Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 1
, dated as of August 7, 2009
(this “ Amendment ”), to the Credit Agreement,
dated as of October 10, 2007 (the “ Credit
Agreement ”), 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 thereto (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, Goldman 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., J.P. Morgan
Securities Inc., Goldman Sachs Credit Partners L.P., Lehman
Brothers Inc., Morgan Stanley Senior Funding, Inc. and Credit
Suisse Securities (USA) LLC, as Joint Lead Arrangers and
Bookrunners, Goldman Sachs Credit Partners L.P., as Posting Lead
Arranger and Sole Bookrunner, Credit Suisse, Goldman Sachs Credit
Partners L.P., Lehman Commercial Paper Inc. and Morgan Stanley
Senior Funding, Inc., as Co-Documentation Agents, and J.
Aron & Company, as Posting Calculation Agent. Capitalized
terms used but not defined herein have the meanings provided in the
Credit Agreement.
WHEREAS, Section 13.1 of the
Credit Agreement permits the Required Lenders or, with the consent
of the Required Lenders, the Administrative Agent and/or the
Collateral Agent, as applicable, to enter into certain amendments,
supplements or other modifications to the Credit Agreement and the
other Credit Documents with the relevant Credit Parties;
WHEREAS, the Credit Parties desire
to amend the Credit Agreement and the other Credit Documents on the
terms set forth herein;
NOW, THEREFORE, in consideration of
the premises and covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
Section 1
Amendments .
(a) Section 1.1 of the Credit
Agreement is hereby amended by adding the following definitions in
proper alphabetical order:
“ Alternate First Lien
Collateral ” shall have the meaning provided in
Section 10.2(a) .
“ Amendment No. 1
” shall mean Amendment No. 1 to this Agreement, dated as
of August 7, 2009.
“Cash
Collateral” shall
have the meaning provided in Section 3.8(c)
.
“ Debt Incurrence
Prepayment Event ” shall mean any issuance or incurrence
by the Borrower or any of the Restricted Subsidiaries of any
Indebtedness permitted to be issued or incurred under
Section 10.1(o) or Section 10.1(y)(i)
.
“ Existing Class
” shall mean Existing Term Loan Classes and Existing
Revolving Credit Classes.
“ Existing Revolving Credit
Commitments ” shall have the meaning provided in
Section 2.15(a)(ii) .
“ Existing Revolving Credit
Loans ” shall have the meaning provided in
Section 2.15(a)(ii) .
“ Existing Term Loan
Class ” shall have the meaning provided in
Section 2.15(a)(i) .
“ Extended
Loans/Commitments ” shall mean Extended Term Loans,
Extended Revolving Loans and/or Extended Revolving Credit
Commitments.
“ Extended Repayment
Date ” shall have the meaning provided in
Section 2.5(c) .
“ Extended Revolving Credit
Commitments ” shall have the meaning provided in
Section 2.15(a)(ii) .
“ Extended Revolving Credit
Facility ” shall mean each tranche of Extended Revolving
Credit Commitments established pursuant to
Section 2.15(a)(ii) .
“ Extended Revolving Credit
Loans ” shall have the meaning provided in
Section 2.15(a)(ii) .
“ Extended Term Loan
Facility ” shall mean each tranche of Extended Term Loans
made pursuant to Section 2.15 .
“ Extended Term Loan
Repayment Amount ” shall have the meaning provided in
Section 2.5(c) .
“ Extended Term Loans
” shall have the meaning provided in
Section 2.15(a)(i) .
“ Extending Lender
” shall have the meaning provided in
Section 2.15(b) .
“ Extension Amendment
” shall have the meaning provided in
Section 2.15(c) .
“ Extension Date
” shall have the meaning provided in
Section 2.15(d) .
“ Extension Election
” shall have the meaning provided in
Section 2.15(b) .
“ Extension Request
” shall mean Term Loan Extension Requests and Revolving
Credit Extension Requests.
“ Extension Series
” shall mean all Extended Term Loans and Extended Revolving
Credit Commitments that are established pursuant to the same
Extension Amendment (or any subsequent Extension Amendment to the
extent such Extension Amendment expressly provides that the
Extended Term Loans or Extended Revolving Credit
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Commitments, as applicable, provided
for therein are intended to be a part of any previously established
Extension Series) and that provide for the same interest margins,
extension fees and amortization schedule.
