
except (1) for accessions to the property financed with the proceeds of
such
Indebtedness and the proceeds and the products thereof and (2) that individual
financings of equipment provided by one lender may be cross collateralized
to
other financings of equipment provided by such lender;
(e) Liens
existing on the date hereof; provided that any Lien securing Indebtedness
or other obligations in excess of (x) $20,000,000 individually or (y)
$100,000,000 in the aggregate (when taken together with all other Liens
securing
obligations outstanding in reliance on this clause (e) that are not set
forth on Schedule 10.2) shall only be permitted to the extent such Lien
is listed on Schedule 10.2;
(f) the
modification, replacement, extension or renewal of any Lien permitted by
clauses (a) through (e) and clauses (g) and (t) of
this Section 10.2 upon or in the same assets theretoforesubject to such
Lien (or upon or in after-acquired property that is affixed or incorporated
into
the property covered by such Lien or any proceeds or products thereof)
or the
modification, refunding, refinancing, replacement, extension or renewal
(without
increase in the amount or change in any direct or contingent obligor except
to
the extent otherwise permitted hereunder) of the Indebtedness or other
obligations secured thereby, to the extent such modification, refunding,
refinancing, replacement, extension or renewal is permitted by
Section 10.1;
(g) Liens
existing on the assets of any Person that becomes a Restricted Subsidiary
(or is
a Restricted Subsidiary that survives a merger with such Person or any
of its
Subsidiaries) pursuant to a Permitted Acquisition or other permitted Investment,
or existing on assets acquired after the Closing Date, to the extent the
Liens
on such assets secure Indebtedness permitted by Section 10.1(j);
provided that such Liens (i) are not created or incurred in connection
with, or in contemplation of, such Person becoming such a Restricted Subsidiary
or such assets being acquired and (ii) attach at all times only to the
same
assets to which such Liens attached (and after-acquired property that is
affixed
or incorporated into the property covered by such Lien), and secure only
the
same Indebtedness or obligations that such Liens secured, immediately prior
to
such Permitted Acquisition and any modification, replacement, refinancing,
refunding, renewal or extension thereof permitted by
Section 10.1(j);
(h) [Reserved];
(i) Liens
securing Indebtedness or other obligations (i) of the Borrower or any Restricted
Subsidiary in favor of a Credit Party and (ii) of any other Restricted
Subsidiary that is not a Credit Party in favor of any other Restricted
Subsidiary that is not a Credit Party;
(j) Liens
(i) of a collecting bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection and (ii) in favor of a banking
institution arising as a matter of law encumbering deposits (including
the right
of set-off);
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(k) Liens
(i) on cash advances in favor of the seller of any property to be acquired
in an
Investment permitted pursuant to Section 10.5 to be applied against the
purchase price for such Investment and (ii) consisting of an agreement
to sell,
transfer, lease or otherwise dispose of any property in a transaction permitted
under Section 10.4, in each case, solely to the extent such Investment or
sale, disposition, transfer or lease, as the case may be, would have been
permitted on the date of the creation of such Lien;
(l) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale or purchase of goods entered into by the Borrower
or any
Restricted Subsidiary in the ordinary course of business (including in
respect
of construction or restoration activities) permitted by this
Agreement;
(m) Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under Section 10.5;
(n) any
amounts held by a trustee in the funds and accounts under an indenture
securing
any revenue bonds issued for the benefit of the Borrower or any Restricted
Subsidiary;
(o) Liens
that are contractual rights of set-off (i) relating to the establishment
of
depository relations with banks not given in connection with the issuance
of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Borrower or any Restricted Subsidiary to permit satisfaction of overdraft
or
similar obligations incurred in the ordinary course of business of the
Borrower
and the Restricted Subsidiaries or (iii) relating to purchase orders and
other
agreements entered into with customers of the Borrower or any Restricted
Subsidiary in the ordinary course of business;
(p) Liens
solely on any xxxx xxxxxxx money deposits made by the Borrower or any Restricted
Subsidiary in connection with any letter of intent or purchase agreement
permitted hereunder;
(q) Liens
on insurance policies and the proceeds thereof securing the financing of
the
premiums with respect thereto;
(r) Liens
on specific items of inventory or other goods and the proceeds thereof
securing
such Person’s obligations in respect of documentary letters of credit or
banker’s acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or goods
in the
ordinary course of business or consistent with past practice;
(s) additional
Liens so long as the aggregate principal amount of the obligations secured
thereby at any time outstanding does not exceed $1,000,000,000 (as determined
at
the date of incurrence); provided that to the extent such Liens are contemplated
to be on assets that are Collateral, the holders of such secured Indebtedness
(or a representative thereof on behalf of such holders) shall have entered
into
an intercreditor agreement providing that the Liens securing such Indebtedness
shall rank junior to the Liens securing the Obligations.
(t) additional
Liens securing Indebtedness permitted under the first paragraph of Section
10.1;
provided that (i) immediately before and after giving effect to such
incurrence, no Default or Event of Default shall have occurred and be
continuing, (ii) on a Pro Forma Basis, after giving effect to such incurrence,
the Consolidated Secured Debt to Consolidated EBITDA Ratio would be no
greater
than 5.0 to 1.0 and (iii) to the extent such Liens are contemplated to be
on assets that are Collateral, the holders of such secured Indebtedness
(or a
representative thereof on behalf of such holders) shall have entered into
an
intercreditor agreement providing that the Liens securing such Indebtedness
shall rank junior to the Liens securing the Obligations;
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(u) Liens
in respect of Permitted Sale Leasebacks;
(v) Liens
on Receivables Facility Assets in respect of any Permitted Receivable
Financings;
(w) rights
reserved to or vested in others to take or receive any part of, or royalties
related to, the power, gas, oil, coal, lignite or other minerals or timber
generated, developed, manufactured or produced by, or grown on, or acquired
with, any property of the Borrower and the Restricted Subsidiaries and
Liens
upon the production from property of power, gas, oil, coal, lignite or
other
minerals or timber, and the by-products and proceeds thereof, to secure
the
obligations to pay all or a part of the expenses of exploration, drilling,
mining or development of such property only out of such production or
proceeds;
(x) Liens
arising out of all presently existing and future division and transfer
orders,
advance payment agreements, processing contracts, gas processing plant
agreements, operating agreements, gas balancing or deferred production
agreements, pooling, unitization or communitization agreements, pipeline,
gathering or transportation agreements, platform agreements, drilling contracts,
injection or repressuring agreements, cycling agreements, construction
agreements, salt water or other disposal agreements, leases or rental
agreements, farm-out and farm-in agreements, exploration and development
agreements, and any and all other contracts or agreements covering, arising
out
of, used or useful in connection with or pertaining to the exploration,
development, operation, production, sale, use, purchase, exchange, storage,
separation, dehydration, treatment, compression, gathering, transportation,
processing, improvement, marketing, disposal or handling of any property
of the
Borrower and the Restricted Subsidiaries; provided that such agreements
are entered into in the ordinary course of business (including in respect
of
construction or restoration activities);
(y) any
restrictions on any Stock or Stock Equivalents or other joint venture interests
of the Borrower or any Restricted Subsidiary providing for a breach, termination
or default under any owners, participation, shared facility, joint venture,
stockholder, membership, limited liability company or partnership agreement
between such Person and one or more other holders of such Stock or Stock
Equivalents or interest of such Person, if a security interest or other
Lien is
created on such Stock or Stock Equivalents or interest as a result thereof
and
other similar Liens;
(z) Rights
of first refusal and purchase options in favor of Aluminum Company of America
(“Alcoa”) to purchase Sandow Unit 4 and/or the real property
related thereto, as described in (i) Sandow Unit 4 Agreement dated August
13,
1976, as amended, between Alcoa and Texas Power & Light Company
(“TPL”) and in (ii) Deeds dated March 14, 1978 and July 21,
1980, as amended, executed by Alcoa conveying to TPL the Sandow Four real
property;
(aa) Lien
and other exceptions to title, in either case on or in respect of any facilities
of the Borrower or any Restricted Subsidiary, arising as a result of any
shared
facility agreement entered into with respect to such facility, except to
the
extent that any such Liens or exceptions, individually or in the aggregate,
materially adversely affect the value of the relevant property or materially
impair the use of the relevant property in the operation of business the
Borrower and the Restricted Subsidiaries, taken as a whole; and
(bb) Liens
on cash and Permitted Investments (i) deposited by the Borrower or any
Restricted Subsidiary in margin accounts with or on behalf of brokers,
credit
clearing organizations, independent system operators, regional transmission
organizations, pipelines, state agencies, federal agencies, futures contract
brokers, customers, trading counterparties, or any other parties or issuers
of
surety bonds or (ii) pledged or deposited as collateral by the Borrower
or any
Restricted Subsidiary with any of the entities described in clause (i)
above to
secure their respective obligations, in the case of each of clauses
(i)
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and
(ii) above, with respect to: (A) any contracts and transactions for
the purchase, sale, exchange of, or the option (whether physical or financial)
to purchase, sell or exchange (1) natural gas, (2) electricity, (3) coal,
(4)
petroleum-based liquids, (5) oil, (6) nuclear fuel (including enrichment
and
conversion), (7) emissions or other environmental credits, (8) waste byproducts,
(9) weather, (10) power and other generation capacity, (11) heat rate,
(12)
congestion, (13) renewal energy credit or (14) any other energy-related
commodity or services or derivative (including ancillary services and related
risk (such as location basis)); (B) any contracts or transactions for the
purchase, processing, transmission, transportation, distribution, sale,
lease,
hedge or storage of, or any other services related to any commodity or
service
identified in subparts (1) - (14) above, including any capacity agreement;
(C)
any financial derivative agreement (including but not limited to swaps,
options
or swaptions) related to any commodity identified in subparts (1) - (14)
above,
or to any interest rate or currency rate management activities; (D) any
agreement for membership or participation in an organization that facilitates
or
permits the entering into or clearing of any Netting Agreement or any agreement
described in this Section 10.2(bb); (E) any agreement combining part or
all of a Netting Agreement or part or all of any of the agreements described
in
this Section 10.2(bb); (F) any document relating to any agreement
described in this Section 10.2(bb) that is filed with a Governmental
Authority and any related service agreements; or (G) any commercial or
trading
agreements, each with respect to, or involving the purchase, transmission,
distribution, sale, lease or hedge of, any energy, generation capacity
or fuel,
or any other energy related commodity or service, price or price indices
for any
such commodities or services or any other similar derivative agreements,
and any
other similar agreements (such agreements described in clauses (A) through
(G)
of this Section 10.2(bb) being collectively, “Permitted
Contracts”), Netting Agreements, Hedging Agreements and letters of
credit supporting Permitted Contracts, Netting Agreements and Hedging
Agreements.
10.3. Limitation
on Fundamental Changes
. Except
as permitted by Section 10.4 or 10.5, the Borrower will not, and
will not permit the Restricted Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer
or otherwise dispose of, all or substantially all its business units, assets
or
other properties, except that:
(a) so
long as (i) both before and after giving effect to such transaction, no
Default
or Event of Default has occurred and is continuing or would result therefrom
and
(ii) after giving effect to such transaction the Borrower shall be in
compliance, on a Pro Forma Basis, with the covenant set forth in Section
10.9, any Subsidiary of the Borrower or any other Person may be merged,
amalgamated or consolidated with or into the Borrower; provided that (A)
the Borrower shall be the continuing or surviving company or (B) if the
Person
formed by or surviving any such merger, amalgamation or consolidation is
not the
Borrower (such other Person, the “Successor Borrower”), (1) the
Successor Borrower (if other than the Borrower) shall be an entity organized
or
existing under the laws of the United States, any state thereof, the District
of
Columbia or any territory thereof, (2) the Successor Borrower (if other
than the
Borrower) shall expressly assume all the obligations of the Borrower under
this
Agreement and the other Credit Documents pursuant to a supplement hereto
or
thereto in form reasonably satisfactory to the Administrative Agent, (3)
each
Guarantor, unless it is the other party to such merger or consolidation,
shall
have by a supplement to the Guarantee confirmed that its guarantee thereunder
shall apply to any Successor Borrower’s obligations under this Agreement, (4)
each grantor and each pledgor, unless it is the other party to such merger
or
consolidation, shall have by a supplement to the Security Agreement or
the
Pledge Agreement, as applicable, affirmed that its obligations thereunder
shall
apply to its Guarantee as reaffirmed pursuant to clause (3), (5) each
mortgagor of a Mortgaged Property, unless it is the other party to such
merger
or consolidation, shall have affirmed that its obligations under the applicable
Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause
(3) and (6) the Successor Borrower shall have delivered to the
Administrative Agent (x) an officer’s certificate stating that such merger or
consolidation and such supplements preserve the enforceability of this
Agreement
and the Guarantee and the per
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fection
and priority of the Liens under the applicable Security Documents and (y)
if
reasonably requested by the Administrative Agent, an opinion of counsel
to the
effect that such merger or consolidation does not violate this Agreement
or any
other Credit Document and that the provisions set forth in the preceding
clauses (3) through (5) preserve the enforceability of the
Guarantee and the perfection and priority of the Liens created under the
applicable Security Documents (it being understood that if the foregoing
are
satisfied, the Successor Borrower will succeed to, and be substituted for,
the
Borrower under this Agreement);
(b) so
long as no Default or Event of Default has occurred and is continuing,
or would
result therefrom, any Subsidiary of the Borrower or any other Person (in
each
case, other than the Borrower) may be merged, amalgamated or consolidated
with
or into any one or more Subsidiaries of the Borrower; provided that (i)
in the case of any merger, amalgamation or consolidation involving one
or more
Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the
continuing or surviving Person or (B) the Borrower shall cause the Person
formed by or surviving any such merger, amalgamation or consolidation (if
other
than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in
the
case of any merger, amalgamation or consolidation involving one or more
Guarantors, a Guarantor shall be the continuing or surviving Person or
the
Person formed by or surviving any such merger, amalgamation or consolidation
(if
other than a Guarantor) shall execute a supplement to the Guarantee and
the
relevant Security Documents in form and substance reasonably satisfactory
to the
Administrative Agent in order to become a Guarantor and pledgor, mortgagor
and
grantor, as applicable, thereunder for the benefit of the Secured Parties,
(iii)
no Default or Event of Default has occurred and is continuing or would
result
from the consummation of such merger, amalgamation or consolidation and
(iv)
Borrower shall have delivered to the Administrative Agent an officers’
certificate stating that such merger, amalgamation or consolidation and
any such
supplements to the Guarantee and any Security Document preserve the
enforceability of the Guarantee and the perfection and priority of the
Liens
under the applicable Security Documents;
(c) the
Merger and the other Transactions may be consummated;
(d) any
Restricted Subsidiary that is not a Credit Party may sell, lease, transfer
or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or
otherwise) to the Borrower or any other Restricted Subsidiary;
(e) the
Borrower or any Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or
otherwise) to any Credit Party; provided that the consideration for any
such disposition by any Person other than a Guarantor shall not exceed
the fair
value of such assets;
(f) any
Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines
in good faith that such liquidation or dissolution is in the best interests
of
the Borrower and is not materially disadvantageous to the Lenders and (ii)
to
the extent such Restricted Subsidiary is a Credit Party, any assets or
business
of such Restricted Subsidiary not otherwise disposed of or transferred
in
accordance with Section 10.4 or 10.5, or in the case of any such
business, discontinued, shall be transferred to, or otherwise owned or
conducted
by, a Credit Party after giving effect to such liquidation or dissolution;
and
(g) to
the extent that no Default or Event of Default would result from the
consummation of such Disposition, the Borrower and the Restricted Subsidiaries
may consummate a merger, dissolution, liquidation, consolidation or disposition,
the purpose of which is to effect a Disposition permitted pursuant to
Section 10.4.
10.4. Limitation
on Sale of Assets
. The
Borrower will not, and will not permit the Restricted Subsidiaries to,
(i) convey, sell, lease, assign, transfer or otherwise dispose of any of
its property,
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business
or assets (including receivables and leasehold interests), whether now
owned or
hereafter acquired or (ii) sell to any Person (other than to the Borrower
or a Subsidiary Guarantor) any shares owned by it of the Borrower’s or any
Restricted Subsidiary’s Stock and Stock Equivalents (each of the foregoing a
“Disposition”), except that:
(a) the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose
of (i) obsolete, worn-out, scrap, used, or surplus or mothballed equipment
(including any such equipment that has been refurbished in contemplation
of such
disposition), vehicles and other assets to the extent such assets are not
necessary for the operation of the Borrower’s and the Restricted Subsidiaries’
business, (ii) inventory or goods (or other assets) held for sale in the
ordinary course of business, (iii) cash and Permitted Investments and (iv)
assets for the purposes of charitable contributions or similar gifts to
the
extent such assets are not material to the ability of the Borrower and
the
Restricted Subsidiaries, taken as a whole, to conduct its business in the
ordinary course;
(b) the
Borrower and the Restricted Subsidiaries may make Dispositions of assets,
excluding any Disposition of accounts receivable except in connection with
the
Disposition of any business to which such accounts receivable relate, for
fair
value; provided that (i) to the extent required, the Net Cash Proceeds
thereof to the Borrower and the Restricted Subsidiaries are promptly applied
to
the prepayment of Term Loans as provided for in Section 5.2(a)(i),
(ii) after giving effect to any such Disposition, no Default or Event of
Default shall have occurred and be continuing, (iii) the aggregate consideration
for all Dispositions made in reliance on this Section 10.4(b), when
aggregated with the amount of Permitted Sale Leaseback transactions consummated
pursuant to Section 10.4(g), shall not exceed at any time 10% of
Consolidated Total Assets (determined at the time of each Disposition)
for all
such transactions consummated after the Closing Date, (iv) with respect
to any
Disposition pursuant to this clause (b) for a purchase price in excess of
$50,000,000, the Person making such Disposition shall receive not less
than 75%
of such consideration in the form of cash or Permitted Investments;
provided that for the purposes of this subclause (iv) the
following shall be deemed to be cash (“Deemed
Cash”): (A) any liabilities (as shown on the Borrower’s or
such Restricted Subsidiary’s most recent balance sheet provided hereunder or in
the footnotes thereto) of the Borrower or such Restricted Subsidiary, other
than
liabilities that are by their terms (1) subordinated to the payment in
cash of
the Obligations or (2) not secured by the assets that are the subject of
such
Disposition, that are assumed by the transferee with respect to the applicable
Disposition and for which the Borrower and all of the Restricted Subsidiaries
shall have been validly released by all applicable creditors in writing,
(B) any securities received by the Person making such Disposition from the
purchaser that are converted by such Person into cash (to the extent of
the cash
received) within 180 days following the closing of the applicable Disposition,
(C) any Designated Non-Cash Consideration received by the Person making
such Disposition having an aggregate fair market value, taken together
with all
other Designated Non-Cash Consideration received pursuant to this Section
10.4(b) that is at that time outstanding, not in excess of 1.5% of
Consolidated Total Assets at the time of the receipt of such Designated
Non-Cash
Consideration, with the fair market value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect
to
subsequent changes in value and (v) any non-cash proceeds received in the
form
of Real Estate, Indebtedness or Stock and Stock Equivalents are pledged
to the
Collateral Agent to the extent required under Section 9.12 or
9.14;
(c) (i)
the Borrower and the Restricted Subsidiaries may make Dispositions to the
Borrower or any other Credit Party and (ii) any Restricted Subsidiary that
is
not a Credit Party may make Dispositions to the Borrower or any other Subsidiary
of the Borrower; provided that with respect to any such Dispositions,
such sale, transfer or disposition shall be for fair value;
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(d) the
Borrower and any Restricted Subsidiary may effect any transaction permitted
by
Section 10.3, 10.5 or 10.6;
(e) the
Borrower and any Restricted Subsidiary may lease, sublease, license (only
on a
non-exclusive basis with respect to any intellectual property) or sublicense
(only on a non-exclusive basis with respect to any intellectual property)
real,
personal or intellectual property in the ordinary course of
business;
(f) Dispositions
of property (including like-kind exchanges) to the extent that (i) such
property
is exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are applied to the purchase
price of such replacement property, in each case under Section 1031 of
the Code
or otherwise;
(g) Dispositions
pursuant to Permitted Sale Leaseback transactions in an aggregate amount
pursuant to this Section 10.4(g), when aggregated with the amount of
Dispositions made pursuant to Section 10.4(b), not to exceed the
limitations set forth in Section 10.4(b);
(h) Dispositions
of (i) Investments in joint ventures (regardless of the form of legal entity)
to
the extent required by, or made pursuant to, customary buy/sell arrangements
or
put/call arrangements between the joint venture parties set forth in joint
venture arrangements and similar binding arrangements or (ii) to joint
ventures
in connection with the dissolution or termination of a joint venture to
the
extent required pursuant to joint venture and similar arrangements;
(i) Dispositions
of Receivables Facility Assets in connection with any Permitted Receivables
Financing; provided that to the extent that any new Participating
Receivables Grantor is added to any Permitted Receivables Financing after
the
Closing Date, the Net Cash Proceeds of any Dispositions of Receivables
Facility
Assets by such new Participating Receivables Grantor must be promptly applied
to
the prepayment of the Term Loans as provided for in Section 5.2(a)(i)
without giving effect to any reinvestment rights under the definition of
“Net
Cash Proceeds”; provided, further, that no Net Cash Proceeds shall
be required to be used to prepay the Term Loans pursuant to Section
5.2(a)(i) to the extent that any new Participating Receivables Grantor
replaces (by merger or otherwise) any existing Participating Receivables
Grantor
and at the time of such replacement, the volume of Receivables Facility
Assets
sold into any Permitted Receivables Financing does not increase as a result
of
such replacement;
(j) Dispositions
listed on Schedule 10.4 (“Scheduled
Dispositions”);
(k) transfers
of property subject to a Recovery Event or in connection with any condemnation
proceeding upon receipt of the Net Cash Proceeds of such Recovery Event
or
condemnation proceeding;
(l) Dispositions
of accounts receivable in connection with the collection or compromise
thereof;
(m) the
Borrower and the Restricted Subsidiaries may make Dispositions (excluding
any
Disposition of accounts receivable except in connection with the Disposition
of
any business to which such accounts receivable relate), for fair value
to the
extent that (i) the aggregate consideration for all such Dispositions
consummated after the Closing Date, when combined with all Dispositions
made
pursuant to Section 10.4(b), does not exceed 15% of Consolidated Total
Assets (determined at the time of each Disposition), (ii) the Net Cash
Proceeds
of any such Disposition are promptly applied to the prepayment of Term
Loans as
provided in Section 5.2(a)(i) without giving effect to any reinvestment
rights under the definition of “Net Cash Proceeds”; provided that, in the
case of a Disposition of a Baseload As
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set
pursuant to this Section 10.4(m), the Borrower shall be permitted to
reinvest the Net Cash Proceeds received in such Disposition in other Baseload
Assets within the reinvestment periods set forth in the definition of “Net Cash
Proceeds”, (iii) after giving effect to any such Disposition, no Default or
Event of Default shall have occurred and be continuing, (iv) with respect
to any Disposition pursuant to this Section 10.4(m) for a purchase price
in excess of $50,000,000, the Person making such Disposition shall, subject
to
the parenthetical below, receive not less than 75% of such consideration
in the
form of cash or Permitted Investments (or, to the extent that less than
75% of
such consideration is in the form of cash or Permitted Investments, the
Borrower
shall apply the amount of such difference to the prepayment of Term Loans
as
provided in clause (ii) above); provided that for the purposes of
this subclause (iv), Deemed Cash shall be deemed to be cash and (v) any
non-cash proceeds received in the form of Real Estate, Indebtedness or
Stock and
Stock Equivalents are pledged to the Collateral Agent to the extent required
under Section 9.12 or 9.14;
(n) [Reserved];
(o) Dispositions
of power, capacity, heat rate, renewable energy credits, waste by-products,
energy, electricity, coal and lignite, oil and other petroleum-based liquids,
emissions and other environmental credits, ancillary services, fuel (including
all forms of nuclear fuel and natural gas) and other related assets or
products
of services, including assets related to trading activities or the sale
of
inventory or contracts related to any of the foregoing, in each case in
the
ordinary course of business;
(p) the
execution of (or amendment to), settlement of or unwinding of any Hedging
Agreement;
(q) any
Disposition of mineral rights, other than mineral rights in respect of
coal or
lignite;
(r) any
Disposition of any real property that is (i) primarily used or intended
to be
used for mining which has either been reclaimed, or has not been used for
mining
in a manner which requires reclamation, and in either case has been determined
by the Borrower not to be necessary for use for mining, (ii) used as buffer
land, but no longer serves such purpose, or its use is restricted such
that it
will continue to be buffer land, or (iii) was acquired in connection with
power
generation facilities, but has been determined by the Borrower to no longer
be
commercially suitable for such purpose;
(s) any
Disposition of any assets required by any Government Authority;
(t) any
Disposition of assets in connection with salvage activities; and
(u) Dispositions
of any asset between or among the Borrower and/or any Restricted Subsidiary
as a
substantially concurrent interim Disposition in connection with a Disposition
otherwise permitted pursuant to clauses (a) through (t) above;
provided that after giving effect to any such Disposition,
to the extent
the assets subject to such Dispositions constituted Collateral, such assets
shall remain subject to, or be rejoined to, the Lien of the Security
Documents.
10.5. Limitation
on Investments
. The
Borrower will not, and will not permit the Restricted Subsidiaries, to
make any
Investment except:
(a) extensions
of trade credit, asset purchases (including purchases of inventory, fuel
(including all forms of nuclear fuel), supplies, materials and equipment)
and
the licensing or contribution of intellectual property pursuant to joint
marketing arrangements or development agreements with other
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Persons,
in each case in the ordinary course of business (including in respect of
construction or restoration activities);
(b) Investments
that were Permitted Investments when such Investments were made;
(c) loans
and advances to officers, directors, employees and consultants of the Borrower
(or any direct or indirect parent thereof) or any Subsidiary of the Borrower
(g)
for reasonable and customary business-related travel, entertainment, relocation
and analogous ordinary business purposes (including employee payroll advances),
(h) in connection with such Person’s purchase of Stock or Stock Equivalents of
the Parent (or any direct or indirect parent thereof; provided that, to
the extent such loans and advances are made in cash, the amount of such
loans
and advances used to acquire such Stock or Stock Equivalents shall be
contributed to the Borrower in cash) and (i) for purposes not described
in the
foregoing subclauses (i) and (ii); provided that the
aggregate principal amount outstanding pursuant to subclause (iii) shall
not exceed $25,000,000 at any one time outstanding;
(d) Investments
(i) existing on, or made pursuant to legally binding written commitments
in
existence on, the date hereof as set forth on Schedule 10.5 and any
modifications, extensions, renewals or reinvestments thereof and (ii) existing
on the date hereof of the Borrower or any Restricted Subsidiary in the
Borrower
or any Subsidiary of the Borrower and any modification, extension, renewal
or
reinvestment thereof, only to the extent that the amount of any Investment
made
pursuant to this clause d does not at any time exceed the amount of
such Investment set forth on Schedule 10.5;
(e) Investments
received in connection with the bankruptcy or reorganization of suppliers
or
customers and in settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business or upon foreclosure
with respect to any secured Investment or other transfer of title with
respect
to any secured Investment;
(f) Investments
to the extent that payment for such Investments is made with Stock or Stock
Equivalents (other than Disqualified Stock) of the Borrower (or any direct
or
indirect parent thereof);
(g) Investments
(i) (A) by the Borrower or any Restricted Subsidiary in any Credit Party,
(B)
between or among Restricted Subsidiaries that are not Credit Parties, and
(C)
consisting of intercompany Investments incurred in the ordinary course
of
business in connection with the cash management operations (including with
respect to intercompany self-insurance arrangements) among the Borrower
and the
Restricted Subsidiaries (provided that any such intercompany Investment
in connection with cash management arrangements by a Credit Party in a
Subsidiary of the Borrower that is not a Credit Party is in the form of
an
intercompany loan or advance and the Borrower or such Restricted Subsidiary
complies with Section 9.12 to the extent applicable); (ii) by Credit
Parties in any Restricted Subsidiary that is not a Credit Party, to the
extent
that the aggregate amount of all Investments made on or after the Closing
Date
pursuant to this subclause (ii), when valued at the fair market value
(determined by the Borrower acting in good faith) of each such Investment
at the
time each such Investment was made, is not in excess of, when combined
with, and
without duplication of, the aggregate amount of Investments made pursuant
to the
proviso to Section 10.5(h), an amount equal to the sum of (w)
$1,000,000,000 plus (x) the Applicable Equity Amount at such time
plus (y) to the extent that the Consolidated Secured Debt to
Consolidated
EBITDA Ratio is not greater than 5.0 to 1.00 after giving effect, on a
Pro Forma
Basis, to the making of such Investment, the Applicable Amount at such
time
plus (z) to the extent not otherwise included in the determination
of the
Applicable Equity Amount or the Applicable Amount, an amount equal to any
repayments, interest, returns, profits, distributions, income and similar
amounts actually received in cash in respect of any such Investment (which
amount referred to in this subclause (z) shall not exceed the amount of
such Investment valued at the fair market value of such Investment at the
time
such Investment
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was
made); and (iii) by Credit Parties in any Restricted Subsidiary that is
not a
Credit Party so long as such Investment is part of a series of simultaneous
Investments by Restricted Subsidiaries in other Restricted Subsidiaries
that
result in the proceeds of the initial Investment being invested in one
or more
Credit Parties;
(h) Investments
constituting Permitted Acquisitions; provided that the aggregate amount
of any such Investment, as valued at the fair market value (determined
by the
Borrower acting in good faith) of such Investment at the time each such
Investment is made, made by the Borrower or any Subsidiary Guarantor in
any
Restricted Subsidiary that, after giving effect to such Investment, shall
not be
a Guarantor, shall not cause the aggregate amount of all such Investments
made
pursuant to this clause (h) (as so valued at the time each such
investment is made) to exceed, when combined with, and without duplication
of,
the aggregate amount of Investments made pursuant to clause (ii) of Section
10.5(g), an amount equal to the sum of (i) $1,000,000,000, plus (ii)
the Applicable Equity Amount at such time plus (iii) to the extent the
Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than
5.0
to 1.0 after giving effect, on a Pro Forma Basis, to the making of such
Investment, the Applicable Amount at such time plus (iv) to the extent
not otherwise included in the determination of the Applicable Equity Amount
or
the Applicable Amount, an amount equal to any repayments, interest, returns,
profits, distributions, income and similar amounts actually received in
cash in
respect of any such Investment (which amount referred to in this clause
(iv) shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was
made);
(i) Investments
(including but not limited to (i) Minority Investments and Investments
in
Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless
of the form of legal entity) or similar Persons that do not constitute
Restricted Subsidiaries and (iii) Investments in Subsidiaries that are not
Credit Parties), in each case valued at the fair market value (determined
the
Borrower acting in good faith) of such Investment at the time each such
Investment is made, in an aggregate amount pursuant to this clause (i)
that, at the time each such Investment is made, would not exceed the sum
of
(w) $1,000,000,000 plus (x) the Applicable Equity Amount at such
time plus (y) to the extent the Consolidated Secured Debt to Consolidated
EBITDA Ratio is not greater than 5.0 to 1.00 after giving effect, on a
Pro Forma
Basis, to the making of such Investment, the Applicable Amount at such
time
plus (z) to the extent not otherwise included in the determination
of the
Applicable Equity Amount or the Applicable Amount, an amount equal to any
repayments, interest, returns, profits, distributions, income and similar
amounts actually received in cash in respect of any such Investment (which
amount referred to in this subclause (z) shall not exceed the amount of
such Investment valued at the fair market value of such Investment at the
time
such Investment was made);
(j) Investments
constituting non-cash proceeds of Dispositions of assets to the extent
permitted
by Section 10.4;
(k) Investments
made to repurchase or retire Stock or Stock Equivalents of the Borrower
or any
direct or indirect parent thereof owned by any employee or any stock ownership
plan or key employee stock ownership plan of the Borrower (or any direct
or
indirect parent thereof) in an aggregate amount, when combined with
distributions made pursuant to Section 10.6(b), not to exceed the
limitations set forth in such Section;
(l) Investments
consisting of dividends permitted under Section 10.6;
(m) loans
and advances to any direct or indirect parent of the Borrower in lieu of,
and
not in excess of the amount of, dividends to the extent permitted to be
made to
such parent in accordance with Section 10.6; provided that the
aggregate amount of such loans and advances shall reduce the
ability
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of
the Borrower and the Restricted Subsidiaries to make dividends under the
applicable clauses of Section 10.6 by such amount;
(n) Investments
consisting of extensions of credit in the nature of accounts receivable
or notes
receivable arising from the grant of trade credit in the ordinary course
of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and other credits to
suppliers
in the ordinary course of business;
(o) Investments
in the ordinary course of business consisting of endorsements for collection
or
deposit and customary trade arrangements with customers consistent with
past
practices;
(p) advances
of payroll payments to employees, consultants or independent contractors
or
other advances of salaries or compensation to employees, consultants or
independent contractors, in each case in the ordinary course of
business;
(q) Guarantee
Obligations of the Borrower or any Restricted Subsidiary of leases (other
than
Capital Leases) or of other obligations that do not constitute Indebtedness,
in
each case entered into in the ordinary course of business;
(r) Investments
held by a Person acquired (including by way of merger, amalgamation or
consolidation) after the Closing Date otherwise in accordance with this
Section 10.5 to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger, amalgamation
or
consolidation and were in existence on the date of such acquisition, merger,
amalgamation or consolidation;
(s) Investments
in Hedging Agreements permitted by Section 10.1;
(t) Investments
arising out of, or in connection with, any Permitted Receivables
Financing;
(u) Investments
consisting of deposits of cash and Permitted Investments as collateral
support
permitted under Section 10.2;
(v) other
Investments, which, when aggregated with (i) all aggregate principal amounts
paid pursuant to Section 10.7(a)(i) from the Closing Date and (ii) all
loans and advances made to any direct or indirect parent of the Borrower
pursuant to Section 10.5(m) in lieu of dividends permitted by
Section 10.6(c) and (iii) all dividends paid pursuant to Section
10.6(c), shall not exceed an amount equal to (w) $500,000,000 plus
(x) the Applicable Equity Amount at the time such Investments are made
plus (y) to the extent the Consolidated Secured Debt to Consolidated
EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro
Forma
Basis, to the making of such Investment, the Applicable Amount at such
time
plus (z) to the extent not otherwise included in the determination
of the
Applicable Equity Amount or the Applicable Amount, an amount equal to any
repayments, interest, returns, profits, distributions, income and similar
amounts actually received in cash in respect of any such Investment (which
amount referred to in this subclause (z) shall not exceed the amount of
such Investment valued at the fair market value of such Investment at the
time
such Investment was made);
(w) [Reserved];
(x) Investments
consisting of purchases and acquisitions of assets and services in the
ordinary
course of business (including in respect of construction or restoration
activities);
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(y) Investments
in the ordinary course of business consisting of Article 3 endorsements
for
collection or deposit and Article 4 customary trade arrangements with customers
consistent with past practice;
(z) Investments
made as a part of or in connection with the Transactions, including any
payments
to be made in connection with the Parent’s and its Subsidiaries’ long-term
incentive plan or in respect of tax gross-ups and other deferred
compensation;
(aa) Investments
consisting of Indebtedness permitted by Section 10.1 (but only to the
extent such Indebtedness was permitted without reference to Section 10.5)
or fundamental changes permitted by Section 10.3;
(bb) Investments
relating to pension trusts;
(cc) Investments
by Credit Parties in any Restricted Subsidiary that is not a Credit Party
so
long as such Investment is part of a series of simultaneous Investments
by the
Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries
that
result in the proceeds of the intercompany Investment being invested in
one or
more Credit Parties;
(dd) Investments
relating to nuclear decommission trusts;
(ee) Investments
in the form of, or pursuant to, operating agreements, working interests,
royalty
interests, mineral leases, processing agreements, farm-out agreements,
contracts
for the sale, transportation or exchange of oil and natural gas, unitization
agreements, pooling agreements, area of mutual interest agreements, production
sharing agreements or other similar or customary agreements, transactions,
properties, interests or arrangements, and Investments and expenditures
in
connection therewith or pursuant thereto, in each case, made or entered
into in
the ordinary course of business; and
(ff) Investments
in Shell Wind valued at the fair market value (determined by the Borrower
acting
in good faith) of such Investment at the time each such Investment is made,
in
an aggregate amount pursuant to this clause (ff) that, at the time each
such Investment is made, would not exceed the sum of (w) $1,000,000,000
in the
aggregate (of which no portion may be used in fiscal 2007, up to $250,000,000
may be used in fiscal 2008 and up to $300,000,000 may be used in each subsequent
fiscal year) plus (x) the Applicable Equity Amount at such time
plus (y) to the extent the Consolidated Secured Debt to Consolidated
EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro
Forma
Basis, to the making of such Investment, the Applicable Amount at such
time
plus (z) to the extent not otherwise included in the determination
of the
Applicable Equity Amount or the Applicable Amount, an amount equal to any
repayments, interest, returns, profits, distributions, income and similar
amounts actually received in cash in respect of any such Investment (which
amount referred to in this subclause (z) shall not exceed the amount of
such
Investment valued at the fair market value of such Investment at the time
such
Investment was made).
10.6. Limitation
on Dividends
. The
Borrower will not declare or pay any dividends (other than dividends payable
solely in its Stock or Stock Equivalents (other than Disqualified Stock))
or
return any capital to its stockholders or make any other distribution,
payment
or delivery of property or cash to its stockholders as such, or redeem,
retire,
purchase or otherwise acquire, directly or indirectly, for consideration,
any
shares of any class of its Stock or Stock Equivalents or the Stock or Stock
Equivalents of any direct or indirect parent now or hereafter outstanding,
or
set aside any funds for any of the foregoing purposes, or permit any Restricted
Subsidiary to purchase or otherwise acquire for consideration (other than
in
connection with an Investment permitted by Section 10.5) any Stock or
Stock Equivalents of the Borrower now or hereafter outstanding (all of
the
foregoing, “dividends”), provided:
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(a) the
Borrower may (or may pay dividends to permit any direct or indirect parent
thereof to) redeem in whole or in part any of its Stock or Stock Equivalents
for
another class of its (or such parent’s) Stock or Stock Equivalents or with
proceeds from substantially concurrent equity contributions or issuances
of new
Stock or Stock Equivalents; provided that (i) such new Stock or Stock
Equivalents contain terms and provisions at least as advantageous to the
Lenders, taken as a whole, in all respects material to their interests
as those
contained in the Stock or Stock Equivalents redeemed thereby and (ii) the
cash
proceeds from any such contribution or issuance have not otherwise been
applied
pursuant to the Applicable Equity Amount;
(b) so
long as no Default or Event of Default shall have occurred and is continuing
or
would result therefrom, the Borrower may (or may pay dividends to permit
any
direct or indirect parent thereof to) redeem, acquire, retire or repurchase
shares of its (or such parent’s) Stock or Stock Equivalents held by any present
or former officer, manager, consultant, director or employee (or their
respective Affiliates, spouses, former spouses, successors, executors,
administrators, heirs, legatees, distributees, estates or immediate family
members) of the Borrower (or any direct or indirect parent thereof) and
any
Subsidiaries, so long as such repurchase is pursuant to, and in accordance
with
the terms of, any stock option or stock appreciation rights plan, any
management, director and/or employee benefit, stock ownership or option
plan,
stock subscription plan or agreement, employment termination agreement
or any
employment agreements or stockholders’ or shareholders’ agreement;
provided, however, that the aggregate amount of payments made
under this Section 10.6(b) do not exceed in any calendar year $25,000,000
(which shall increase to $50,000,000 subsequent to the consummation of
an
underwritten public offering of Stock by the Borrower (or any direct or
indirect
parent thereof) (with unused amounts in any calendar year being carried
over to
succeeding calendar years subject to a maximum (without giving effect to
the
following proviso) of $75,000,000 in any calendar year (which shall increase
to
$150,000,000 subsequent to the consummation of an underwritten public offering
of Stock by the Borrower or any direct or indirect parent corporation of
the
Borrower)); provided, further that such amount in any calendar
year may be increased by an amount not to exceed:
(i) the
cash proceeds from the sale of Stock (other than Disqualified Stock) of
the
Borrower and, to the extent contributed to the Borrower, Stock of any of
the
Borrower’s direct or indirect parent companies, in each case to present or
former officers, managers, consultants, directors or employees (or their
respective Affiliates, spouses, former spouses, successors, executors,
administrators, heirs, legatees, distributees, estates or immediate family
members) of the Borrower (or any of its direct or indirect parent companies)
or
any Subsidiary of the Borrower that occurs after the Closing Date, to the
extent
the cash proceeds from the sale of such Stock have not otherwise been applied
pursuant to the Applicable Equity Amount; plus
(ii) the
cash proceeds of key man life insurance policies received the Borrower
or any
Restricted Subsidiary after the Closing Date; less
(iii) the
amount of any dividends or distributions previously made with the cash
proceeds
described in clauses (i) and (ii) above;
and
provided, further, that cancellation of Indebtedness owing to the
Borrower or any Restricted Subsidiary from present or former officers,
managers,
consultants, directors or employees (or their respective Affiliates, spouses,
former spouses, successors, executors, administrators, heirs, legatees,
distributees, estates or immediate family members) of the Borrower (or
any of
its direct or indirect parent companies), or any Subsidiary of the Borrower
in
connection with a repurchase of Stock or Stock Equivalents of the Borrower
or
any of its direct or indirect parent companies will not be deemed to constitute
a dividend for purposes of this covenant or any other provision of this
Agreement;
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(c) so
long as no Default or Event of Default shall have occurred and is continuing
or
would result therefrom, the Borrower may pay dividends on its Stock or
Stock
Equivalents; provided that the amount of all such dividends paid from the
Closing Date pursuant to this clause (c), when aggregated with (i) all
aggregate principal amounts paid pursuant to Section 10.7(a)(i) from the
Closing Date and (ii) (A) all loans and advances made to any direct or
indirect
parent of the Borrower pursuant to Section 10.5(m) in lieu of
dividends permitted by this clause (c) and (B) all Investments made
pursuant to Section 10.5(v), shall not exceed an amount equal to (x)
$500,000,000 plus (y) the Applicable Equity Amount at the time such
dividends are paid plus (z) to the extent the Consolidated Secured Debt
to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving
effect,
on a Pro Forma Basis, to the making of such dividend, the Applicable Amount
at
such time;
(d) the
Borrower may pay dividends to, or make loans to, any direct or indirect
parent
company of the Borrower in amount required for any such direct or indirect
parent to pay, in each case without duplication:
(i) foreign,
federal, state and local income taxes (including any amounts reimbursable
to the
Oncor Subsidiaries in respect of such taxes pursuant to a tax sharing
agreement), to the extent such income taxes are attributable to the income
of
(A) the Parent and its Subsidiaries (other than the Oncor Subsidiaries)
and (B)
the Oncor Subsidiaries, to the extent that the Oncor Subsidiaries have
not
reimbursed the Parent or such direct or indirect parent company of the
Borrower
for such payments in amounts required to pay such taxes; provided that
the
amount of such payments in any fiscal year does not exceed the amount that
the
Parent and its Subsidiaries are required to pay (including any amounts
reimbursable to the Oncor Subsidiaries in respect of such taxes pursuant
to a
tax sharing agreement) in respect of foreign, federal, state and local
income
taxes for such fiscal year.