“ First Lien
Obligations ” shall mean the Obligations and the
Permitted Other Debt Obligations (other than any Permitted Other
Debt Obligations that are unsecured or are secured by a Lien
ranking junior to the Lien securing the Obligations),
collectively.
“ First Lien Secured
Parties ” shall mean the Secured Parties and the
Permitted Other Debt Secured Parties and any representative on
their behalf for such purposes (other than in the case of Permitted
Other Debt Secured Parties whose Permitted Other Debt Obligations
are unsecured or are secured by a Lien ranking junior to the Lien
securing the Obligations, such Permitted Other Debt Secured
Parties, the Collateral Agent and any other representative on their
behalf), collectively.
“ Incremental Limit
” shall have the meaning provided in
Section 2.14(b) .
“ New Revolving Credit
Commitments ” shall have the meaning provided in
Section 2.14(h)(ii) .
“ New Revolving Credit
Loan ” shall have the meaning provided in
Section 2.14(h)(ii) .
“ New Revolving Credit
Series ” shall have the meaning provided in
Section 2.14(h)(ii) .
“ Old Revolving Credit
Commitments ” shall mean all Revolving Credit
Commitments, Existing Revolving Credit Commitments and Extended
Revolving Credit Commitments, other than any New Revolving Credit
Commitments (and any Extended Revolving Credit Commitments related
thereto).
“ Old Revolving Credit
Loans ” shall mean all Loans made pursuant to Old
Revolving Credit Commitments.
“ Permitted Other Debt
” shall mean collectively, Permitted Other Loans and
Permitted Other Notes.
“ Permitted Other Debt
Documents ” shall mean any document or instrument
(including any guarantee, security agreement or mortgage and which
may include any or all of the Credit Documents) issued or executed
and delivered with respect to any Permitted Other Debt by any
Credit Party.
“ Permitted Other Debt
Obligations ” shall mean, if any Permitted Other Debt is
issued, all advances to, and debts, liabilities, obligations,
covenants and duties of, any Credit Party arising under any
Permitted Other Debt Document and, if applicable, under any
Security Document, 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
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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
of the foregoing, the Permitted Other Debt Obligations of the
applicable Credit Parties under the Permitted Other Debt Documents
and, if applicable, under any Security Document (and any of their
Restricted Subsidiaries to the extent they have obligations under
the Permitted Other Debt Documents and, if applicable, under any
Security Document) include the obligation (including guarantee
obligations) to pay principal, interest, charges, expenses, fees,
attorney costs, indemnities and other amounts payable by any such
Credit Party under any Permitted Other Debt Document and, if
applicable, under any Security Document.
“ Permitted Other Debt
Secured Parties ” shall mean the holders from time to
time of secured Permitted Other Debt Obligations, (and any
representative on their behalf).
“ Permitted Other Loans
” shall mean senior secured or unsecured loans (which loans,
if secured, may either have the same lien priority as the
Obligations or may be secured by a Lien ranking junior to the Lien
securing the Obligations), in either case issued by the Borrower or
a Guarantor, (a) the scheduled final maturity and Weighted
Average Life to Maturity of which are no earlier than the scheduled
final maturity and Weighted Average Life to Maturity, respectively,
of the Initial Term Loans, (b) of which no Subsidiary of the
Borrower (other than a Guarantor) is an obligor and (c) if
secured, are not secured by any assets other than the Collateral or
the Alternate First Lien Collateral. Certain terms of the Permitted
Other Loans shall be incorporated into this Agreement as provided
in Section 10.10 .
“ Permitted Other Notes
” shall mean senior secured or unsecured notes (which notes,
if secured, may either have the same lien priority as the
Obligations or may be secured by a Lien ranking junior to the Lien
securing the Obligations), in either case issued by the Borrower or
a Guarantor, (a) the terms of which do not provide for any
scheduled repayment, mandatory redemption or sinking fund
obligations prior to, at the time of incurrence, the Initial Term
Loan Maturity Date (other than customary offers to repurchase upon
a change of control, asset sale or casualty or condemnation event
and customary acceleration rights after an event of default),
(b) the covenants, events of default, guarantees, collateral
and other terms of which (other than interest rate and redemption
or prepayment premiums), taken as a whole, are not more restrictive
to the Borrower and the Restricted Subsidiaries than those herein;
provided that a certificate of an Authorized Officer of the
Borrower 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 two Business Days
after receipt of such certificate that it disagrees with such
determination (including a reasonable description of the basis upon
which it disagrees), (c) of which no Subsidiary of the
Borrower (other than a Guarantor) is an
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obligor and (d) if secured, are
not secured by any assets other than the Collateral or the
Alternate First Lien Collateral.