(ii) (A)
such parents’ and their respective Subsidiaries’ (other than the Oncor
Subsidiaries) general operating expenses incurred in the ordinary course
of
business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary
course
of business and to the extent such costs and expenses are attributable
to (1)
the ownership or operation of the Parent and its Subsidiaries (other than
the
Oncor Subsidiaries) or (2) the ownership and operation of the Oncor
Subsidiaries, to the extent that the Oncor Subsidiaries have not reimbursed
the
Parent or such direct or indirect parent company of the Borrower for such
costs
and expenses, (B) any reasonable and customary indemnification claims made
by
directors or officers of the Borrower (or any parent thereof) and such
parent’s
Subsidiaries, the Borrower or any Restricted Subsidiary or (C) fees and
expenses
otherwise due and payable by the Borrower (or any parent thereof and such
parent’s Subsidiaries) or any Restricted Subsidiary and not prohibited to be
paid by the Borrower and its Restricted Subsidiaries hereunder;
(iii) franchise
and excise taxes and other fees, taxes and expenses required to maintain
the
corporate existence of any direct or indirect parent of the
Borrower;
(iv) to
any direct or indirect parent of the Borrower to finance any Investment
permitted to be made by the Borrower or any Restricted Subsidiary pursuant
to
Section 10.5; provided that (A) such dividend shall be made
substantially concurrently with the closing of such Investment, (B) such
parent
shall, immediately following the closing thereof, cause (1) all property
acquired (whether assets, Stock or Stock Equivalents) to be contributed
to the
Borrower or such Restricted Subsidiary or (2) the merger (to the extent
permitted in Section 10.5) of the Person formed or acquired into the
Borrower or any Restricted Subsidiary, (C) the Borrower shall
com
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ply
with Section 9.11 and Section 9.12 to the extent applicable
and (D) the aggregate amount of such dividends shall reduce the ability
of the
Borrower and the Restricted Subsidiary to make Investments under the applicable
clauses of Section 10.5 by such amount;
(v) customary
costs, fees and expenses (other than to Affiliates) related to any unsuccessful
equity or debt offering or acquisition or disposition transaction payable
by the
Borrower or the Restricted Subsidiaries; and
(vi) customary
salary, bonus and other benefits payable to officers, employees or consultants
of any direct or indirect parent company (and such parent’s Subsidiaries (other
than the Oncor Subsidiaries)) of the Borrower to the extent such salaries,
bonuses and other benefits are attributable to (A) the ownership or operation
of
the Parent and its Subsidiaries (other than the Oncor Subsidiaries) or
(B) the
ownership and operation of the Oncor Subsidiaries, to the extent that the
Oncor
Subsidiaries have not reimbursed the Parent or such direct or indirect
parent
company of the Borrower for such payments;
provided
that any payments made pursuant to clauses (i), (ii) or (vi) above, to
the
extent relating to the ownership, operation or income of the Oncor Subsidiaries,
shall be made in the form of loans, the terms of which shall require repayment
upon receipt by the Parent of funds from the Oncor Subsidiaries as reimbursement
for such amounts;
(e) [Reserved];
(f) to
the extent constituting dividends, the Borrower may enter into and consummate
transactions expressly permitted by any provision of Section
10.3;
(g) the
Borrower may repurchase Stock or Stock Equivalents of the Borrower (or
any
direct or indirect parent thereof) deemed to occur upon exercise of stock
options or warrants if such Stock or Stock Equivalents represents a portion
of
the exercise price of such options or warrants, and the Borrower may pay
dividends to any direct or indirect parent thereof as and when necessary
to
enable such parent to effect such repurchases;
(h) the
Borrower may (i) pay cash in lieu of fractional shares in connection with
any
dividend, split or combination thereof or any Permitted Acquisition and
(ii)
honor any conversion request by a holder of convertible Indebtedness and
make
cash payments in lieu of fractional shares in connection with any such
conversion and may make payments on convertible Indebtedness in accordance
with
its terms;
(i) the
Borrower may pay any dividend or distribution within 60 days after the
date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Agreement;
(j) so
long as no Default or Event of Default shall have occurred and is continuing
or
would result therefrom, the Borrower may declare and pay dividends on the
Borrower’s (or any direct or indirect parent’s thereof) common stock following
the first public offering of the Borrower’s common stock or the common stock of
any of its direct or indirect parents after the Closing Date, of up to
6%
per annum of the net proceeds received by or contributed to the
Borrower in or from any such public offering to the extent such net proceeds
are
not utilized in connection with other transactions permitted by Section
10.5, 10.6 or 10.7;
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(k) the
Borrower may pay dividends in an amount equal to withholding or similar
Taxes
payable or expected to be payable by any present or former employee, director,
manager or consultant (or their respective Affiliates, estates or immediate
family members) and any repurchases of Stock or Stock Equivalents in
consideration of such payments including deemed repurchases in connection
with
the exercise of stock options;
(l) [Reserved];
(m) the
Borrower may make payments described in Sections 9.9(a), 9.9(c),
9.9(f), 9.9(g), 9.9(h), 9.9(i), 9.9(k) and
9.9(l);
(n) the
Borrower may pay dividends or make distributions in connection with the
Transactions, including payments in respect of the Parent’s and its
Subsidiaries’ long term incentive plan or in respect of tax gross-ups and other
deferred compensation;
(o) so
long as no Default or Event of Default shall have occurred and is continuing
or
would result therefrom, the Borrower may pay declare and pay dividends
to, or
make loans to, any direct or indirect parent company of the Borrower in
amounts
up to $750,000,000; provided that such amount may only be used for
Investments by any direct or indirect parent entity of the Borrower in
any
unrestricted Subsidiary of such parent to the extent permitted by the Parent
Senior Documents or any documents governing any refinanced, renewed, refunded,
modified, replaced or extended Parent Senior Facility; and provided,
further, that no more than $250,000,000 of such amount may be
in a form
other than a loan to such parent;
(p) the
Borrower may make distributions or payments of Receivables Fees;
(q) the
Borrower may pay declare and pay dividends out of Retained Declined Proceeds
remaining after any Prepayment Event and not included in the Available
Amount in
an amount not to exceed $100,000,000;
(r) so
long as no Event of Default under Section 11.1 or 11.5 shall have
occurred and be continuing or would occur as a consequence thereof, the
Borrower
may make loans to the Parent and its other Subsidiaries (other than the
Oncor
Subsidiaries) in amounts required for the Parent or such Subsidiaries to
pay, in
each case without duplication, principal, premium and interest when due
on (i)
the Parent Senior Facility and any Indebtedness incurred in connection
with the
modification, replacement, refinancing, refunding, renewal or extension
thereof;
provided that, in connection with any such modification, replacement,
refinancing, refunding, renewal or extension, the aggregate principal amount
of
such Indebtedness does not exceed the principal amount thereof outstanding
immediately prior to such modification, replacement, refinancing, refunding,
renewal or extension (except by an amount equal to accrued interest and
premium
thereon (including any PIK interest amount)) plus other reasonable
amounts paid and fees and expenses incurred in connection with such
modification, replacement, refinancing, refunding, renewal or extension,
(ii)
Indebtedness of the Parent and its other Subsidiaries (other than the Oncor
Subsidiaries) in existence prior to the Closing Date, including the Existing
Parent Notes and any Indebtedness incurred in connection with the modification,
replacement, refinancing, refunding, renewal or extension thereof;
provided that, in connection with any such modification, replacement,
refinancing, refunding, renewal or extension, the aggregate principal amount
of
such Indebtedness does not exceed the principal amount thereof outstanding
immediately prior to such modification, replacement, refinancing, refunding,
renewal or extension (except by an amount equal to accrued interest and
premium
thereon (including any PIK interest amount)) plus other reasonable
amounts paid and fees and expenses incurred in connection with such
modification, replacement, refinancing, refunding, renewal or extension
and
(iii) any Indebtedness incurred by the Parent after the Closing Date;
provided that in the case of this clause
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(iii),
such payments shall not to exceed the sum of (x) $250,000,000 plus (y)
the Available Equity Amount at the time of the making of such payment
plus (z) to the extent the Consolidated Debt to Consolidated EBITDA
Ratio
is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis,
to the
making of each such payment, the Applicable Amount at such time;
(s) the
Borrower may make distributions of, or Investments in, Receivables Facility
Assets for purposes of inclusion in any Permitted Receivables Financing,
in each
case made in the ordinary course of business or consistent with past
practices;
(t) the
Borrower may declare and pay dividends to, or make loans to, the Parent
(or any
other direct or indirect parent company of the Borrower) in amounts sufficient
to permit the Parent to make any “Optional Interest Repayment” permitted by the
terms of the Parent Senior Documents or any Indebtedness incurred in connection
with the modification, replacement, refinancing, refunding, renewal or
extension
thereof; provided that, in connection with any such modification,
replacement, refinancing, refunding, renewal or extension, the aggregate
principal amount of such Indebtedness does not exceed the principal amount
thereof outstanding immediately prior to such modification, replacement,
refinancing, refunding, renewal or extension (except by an amount equal
to
accrued interest and premium thereon (including any PIK Interest Amount)
plus other reasonable amounts paid and fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding,
renewal
or extension;
(u) the
Borrower may make loans to, or permit letters of credit (including Letters
of
Credit) to be issued on behalf of, any of its direct or indirect parent
companies or such parents’ Subsidiaries for working capital purposes or for
payments under the Energy Plaza Lease or the cost of maintaining the
headquarters building at Energy Plaza, in each case so long as made in
the
ordinary course of business and consistent with past practices and in an
amount
not to exceed $350,000,000 of which no more than $250,000,000 may be in
the form
of Letters of Credit; and
(v) during
the period from the Closing Date until the date that is five months following
the Closing Date, the Borrower may (or may pay dividends to permit any
direct or
indirect parent thereof to) redeem, or repurchase shares of its (or such
Parent’s) Stock or Stock Equivalents held by any Management Investor so long as
such redemption or repurchase is only of Stock contributed or “rolled over” to
the Borrower (or such Parent) in connection with the Transactions and the
aggregate amount of payments made under this Section 10.6(v) does not
exceed $5,000,000.
Notwithstanding
anything to the contrary contained in Section 10 (including Section
10.5 and this Section 10.6), the Borrower will not, and will not
permit any of its Restricted Subsidiaries to, pay any cash dividend or
make any
cash distribution on or in respect of the Borrower’s Stock or Stock Equivalents
or purchase or otherwise acquire for cash any Stock or Stock Equivalents
of the
Borrower or any direct or indirect parent of the Borrower, for the purpose
of
paying any cash dividend or making any cash distribution to, or acquiring
any
Stock or Stock Equivalents of the Borrower or any direct or indirect parent
of
the Borrower for cash from the Sponsors, or guarantee any Indebtedness
of any
Affiliate of the Borrower for the purpose of paying such dividend, making
such
distribution or so acquiring such Stock or Stock Equivalents to or from
the
Sponsors, in each case by means of utilization of the cumulative dividend
and
investment credit provided by the use of the Applicable Amount or the exceptions
provided by Sections 10.5(i), (m) and (v), Sections
10.6(c) and (i) and Section 10.7(a), unless at the time and
after giving effect to such payment, the Consolidated Total Debt to Consolidated
EBITDA Ratio would be equal to or less than 6.5 to 1.0.
Any
loan made pursuant to Section 10.6(d), Section 10.6(o),
Section 10.6(r) or Section 10.6(u) by the Borrower or any of the
Restricted Subsidiaries to the Parent or any of the Parent’s other Subsidiaries
(each, a “Parent Loan”) shall be made on arm’s-length basis and
shall contain a repayment
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provision
such that each Parent Loan shall be repaid with the proceeds from the
Disposition of all or any portion of the Stock or Indebtedness of, or all
or
substantially all of the assets (in one transaction or a series of related
transactions) of any of the Oncor Subsidiaries (in each case to the extent
such
proceeds are received (initially or subsequently) by the Parent or any
of its
Subsidiaries other than the Oncor Subsidiaries) prior to the use of any
such
proceeds to prepay (other than at maturity) any Indebtedness of the Parent
or to
make any dividend or distribution to the Sponsors.
10.7. Limitations
on Debt Payments and Amendments
.
(a) The
Borrower will not, and will not permit the Restricted Subsidiaries to,
prepay,
repurchase or redeem or otherwise defease any Permitted Additional Debt
that is
subordinated to the Obligations or any Existing Notes with Stated Maturities
beyond the latest Maturity Date of any Credit Facility under the Agreement
(the
“Limited Notes”), but in any event, in all cases, excluding any
Existing Tender Offer Notes; provided, however, that so long as no
Default or Event of Default shall have occurred and be continuing on the
date of
such prepayment, repurchase, redemption or other defeasance or would result
therefrom, the Borrower and the Restricted Subsidiaries may prepay, repurchase
or redeem or otherwise defease such Permitted Additional Debt or such Limited
Notes (i) in an aggregate amount from the Closing Date, when aggregated
with (A)
the aggregate amount of dividends paid pursuant to Section 10.6(c) from
the Closing Date and (B) all (I) Investments made pursuant to
Section 10.5(v) and (II) loans and advances to any direct or
indirect parent of the Borrower made pursuant to Section 10.5(m),
not in excess of the sum of (1) $500,000,000 plus (2) the Applicable
Equity Amount at the time of such prepayment, repurchase, redemption or
other
defeasance plus (3) to the extent the Consolidated Secured Debt to
Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 on a Pro Forma
Basis,
to the making of such prepayment, repurchase, redemption or defeasance,
the
Applicable Amount at the time of such prepayment, repurchase, redemption
or
other defeasance; (ii) in the case of Permitted Additional Debt, with the
proceeds of other Permitted Additional Debt and (iii) in the case of the
Limited
Notes, in compliance with Section 10.1(g). Notwithstanding the
foregoing, nothing in this Section 10.7 shall prohibit (A) the repayment
or prepayment of intercompany subordinated Indebtedness owed among the
Borrower
and/or the Restricted Subsidiaries, in either case unless a Default or
an Event
of Default has occurred and is continuing and the Borrower has received
a notice
from the Collateral Agent instructing it not to make or permit any such
repayment or prepayment or (B) transfers of credit positions in connection
with
intercompany debt restructurings so long as such Indebtedness is permitted
by
Section 10.1 after giving effect to such transfer. For the
avoidance of doubt, nothing in this Section 10.7 shall restrict the
making of any prepayment of accrued but unpaid interest and/or original
issue
discount in respect of either the Borrower Senior Facility or any Refinanced
Bridge Indebtedness Documentation in accordance with “Optional Interest
Repayment” provisions thereof at the end of any accrued period ending after the
fifth anniversary of the Closing Date.
(b) The
Borrower will not, and will not permit to the Restricted Subsidiaries to
waive,
amend, modify, terminate or release any Permitted Additional Debt that
is
subordinated to the Obligations, any Limited Notes or the Borrower Senior
Interim Loan Agreement, in each case, that to the extent that any such
waiver,
amendment, modification, termination or release, taken as a whole, would
be
adverse to the Lenders in any material respect.
10.8. Limitations
on Sale Leasebacks
. The
Borrower will not, and will not permit the Restricted Subsidiaries to,
enter
into or effect any Sale Leasebacks after the Closing Date, other than Permitted
Sale Leasebacks.
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10.9. Consolidated
Secured Debt to Consolidated EBITDA Ratio
. The
Borrower will not permit the Consolidated Secured Debt to Consolidated
EBITDA
Ratio for any Test Period set forth below to be greater than the ratio
set forth
below opposite such period:
TEST
PERIOD ENDING
|
RATIO
|
September
30, 2008
|
7.25
to 1.00
|
December
31, 2008
|
7.25
to 1.00
|
March
31, 2009
|
7.25
to 1.00
|
June
30, 2009
|
7.25
to 1.00
|
September
30, 2009
|
7.25
to 1.00
|
December
31, 2009
|
7.25
to 1.00
|
March
31, 2010
|
7.00
to 1.00
|
June
30, 2010
|
7.00
to 1.00
|
September
30, 2010
|
7.00
to 1.00
|
December
31, 2010
|
6.75
to 1.00
|
March
31, 2011
|
6.75
to 1.00
|
June
30, 2011
|
6.75
to 1.00
|
September
30, 2011
|
6.75
to 1.00
|
December
31, 2011
|
6.50
to 1.00
|
March
31, 2012
|
6.50
to 1.00
|
June
30, 2012
|
6.50
to 1.00
|
September
30, 2012
|
6.50
to 1.00
|
December
31, 2012
|
6.25
to 1.00
|
March
31, 2013
|
6.25
to 1.00
|
June
30, 2013
|
6.25
to 1.00
|
September
30, 2013
|
6.25
to 1.00
|
December
31, 2013
|
6.00
to 1.00
|
March
31, 2014
|
5.75
to 1.00
|
June
30, 2014
|
5.75
to 1.00
|
September
30, 2014
|
5.75
to 1.00
|
Any
provision of this Agreement that contains a requirement for the Borrower
to be
in compliance with the covenant contained in this Section 10.9 prior to
the time that this covenant is otherwise applicable shall be deemed to
require
that the Consolidated Secured Debt to Consolidated EBITDA Ratio for the
applicable Test Period not be greater than 7.25 to 1.00.
SECTION
11. Events
of Default
.
Upon
the occurrence of any of the following specified events (each an “Event
of Default”):
11.1. Payments
. The
Borrower shall (a) default in the payment when due of any principal of
the Loans
(but not Posting Advances), (b) default, and such default shall continue
for
five or more days, in the payment when due of any interest on the Loans,
Posting
Advances or any Fees or any Unpaid Drawings or any other amounts owing
hereunder
or under any other Credit Document or (c) fail to pay when due any principal
amount of the Posting Advances; provided that, if at the time of such
failure the Posting Lender and the Dealer are not Affiliates, then, to
the
extent that such failure is due to, or caused by, the failure of the Dealer
to
comply with its payment obligations under any Dealer Swaps, the Borrower
shall
have a period of seven Business Days to cure any such failure and during
such
cure period, such failure shall not constitute a Default or Event of Default
hereunder, and provided, further, that to the
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extent
that any such failure to pay is caused by the Posting Lender or the Dealer
(to
the extent such entities are Affiliates of each other) to comply with their
respective obligations under any netting and/or settlement agreement with
the
Borrower or any Restricted Subsidiary, such failure to pay shall not (to
the
extent it is and continues to be caused by such failure) constitute a Default
or
Event of Default hereunder; or
11.2. Representations,
Etc.
Any
representation, warranty or statement made or deemed made by any Credit
Party
herein or in any other Credit Document or any certificate delivered or
required
to be delivered pursuant hereto or thereto shall prove to be untrue in
any
material respect on the date as of which made or deemed made; or
11.3. Covenants
. Any
Credit Party shall:
(a) default
in the due performance or observance by it of any term, covenant or agreement
contained in Section 9.1(d), Section 9.5 (solely with respect to
the Borrower) or Section 10; or
(b) default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in Section 11.1 or 11.2 or clause
(a) of this Section 11.3) contained in this Agreement or any other Credit
Document and such default shall continue unremedied for a period of at
least 30
days after receipt of written notice by the Borrower from the Administrative
Agent or the Required Lenders; or
11.4. Default
Under Other Agreements
. (a) The
Borrower or any Restricted Subsidiary shall (i) default in any payment
with
respect to any Indebtedness (other than any Indebtedness described in Section
11.1, Hedging Obligations or Indebtedness under any Permitted Receivables
Financing) in excess of $200,000,000 in the aggregate, for the Borrower
and such
Restricted Subsidiaries, beyond the period of grace, if any, provided in
the
instrument or agreement under which such Indebtedness was created or
(ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or
condition exist (other than any agreement or condition relating to, or
provided
in any instrument or agreement, under which such Hedging Obligations or
such
Permitted Receivables Financing was created), the effect of which default
or
other event or condition is to cause, or to permit the holder or holders
of such
Indebtedness (or a trustee or agent on behalf of such holder or holders)
to
cause, any such Indebtedness to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity; or (b) without limiting the provisions of clause (a)
above, any such Indebtedness shall be declared to be due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment
(other than any Hedging Obligations or Indebtedness under any Permitted
Receivables Financing) or as a mandatory prepayment, prior to the stated
maturity thereof; provided that this clause (b) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale
or
transfer of the property or assets securing such Indebtedness, if such
sale or
transfer is permitted hereunder and under the documents providing for such
Indebtedness; or
11.5. Bankruptcy,
Etc.