“Replacement Revolving
Credit Commitments” shall mean commitments to make Permitted Other
Loans that are provided by one or more lenders, in exchange for, or
which are to be used to refinance, replace or refund Revolving
Credit Commitments (and related Revolving Credit Loans), Extended
Revolving Credit Commitments (and related Extended Revolving Credit
Loans), New Revolving Credit Commitments (and related New Revolving
Credit Loans) or previous Replacement Revolving Credit Commitments
(and related Permitted Other Loans); provided that,
substantially contemporaneously with the provision of such
Replacement Revolving Credit Commitments, Commitments of the
Classes being exchanged, refinanced, replaced or refunded (the
“ Replaced Classes ”) are reduced and
permanently terminated (and any corresponding Loans outstanding
prepaid) in the manner (except with respect to Replacement
Revolving Credit Commitments and related Permitted Other Loans) set
forth in Section 5.2(e)(ii) , in an amount such that,
after giving effect to such replacement, the aggregate principal
amount of Replacement Revolving Credit Commitments plus the
aggregate principal amount of Commitments or commitments of the
Replaced Classes remaining outstanding after giving effect to such
replacement do not exceed the aggregate principal amount of
Commitments or commitments of the Replaced Classes that was in
effect immediately prior to the replacement.
“ Revolving Credit
Extension Request ” shall have the meaning provided in
Section 2.15(a)(ii) .
“ Section 2.15 Additional
Amendment ” shall have the meaning provided in
Section 2.15 .
“ Specified Existing
Revolving Credit Commitment ” shall have the meaning
provided in Section 2.15(a)(ii) .
“ Term Loan Extension
Request ” shall have the meaning provided in
Section 2.15(a)(i) .
“ Weighted Average Life to
Maturity ” shall mean, when applied to any Indebtedness
at any date, the number of years obtained by dividing: (a) the
sum of the products obtained by multiplying (i) the amount of
each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final
maturity, in respect thereof by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (b) the then
outstanding principal amount of such Indebtedness.
(b) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of
“Additional Lender” contained therein and replacing it
with the following:
“ Additional Lender
” shall mean, at any time, any Person (other than any such
Person that is a Lender at such time) that agrees to provide any
portion of an Incremental Term Loans, Incremental Deposit L/C
Loans, Incremental Revolving Commitment
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Increases or Incremental Posting
Facilities pursuant to an Incremental Amendment in accordance with
Section 2.14(f) .
(c) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Class ” contained therein and replacing it with the
following:
“ 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, Extended Term Loans (of the same
Extension Series), Extended Revolving Credit Loans (of the same
Extension Series), New Revolving Credit Loans (made pursuant to the
same tranche), 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 Commitment, an Incremental Term Loan
Commitment, a Deposit L/C Loan Commitment, an Incremental Deposit
L/C Loan Commitment, an Extended Revolving Credit Commitment (of
the same Extension Series), a New Revolving Credit Commitment (made
pursuant to the same tranche), a Swingline Commitment or a Posting
Commitment.
(d) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Collateral Agent ” contained therein and replacing it
with the following:
“ Collateral Agent
” shall mean, with respect to references to such term in this
Agreement, Citibank, N.A., in its capacity as collateral agent for
the Secured Parties under this Agreement in accordance with the
terms of this Agreement, and with respect to references to such
term in the Security Documents, Citibank, N.A., in its capacity as
collateral agent for the First Lien Secured Parties under the
Security Documents in accordance with the terms of the Security
Documents, or any successor collateral agent appointed pursuant to
any such document; provided that, for the avoidance of
doubt, for purposes of Section 12.7 and Section 13.5,
references to the Collateral Agent shall include any entity that
serves as Collateral Agent under the Intercreditor Agreement and
the Security Documents.
(e) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Commitments ” contained therein and replacing it with
the following:
“ 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, Extended Revolving Credit Commitment, New
Revolving Credit Commitment, Swingline Commitment, Deposit L/C Loan
Commitment,
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Incremental Deposit L/C Loan
Commitment, Posting Commitment or Incremental Posting Facility
Commitment.
(f) Section 1.1 of the Credit
Agreement is hereby amended by deleting clause (i) of the
definition of “ Consolidated Net Income ” and
replacing it with the following:
“(i) any net after-tax effect
of income (or loss) for such period attributable to the early
extinguishment of Indebtedness (other than Hedging Obligations, but
including, for the avoidance of doubt, debt exchange
transactions),”
(g) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Consolidated Secured Debt ” contained therein and
replacing it with the following:
“ Consolidated Secured
Debt ” shall mean Consolidated Total Debt secured by a
Lien on any assets of the Borrower or any Restricted Subsidiary
(other than, except for the purposes of calculating the
Consolidated Secured Debt to Consolidated EBITDA Ratio for purposes
of Section 10.2(t), a Lien ranking junior in priority to the
Lien securing the First Lien Obligations).
(h) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Credit Facility ” contained therein and replacing it
with the following:
“ Credit Facility
” shall mean any of the Initial Term Loan Facility, the
Delayed Draw Term Loan Facility, any Incremental Term Loan
Facility, any Extended Term Loan Facility, any Extended Revolving
Credit Facility, the Revolving Credit Facility, any New Revolving
Credit Series, the Deposit L/C Loan Facility, any Incremental
Deposit L/C Loan Facility, the Posting Facility and any Incremental
Posting Facility.
(i) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Interest Period ” contained therein and replacing it
with the following:
“ Interest Period
” shall mean, with respect to any Term Loan, Deposit L/C
Loan, Incremental Deposit L/C Loan, Revolving Credit Loan, New
Revolving Credit Loan or Extended Revolving Credit Loan, the
interest period applicable thereto, as determined pursuant to
Section 2.9 .
(j) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Loan ” and replacing it with the following:
“ Loan ” shall
mean any Revolving Credit Loan, New Revolving Credit Loan, Extended
Revolving Credit Loan, Swingline Loan, Term Loan, Deposit L/C Loan
or Incremental Deposit L/C Loan made by any Lender
hereunder.
(k) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Repayment Amount ” contained therein and replacing it
with the following:
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“ Repayment Amount
” shall mean an Initial Term Loan Repayment Amount, a Delayed
Draw Term Loan Repayment Amount, an Extended Term Loan Repayment
Amount with respect to any Extension Series and an Incremental Term
Loan Repayment Amount scheduled to be repaid on any
date.
(l) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Revolving Credit Lender ” contained therein and
replacing it with the following:
“ Revolving Credit
Lender ” shall mean, at any time, any Lender that has a
Revolving Credit Commitment or Extended Revolving Credit Commitment
at such time.
(m) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Security Documents ” contained therein and replacing
it with the following:
“ Security Documents
” shall mean, collectively, (a) the Security Agreement,
(b) the Pledge Agreement, (c) the Mortgages, (d) the
Intercreditor Agreement, (e) any other intercreditor agreement
executed and delivered pursuant to Section 10.2 and
(f) 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 Permitted Other Debt
Documents to secure or perfect the security interest in any or all
of the First Lien Obligations; provided that “Security
Documents” shall not include any security agreement or other
instrument or document executed and delivered to secure or perfect
any security interest in any Alternate First Lien
Collateral.
(n) Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition of “
Term Loans ” contained therein and replacing it with
the following:
“ Term Loans ”
shall mean an Initial Term Loan, a Delayed Draw Term Loan, an
Incremental Term Loan or any Extended Term Loans, as
applicable.
(o) Section 2.5(b) of the
Credit Agreement is hereby replaced in its entirety as
follows:
“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 (together with the Initial Term Loan Maturity Date, each, an
“ Initial Term Loan Repayment Date ”), an
aggregate principal amount equal to 0.25% of the aggregate
principal amount of all Initial Term Loans outstanding on the
Closing Date (together with the remaining aggregate principal
amount of the Initial Term Loans outstanding on the Initial Term
Loan Maturity 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 (together with the Delayed Draw Term Loan Maturity
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
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Term Loan Commitment Termination
Date (together with the remaining aggregate principal amount of the
Delayed Draw Term Loans outstanding on the Delayed Draw Term Loan
Maturity 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) ).”
(p) Section 2.5(c) of the
Credit Agreement is hereby replaced in its entirety as
follows:
“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 (each such amount, an
“ Incremental Term Loan Repayment Amount ”) 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 .