The
Borrower or any Specified Subsidiary shall commence a voluntary case, proceeding
or action concerning itself under (a) Title 11 of the United States Code
entitled “Bankruptcy,” or (b) in the case of any Foreign Subsidiary that is
a Specified Subsidiary, any domestic or foreign law relating to bankruptcy,
judicial management, insolvency, reorganization, administration or relief
of
debtors in effect in its jurisdiction of incorporation, in each case as
now or
hereafter in effect, or any successor thereto (collectively, the
“Bankruptcy Code”); or an involuntary case, proceeding or
action is commenced against the Borrower or any Specified Subsidiary and
the
petition is not controverted within 30 days after commencement of the case,
proceeding or action; or an involuntary case, proceeding
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or
action is commenced against the Borrower or any Specified Subsidiary and
the
petition is not dismissed within 60 days after commencement of the case,
proceeding or action; or a custodian (as defined in the Bankruptcy Code),
judicial manager, receiver, receiver manager, trustee, administrator or
similar
person is appointed for, or takes charge of, all or substantially all of
the
property of the Borrower or any Specified Subsidiary; or the Borrower or
any
Specified Subsidiary commences any other voluntary proceeding or action
under
any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency, administration or liquidation or similar law of
any
jurisdiction whether now or hereafter in effect relating to the Borrower
or any
Specified Subsidiary; or there is commenced against the Borrower or any
Specified Subsidiary any such proceeding or action that remains undismissed
for
a period of 60 days; or the Borrower or any Specified Subsidiary is adjudicated
insolvent or bankrupt; or any order of relief or other order approving
any such
case or proceeding or action is entered; or the Borrower or any Specified
Subsidiary suffers any appointment of any custodian, receiver, receiver
manager,
trustee, administrator or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days;
or the
Borrower or any Specified Subsidiary makes a general assignment for the
benefit
of creditors; or any corporate action is taken by the Borrower or any Specified
Subsidiary for the purpose of effecting any of the foregoing; or
11.6. ERISA
. (a) Any
Plan shall fail to satisfy the minimum funding standard required for any
plan
year or part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code;
any Plan
is or shall have been terminated or is the subject of termination proceedings
under ERISA (including the giving of written notice thereof); an event
shall
have occurred or a condition shall exist in either case entitling the PBGC
to
terminate any Plan or to appoint a trustee to administer any Plan (including
the
giving of written notice thereof); any Plan shall have an accumulated funding
deficiency (whether or not waived); the Borrower or any ERISA Affiliate
has
incurred or is likely to incur a liability to or on account of a Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204
of ERISA
or Section 4971 or 4975 of the Code (including the giving of written notice
thereof); (b) there could result from any event or events set forth in
clause
(a) of this Section 11.6 the imposition of a Lien, the granting of a
security interest, or a liability, or the reasonable likelihood of incurring
a
Lien, security interest or liability; and (c) such Lien, security interest
or
liability will or would be reasonably likely to have a Material Adverse
Effect;
or
11.7. Guarantee
. Any
Guarantee provided by any Credit Party or any material provision thereof
shall
cease to be in full force or effect (other than pursuant to the terms hereof
or
thereof) or any such Guarantor thereunder or any other Credit Party shall
deny
or disaffirm in writing any such Guarantor’s obligations under the Guarantee;
or
11.8. Pledge
Agreement
. Any
Pledge Agreement pursuant to which the Stock or Stock Equivalents of the
Borrower or any Subsidiary of the Borrower is pledged or any material provision
thereof shall cease to be in full force or effect (other than pursuant
to the
terms hereof or thereof or any perfection defect arising solely as a result
of
the failure of the Collateral Agent to maintain any possessory collateral)
or
any pledgor thereunder or any other Credit Party shall deny or disaffirm
in
writing such pledgor’s obligations under any Pledge Agreement; or
11.9. Security
Agreement
. The
Security Agreement or any other Security Document pursuant to which the
assets
of any Credit Party are pledged as Collateral or any material provision
thereof
shall cease to be in full force or effect (other than pursuant to the terms
hereof or thereof) or any grantor thereunder or any other Credit Party
shall
deny or disaffirm in writing such grantor’s obligations under the Security
Agreement or any other Security Document; or
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11.10. Mortgages
. Any
Mortgage or any material provision of any Mortgage relating to any material
portion of the Collateral shall cease to be in full force or effect (other
than
pursuant to the terms hereof or thereof, including a release by the Collateral
Agent of all or a portion of the property covered thereby in accordance
with the
terms hereof and thereof) or any mortgagor thereunder or any other Credit
Party
shall deny or disaffirm in writing such mortgagor’s obligations under any
Mortgage; or
11.11. Judgments
. One
or more judgments or decrees shall be entered against the Borrower or any
Restricted Subsidiary involving a liability of $200,000,000 or more in
the
aggregate for all such judgments and decrees for the Borrower and the Restricted
Subsidiaries (to the extent not paid or covered by insurance provided by
a
carrier not disputing coverage) and any such judgments or decrees shall
not have
been satisfied, vacated, discharged or stayed or bonded pending appeal
within 60
days after the entry thereof; or
11.12. Hedging
Agreements
. The
Borrower or any of the Restricted Subsidiaries shall default (and have
knowledge
of such default) in any required payment obligation that is not being contested
in good faith and by appropriate proceedings by the Borrower or any Restricted
Subsidiary under any one or more Hedging Agreements and involving liabilities
in
the aggregate in excess of $200,000,000 and payable by the Borrower and
the
Restricted Subsidiaries, after giving effect to any grace periods, dispute
resolution provisions or similar provisions contained in such Hedging
Agreements; and such default shall not have been cured within 60 days after
the
date on which the date on which the counterparty under such Hedging Agreement
is
permitted to cause the obligation to become due and payable; or
11.13. Change
of Control
. A
Change of Control shall occur;
then,
and in any such event, and at any time thereafter, if any Event of Default
shall
then be continuing, the Administrative Agent may and, upon the written
request
of the Required Lenders, shall, by written notice to the Borrower, take
any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (provided
that, if an Event of Default specified in Section 11.5 shall occur with
respect to the Borrower, the result that would occur upon the giving of
written
notice by the Administrative Agent as specified in clauses (i),
(ii), (iii) and (v) below shall occur automatically without
the giving of any such notice): (i) declare the Total Revolving
Credit Commitment and Swingline Commitment terminated, whereupon the Revolving
Credit Commitment and Swingline Commitment, if any, of each Lender or the
Swingline Lender, as the case may be, shall forthwith terminate immediately
and
any Fees theretofore accrued shall forthwith become due and payable without
any
other notice of any kind; (ii) declare the Delayed Draw Term Loan
Commitment terminated, whereupon the Delayed Draw Term Loan Commitment,
if any,
of each Lender shall forthwith terminate immediately and any Fees theretofore
accrued shall forthwith become due and payable; (iii) declare the principal
of and any accrued interest and Fees in respect of any or all Loans, Posting
Advances and any or all Obligations owing hereunder and under any other
Credit
Document to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of
which
are hereby waived by the Borrower; (iv) terminate any Letter of Credit that
may be terminated in accordance with its terms; and/or (v) direct the Borrower
to Cash Collateralize (and the Borrower agrees that upon receipt of such
notice,
or upon the occurrence of an Event of Default specified in
Section 11.5 with respect to the Borrower, it will Cash
Collateralize) all Revolving Letters of Credit issued and then outstanding;
and
in any such event; and at any time thereafter, if any Event of Default
shall
then be continuing, the Posting Agent may and, upon the written request
of the
Required Posting Lenders, shall, by written notice to the Borrower, take
any or
all of the following actions, without prejudice to the rights of the Posting
Agent or any Lender under the Posting Facility to enforce its claims against
the
Borrower, except as otherwise specifically provided for in this Agreement
(provided that, if an Event of Default specified in
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Section
11.5 shall occur with respect to the Borrower, the result that would occur
upon the giving of written notice by the Posting Agent as specified in
clauses
(i) and (ii) below shall occur automatically without the giving of any
such
notice): (i) declare the Total Posting Commitment terminated,
whereupon the Posting Commitment, if any, of each Lender shall forthwith
terminate immediately and any Fees theretofore accrued (including any Partial
Termination Maintenance Fees and Final Termination Maintenance Fee) shall
forthwith become due and payable without any other notice of any kind;
and (ii)
declare the principal of and any accrued interest and Fees (including,
without
limitation, any Partial Termination Maintenance Fees and Final Termination
Maintenance Fee) in respect of any or all Posting Advances and any or all
Obligations with respect to the Posting Facility owing hereunder and under
any
other Credit Document to be, whereupon the same shall become, forthwith
due and
payable without presentment, demand, protest or other notice of any kind,
all of
which are hereby waived by the Borrower. Notwithstanding the
foregoing, no action may be taken by the Administrative Agent, the Posting
Agent
or any Lender with respect to an Event of Default under Section 11.1
relating solely to payments due in respect of the Posting Facility, unless
directed to do so upon the written request of the Required Posting Lenders
and,
to the extent waived by the Required Posting Lenders or each Posting Lender
directly and adversely affected thereby, as applicable, in accordance with
the
provisions of Section 13.1, such Event of Default shall cease to be a
Default or Event or Default hereunder.
11.14. Application
of Proceeds
. Any
amount received by the Administrative Agent, Posting Agent or the Collateral
Agent from any Credit Party (or from proceeds of any Collateral) following
any
acceleration of the Obligations under this Agreement or any Event of Default
with respect to the Borrower under Section 11.5 shall be applied in
accordance with Section 4.1 of the Intercreditor Agreement.
11.15. Right
to Cure
.
(a) Notwithstanding
anything to the contrary contained in Section 11.3(a), in the event that
the Borrower fails to comply with the requirement of the covenant set forth
in
Section 10.9, until the expiration of the tenth day after the date on
which Section 9.1 Financials with respect to the Test Period in which the
covenant set forth in such Section is being measured are required to be
delivered pursuant to Section 9.1, the Parent, US Holdings or any other
Person shall have the right to make a direct or indirect equity investment
(other than in the form of Disqualified Stock) in the Borrower in cash
(the
“Cure Right”), and upon receipt by the Borrower of the net cash
proceeds pursuant to the exercise of the Cure Right (including through
the
capital contribution of any such net cash proceeds to the Borrower, the
“Cure Amount”), the covenant set forth in such Section shall be
recalculated, giving effect to the pro forma increase to Consolidated EBITDA
for
such Test Period in an amount equal to such Cure Amount; provided that
(i) such pro forma adjustment to Consolidated EBITDA shall be given solely
for
the purpose of determining the existence of a Default or Event of Default
under
the covenant set forth in such Section with respect to any Test Period
that
includes the fiscal quarter for which such Cure Right was exercised and
not for
any other purpose under any Credit Document and (ii) no other adjustment
under
any other financial definition shall be made as a result of the exercise
of any
Cure Right (including no netting of cash constituting any Cure Amount in
the
definition of Consolidated Total Debt (either directly or indirectly through
the
definition of Unrestricted Cash)).
(b) If,
after the exercise of the Cure Right and the recalculations pursuant to
clause
(a) above, the Borrower shall then be in compliance with the requirements
of the
covenant set forth in Section 10.9 during such Test Period (including for
the purposes of Section 7), the Borrower shall be deemed to have
satisfied the requirements of such covenant as of the relevant date of
determination with the same effect as though there had been no failure
to comply
therewith at such date, and the applicable Default or Event of Default
under
Section 11.3 that had occurred shall be deemed cured for purposes
of
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this
Agreement; provided that (i) in each Test Period there shall be at least
one fiscal quarter for which no Cure Right is exercised and (ii) with respect
to
any exercise of the Cure Right, the Cure Amount shall be no greater than
the
amount required to cause the Borrower to be in compliance with the covenant
set
forth in Section 10.9.
SECTION
12. The
Agents
.
12.1. Appointment
.
(a) Each
Lender hereby irrevocably designates and appoints the Administrative Agent
as
the agent of such Lender under this Agreement and the other Credit Documents
and
irrevocably authorizes the Administrative Agent, in such capacity, to take
such
action on its behalf under the provisions of this Agreement and the other
Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and
the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Each Posting Lender hereby irrevocably designates
and appoints the Posting Agent as the agent of such Lender under this Agreement
and the other Credit Documents and irrevocably authorizes the Posting Agent,
in
such capacity, to take such action on its behalf under the provisions of
this
Agreement and the other Credit Documents and to exercise such powers and
perform
such duties as are expressly delegated to the Posting Agent by the terms
of this
Agreement and the other Credit Documents, together with such other powers
as are
reasonably incidental thereto. Each Posting Lender and the Borrower
hereby irrevocably designates and appoints the Posting Calculation Agent
as the
agent of such Lender and the Borrower under this Agreement and the other
Credit
Documents and irrevocably authorizes the Posting Calculation Agent, in
such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Credit Documents and to exercise such powers and
perform
such duties as are expressly delegated to the Posting Calculation Agent
by the
terms of this Agreement and the other Credit Documents, together with such
other
powers as are reasonably incidental thereto. The provisions of this
Section 12 (other than the third sentence of this Section 12.1 and
Sections 12.9 and 12.13 with respect to the Borrower) are solely
for the benefit of the Agents and the Lenders, and the Borrower shall not
have
any rights as a third party beneficiary of such
provision. Notwithstanding any provision to the contrary elsewhere in
this Agreement, no Agent shall have any duties or responsibilities, except
those
expressly set forth herein or in any other Credit Document, any fiduciary
relationship with any Lender or any agency or trust obligations with respect
to
any Credit Party, and no implied covenants, functions, responsibilities,
duties,
obligations or liabilities shall be read into this Agreement or any other
Credit
Document or otherwise exist against such Agent.
(b) The
Administrative Agent, the Posting Agent, each Lender, the Swingline Lender
and
the Letter of Credit Issuers hereby irrevocably designate and appoint the
Collateral Agent as the agent with respect to the Collateral, and each
of the
Administrative Agent, the Posting Agent, each Lender, the Swingline Lender
and
each Letter of Credit Issuer irrevocably authorizes the Collateral Agent,
in
such capacity, to take such action on its behalf under the provisions of
this
Agreement and the other Credit Documents and to exercise such powers and
perform
such duties as are expressly delegated to the Collateral Agent by the terms
of
this Agreement and the other Credit Documents, together with such other
powers
as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Collateral Agent shall
not have
any duties or responsibilities except those expressly set forth herein
or in any
other Credit Document, any fiduciary relationship with any of the Administrative
Agent, the Posting Agent, the Lenders, the Swingline Lender or the Letter
of
Credit Issuers or any agency or trust obligations with respect to any Credit
Party, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Credit
Document or otherwise exist against the Collateral Agent.
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(c) Each
of the Syndication Agent, the Posting Syndication Agent, the Joint Lead
Arrangers and Bookrunners, the Posting Lead Arranger and Bookrunner, the
Posting
Documentation Agent and the Co-Documentation Agents, each in its capacity
as
such, shall not have any obligations, duties or responsibilities under
this
Agreement but shall be entitled to all benefits of this Section
12.
12.2. Delegation
of Duties
. The
Administrative Agent, the Posting Agent and the Collateral Agent may each
execute any of its duties under this Agreement and the other Credit Documents
by
or through agents, sub-agents, employees or attorneys-in-fact and shall
be
entitled to advice of counsel concerning all matters pertaining to such
duties. Neither the Administrative Agent, the Posting Agent nor the
Collateral Agent shall be responsible for the negligence or misconduct
of any
agents, sub-agents or attorneys-in-fact selected by it in the absence of
gross
negligence or willful misconduct (as determined in the final judgment of
a court
of competent jurisdiction).
12.3. Exculpatory
Provisions
.
(a) No
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (a) liable for any action lawfully taken or omitted
to be
taken by any of them under or in connection with this Agreement or any
other
Credit Document (except for its or such Person’s own gross negligence or willful
misconduct, as determined in the final judgment of a court of competent
jurisdiction, in connection with its duties expressly set forth herein)
or (b)
responsible in any manner to any of the Lenders or any participant for
any
recitals, statements, representations or warranties made by any of US Holdings,
the Borrower, any other Guarantor, any other Credit Party or any officer
thereof
contained in this Agreement or any other Credit Document or in any certificate,
report, statement or other document referred to or provided for in, or
received
by such Agent under or in connection with, this Agreement or any other
Credit
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Credit Document, or the perfection
or priority of any Lien or security interest created or purported to be
created
under the Security Documents, or for any failure of US Holdings, the Borrower,
any other Guarantor or any other Credit Party to perform its obligations
hereunder or thereunder. No Agent shall 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
Credit Document, or to inspect the properties, books or records of any
Credit
Party or any Affiliate thereof. The Collateral Agent shall not be
under any obligation to the Administrative Agent, the Posting Agent, any
Lender
or any Letter of Credit Issuer 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 Credit Document, or to inspect the properties, books
or
records of any Credit Party.
(b) Each
Lender confirms to the Administrative Agent, the Posting Agent, each other
Lender and each of their respective Related Parties that it (i) possesses
(individually or through its Related Parties) such knowledge and experience
in
financial and business matters that it is capable, without reliance on
the
Administrative Agent, the Posting Agent, any other Lender or any of their
respective Related Parties, of evaluating the merits and risks (including
tax,
legal, regulatory, credit, accounting and other financial matters) of (x)
entering into this Agreement, (y) making Loans, making Posting Advances
and
other extensions of credit hereunder and under the other Credit Documents
and
(z) in taking or not taking actions hereunder and thereunder, (ii) is
financially able to bear such risks and (iii) has determined that entering
into
this Agreement and making Loans, making Posting Advances and other extensions
of
credit hereunder and under the other Credit Documents is suitable and
appropriate for it.
(c) Each
Lender acknowledges that (i) it is solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with this Agreement and the other Credit Documents, (ii) that
it has,
independently and without reliance upon the Administrative
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Agent,
the Posting Agent, any other Lender or any of their respective Related
Parties,
made its own appraisal and investigation of all risks associated with,
and its
own credit analysis and decision to enter into, this Agreement based on
such
documents and information, as it has deemed appropriate and (iii) it will,
independently and without reliance upon the Administrative Agent, the Posting
Agent, any other Lender or any of their respective Related Parties, continue
to
be solely responsible for making its own appraisal and investigation of
all
risks arising under or in connection with, and its own credit analysis
and
decision to take or not take action under, this Agreement and the other
Credit
Documents based on such documents and information as it shall from time
to time
deem appropriate, which may include, in each case:
(i) the
financial condition, status and capitalization of the Borrower and each
other
Credit Party;
(ii) the
legality, validity, effectiveness, adequacy or enforceability of this Agreement
and each other Credit Document and any other agreement, arrangement or
document
entered into, made or executed in anticipation of, under or in connection
with
any Credit Document;
(iii) determining
compliance or non-compliance with any condition hereunder to the making
of a
Loan or Posting Advance, or the issuance of a Letter of Credit and the
form and
substance of all evidence delivered in connection with establishing the
satisfaction of each such condition;
(iv) the
adequacy, accuracy and/or completeness of any information delivered by
the
Administrative Agent, the Posting Agent, any other Lender or by any of
their
respective Related Parties under or in connection with this Agreement or
any
other Credit Document, the transactions contemplated hereby and thereby
or any
other agreement, arrangement or document entered into, made or executed
in
anticipation of, under or in connection with any Credit Document.
12.4. Reliance
by Agents
. The
Administrative Agent, the Posting Agent and the Collateral Agent shall
be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex,
electronic mail, or teletype message, statement, order or other document
or
instruction 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 counsel to US Holdings and/or the Borrower),
independent accountants and other experts selected by the Administrative
Agent,
the Posting Agent or the Collateral Agent. The Administrative Agent
and the Posting Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all
purposes
unless a written notice of assignment, negotiation or transfer thereof
shall
have been filed with the Administrative Agent and the Posting
Agent. The Administrative Agent, the Posting Agent and the Collateral
Agent shall be fully justified in failing or refusing to take any action
under
this Agreement or any other Credit Document unless it shall first receive
such
advice or concurrence of the Required Lenders (or the Required Posting
Lenders,
as applicable) as it deems appropriate or it shall first be indemnified
to its
satisfaction by the Lenders against any and all liability and expense that
may
be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent, the Posting Agent and the
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents
in
accordance with a request of the Required Lenders (or the Required Posting
Lenders, as applicable), and such request and any action taken or failure
to act
pursuant thereto shall be binding upon all the Lenders and all future holders
of
the Loans and/or Posting Advances; provided that the Administrative
Agent, the Posting Agent and Collateral Agent shall not be required to
take any
action that, in its opinion or in the opinion of its counsel, may expose
it to
liability or that is contrary to any Credit Document or Applicable
Law. For purposes of determining compliance with the conditions
specified in Sections 6 and 7 on the Closing
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Date,
each Lender that has signed this Agreement shall be deemed to have consented
to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
12.5. Notice
of Default
. Neither
the Administrative Agent, the Posting Agent nor the Collateral Agent shall
be
deemed to have knowledge or notice of the occurrence of any Default or
Event of
Default hereunder unless the Administrative Agent, the Posting Agent or
Collateral Agent, as applicable, has received notice from a Lender, US
Holdings
or the Borrower referring to this Agreement, describing such Default or
Event of
Default and stating that such notice is a “notice of default”. In the
event that the Administrative Agent or the Posting Agent receives such
a notice,
it shall give notice thereof to the Lenders, the Administrative Agent,
the
Posting Agent and the Collateral Agent. The Administrative Agent and
the Posting Agent shall take such action with respect to such Default or
Event
of Default as shall be reasonably directed by the Required Lenders (or
Required
Posting Lenders, as applicable); provided that unless and until the
Administrative Agent or the Posting Agent shall have received such directions,
the Administrative Agent and the Posting 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 is within its authority to take under this
Agreement and otherwise as it shall deem advisable in the best interests
of the
Lenders except to the extent that this Agreement requires that such action
be
taken only with the approval of the Required Lenders (or the Required Posting
Lenders, as applicable) or each of the Lenders, as applicable.