In the event that any Extended Term Loans are established, such
Extended Term Loans shall, subject to Section 2.15 , be
repaid by the Borrower in the amounts (each such amount, an “
Extended Term Loan Repayment Amount ”) and on the
dates (each an “ Extended Repayment Date ”) set
forth in the applicable Extension Amendment.”
(q) Section 2.14(b) of the
Credit Agreement is hereby amended by deleting the term
“$2,000,000,000” contained therein and replacing it
with the following: “$750,000,000 minus the aggregate
principal amount of Permitted Other Debt incurred under
Section 10.1(y)(iii) (the “ Incremental
Limit ”)”.
(r) Section 2.14(f) of the
Credit Agreement is hereby replaced in its entirety as
follows:
“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 Commitment Increases (including pursuant to New Revolving
Credit Commitments) or Incremental Posting Facilities) or by any
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 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.”
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(s) Section 2.14(h) of the
Credit Agreement is hereby amended by (i) adding
“(i)” prior to the first word thereof,
(ii) inserting the phrase “(other than pursuant to
clause (ii) below)” immediately after the first
occurrence of the phrase “Revolving Credit Commitments”
in such Section and (iii) adding a new subclause (ii) at
the end of Section 2.14(h) as follows:
“(ii) At the option of the
Borrower and the Incremental Lenders providing such Incremental
Revolving Commitment Increases, any Incremental Revolving
Commitment Increases may be in the form of one or more separate
classes of revolving credit commitments (the “ New
Revolving Credit Commitments ”) which shall constitute a
separate Class of Commitments from the Revolving Credit
Commitments, any Extended Revolving Credit Commitments and/or any
other New Revolving Credit Commitments (each such separate Class of
New Revolving Credit Commitments, a “ New Revolving Credit
Series ” and each Loan thereunder, a “ New
Revolving Credit Loan ”) and the related Loans shall
constitute a separate Class of Loans from the Revolving Credit
Loans, any Extended Revolving Credit Loans and/or any other New
Revolving Credit Loans (it being understood that New Revolving
Credit Commitments of a single New Revolving Credit Series may be
established on more than one date); provided
that:
(A) the aggregate amount of New
Revolving Credit Commitments in effect at any time, when aggregated
with the aggregate amount of Revolving Credit Commitments and any
Extended Revolving Credit Commitments at such time, shall not
exceed the sum of $2,700,000,000 and the remainder, if positive, of
(A) $750,000,000 minus (B) the aggregate amount of
Incremental Term Loans and Incremental Deposit L/C Loans
established on or prior to such date minus (C) the aggregate
amount of Permitted Other Debt previously established in reliance
of Section 10.1(y)(iii) ;
(B) Each tranche of New Revolving
Credit Commitments shall be in an aggregate principal amount of 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
Section 2.14(b) above).
(C) the terms of such New Revolving
Credit Commitments, except for (w) the tenor of the New
Revolving Credit Commitments (which shall have a scheduled
expiration date no earlier than the Revolving Credit Maturity
Date), (x) the size of any swingline loan and/or letter of
credit subfacilities under such New Revolving Credit Commitments,
(y) the applicable interest rates and fees payable with
respect to such New Revolving Credit Commitments and (z) the
borrowing, repayment and termination of Commitment procedures (in
each case which shall be as specified in the applicable Incremental
Amendment), shall be substantially similar to the terms of the
Revolving Credit Commitments and Extended Revolving Credit
Commitments (unless otherwise consented to by the Administrative
Agent); and
(D) in connection with the
establishment of any New Revolving Credit Commitments that will
include swingline loan and/or letter of credit
subfacilities,
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any amendment to this Agreement
pursuant to this Section 2.14(h)(ii) may include
provisions relating to swingline loans and/or letters of credit, as
applicable, issued thereunder, which issuances shall be on terms
substantially similar (except for the overall size of such
subfacilities and the identity of the swingline lender and letter
of credit issuer, as applicable, and borrowing, repayment and
termination of commitment procedures, in each case which shall be
specified in the applicable Incremental Amendment) to the terms
relating to Swingline Loans and Letters of Credit with respect to
the Revolving Credit Commitments or otherwise reasonably acceptable
to the Administrative Agent and any applicable swingline lender or
letter of credit issuer thereunder.”