12.6. Non-Reliance
on Administrative Agent, the Posting Agent, Collateral Agent and Other
Lenders
. Each
Lender expressly acknowledges that neither the Administrative Agent, the
Posting
Agent nor the Collateral Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Administrative Agent, the Posting
Agent or Collateral Agent hereinafter taken, including any review of the
affairs
of US Holdings, the Borrower, any other Guarantor or any other Credit Party,
shall be deemed to constitute any representation or warranty by the
Administrative Agent, the Posting Agent or Collateral Agent to any Lender
or the
Letter of Credit Issuer. Each Lender and the Letter of Credit Issuer
represents to the Administrative Agent, the Posting Agent and the Collateral
Agent that it has, independently and without reliance upon the Administrative
Agent, Collateral Agent, the Posting 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, operations, property,
financial and other condition and creditworthiness of US Holdings, the
Borrower,
each other Guarantor and each other Credit Party and made its own decision
to
make its Loans and/or Posting Advances hereunder and enter into this
Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent, Collateral Agent, the
Posting 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 the other Credit Documents, and to make such investigation
as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of US Holdings, the
Borrower,
each other Guarantor and each other Credit Party. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by
the Administrative Agent or the Posting Agent hereunder, neither the
Administrative Agent, the Posting Agent nor the Collateral Agent shall
have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, assets, operations, properties, financial
condition, prospects or creditworthiness of US Holdings, the Borrower,
any other
Guarantor or any other Credit Party that may come into the possession of
the
Administrative Agent, the Posting Agent or Collateral Agent any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
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12.7. Indemnification
. The
Lenders agree to indemnify each Agent, each in its capacity as such (to
the
extent not reimbursed by the Credit Parties and without limiting the obligation
of the Credit Parties to do so), ratably according to their respective
portions
of the Total Credit Exposure in effect on the date on which indemnification
is
sought (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans and Posting Advances shall
have
been paid in full, ratably in accordance with their respective portions
of the
Total Credit Exposure in effect immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time occur (including at any time following
the
payment of the Loans and the Posting Advances) be imposed on, incurred
by or
asserted against such Agent in any way relating to or arising out of the
Commitments, this Agreement, any of the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing (SUBJECT TO THE PROVISO
BELOW, WHETHER OR NOT CAUSED BY OR ARISING IN WHOLE OR IN PART, OUT
OF THE COMPARATIVE, CONTRIBUTORY OR SOLE ORDINARY NEGLIGENCE OF THE INDEMNIFIED
PARTY); provided that no Lender shall be liable to any Agent for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting
from such Agent’s gross negligence or willful misconduct as determined by a
final judgment of a court of competent jurisdiction; provided,
further, that no action taken in accordance with the directions
of the
Required Lenders (or such other number or percentage of the Lenders as
shall be
required by the Credit Documents) shall be deemed to constitute gross negligence
or willful misconduct for purposes of this
Section 12.7. In the case of any investigation,
litigation or proceeding giving rise to any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time occur, be imposed upon, incurred
by
or asserted against the Administrative Agent, the Posting Agent or the
Collateral Agent in any way relating to or arising out of the Commitments,
this
Agreement, any of the other Credit Documents or any documents contemplated
by or
referred to herein or therein or the transactions contemplated hereby or
thereby
or any action taken or omitted by such Agent under or in connection with
any of
the foregoing (including at any time following the payment of the Loans
and
Posting Advances), this Section 12.7 applies whether any such
investigation, litigation or proceeding is brought by any Lender or any
other
Person. Without limitation of the foregoing, each Lender shall
reimburse such Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including attorneys’ fees) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice rendered in respect of rights
or
responsibilities under, this Agreement, any other Credit Document, or any
document contemplated by or referred to herein, to the extent that such
Agent is
not reimbursed for such expenses by or on behalf of the Borrower;
provided that such reimbursement by the Lenders shall not affect the
Borrower’s continuing reimbursement obligations with respect
thereto. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired,
such
Agent may call for additional indemnity and cease, or not commence, to
do the
acts indemnified against until such additional indemnity is furnished;
provided in no event shall this sentence require any Lender to indemnify
any Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s pro
rata portion thereof; and providedfurther, this sentence
shall not be deemed to require any Lender to indemnify any Agent against
any
liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement resulting from such Agent’s gross negligence or willful
misconduct (as determined by a final judgment of court of competent
jurisdiction). The agreements in this Section 12.7 shall
survive the payment of the Loans, the Posting Advances and all other amounts
payable hereunder.
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12.8. Agents
in its Individual Capacities
. Each
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with US Holdings, the Borrower, any other
Guarantor, and any other Credit Party as though such Agent were not an
Agent
hereunder and under the other Credit Documents. With respect to the
Loans or Posting Advances made by it, each Agent shall have the same rights
and
powers under this Agreement and the other Credit Documents as any Lender
and may
exercise the same as though it were not an Agent, and the terms “Lender” and
“Lenders” shall include each Agent in its individual capacity.
12.9. Successor
Agents
. (b)
Each of the Administrative Agent and Collateral Agent may resign at any
time by
notifying the other Agent, the Lenders, the Letter of Credit Issuers and
the
Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, subject to the consent of the Borrower
(not to be unreasonably withheld or delayed), to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of
any such
bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted
such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders and the
Letter
of Credit Issuers, appoint a successor Agent meeting the qualifications
set
forth above; provided that if such Agent shall notify the Borrower and
the Lenders that no qualifying person has accepted such appointment, then
such
resignation shall nonetheless become effective in accordance with such
notice
and (x) the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Credit Documents (except that in the case
of any
collateral security held by the Collateral Agent on behalf of the Secured
Parties under any of the Credit Documents, the retiring Collateral Agent
shall
continue to hold such collateral security until such time as a successor
Collateral Agent is appointed) and (y) all payments, communications and
determinations provided to be made by, to or through such Agent shall instead
be
made by or to each Lender and the Letter of Credit Issuer directly, until
such
time as the Required Lenders with (except after the occurrence and during
the
continuation of a Default or Event of Default) the consent of the Borrower
(not
to be unreasonably withheld) appoint successor Agents as provided for above
in
this paragraph. Upon the acceptance of a successor’s appointment as
the Administrative Agent or Collateral Agent, as the case may be, hereunder,
and
upon the execution and filing or recording of such financing statements,
or
amendments thereto, and such amendments or supplements to the Mortgages,
and
such other instruments or notices, as may be necessary or desirable, or
as the
Required Lenders may request, in order to continue the perfection of the
Liens
granted or purported to be granted by the Security Documents, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Agent, and the retiring Agent shall
be
discharged from all of its duties and obligations hereunder or under the
other
Credit Documents (if not already discharged therefrom as provided above
in this
Section). The fees payable by the Borrower (following the
effectiveness of such appointment) to such Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower
and such
successor. After the retiring Agent’s resignation hereunder and under
the other Credit Documents, the provisions of this Section 12 (including
12.7) and Section 13.5 shall continue in effect for the benefit of
such retiring Agent, its sub-agents and their respective Related Parties
in
respect of any actions taken or omitted to be taken by any of them while
the
retiring Agent was acting as an Agent.
(b) Without
limitation to Section 3.6(a) or 13.9, any resignation by Citibank,
N.A. as Administrative Agent pursuant to this Section 12.9 shall also
constitute its resignation as a Letter of Credit Issuer and Swingline
Lender. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of
the
retiring Letter of Credit Issuer and Swingline Lender, (b) the retiring
Letter of Credit Issuer and Swingline Lender shall be discharged from all
of
their respective duties and obligations hereunder or under the other Credit
Documents, and (c) the successor Letter of Credit Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession
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or
make other arrangements satisfactory to the retiring Letter of Credit Issuer
to
effectively assume the obligations of the retiring Letter of Credit Issuer
with
respect to such Letters of Credit.
(c) The
Posting Agent may resign at any time by giving 30 days’ prior written notice to
the Posting Lenders and the Borrower. Upon any such resignation, the
Required Posting Lenders shall have the right to appoint a successor Posting
Agent acceptable to the Borrower. If no successor shall have been so
appointed by the Required Posting Lenders and shall have accepted such
appointments within 30 days after the Posting Agent gives notice of its
resignation, then the Posting Agent may, on behalf of the Posting Lenders,
appoint a successor Posting Agent, having a combined capital and surplus
of at
least $500,000,000 or an Affiliate of any such bank and in any case, the
Posting
Agent’s resignation shall become effective on the 30th day after such notice
of
resignation. If neither the Required Posting Lenders nor the Posting
Agent shall have appointed a successor Posting Agent within 30 days of
the date
of such notice of resignation, the Required Posting Lenders shall be deemed
to
succeed to and become vested with all the rights, powers, privileges and
duties
of the retiring Posting Agent until such time as the Required Posting Lenders
appoint a successor Posting Agent in accordance with this paragraph and
such
successor Posting Agent accepts such appointment. Upon the acceptance
of any appointment as Posting Agent hereunder by a successor bank (or the
Required Posting Lenders have been deemed to succeed the retiring Posting
Agent
pursuant to the immediately preceding sentence), such successor shall succeed
to
and become vested with all the rights, powers, privileges and duties of
the
retiring Posting Agent and the Posting Agent shall be discharged from its
duties
and obligations hereunder. After the Posting Agent’s resignation
hereunder, the provisions of this paragraph and Sections 12.7, 13.5 and
14.11
shall continue in effect for its benefit in respect of any actions taken
or
omitted to be taken by it while it was acting as the Posting
Agent. The Posting Calculation Agent and the Posting Lenders agree
that unless the Borrower otherwise consents in writing, the Posting Calculation
Agent may not resign as the Posting Calculation Agent.
12.10. Withholding
Tax
. To
the extent required by any Applicable Law, the Administrative Agent (or,
with
respect to the Posting Facility, the Posting Agent) may withhold from any
interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any authority of
the United States or other jurisdiction asserts a claim that the Administrative
Agent (or, with respect to the Posting Facility, the Posting Agent) did
not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered, was not properly executed,
or
because such Lender failed to notify the Administrative Agent or (or, with
respect to the Posting Facility, the Posting Agent) of a change in circumstances
that rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify the Administrative
Agent
(or, with respect to the Posting Facility, the Posting Agent) (to the extent
that the Administrative Agent (or, with respect to the Posting Facility,
the
Posting Agent) has not already been reimbursed by the Borrower (solely
to the
extent required by this Agreement) and without limiting the obligation
of the
Borrower to do so) fully for all amounts paid, directly or indirectly,
by the
Administrative Agent (or, with respect to the Posting Facility, the Posting
Agent) as tax or otherwise, including penalties and interest, together
with all
expenses incurred, including legal expenses, allocated staff costs and
any out
of pocket expenses.
12.11. Trust
Indenture Act
. In
the event that Citibank, N.A. or any of its Affiliates shall be or become
an
indenture trustee under the Trust Indenture Act of 1939 (as amended, the
“Trust Indenture Act”) in respect of any securities issued or
guaranteed by any Credit Party, and agree that any payment or property
received
in satisfaction of or in respect of any Obligation of such Credit Party
hereunder or under any other Credit Document by or on behalf of Citibank,
N.A.,
in its capacity as the Administrative Agent or the Collateral Agent for
the
benefit of any Lender or Secured Party under any Credit Document (other
than
Citibank, N.A. or an Affiliate of Citibank, N.A.) and which is applied
in
accordance with
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the
Credit Documents shall be deemed to be exempt from the requirements of
Section
311 of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust
Indenture Act.
12.12. Intercreditor
Agreement
. The
Collateral Agent is hereby authorized to enter into the Intercreditor Agreement,
and the parties hereto acknowledge that the Intercreditor Agreement is
binding
upon them. Each Lender (a) hereby agrees that it will be bound by and
will take no actions contrary to the provisions of the Intercreditor Agreement
and (b) hereby authorizes and instructs the Collateral Agent to enter into
the
Intercreditor Agreement and to subject the Liens on the Collateral securing
the
Obligations to the provisions thereof. In addition, each Lender
hereby authorizes the Collateral Agent to enter into (i) any amendments
to the
Intercreditor Agreement and (ii) any other intercreditor arrangements,
in the
case of clauses (i) and (ii) to the extent required to give effect
to the establishment of intercreditor rights and privileges as contemplated
and
required by Section 10.2 of this Agreement.
12.13. Security
Documents and Guarantee
. iv) Agents
under Security Documents and Guarantee. Each Secured Party hereby
further authorizes the Administrative Agent or Collateral Agent, as applicable,
on behalf of and for the benefit of the Secured Parties, to be the agent
for and
representative of the Secured Parties with respect to the Collateral and
the
Security Documents. Subject to Section 13.1, without further
written consent or authorization from any Secured Party, the Administrative
Agent or Collateral Agent, as applicable, may execute any documents or
instruments necessary to in connection with a sale or disposition of assets
permitted by this Agreement, (i) release any Lien encumbering any item of
Collateral that is the subject of such sale or other disposition of assets,
or
with respect to which Required Lenders (or such other Lenders as may be
required
to give such consent under Section 13.1) have otherwise consented or (ii)
release any Guarantor from the Guarantee, or with respect to which Required
Lenders (or such other Lenders as may be required to give such consent
under
Section 13.1) have otherwise consented.
(b) Right
to Realize on Collateral and Enforce Guarantee. Anything
contained in any of the Credit Documents to the contrary notwithstanding,
US
Holdings, the Borrower, the Agents and each Secured Party hereby agree
that (i)
no Secured Party shall have any right individually to realize upon any
of the
Collateral or to enforce the Guarantee, it being understood and agreed
that all
powers, rights and remedies hereunder may be exercised solely by the
Administrative Agent, on behalf of the Lenders in accordance with the terms
hereof and all powers, rights and remedies under the Security Documents
and
Guarantee may be exercised solely by the Collateral Agent, on behalf of
the
Secured Parties, and (ii) in the event of a foreclosure by the Collateral
Agent
on any of the Collateral pursuant to a public or private sale or other
disposition, the Collateral Agent or any Secured Party may be the purchaser
or
licensor of any or all of such Collateral at any such sale or other disposition
and the Collateral Agent, as agent for and representative of the Secured
Parties
(but not any Lender or Lenders in its or their respective individual capacities
unless Required Lenders shall otherwise agree in writing) shall be entitled,
for
the purpose of bidding and making settlement or payment of the purchase
price
for all or any portion of the Collateral sold at any such public sale,
to use
and apply any of the Obligations as a credit on account of the purchase
price
for any collateral payable by the Collateral Agent at such sale or other
disposition.
SECTION
13. Miscellaneous
.
13.1. Amendments,
Waivers and Releases
. Neither
this Agreement nor any other Credit Document, nor any terms hereof or thereof,
may be amended, supplemented or modified except in accordance with the
provisions of this Section 13.1. The Required Lenders may, or,
with the written consent of the Required Lenders, the Administrative Agent
and/or the Collateral Agent may, from time to time, (a) enter into with the
relevant Credit Party or Credit Parties written amendments, supplements
or
modifications hereto and to the other Credit Documents for the purpose
of adding
any provisions to this
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Agreement
or the other Credit Documents or changing in any manner the rights of the
Lenders or of the Credit Parties hereunder or thereunder or (b) waive in
writing, on such terms and conditions as the Required Lenders or the
Administrative Agent and/or Collateral Agent, as the case may be, may specify
in
such instrument, any of the requirements of this Agreement or the other
Credit
Documents or any Default or Event of Default and its consequences;
provided, however, that (i) to the extent that any such
amendment, supplement, modification or waiver relates specifically to the
terms
or provisions of the Posting Facility (including Schedule 1.1(e)) and
does not affect the Security Documents or otherwise alter any other terms
or
provisions of this Agreement, such amendment, supplement, modification
or waiver
shall require the action or consent only of the Required Posting Lenders
rather
than the Required Lenders and (ii) each such waiver and each such
amendment, supplement or modification shall be effective only in the specific
instance and for the specific purpose for which given; and provided,
further, that no such waiver and no such amendment, supplement
or
modification shall
(i) forgive
or reduce any portion of any Loan or Posting Advance or extend the final
scheduled maturity date of any Loan or Posting Advance or reduce the stated
rate
(it being understood that any change to the definition of Consolidated
Total
Debt to Consolidated EBITDA Ratio, or Consolidated Secured Debt to Consolidated
EBITDA Ratio or Consolidated EBITDA to Consolidated Interest Expense or
in the
component definitions thereof shall not constitute a reduction in the rate
and
only the consent of the Required Lenders shall be necessary to waive any
obligation of the Borrower to pay interest or principal at the “default rate” or
amend Section 2.8(d)), or forgive any portion, or extend the date for the
payment, of any interest or Fee payable hereunder (other than as a result
of
waiving the applicability of any post-default increase in interest rates
(provided that to the extent such post-default interest relates to the
interest rates applicable under the Posting Facility, the waiver thereof
shall
require the consent of the Required Posting Lenders rather than the Required
Lenders)), or extend the final expiration date of any Lender’s Commitment or
extend the final expiration date of any Revolving Letter of Credit beyond
the
Revolving L/C Maturity Date or extend the final expiration date of any
Deposit
Letter of Credit beyond the Deposit L/C Maturity Date, or increase the
aggregate
amount of the Commitments of any Lender, or amend or modify any provisions
of
Section 5.3(a) (with respect to the ratable allocation of any payments
only) and 13.8(a) and 13.19 or make any Loan, Posting Advance,
interest, Fee or other amount payable in any currency other than expressly
provided herein, in each case without the written consent of each Lender
directly and adversely affected thereby; or
(ii) amend,
modify or waive any provision of this Section 13.1 or reduce the
percentages specified in the definition of the term “Required Lenders”,
“Required Revolving Credit Lenders”, “Required Deposit L/C Loan Lenders”,
“Required Initial Term Loan Lenders”, “Required Initial Tranches B-1 Term Loan
Lenders”, “Required Initial Tranche B-2 Term Loan Lenders, “Required Initial
Tranche B-3 Term Lenders” or “Required Delayed Draw Term Loan Lenders” or
“Required Posting Lenders”, consent to the assignment or transfer by U.S.
Holdings or the Borrower of their respective rights and obligations under
any
Credit Document to which it is a party (except as permitted pursuant to
Section 10.3) or alter the order of application set forth in
Section 5.2(c) or in the Intercreditor Agreement, in each case
without the written consent of each Lender directly and adversely affected
thereby, or
(iii) amend,
modify or waive any provision of Section 12 without the written consent
of the then-current Administrative Agent, Posting Agent and Collateral
Agent or
any other former or current Agent to whom Section 12 then applies in a
manner that directly and adversely affects such Person, or
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(iv) amend,
modify or waive any provision of Section 3 with respect to any Letter of
Credit without the written consent of the applicable Letter of Credit Issuer,
or
(v) amend,
modify or waive any provisions hereof relating to Swingline Loans without
the
written consent of the Swingline Lender, or
(vi) change
any Revolving Credit Commitment to a Term Loan Commitment, or Change any
Term
Loan Commitment to a Revolving Credit Commitment, in each case without
the prior
written consent of each Lender directly and adversely affected thereby,
or
(vii) release
all or substantially all of the Guarantors under the Guarantee (except
as
expressly permitted by the Guarantee or this Agreement) or, subject to
the
Intercreditor Agreement, release all or substantially all of the Collateral
under the Security Documents (except as expressly permitted by the Security
Documents or this Agreement), in either case without the prior written
consent
of each Lender, or
(viii) amend
Section 2.9 (or any related definitions) so as to permit Interest Period
intervals greater than six months without regard to availability to Lenders,
without the written consent of each Lender directly and adversely affected
thereby, or
(ix) affect
the rights or duties of, or any Fees or other amounts payable to, any Agent
under this Agreement or any other Credit Document without the prior written
consent of such Agent, or
(x) decrease
the amount or allocation of any mandatory prepayment to be received by
any
Initial Term Loan Lender without the written consent of the Required Initial
Term Loan Lenders, or
(xi) (A)
decrease the Initial Term Loan Repayment Amount applicable to Initial Tranche
B-1 Term Loans, extend any scheduled Initial Term Loan Repayment Date applicable
to Initial Tranche B-1 Term Loans, except as set forth in Section 5.1(a)
or Section 5.2(c), decrease the amount or allocation of any mandatory
prepayment to be received by any Initial Tranche B-1 Term Loan Lender in
a
manner disproportionately adverse to the interests of the Initial Tranche
B-1
Term Loan Lenders in relation to the Initial Term Loan Lenders of any other
Class of Initial Term Loans, in each case without the written consent of
the
Required Initial Tranche B-1 Term Loan Lenders, (B) decrease the Initial
Term
Loan Repayment Amount applicable to Initial Tranche B-2 Term Loans, extend
any
scheduled Initial Term Loan Repayment Date applicable to Initial Tranche
B-2
Term Loans, except as set forth in Section 5.1(a) or Section
5.2(c), decrease the amount or allocation of any mandatory prepayment or
any
prepayment premium to be received by any Initial Tranche B-2 Term Loan
Lender in
a manner disproportionately adverse to the interests of the Initial Tranche
B-2
Term Loan Lenders in relation to the Initial Term Loan Lenders of any other
Class of Initial Term Loans, in each case without the written consent of
the
Required Initial Tranche B-2 Term Loan Lenders or (C) decrease the Initial
Term
Loan Repayment Amount applicable to Initial Tranche B-3 Term Loans, extend
any
scheduled Initial Term Loan Repayment Date applicable to Initial Tranche
B-3
Term Loans, except as set forth in Section 5.1(a) or Section
5.2(c), decrease the amount or allocation of any mandatory
prepayment or any prepayment premium to be received by any Initial
Tranche B-3 Term Loan Lender in a manner disproportionately adverse to
the
interests of the Initial Tranche B-3 Term Loan Lenders in relation to the
Initial Term Loan Lenders of any other Class of Initial Term Loans, in
each case
without the written consent of the Required Initial Tranche B-3 Term Loan
Lenders,
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(xii) decrease
any Delayed Draw Term Loan Repayment Amount, extend any scheduled Delayed
Draw
Term Loan Repayment Date or decrease the amount or allocation of any mandatory
prepayment to be received by any Lender with a Delayed Draw Term Loan Commitment
or an outstanding Delayed Draw Term Loan, in each case without the written
consent of the Required Delayed Draw Term Loan Lenders,
(xiii) amend
any provision in Section 5.1(b) (or any related definition) or Section
5.2(a)(i)(B) in any manner adverse to the Initial Tranche B-3 Term Loan
Lenders without the written consent of each Initial Tranche B-3 Term Loan
Lender,
(xiv) amend
any provision in Section 5.1(c) in any manner adverse to the Initial
Tranche B-2 Term Loan Lenders without the written consent of each Initial
Tranche B-2 Term Loan Lender; or
(xv) amend,
modify or waive any provision of the Posting Facility Fee Letter without
the
written consent of the Posting Lead Arranger and the Borrower.
Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the affected Lenders and shall be binding upon US Holdings,
the Borrower, the applicable Credit Parties, such Lenders, the Administrative
Agent, the Posting Agent and all future holders of the affected Loans or
Posting
Advances.
In
the case of any waiver, US Holdings, the Borrower, the applicable Credit
Parties, the Lenders, the Administrative Agent and the Posting Agent shall
be
restored to their former positions and rights hereunder and under the other
Credit Documents, and any Default or Event of Default waived shall be deemed
to
be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair
any
right consequent thereon. In connection with the foregoing
provisions, the Administrative Agent and, if applicable, the Posting Agent
may,
but shall have no obligations to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such
Lender.
Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right
to
approve or disapprove any amendment, modification, supplement, waiver or
consent
hereunder, except that the Commitment of such Lender may not be increased
or
extended without the consent of such Lender (it being understood that any
Commitments, Loans or Posting Advances held or deemed held by any Defaulting
Lender shall be excluded for a vote of the Lenders hereunder requiring
any
consent of the Lenders, except as expressly provided for by this
Agreement).
Notwithstanding
the foregoing, in addition to any credit extensions and related Incremental
Amendment(s) effectuated without the consent of Lenders in accordance with
Section 2.14, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative
Agent, the Posting Agent, US Holdings and the Borrower (a) to add one or
more
additional credit facilities to this Agreement and to permit the extensions
of
credit from time to time outstanding thereunder and the accrued interest
and
fees in respect thereof to share ratably in the benefits of this Agreement
and
the other Credit Documents with the Loans, Posting Advances and Commitments
and
the accrued interest and Fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination
of
the Required Lenders and other definitions related to such new Loans, Posting
Advances and Commitments.
In
addition, notwithstanding the foregoing, this Agreement may be amended
with the
written consent of the Administrative Agent, US Holdings, the Borrower
and the
Lenders providing the
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relevant
Replacement Term Loans (as defined below) to permit the refinancing of
all
outstanding Term Loans, or all Initial Term Loans, Delayed Draw Term Loans
or
Incremental Term Loans of a given tranche (“Refinanced Term
Loans”) with a replacement term loan tranche (“Replacement Term
Loans”) hereunder; provided that (a) the aggregate principal
amount of such Replacement Term Loans shall not exceed the aggregate principal
amount of such Refinanced Term Loans, (b) the Applicable ABR Margin and
Applicable LIBOR Margin for such Replacement Term Loans shall not be higher
than
the Applicable ABR Margin and Applicable LIBOR Margin for such Refinanced
Term
Loans immediately prior to such refinancing, (c) the weighted average life
to
maturity of such Replacement Term Loans shall not be shorter than the weighted
average life to maturity of such Refinanced Term Loans at the time of such
refinancing and (d) all other terms applicable to such Replacement Term
Loans
shall be substantially identical to, or less favorable to the Lenders providing
such Replacement Term Loans than those applicable to such Refinanced Term
Loans,
except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Term Loans
in
effect immediately prior to such refinancing.
In
addition, notwithstanding the foregoing, this Agreement may be amended
with the
written consent of the Administrative Agent, US Holdings, the Borrower
and the
Lenders providing the relevant Replacement Deposit L/C Loans (as defined
below)
to permit the refinancing of all outstanding Deposit L/C Loans
(“Refinanced Deposit L/C Loans”) with a replacement term loan
tranche (“Replacement Deposit L/C Loans”) hereunder;
provided that (a) the aggregate principal amount of such
Replacement
Deposit L/C Loans shall not exceed the aggregate principal amount of such
Refinanced Deposit L/C Loans, (b) the Applicable ABR Margin and Applicable
LIBOR
Margin for such Replacement Deposit L/C Loans shall not be higher than
the
Applicable ABR Margin and Applicable LIBOR Margin for such Refinanced Deposit
L/C Loans immediately prior to such refinancing, (c) the weighted average
life
to maturity of such Replacement Deposit L/C Loans shall not be shorter
than the
weighted average life to maturity of such Refinanced Deposit L/C Loans
at the
time of such refinancing (except to the extent of nominal amortization
for
periods where amortization has been eliminated as a result of prepayment
of the
applicable Deposit L/C Loans) and (d) all other terms applicable to such
Replacement Deposit L/C Loans shall be substantially identical to, or less
favorable to the Lenders providing such Replacement Deposit L/C Loans than
those
applicable to such Refinanced Deposit L/C Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after
the
latest final maturity of the Deposit L/C Loans in effect immediately prior
to
such refinancing.
In
addition notwithstanding the foregoing, this Agreement and the other Credit
Documents may be amended with the written consent of the Administrative
Agent,
US Holdings, the Borrower, the Deposit Letter of Credit Issuers and the
Lenders
providing the relevant Replacement Facility (as defined below) to permit
the
replacement of all outstanding Deposit L/C Loans (“Replaced Deposit L/C
Loans”) with a replacement revolving credit loan facility (the sole
purpose of which would be to support the issuance of letters of credit),
an
off-balance sheet synthetic letter of credit facility or another facility
designed to provide the Borrower with access to letters of credit
(“Replacement Facility”) hereunder; provided that (a)
the aggregate amount of such Replacement Facility shall not exceed the
aggregate
principal amount of such Replaced Deposit L/C Loans, (b) the Applicable
ABR
Margin and Applicable LIBOR Margin for such Replacement Facility shall
not be
higher than the Applicable ABR Margin and Applicable LIBOR Margin for such
Replaced Deposit L/C Loans immediately prior to such refinancing and (c)
all
other terms applicable to such Replacement Facility shall be substantially
identical to, or less favorable to the Lenders providing such Replacement
Facility than those applicable to the Replaced Deposit L/C Loans or the
Revolving Credit Facility.
In
addition, notwithstanding the foregoing, the Administrative Agent, US Holdings,
the Borrower and the Deposit Letter of Credit Issuers may amend Section
2.8(j), Section 3.9 and the related
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definitions
without the consent of any Lender so long as such amendments do not adversely
affect the Lenders.
The
Lenders hereby irrevocably agree that the Liens granted to the Collateral
Agent
by the Credit Parties on any Collateral shall be automatically released,
subject
to the Intercreditor Agreement, (i) in full, upon the termination of this
Agreement and the payment of all Obligations hereunder (except for Hedging
Obligations in respect of any Secured Hedging Agreement and/or any Secured
Commodity Hedging Agreement, Cash Management Obligations in respect of
Secured
Cash Management Agreements and contingent indemnification obligations in
respect
of which a claim has not yet been made), (ii) upon the sale or other
disposition of such Collateral (including as part of or in connection with
any
other sale or other disposition permitted hereunder) to any Person other
than
another Credit Party, to the extent such sale or other disposition is made
in
compliance with the terms of this Agreement (and the Collateral Agent may
rely
conclusively on a certificate to that effect provided to it by any Credit
Party
upon its reasonable request without further inquiry), (iii) to the extent
such Collateral is comprised of property leased to a Credit Party, upon
termination (in accordance with the terms of this Agreement) or expiration
of
such lease, (iv) if the release of such Lien is approved, authorized or
ratified
in writing by the Required Lenders (or such other percentage of the Lenders
whose consent may be required in accordance with this Section 13.1),
(v) to the extent the property constituting such Collateral is owned by any
Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from
its
obligations under the Guarantee (in accordance with the following sentence)
and
(vi) as required to effect any sale or other disposition of Collateral in
connection with any exercise of remedies of the Collateral Agent pursuant
to the
Collateral Documents. Any such release shall not in any manner
discharge, affect or impair the Obligations or any Liens (other than those
being
released) upon (or obligations (other than those being released) of the
Credit
Parties in respect of) all interests retained by the Credit Parties, including
the proceeds of any sale, all of which shall continue to constitute part
of the
Collateral except to the extent otherwise released in accordance with the
provisions of the Credit Documents. Additionally, the Lenders hereby
irrevocably agree that the Subsidiary Guarantors shall be released from
the
Guarantee upon consummation of any transaction resulting in such Subsidiary
ceasing to constitute a Restricted Subsidiary. The Lenders hereby
authorize the Administrative Agent and the Collateral Agent, as applicable,
to
execute and deliver any instruments, documents, and agreements necessary
or
desirable to evidence and confirm the release of any Subsidiary Guarantor
or
Collateral pursuant to the foregoing provisions of this paragraph, all
without
the further consent or joinder of any Lender.
13.2. Notices
. Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder or under any other Credit Document shall be in writing
(including by facsimile or other electronic transmission). All such
written notices shall be mailed, faxed or delivered to the applicable address,
facsimile number or electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(a) if
to US Holdings, the Borrower, the Administrative Agent, the Posting Agent,
the
Posting Calculation Agent, the Collateral Agent, the Revolving Letter of
Credit
Issuer, the Deposit Letter of Credit Issuer or the Swingline Lender, to
the
address, facsimile number, electronic mail address or telephone number
specified
for such Person on Schedule 13.2 or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated
by
such party in a notice to the other parties; and
(b) if
to any other Lender, to the address, facsimile number, electronic mail
address
or telephone number specified in its Administrative Questionnaire or to
such
other address, facsimile number, electronic mail address or telephone number
as
shall be designated by such party in a notice to
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US
Holdings, the Borrower, the Administrative Agent, the Posting Agent, the
Collateral Agent, the Revolving Letter of Credit Issuer, the Deposit Letter
of
Credit Issuer and the Swingline Lender.
All
such notices and other communications shall be deemed to be given or made
upon
the earlier to occur of (i) actual receipt by the relevant party hereto
and (ii)
(A) if delivered by hand or by courier, when signed for by or on behalf
of the
relevant party hereto; (B) if delivered by mail, three Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail, when delivered; provided that notices and other communications to
the Administrative Agent, the Posting Agent or the Lenders pursuant to
Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not
be effective until received.
13.3. No
Waiver; Cumulative Remedies
. No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent, the Posting Agent, the Collateral Agent or any Lender,
any
right, remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers
and
privileges provided by law.
13.4. Survival
of Representations and Warranties
. All
representations and warranties made hereunder, in the other Credit Documents
and
in any document, certificate or statement delivered pursuant hereto or
in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans or Posting Advances hereunder.
13.5. Payment
of Expenses; Indemnification
. The
Borrower agrees (a) to pay or reimburse the Agents and the Letter of Credit
Issuers for all their reasonable and documented out-of-pocket costs and
expenses
incurred in connection with the development, preparation and execution
and
delivery of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable
and
documented fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx
llp, Xxxxxx and Xxxxx, LLP, and Xxxxxxxx & Xxxxxxxx LLP and one counsel in
each relevant local jurisdiction, (b) to pay or reimburse each Agent and
the
Letter of Credit Issuers for all their respective reasonable and documented
out-of-pocket costs and expenses incurred in connection with the enforcement
or
preservation of any rights under this Agreement, the other Credit Documents
and
any such other documents, including the reasonable and documented fees,
disbursements and other charges of one firm of counsel, and, if necessary,
one
firm of regulatory counsel and/or one firm of local counsel in each appropriate
jurisdiction, in each case to the Agents and the Letter of Credit Issuers
(and,
in the case of an actual or perceived conflict of interest where the Person
affected by such conflict informs the Borrower of such conflict and thereafter,
after receipt of the consent of the Borrower (which consent shall not be
unreasonably withheld or delayed), retains its own counsel, of another
firm of
counsel for such affected Person), (c) to pay, indemnify, and hold harmless
each
Lender, the Letter of Credit Issuers and each Agent from, any and all recording
and filing fees and (d) to pay, indemnify, and hold harmless each Lender,
the
Letter of Credit Issuers and each Agent and their respective Affiliates,
directors, officers, partners, employees and agents from and against any
and all
other liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements of any kind
or
nature whatsoever, including reasonable and documented fees, disbursements
and
other charges of one firm of primary counsel and, if necessary, one firm
of
regulatory counsel and/or one firm of local counsel in each
appropriate jurisdiction, in each case, to all indemnified Persons
(and, in the case of an actual or perceived conflict of interest where
the
Person affected by such conflict informs the Borrower of such conflict
and
thereafter, after receipt of the consent of
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the
Borrower (which consent shall not be unreasonably withheld or delayed),
retains
its own counsel, of another firm of counsel for such affected Person),
related
to the Transactions (including the Merger) or, with respect to the execution,
delivery, enforcement, performance and administration of this Agreement,
the
other Credit Documents and any such other documents, including, any of
the
foregoing relating to the violation of, noncompliance with or liability
under,
any Environmental Law (other than by such indemnified person or any of
its
Related Parties (other than trustees and advisors)) or to any actual or
alleged
presence, release or threatened release into the environment of Hazardous
Materials attributable to the operations of US Holdings, the Borrower,
any of
the Borrower’s Subsidiaries or any of the Real Estate (all the foregoing in this
clause (d), collectively, the “indemnified liabilities”)
(SUBJECT TO THE PROVISO BELOW, WHETHER
OR NOT CAUSED BY OR ARISING IN
WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE
ORDINARY NEGLIGENCE OF THE INDEMNIFIED PARTY); provided that the
Borrower shall have no obligation hereunder to any Agent, any Letter of
Credit
Issuer or any Lender or any of their respective Related Parties with respect
to
indemnified liabilities to the extent it has been determined by a final
non-appealable judgment of a court of competent jurisdiction to have resulted
from (A) the gross negligence, bad faith or willful misconduct of such
Indemnified Party or any of its Related Parties (other than trustees and
advisors), (B) a breach of the obligations of such Indemnified Party or
any of
its Related Parties (other than trustees and advisors) under the Credit
Documents or (C) disputes not involving an act or omission of US Holdings,
the
Borrower or any other Credit Party or any of their respective Affiliates
and
that is brought by an Indemnified Party against any other Indemnified
Party. All amounts payable under this Section 13.5 shall be
paid within ten Business Days of receipt by the Borrower of an invoice
relating
thereto setting forth such expense in reasonable detail. The
agreements in this Section 13.5 shall survive repayment of the Loans,
Posting Advances and all other amounts payable hereunder.
No
Credit Party nor any Indemnified Party shall have any liability for any
special,
punitive, indirect or consequential damages resulting from this Agreement
or any
other Credit Document or arising out of its activities in connection herewith
or
therewith (whether before or after the Closing Date) (except, in the case
of the
Borrower’s obligation hereunder to indemnify and hold harmless the Indemnified
Parties, to the extent any Indemnified Party is found liable for special,
punitive, indirect or consequential damages to a third
party). No Indemnified Party 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 Credit
Documents or the transactions contemplated hereby or thereby, except to
the
extent that such damages have resulted from the willful misconduct, bad
faith or
gross negligence of any Indemnified Party or any of its Related Parties
(as
determined by a final non-appealable judgment of a court of competent
jurisdiction).
13.6. Successors
and Assigns; Participations and Assignments
.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted
hereby
(including any Affiliate of a Letter of Credit Issuer that issues any Letter
of
Credit), except that (i) except as expressly permitted by Section
10.3, neither US Holdings nor the Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent
of
the Administrative Agent, the Posting Agent and each Lender (and any attempted
assignment or transfer by US Holdings or the Borrower without such consent
shall
be null and void) and (ii) no Lender may assign or otherwise transfer its
rights
or obligations hereunder except in accordance with this Section
13.6. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate
of a
Letter of Credit Issuer that issues any Letter of Credit), Participants
(to the
extent provided in clause (c) of this Section 13.6), to the extent
expressly con
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templated
hereby, the Related Parties of each of the Administrative Agent, the Posting
Agent, the Collateral Agent, the Letter of Credit Issuers and the Lenders
and
each other Person entitled to indemnification under Section 13.5 and, to
the extent expressly contemplated by Section 13.20, the Oncor
Subsidiaries) any legal or equitable right, remedy or claim under or by
reason
of this Agreement.
(b) (1) Subject
to the conditions set forth in clause (b)(ii) below, any Lender may at
any time assign to one or more assignees all or a portion of its rights
and
obligations under this Agreement (including all or a portion of its Commitments,
Posting Advances and the Loans (including participations in Revolving L/C
Obligations or Swingline Loans) at the time owing to it) with the prior
written
consent (such consent not be unreasonably withheld or delayed; it being
understood that, without limitation, the Borrower shall have the right
to
withhold or delay its consent to any assignment if in order for such assignment
to comply with Applicable Law, the Borrower would be required to obtain
the
consent of, or make any filing or registration with, any Governmental Authority
and, in the case of any assignment under the Posting Facility, the Assignee
shall have, at the date of assignment, a corporate credit rating of less
than A-
from S&P) of:
(A) the
Borrower (which consent shall not be unreasonably withheld or delayed);
provided that no consent of the Borrower shall be required for an
assignment (1) to a Lender, an Affiliate of a Lender (provided, that, in
the case of such an assignment to an Affiliate by any Posting Lender, the
assignee Affiliate shall have the same or greater credit rating as the
assignor,
unless such assignor shall have benefited from a guarantee or other credit
support, in which case (x) such assignee Affiliate shall have the same
or
greater credit rating as such guarantor or credit support party or (y)
such
guarantee or other credit support shall continue in effect with respect
to the
obligations and liabilities of such assignee Affiliate) or an Approved
Fund or
(2) if an Event of Default under Section 11.1 or Section 11.5 has
occurred and is continuing with respect to the Borrower, any other assignee;
and
(B) other
than in the case of the Posting Facility, the Administrative Agent (which
consent shall not be unreasonably withheld or delayed), and in the case
of
Revolving Credit Commitments or Revolving Credit Loans, the Swingline Lender
or
the applicable Revolving Letter of Credit Issuer; provided that no
consent of the Administrative Agent shall be required for any assignment
of any
Term Loan, Deposit L/C Loan, Incremental Deposit L/C Loan to a Lender,
an
Affiliate of a Lender or an Approved Fund.
(C) in
the case of the Posting Facility, the Posting Agent (which consent shall
not be
unreasonably withheld or delayed); provided that no consent of the Posting
Agent
shall be required for any assignment of any Posting Advance or Posting
Commitment to a Lender, an Affiliate of a Lender or an Approved
Fund.
Notwithstanding
the foregoing, no such assignment shall be made to a natural
person.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
(i) in the case of an assignment to a Lender, an Affiliate of a Lender
or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment, Posting Advances or Loans of any Class, (ii) an
assignment to a Federal Reserve Bank or (iii) in connection with the initial
syndication of the Commitments, Loans or Posting Advances, the amount of
the
Commitment, Posting Advances or Loans of the assigning Lender subject to
each
such assignment (determined as of the date the Assignment and Acceptance
with
respect to such assignment is delivered to the Administrative Agent or
the
Posting Agent, as applicable), shall not be less than, in the case of Loans
and
Commitments other than under the Post
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ing
Facility, $5,000,000 and increments of $1,000,000 in excess thereof and,
in the
case of Posting Commitments, 0.05% of the Posting Commitments or, if the
amount
of the Posting Commitment of the assigning Lender is less than 0.05% of
the
Posting Commitments, the aggregate amount of such Lender’s Posting Commitment
(provided that any assignment of a Posting Commitment shall be of a constant,
and not a varying percentage of all the assigning Lender’s rights and
obligations under this Agreement) unless each of the Borrower and the
Administrative Agent, other than in connection with the Posting Facility,
and
the Posting Agent, in connection with the Posting Facility, in each case
otherwise consents (which consents shall not be unreasonably withheld or
delayed); provided that no such consent of the Borrower shall be required
if an Event of Default under Section 11.1 or Section 11.5 has
occurred and is continuing with respect to US Holdings or the Borrower;
provided, further, that contemporaneous assignments to a single
assignee made by Affiliates of Lenders and related Approved Funds shall
be
aggregated for purposes of meeting the minimum assignment amount requirements
stated above;
(B) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Agreement;
provided that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning Lender’s rights and
obligations in respect of one Class of Commitments, Posting Advances or
Loans;
(C) The
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Acceptance, together with a processing and recordation
fee in
the amount of $3,500; provided that the Administrative Agent or the
Posting Agent, as applicable. may, in its sole discretion, elect to waive
such
processing and recordation fee in the case of any assignment; and
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
or the Posting Agent, as applicable, an administrative questionnaire in
a form
approved by the Administrative Agent (the “Administrative
Questionnaire”).
(iii) Subject
to acceptance and recording thereof pursuant to clause (b)(iv) of
this Section 13.6, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto
and,
to the extent of the interest assigned by such Assignment and Acceptance,
have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease
to
be a party hereto but shall continue to be entitled to the benefits of
Sections 2.10, 2.11, 3.5, 5.4 and
13.5). Any assignment or transfer by a
Lender of rights or
obligations under this Agreement that does not comply with this
Section 13.6 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with clause (c) of this Section 13.6.
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at the Administrative Agent’s Office a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names
and
addresses of the Lenders, and the Commitments of, and principal amount
of the
Loans, Posting Advances and any payment made by any Letter of Credit Issuer
under any Letter of Credit owing to, each Lender pursuant to the terms
hereof
from time to time (the “Register”). Further, each
Register shall contain the name and address of the Administrative Agent
and the
lending office through which each such Person acts under this
Agreement. The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Posting Agent, the Collat
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eral
Agent, the Letter of Credit Issuers and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as
a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the
contrary. The Register shall be available for inspection by US
Holdings, the Borrower, the Collateral Agent, the Posting Agent, the Letter
of
Credit Issuers and any Lender, at any reasonable time and from time to
time upon
reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder),
the
processing and recordation fee referred to in clause (b) of this
Section 13.6 (unless waived) and any written consent to such assignment
required by clause (b) of this Section 13.6, the Administrative
Agent shall accept such Assignment and Acceptance and record the information
contained therein in the Register.
(c) (2)
Any Lender may, without the consent of US Holdings, the Borrower, the
Administrative Agent, the Posting Agent, any Letter of Credit Issuer or
the
Swingline Lender, sell participations to one or more banks or other entities
(each, a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion
of its
Commitments, Posting Advances and the Loans owing to it); provided that
(A) such Lender’s obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto
for the
performance of such obligations and (C) US Holdings, the Borrower, the
Administrative Agent, the Posting Agent, the Letter of Credit Issuers and
the
other Lenders shall continue to deal solely and directly with such Lender
in
connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain
the sole
right to enforce this Agreement and to approve any amendment, modification
or
waiver of any provision of this Agreement or any other Credit Document;
provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any consent,
amendment, modification, supplement or waiver described in clauses (i) or
(vii) of the second proviso of the first paragraph of Section 13.1
that affects such Participant. Subject to clause (c)(ii)
of this Section 13.6, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.10, 2.11 and 5.4 to
the same extent as if it were a Lender, and provided that such Participant
agrees to be subject to the requirements of those Sections as though it
were a
Lender and had acquired its interest by assignment pursuant to clause (b)
of this Section 13.6 To the extent permitted by Applicable
Law, each Participant also shall be entitled to the benefits of
Section 13.8(b) as though it were a Lender; provided such
Participant agrees to be subject to Section 13.8(a) as though it were a
Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under
Section 2.10, 2.11, or 5.4 than the applicable Lender would
have been entitled to receive with respect to the participation sold to
such
Participant, unless the sale of the participation to such Participant is
made
with the Borrower’s prior written consent (which consent shall not be
unreasonably withheld or delayed).
(iii) Each
Lender that sells a participation shall, acting for this purpose as an
agent of
the Borrower, maintain a register on which it enters the name and address
of
each participant and the principal amounts of each participant’s interest in the
Loans or Posting Advances (or other rights or obligations) held by it (the
“Participant Register”). The entries in the
Participant Register shall be conclusive, and such lender shall treat each
Person whose name is recorded in the Participant Register as the
owner of such Loan, Posting Advance or other obligation hereunder as the
owner
thereof for all purposes of this Agreement notwithstanding any notice to
the
contrary. Any such Participant Register shall be available for
inspection by the Administrative Agent, the Posting Agent and the Borrower
at
any reasonable time and from time to time upon reasonable prior
notice.
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(d) Any
Lender may, without the consent of US Holdings, the Borrower, the Administrative
Agent or the Posting Agent, at any time pledge or assign a security interest
in
all or any portion of its rights under this Agreement to secure obligations
of
such Lender, including any pledge or assignment to secure obligations to
a
Federal Reserve Bank, and this Section 13.6 shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of
its
obligations hereunder or substitute any such pledgee or assignee for such
Lender
as a party hereto. In order to facilitate such pledge or assignment
or for any other reason, the Borrower hereby agrees that, upon request
of any
Lender at any time and from time to time after any Borrower has made its
initial
borrowing hereunder, the Borrower shall provide to such Lender, at the
Borrower’s own expense, a promissory note, substantially in the form of
Xxxxxxx X-0, X-0-X, X-0-X, X-0-X, X-0 or
K-4, evidencing the Revolving
Credit Loans and Swingline Loans, Initial
Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche
B-3 Term
Loans, Delayed Draw Term Loans and Deposit L/C Loans, respectively, owing
to
such Lender.
(e) Subject
to Section 13.16, the Borrower authorizes each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a
“Transferee”), any prospective Transferee and any prospective
direct or indirect contractual counterparties to any swap or derivative
transactions to be entered into in connection with or relating to Loans
or
Posting Advances made hereunder any and all financial information in such
Lender’s possession concerning the Borrower and its Affiliates that has been
delivered to such Lender by or on behalf of the Borrower and its Affiliates
pursuant to this Agreement or that has been delivered to such Lender by
or on
behalf of the Borrower and its Affiliates in connection with such Lender’s
credit evaluation of the Borrower and its Affiliates prior to becoming
a party
to this Agreement.
(f) The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Acceptance shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the
same
legal effect, validity or enforceability as a manually executed signature
or the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the
Uniform
Electronic Transactions Act.
(g) SPV
Lender. Notwithstanding anything to the contrary contained
herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle (a “SPV”), identified as such in
writing from time to time by the Granting Lender to the Administrative
Agent and
the Borrower, the option to provide to the Borrower all or any part of
any Loan
that such Granting Lender would otherwise be obligated to make the Borrower
pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan and (ii) if an SPV
elects
not to exercise such option or otherwise fails to provide all or any part
of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant
to
the terms hereof. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as
if,
such Loan were made by such Granting Lender. Each party hereto hereby
agrees that no SPV shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with
the
Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment
in full
of all outstanding commercial paper or other senior indebtedness of any
SPV, it
shall not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State
thereof. In addition, notwithstanding anything to the contrary
contained in this Section 13.6, any SPV may (i) with notice to, but
without the prior written consent of, the Borrower and the Administrative
Agent
and with
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out
paying any processing fee therefor, assign all or a portion of its interests
in
any Loans to the Granting Lender or to any financial institutions (consented
to
by the Borrower and Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPV to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or
provider
of any surety, guarantee or credit or liquidity enhancement to such
SPV. This Section 13.6(g) may not be amended without the
written consent of the SPV. Notwithstanding anything to the contrary
in this Agreement, (x) no SPV shall be entitled to any greater rights under
Sections 2.10, 2.11, and 5.4 than its Granting Lender would
have been entitled to absent the use of such SPV and (y) each SPV agrees
to be
subject to the requirements of Sections 2.10, 2.11, and 5.4
as though it were a Lender and has acquired its interest by assignment
pursuant
to clause (b) of this Section 13.6.
13.7. Replacements
of Lenders under Certain Circumstances
.
(a) The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10, 3.5
or 5.4, (b) is affected in the manner described in Section
2.10(a)(iii) and as a result thereof any of the actions described in such
Section is required to be taken or (c) becomes a Defaulting Lender, with
a
replacement bank or other financial institution; provided that (i) such
replacement does not conflict with any Applicable Law, (ii) no Event of
Default
under Section 11.1 or 11.5 shall have occurred and be continuing
at the time of such replacement, (iii) the Borrower shall repay (or the
replacement bank or institution shall purchase, at par) all Loans, Posting
Advances and other amounts (other than any disputed amounts), pursuant
to
Section 2.10, 2.11, 3.5 or 5.4, as the case may
be) owing to such replaced Lender prior to the date of replacement, (iv)
the
replacement bank or institution, if not already a Lender, and the terms
and
conditions of such replacement, shall be reasonably satisfactory to the
Administrative Agent (or, in the case of any Posting Lender, the Posting
Agent),
(v) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 13.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee
referred
to therein) and (vi) any such replacement shall not be deemed to be a
waiver of any rights that the Borrower, the Administrative Agent, the Posting
Agent or any other Lender shall have against the replaced Lender.
(b) If
any Lender (such Lender, a “Non-Consenting Lender”) has failed
to consent to a proposed amendment, modification, supplement, waiver, discharge
or termination that pursuant to the terms of Section 13.1 requires the
consent of all of the Lenders or all Lenders affected and with respect
to which
the Required Lenders (or the Required Posting Lenders, as applicable) shall
have
granted their consent, then provided no Event of Default then exists, the
Borrower shall have the right (unless such Non-Consenting Lender grants
such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting
Lender to assign its Loans, Posting Advances and its Commitments hereunder
to
one or more assignees reasonably acceptable to the Administrative Agent
or, with
respect to the Posting Facility, the Posting Agent; provided
that: (a) all Obligations of the Borrower owing to such
Non-Consenting Lender being replaced shall be paid in full to such
Non-Consenting Lender concurrently with such assignment, and (b) the replacement
Lender shall purchase the foregoing by paying to such Non-Consenting Lender
a
price equal to the principal amount thereof plus accrued and unpaid
interest thereon. In connection with any such assignment, the
Borrower, Administrative Agent, the Posting Agent, such Non-Consenting
Lender
and the replacement Lender shall otherwise comply with Section
13.6.
13.8. Adjustments;
Set-off
.
(a) If
any Lender (a “benefited Lender”) shall at any time receive any
payment of all or part of its Loans or Posting Advances, or interest thereon,
or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature
referred
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to
in Section 11.5, or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect
of
such other Lender’s Loans or Posting Advances, or interest thereon, such
benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender’s Loan or Posting Advance, or
shall provide such other Lenders with the benefits of any such collateral,
or
the proceeds thereof, as shall be necessary to cause such benefited Lender
to
share the excess payment or benefits of such collateral or proceeds ratably
with
each of the Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) After
the occurrence and during the continuance of an Event of Default, in addition
to
any rights and remedies of the Lenders provided by Applicable Law, each
Lender
shall have the right, without prior notice to US Holdings, the Borrower,
any
such notice being expressly waived by US Holdings, the Borrower to the
extent
permitted by Applicable Law, upon any amount becoming due and payable by
the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any
and all
deposits (general or special, time or demand, provisional or final), in
any
currency, and any other credits, indebtedness or claims, in any currency,
in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent
after
any such set-off and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such set-off
and
application.
13.9. Counterparts
. This
Agreement may be executed by one or more of the parties to this Agreement
on any
number of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and
the
Administrative Agent.
13.10. Severability
. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
13.11. INTEGRATION
. THIS
WRITTEN AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT
OF PARENT, US HOLDINGS, THE BORROWER, THE COLLATERAL AGENT, THE ADMINISTRATIVE
AGENT, THE POSTING AGENT, THE LETTER OF CREDIT ISSUERS AND THE LENDERS
WITH
RESPECT TO THE SUBJECT MATTER HEREOF, AND (1) THERE ARE NO PROMISES,
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY US HOLDINGS, THE BORROWER,
THE
ADMINISTRATIVE AGENT, THE POSTING AGENT, THE COLLATERAL AGENT, THE LETTER
OF
CREDIT ISSUERS OR ANY LENDER RELATIVE TO SUBJECT MATTER HEREOF NOT EXPRESSLY
SET
FORTH OR REFERRED TO HEREIN OR IN THE OTHER CREDIT DOCUMENTS, (2) THIS
AGREEMENT
AND THE OTHER CREDIT DOCUMENTS MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES AND (3) THERE
ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES; PROVIDED THAT THE SYNDICATION
PROVISIONS AND THE BORROWER’S AND PARENT’S CONFIDENTIALITY OBLIGATIONS IN THE
COMMITMENT LETTER SHALL REMAIN IN FULL FORCE AND EFFECT. IT IS SPECIFICALLY
AGREED THAT
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THE
PROVISION OF THE CREDIT FACILITIES HEREUNDER BY THE LENDERS SUPERSEDES
AND IS IN
SATISFACTION OF THE OBLIGATIONS OF THE AGENTS (AS DEFINED IN THE COMMITMENT
LETTER) TO PROVIDE THE COMMITMENTS SET FORTH IN EXHIBIT B OF THE COMMITMENT
LETTER.
13.12. GOVERNING
LAW
. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE
STATE OF NEW YORK.
13.13. Submission
to Jurisdiction; Waivers
. Each
party hereto irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating
to this
Agreement and the other Credit Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of
New York and appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected
by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address set
forth
on Schedule 13.2 at such other address of which the Administrative Agent
and the Posting Agent shall have been notified pursuant to
Section 13.2;
(d) agrees
that nothing herein shall affect the right to effect service of process
in any
other manner permitted by law or shall limit the right to xxx in any other
jurisdiction;
(e) subject
to the last paragraph of Section 13.5, waives, to the maximum extent not
prohibited by Applicable Law, any right it may have to claim or recover
in any
legal action or proceeding referred to in this Section 13.13 any
special, exemplary, punitive or consequential damages; and
(f) agrees
that a final judgment in any action or proceeding shall be conclusive and
may be
enforced in other jurisdictions by suit on the judgment or in any other
manner
provided by Applicable Law.
13.14. Acknowledgments
. Each
of US Holdings and the Borrower hereby acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution and delivery
of this
Agreement and the other Credit Documents;
(b) (i) the
credit facilities provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Credit Document) are
an
arm’s-length commercial transaction between US Holdings and the Borrower, on
the
one hand, and the Administrative Agent, the Posting Agent, the Letter of
Credit
Issuer, the Lenders and the other Agents on the other hand, and US Holdings,
the
Borrower and the other Credit Parties are capable of evaluating and
understanding and understand and accept the terms,
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risks
and conditions of the transactions contemplated hereby and by the other
Credit
Documents (including any amendment, waiver or other modification hereof
or
thereof); (ii) in connection with the process leading to such transaction,
each
of the Administrative Agent, the Posting Agent and the other Agents, is
and has
been acting solely as a principal and is not the financial advisor, agent
or
fiduciary for any of US Holdings, the Borrower, any other Credit Parties
or any
of their respective Affiliates, stockholders, creditors or employees or
any
other Person; (iii) neither the Administrative Agent, the Posting Agent
nor any
other Agent has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of US Holdings, the Borrower or any other Credit
Party
with respect to any of the transactions contemplated hereby or the process
leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Credit Document (irrespective of whether
the
Administrative Agent, the Posting Agent or any other Agent has advised
or is
currently advising US Holdings, the Borrower, the other Credit Parties
or their
respective Affiliates on other matters) and neither the Administrative
Agent,
the Posting Agent or other Agent has any obligation to US Holdings, the
Borrower, the other Credit Parties or their respective Affiliates with
respect
to the transactions contemplated hereby except those obligations expressly
set
forth herein and in the other Credit Documents; (iv) the Administrative
Agent,
the Posting Agent, each other Agent and each Affiliate of the foregoing
may be
engaged in a broad range of transactions that involve interests that differ
from
those of US Holdings, the Borrower and their respective Affiliates, and
neither
the Administrative Agent, the Posting Agent nor any other Agent has any
obligation to disclose any of such interests by virtue of any advisory,
agency
or fiduciary relationship; and (v) neither the Administrative Agent, the
Posting
Agent nor any other Agent has provided and none will provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Credit Document) and US Holdings and the Borrower
has
consulted its own legal, accounting, regulatory and tax advisors to the
extent
it has deemed appropriate. US Holdings and the Borrower agree not to
claim that the Administrative Agent, the Posting Agent or any other Agent
has
rendered advisory services of any nature or respect, or owes a fiduciary
or
similar duty to US Holdings, the Borrower or any other Affiliates, in connection
with the transactions contemplated hereby or the process leading
hereto.
(c) no
joint venture is created hereby or by the other Credit Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders
or
among US Holdings and the Borrower, on the one hand, and any Lender, on
the
other hand.
13.15. WAIVERS
OF JURY TRIAL
. US
HOLDINGS, THE BORROWER, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
13.16. Confidentiality
. The
Administrative Agent, the Posting Agent, each Letter of Credit Issuer,
each
other Agent and each Lender shall hold all non-public information furnished
by
or on behalf of US Holdings, the Borrower or any Subsidiary of the Borrower
in
connection with such Lender’s evaluation of whether to become a Lender hereunder
or obtained by such Lender, the Administrative Agent, the Posting Agent,
Letter
of Credit Issuer or such other Agent pursuant to the requirements of this
Agreement (“Confidential Information”), confidential in
accordance with its customary procedure for handling confidential information
of
this nature and (in the case of a Lender that is a bank) in accordance
with safe
and sound banking practices and in any event may make disclosure as required
or
requested by any governmental, regulatory or self-regulatory agency or
representative thereof or pursuant to legal process or Applicable Law or
(a) to
such Lender’s or the Administrative Agent’s or such Posting Agent’s or such
Letter of Credit Issuer’s or such other Agent’s attorneys, professional
advisors, independent auditors, trustees or Affiliates, (b) to an investor
or
prospective investor in a Securitization that agrees its ac
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cess
to information regarding the Credit Parties, the Loans, Posting Advances
and the
Credit Documents is solely for purposes of evaluating an investment in
a
Securitization and who agrees to treat such information as confidential,
(c) to
a trustee, collateral manager, servicer, backup servicer, noteholder or
secured
party in connection with the administration, servicing and reporting on
the
assets serving as collateral for a Securitization and who agrees to treat
such
information as confidential and (d) to a nationally recognized ratings
agency
that requires access to information regarding the Credit Parties, the Loans,
Posting Advances and Credit Documents in connection with ratings issued
with
respect to a Securitization; provided that unless specifically prohibited
by Applicable Law or court order, each Lender, the Administrative Agent,
the
Posting Agent, each Letter of Credit Issuer and each other Agent shall
use
commercially reasonable efforts to notify the Borrower of any request made
to
such Lender, the Administrative Agent, the Posting Agent, such Letter of
Credit
Issuer or such other Agent, as applicable, by any governmental, regulatory
or
self-regulatory agency or representative thereof (other than any such request
in
connection with a routine examination of such Lender by such governmental
regulatory or self-regulatory agency) for disclosure of any such non-public
information prior to disclosure of such information; and provided further
that in no event shall any Lender, the Administrative Agent, the Posting
Agent,
any Letter of Credit Issuer or any other Agent be obligated or required
to
return any materials furnished by US Holdings, the Borrower or any Subsidiary
of
the Borrower. Each Lender, the Administrative Agent, the Posting
Agent, each other Letter of Credit Issuer and each other Agent agrees that
it
will not provide to prospective Transferees or to any pledgee referred
to in
Section 13.6 or to prospective direct or indirect contractual
counterparties to any swap or derivative transactions to be entered into
in
connection with or relating to Loans or Posting Advances made hereunder
any of
the Confidential Information unless such Person is advised of and agrees
to be
bound by the provisions of this Section 13.16 or confidentiality
provisions at least as restrictive as those set forth in this
Section 13.16.
13.17. Direct
Website Communications
.
(a) US
Holdings and the Borrower may, at their option, provide to the Administrative
Agent any information, documents and other materials that they are obligated
to
furnish to the Administrative Agent pursuant to the Credit Documents, including,
all notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a conversion
of an
existing, Borrowing or other extension of credit (including any election
of an
interest rate or Interest Period relating thereto), (B) relates to the
payment
of any principal or other amount due under this Agreement prior to the
scheduled
date therefor, (C) provides notice of any Default or Event of Default under
this
Agreement or (D) is required to be delivered to satisfy any condition precedent
to the effectiveness of this Agreement and/or any Borrowing or other extension
of credit thereunder (all such non-excluded communications being referred
to
herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium in a format reasonably acceptable
to
the Administrative Agent at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx; provided
that: (i) upon written request by the Administrative Agent, US
Holdings or the Borrower shall deliver paper copies of such documents to
the
Administrative Agent for further distribution to each Lender until a written
request to cease delivering paper copies is given by the Administrative
Agent
and (ii) US Holdings or the Borrower shall notify (which may be by facsimile
or
electronic mail) the Administrative Agent of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery
of
paper copies of such documents from the Administrative Agent and maintaining
its
copies of such documents. Nothing in this Section 13.17 shall
prejudice the right of US Holdings, the Borrower, the Administrative Agent,
any
other Agent or any Lender to give any notice or other communication pursuant
to
any Credit Document in any other manner specified in such Credit
Document.
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(b) The
Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Credit Documents. Each Lender agrees that notice to
it (as provided in the next sentence) specifying that the Communications
have
been posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Credit
Documents. Each Lender agrees (A) to notify the Administrative Agent
in writing (including by electronic communication) from time to time of
such
Lender’s e-mail address to which the foregoing notice may be sent by electronic
transmission and (B) that the foregoing notice may be sent to such e-mail
address.
(c) US
Holdings and the Borrower further agree that the Agents may make the
Communications available to the Lenders by posting the Communications on
Intralinks or a substantially similar electronic transmission system (the
“Platform”), so long as the access to such Platform is limited
(i) to the Agents, the Letter of Credit Issuers, the Lenders or any bonafide
potential Transferee and (ii) remains subject the confidentiality requirements
set forth in Section 13.16.
(d) THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES
(AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY
FOR ERRORS IN OR OMISSIONS FROM THE COMMUNICATIONS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT
PARTY IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. In no
event shall any Agent or their Related Parties (collectively, the “Agent
Parties” and each an “Agent Party”) have any liability
to US Holdings, the Borrower, any Lender, any Letter of Credit Issuer or
any
other Person for losses, claims, damages, liabilities or expenses of any
kind
(whether in tort, contract or otherwise) arising out of US Holdings’, the
Borrower’s or any Agent’s transmission of Communications through the internet,
except to the extent the liability of any Agent Party resulted from such
Agent
Party’s (or any of its Related Parties’ (other than trustees or advisors)) gross
negligence, bad faith or willful misconduct or material breach of the Credit
Documents (as determined in a final non-appealable judgment of a court
of
competent jurisdiction).
(e) The
Borrower and each Lender acknowledge that certain of the Lenders may be
“public-side” Lenders (Lenders that do not wish to receive material non-public
information with respect to US Holdings, the Borrower, the Subsidiaries
of the
Borrower or their securities) and, if documents or notices required to
be
delivered pursuant to the Credit Documents or otherwise are being distributed
through the Platform, any document or notice that US Holdings or the Borrower
has indicated contains only publicly available information with respect
to US
Holdings, the Borrower and the Subsidiaries of the Borrower and their securities
may be posted on that portion of the Platform designated for such public-side
Lenders. If US Holdings or the Borrower has not indicated whether a
document or notice delivered contains only publicly available information,
the
Administrative Agent shall post such document or notice solely on that
portion
of the Platform designated for Lenders who wish to receive material nonpublic
information with respect to US Holdings, the Borrower, the Subsidiaries
of the
Borrower and their securities. Notwithstanding the foregoing, US
Holdings and the Borrower shall use commercially reasonable efforts to
indicate
whether any document or notice contains only publicly available
information.
13.18. USA
PATRIOT Act
. Each
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 each Credit
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Party,
which information includes the name and address of each Credit Party and
other
information that will allow such Lender to identify each Credit Party in
accordance with the Patriot Act.
13.19. Payments
Set Aside
. To
the extent that any payment by or on behalf of the Borrower is made to
any Agent
or any Lender, or any Agent or any Lender exercises its right of setoff,
and
such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Agent or such
Lender
in its discretion) to be repaid to a trustee, receiver or any other party,
in
connection with any proceeding or otherwise, then (a) to the extent of
such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment
had
not been made or such setoff had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share
of
any amount so recovered from or repaid by any Agent, plus interest
thereon from the date of such demand to the date such payment is made at
a rate
per annum equal to the applicable Overnight Rate from time to time in
effect.
13.20. Separateness
. v)
The Secured Parties hereby acknowledge (i) the legal separateness of US
Holdings, the Borrower and the Subsidiaries of the Borrower from the Oncor
Subsidiaries, (ii) that the lenders under the Oncor Credit Facility and
the
noteholders under the Existing Oncor Notes and under the transition bonds
have
likely advanced funds thereunder in reliance upon the separateness of the
Oncor
Subsidiaries from US Holdings, the Borrower and the Subsidiaries of the
Borrower, (iii) that the Oncor Subsidiaries have assets and liabilities
that are
separate from those of US Holdings, the Borrower and the Subsidiaries of
the
Borrower, (iv) that the Obligations are obligations and liabilities of
the
Borrower and the other Credit Parties only, and are not the obligations
or
liabilities of any of the Oncor Subsidiaries, (v) that the Secured Parties
shall
look solely to the Borrower and the Guarantors and such Persons’ assets, and not
to any assets, or to the pledge of any assets, owned by any of the Oncor
Subsidiaries, for the repayment of any amounts payable pursuant to this
Agreement and for satisfaction of any other Obligations and (vi) that none
of
the Oncor Subsidiaries shall be personally liable to the Secured Parties
for any
amounts payable, or any other Obligation, under the Credit
Documents.
(b) The
Secured Parties hereby acknowledge and agree that the Secured Parties shall
not
(i) initiate any legal proceeding to procure the appointment of an
administrative receiver, or (ii) institute any bankruptcy, reorganization,
insolvency, winding up, liquidation, or any like proceeding under applicable
law, against any of the Oncor Subsidiaries, or against any of the Oncor
Subsidiaries’ assets. The Secured Parties further acknowledge and
agree that each of the Oncor Subsidiaries is a third party beneficiary
of the
forgoing covenant and shall have the right to specifically enforce such
covenant
in any proceeding at law or in equity.
SECTION
14. Posting
Facility
.
14.1. [Reserved]
.
14.2. Computation
of MTM Exposure
.
(a) By
no later than 9:00 p.m. (New York time) on each Business Day (unless it
has been
prevented from doing so due to a technical delay or failure (which shall
not
include a delay or failure that could have been reasonably avoided or for
which
alternative provision could reasonably have been made) or as a result of
a
Market Disruption Event), the Posting Calculation Agent shall determine
the MTM
Exposure as of the close of business on such Business Day. Promptly
after making such determination, it shall advise the Posting Agent and
the
Borrower of that determination in a form substantially similar to Exhibit
P (each, a “Daily Notice”) (which Daily Notice shall be
provided via email to the addresses of the Borrower and the Posting Agent
set
forth on Schedule 13.2). If a Market Disruption
Event
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has
occurred, then the Posting Calculation Agent shall, as promptly as reasonably
practicable, determine the MTM Exposure in accordance with the Disruption
Fallbacks and any other relevant provisions of the Commodity
Definitions. If such determination is prevented due to a technical
delay or failure described above, the Posting Calculation Agent shall make
such
determination as promptly as reasonably practicable after such matter is
remedied.
(b) After
5:00 p.m. (New York time), on any Business Day, the Posting Calculation
Agent
shall endeavor, in a commercially reasonable manner, to estimate (based
on such
factors and information as it deems reasonably relevant and are then available
to it) the MTM Exposure for such Business Day (the “Estimated MTM
Exposure”) and provide the same to the Borrower and the Posting Agent
(via email to the addresses of the Borrower and the Posting Agent set forth
on
Schedule 13.2); provided that (i) the Posting Calculation Agent shall not
be
required to provide such Estimated MTM Exposure within any specified time
period, (ii) the Borrower acknowledges that the Estimated MTM
Exposure for any Business Day may differ significantly from the actual
MTM
Exposure determined by the Posting Calculation Agent for that Business
Day
pursuant to clause (a) above (the “Actual MTM Exposure”), (iii)
that any difference between the Estimated MTM Exposure and the Actual MTM
Exposure for any Business Day shall in no way limit or diminish the obligations
of the Borrower, the Posting Agent, the Posting Lenders or the Posting
Calculation Agent hereunder, which shall be based on the Actual MTM Exposure,
(iv) the Borrower shall be solely responsible for whether and the extent to
which it makes use of any Estimated MTM Exposure it receives and shall have no
claim of any nature against the Posting Calculation Agent, the Posting
Agent or
any Lender as a result of or based on its use of such Estimated MTM Exposure
or
any difference between the Estimated MTM Exposure and the Actual MTM Exposure
for any Business Day and (v) that the Posting Calculation Agent shall not
be
required, and shall have no obligation, to provide any backup data or other
information supporting or reconciling any differences between an Estimate
MTM
Exposure and an Actual MTM Exposure.
(c) Without
limiting clauses (a) and (b) above, the Borrower acknowledges that
each Daily Notice and each Estimated MTM Exposure provided by the Posting
Calculation Agent shall include, and be subject to, the Posting Calculation
Agent’s standard disclaimer relating to xxxx-to-market calculations, a copy of
which is set forth in Exhibit O hereto.
14.3. Computation
of Posting Advance Amounts or Posting Repayment Amounts
.
(a) The
Posting Calculation Agent shall calculate the MTM Exposure as of the close
of
business on the Business Day immediately preceding the Closing Date (the
“Closing Date MTM Exposure”) and shall provide the same to the
Borrower in writing no later than 9:00 p.m. (New York time) on the day
preceding
the Closing Date. The amount of the Posting Advance to be made on the
Closing Date shall equal the Closing Date MTM Exposure (the “Initial
Posting Advance Amount”).
(b) On
each Computation Date, the Posting Calculation Agent shall determine the
amount
by which the MTM Exposure for that Computation Date is greater than or
less than
the Aggregate Posting Advances Outstanding as of that Computation
Date. If such MTM Exposure exceeds such Aggregate Posting Advances
Outstanding, then such excess (rounded up or down to the nearest integral
multiple of $100,000) shall be the “Posting Advance Amount” for
that Computation Date and the related Posting Advance Date. If such
Aggregate Posting Advances Outstanding exceed such MTM Exposure, then such
excess (rounded up or down to the nearest integral multiple of $100,000)
shall
be the “Posting Repayment Amount” for that Computation Date and
the related Posting Repayment Date.
(c) By
no later than 9:00 p.m. (New York time), on each Computation Date (unless
it has
been prevented from doing so due to a technical delay or failure (which
shall
not include a delay or failure that could have been reasonably avoided
or for
which alternative provision could reasonably have
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been
made) or as a result of a Market Disruption Event), the Posting Calculation
Agent shall notify the Posting Agent and the Borrower of the Posting Advance
Amount or Posting Repayment Amount (as applicable) for such Computation
Date,
which shall be included in, if applicable, the Daily Notice for that date
(and
may be provided via email to the addresses of the Borrower and the Posting
Agent
set forth on Schedule 13.2).
(d) If
the Daily Notice for any Computation Date specifies a Posting Repayment
Amount,
then by no later than 10:00 a.m. (New York time) on the first Business
Day after
such Daily Notice has been given, the Borrower may advise the Posting Agent
that
it has elected to repay such Posting Repayment Amount on the first Business
Day
following such Computation Date and such Posting Repayment Amount shall
be due
on such date.
14.4. Posting
Advances Amounts
.
(a) Subject
to the terms and conditions herein set forth, each Posting Lender, severally,
and not jointly, agrees to make a Posting Advance in Dollars on the Closing
Date
to the Borrower in an amount equal to such Posting Lender’s Posting Percentage
(based on its Posting Commitment) of the Initial Posting Advance
Amount.
(b) Subject
to the terms and conditions herein set forth, each Posting Lender, severally,
and not jointly, agrees to make a Posting Advance in Dollars on each Posting
Advance Date (other than the Closing Date) to the Borrower in an amount
equal to
such Posting Lender’s Posting Percentage of the Posting Advance Amount for that
Posting Advance Date.
(c) No
later than 2:00 p.m. (New York time) on each Posting Advance Date, each
Posting Lender will make available its Posting Percentage of each Borrowing
of
Posting Advances to be made on such date in the manner provided below;
provided, further, that on the Closing Date, such funds may be
made available at such earlier time as may be agreed among the Posting
Lenders,
the Borrower and the Posting Agent.
(d) Each
Posting Lender shall make available all amounts it is to make available
to the
Borrower under any Borrowing of Posting Advances for its applicable Commitments
in immediately available funds pursuant to the Payment Instructions (subject
to
any alternative Payment Instructions or netting and/or settlement agreements
as
in effect from time to time), to the Posting Agent, and the Posting Agent
will
apply such amounts in accordance with the Payment
Instructions. Unless the Posting Agent shall have been notified by
any Posting Lender prior to the date of any such Borrowing of such Posting
Advances that such Lender does not intend to make available to the Posting
Agent
such Lender’s portion of the Borrowing of such Posting Advances to be made on
such date, the Posting Agent may assume that such Lender has made such
amount
available to the Posting Agent on such date of such Borrowing, and the
Posting
Agent, in reliance upon such assumption, may (in its sole discretion and
without
any obligation to do so) make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact
made available to the Posting Agent by such Lender and the Posting Agent
has
made available such amount to the Borrower, the Posting Agent shall be
entitled
to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Posting Agent’s demand
therefor the Posting Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Posting Agent in
Dollars. The Posting Agent shall also be entitled to recover from
such Lender or the Borrower interest on such corresponding amount in respect
of
each day from the date such corresponding amount was made available by
the
Posting Agent to the Borrower to the date such corresponding amount is
recovered
by the Posting Agent, at a rate per annum equal to (i) if paid by such
Lender,
the Overnight Rate or (ii) if paid by the Borrower, the then-applicable
rate of
interest or fees, calculated in accordance with Section 2.8, for the respective
Post
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ing
Advances. If such Lender shall repay to the Posting Agent such
corresponding amount, such amount shall constitute such Lender’s portion of such
Posting Advance for purposes of this Agreement.
(e) Nothing
in this Section 14.4 shall be deemed to relieve any Posting Lender from
its
obligation to fulfill its commitments hereunder or to prejudice any rights
that
the Borrower may have against any Lender as a result of any default by
such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
(f) Each
Posting Advance shall be made by the Posting Lenders pro rata in accordance
with
their then-applicable Posting Commitments; provided, however, that
the failure of any Lender to make any Posting Advance shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure
of any
other Lender to make any Posting Advance required to be made by such other
Lender).
14.5. Posting
Repayment Amounts by the Borrower
.
(a) On
each Posting Repayment Date, the Borrower shall repay to the Posting Agent,
for
the benefit of the Posting Lenders an amount equal to the Posting Repayment
Amount for that Posting Repayment Date; provided, however, that at any
time that the Posting Lender and the Dealer are not Affiliates, the Borrower
shall not be required to repay any Posting Repayment Amount to any Posting
Lender while such Posting Lender is a Defaulting Lender until the earlier
of (i)
the 60th day
following the date such Posting Repayment Amount is due and (ii) two Business
Days following the date upon which such Posting Lender ceases to be a Defaulting
Lender.
(b) On
the Posting Facility Maturity Date, the Borrower shall repay to the Lenders
the
Aggregate Posting Advances Outstanding.
14.6. Payment
Instructions; Netting and/or Settlement Agreements
.
(a) From
time to time, the Borrower may establish with the Posting Agent Payment
Instructions regarding the making of Posting Advances hereunder. So
long as any such Payment Instruction remains in effect, the terms thereof
shall
supersede any conflicting terms set forth herein.
(b) From
time to time, the Borrower may request that the Posting Agent, on behalf
of the
Posting Lenders, enter into netting and/or settlement agreements with the
Dealer
in order to facilitate the timely payment of amounts payable to or from
the
Lenders hereunder and to or from the Dealer. So long as any such
payment netting and/or settlement arrangement remains in effect, the terms
thereof shall supersede any conflicting terms set forth herein.
14.7. Deemed
Transactions
.
(a) The
“Deemed Transactions” shall consist of a portfolio of
hypothetical over-the-counter fixed-for-floating swap transactions under
which
the Borrower (and its Restricted Subsidiaries) are, on a net volume basis,
the
“floating price” payor (or has an equivalent position) and which have the net
volumes and fixed prices and relate to the delivery periods in Columns
I, II,
III and IV of Schedule 1.1(e).
(b) The
volumes subject to the Deemed Transactions may, from time to time, be subject
to
adjustment as follows:
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(i) with
respect to the monthly volumes referenced in Column III of Schedule
1.1(e) hereto, the Borrower may:
(A) without
any additional fee, (x) increase the volumes in earlier periods if it
simultaneously and permanently decreases by the same amount the volumes
in later
periods or (y) decrease the volume in any period without increasing the
volume
in any other period, and
(B) decrease
volumes in earlier periods and simultaneously and permanently increases
by the
same amount the volumes in the later periods; provided that, prior to the
effectiveness of any such simultaneous decrease in earlier volumes and
increases
in later volumes, the Borrower shall have paid to the Posting Lead Arranger
and
Bookrunner the Ad Hoc Adjustment Maintenance Fee (as defined in the Posting
Facility Fee Letter) in respect of such change; and
14.8. Evidence
of Indebtedness
.
(a) Each
Posting Lender shall maintain in accordance with its usual practice an
account
or accounts evidencing the Indebtedness to such Lender resulting from each
Posting Advance 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
under
this Agreement.
(b) The
Posting Agent shall maintain accounts in which it will record (i) the amount
and
date of each Posting Advance made hereunder, (ii) the amount of any principal
or
interest due and payable or to become due and payable from the Borrower
to each
Posting Lender hereunder and (iii) the amount of any sum received by the
Posting
Agent hereunder from the Borrower and each Lender’s share thereof.
(c) The
entries made in the accounts maintained pursuant to clauses (a) and
(b) above shall, to the extent permitted by Applicable Law,
be prima
facie evidence of the existence and amounts of the obligations therein
recorded;
provided, however, that the failure of any Lender or the Posting
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of the Borrower to repay the Posting Advances Outstanding
in accordance with their terms.
14.9. Termination
and Reduction of Posting Commitments
.
(a) The
Posting Commitments shall terminate automatically at 5:00 p.m. (New York
time)
on the Posting Facility Maturity Date.
(b) Subject
to clause (c) below, upon at least ten Business Days’ prior irrevocable
written notice to the Posting Agent, the Borrower may at the end of any
calendar
month, in whole permanently terminate the Posting Commitments. The
Posting Agent shall advise the Posting Lenders of any notice given pursuant
to
this clause (b).
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(c) If
the Posting Commitments terminate in whole prior to December 31, 2012 for
any
reason other than as a result of a Lender Default, the Borrower shall pay
to the
Posting Lead Arranger and Bookrunner, the Final Termination Maintenance
Fee (as
defined in the Posting Facility Fee Letter).
(d) The
Borrower shall pay to the Facility Lead Arranger and Bookrunner on the
date of
the termination of the Posting Commitments, any Maintenance Fees accrued
through
the date of such termination.
14.10. Pro
Rata Treatment
. Each
Posting Advance shall be allocated pro rata among the Lenders in accordance
with
their respective Posting Commitments (or, if such Posting Commitments shall
have
expired or been terminated, in accordance with the respective principal
amounts
of their Posting Advances Outstanding). Each repayment of any Posting
Advance and each payment of interest on the Posting Advances shall be allocated
pro rata among the Lenders in accordance with their respective Posting
Commitments (or, if such Posting Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
Posting
Advances Outstanding). Each Lender agrees that in computing such
Lender’s portion of any Posting Advance to be made hereunder, the Posting Agent
may, in its discretion, round each Lender’s percentage of such Posting Advance
to the next higher or lower whole dollar amount.
14.11. Trading
Acknowledgment
. The
Borrower hereby acknowledges that, with respect to Xxxxxxx Xxxxx Credit
Partners
L.P., (i) one or more of its affiliates (“Trading Affiliates”)
are merchants of crude oil, petroleum products, natural gas, electricity
and
other commodities and may, from time to time, be dealing with prospective
counterparties, or pursuing trading or hedging strategies, in connection
with
aspects of such Trading Affiliates’ business that are unrelated to the Posting
Facility and that such dealings and such trading or hedging strategies
may be
different from or opposite to those being pursued by, for, or in connection
with, the Posting Facility or by or for any Credit Party or such Person’s
account, (ii) nothing herein or in the Credit Documents shall be construed
to
prevent any such Trading Affiliate, or any of its partners, officers, employees
or affiliates, in any way from purchasing, selling or otherwise trading
in crude
oil, petroleum products, natural gas or any other commodity for its or
their own
account or for the account of others, whether prior to, simultaneously
with or
subsequent to the term of the Posting Facility and (iii) such trading and
hedging activities may be in conflict with or have an adverse effect on
the
trading or hedging activities of a Credit Party or transactions to which
any
Credit Party is a party (including transactions that may be referenced
in the
Posting Facility).
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IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this
Agreement to be duly executed and delivered as of the date first above
written.
ENERGY
FUTURE COMPETITIVE HOLDINGS COMPANY
|
||
By:
|
||
Name:
|
||
Title:
|
||
TEXAS
COMPETITIVE ELECTRIC HOLDINGS
COMPANY,
as the Borrower
|
||
By:
|
||
Name:
|
||
Title:
|
||
CITIBANK,
N.A., as Administrative Agent, Collateral Agent, Swingline Lender,
Revolving Lender, Letter of Credit Issuer, Deposit Letter of
Credit Issuer
and a Lender
|
||
By:
|
||
Name:
|
||
Title:
|
||
JPMORGAN
CHASE BANK, N.A., as a Revolving
Letter
of Credit Issuer and a Lender
|
||
By:
|
||
Name:
|
||
Title:
|
||
XXXXXXX
XXXXX CREDIT PARTNERS L.P., as Posting Agent and a Lender
|
||
By:
|
||
Name:
|
||
Title:
|
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XXXXXX
XXXXXXX SENIOR FUNDING, INC., as a Lender
|
||
By:
|
||
Name:
|
||
Title:
|
||
[XXXXXX
XXXXXXX BANK], as a Lender
|
||
By:
|
||
Name:
|
||
Title:
|
||
[LENDER
NAMES], as a Lender
|
||
By:
|
||
Name:
|
||
Title:
|
||
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