(t) A new Section 2.15 of the
Credit Agreement is hereby added as follows:
“2.15. Extensions of Term
Loans and Revolving Credit Loans and Revolving Credit
Commitments . (a)(i) The Borrower may at any time and from time
to time request that all or a portion of the Term Loans of any
Class (an “ Existing Term Loan Class ”) be
converted to extend the scheduled final maturity date thereof (any
such Term Loans which have been so extended, “ Extended
Term Loans ”) and to provide for other terms consistent
with this Section 2.15 . In order to establish any
Extended Term Loans, the Borrower shall provide a notice to the
Administrative Agent (who shall provide a copy of such notice to
each of the Lenders of the applicable Existing Term Loan Class) (a
“ Term Loan Extension Request ”) setting forth
the proposed terms of the Extended Term Loans to be established,
which terms shall be identical to the Term Loans of the Existing
Term Loan Class from which they are to be extended except
(x) the scheduled final maturity date shall be extended and
all or any of the scheduled amortization payments of all or a
portion of any principal amount of such Extended Term Loans may be
delayed to later dates than the scheduled amortization of principal
of the Term Loans of such Existing Term Loan Class (with any such
delay resulting in a corresponding adjustment to the scheduled
amortization payments reflected in Section 2.5 or in
the Incremental Amendment, as the case may be, with respect to the
Existing Term Loan Class of Term Loans from which such Extended
Term Loans were extended, in each case as more particularly set
forth in paragraph (iii) of this Section 2.15
below), (y) (A) the interest margins with respect to the
Extended Term Loans may be higher or lower than the interest
margins for the Term Loans of such Existing Term Loan Class and/or
(B) additional fees may be payable to the Lenders providing
such Extended Term Loans in addition to or in lieu of any increased
margins contemplated by the preceding clause (A), in each case, to
the extent provided in the applicable Extension Amendment and
(z) the voluntary and mandatory prepayment rights of the
Extended Term Loans shall be subject to the provisions set forth in
Sections 5.1 and 5.2 . No Lender shall have any
obligation to agree to have any of its Term Loans of any Existing
Term Loan Class converted into Extended Term Loans pursuant to any
Term Loan Extension Request. Any Extended Term Loans of any
Extension Series shall constitute a separate Class of Term Loans
from the Existing Term Loan Class of Term Loans from which they
were extended.
(ii) The Borrower may at any time
and from time to time request that all or a portion of the
Revolving Credit Commitments, any Extended Revolving Credit
Commitments
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and/or any New Revolving Credit
Commitments, each existing at the time of such request (each, an
“ Existing Revolving Credit Commitment ” and any
related revolving credit loans thereunder, “ Existing
Revolving Credit Loans ”) be converted to extend the
termination date thereof and the scheduled maturity date(s) of any
payment of principal with respect to all or a portion of any
principal amount of Loans related to such Existing Revolving Credit
Commitments (any such Existing Revolving Credit Commitments which
have been so extended, “ Extended Revolving Credit
Commitments ” and any related Loans, “ Extended
Revolving Credit Loans ”) and to provide for other terms
consistent with this Section 2.15 . In order to
establish any Extended Revolving Credit Commitments, the Borrower
shall provide a notice to the Administrative Agent (who shall
provide a copy of such notice to each of the Lenders of the
applicable Class of Existing Revolving Credit Commitments) (a
“ Revolving Credit Extension Request ”) setting
forth the proposed terms of the Extended Revolving Credit
Commitments to be established, which terms shall be identical to
those applicable to the Existing Revolving Credit Commitments from
which they are to be extended (the “ Specified Existing
Revolving Credit Commitment ”) except (x) all or any
of the final maturity dates of such Extended Revolving Credit
Commitments may be delayed to later dates than the final maturity
dates of the Specified Existing Revolving Credit Commitments,
(y) (A) the interest margins with respect to the Extended
Revolving Credit Commitments may be higher or lower than the
interest margins for the Specified Existing Revolving Credit
Commitments and/or (B) additional fees may be payable to the
Lenders providing such Extended Revolving Credit Commitments in
addition to or in lieu of any increased margins contemplated by the
preceding clause (A) and (z) the revolving credit
commitment fee rate with respect to the Extended Revolving Credit
Commitments may be higher or lower than the Revolving Credit
Commitment Fee Rate for the Specified Existing Revolving Credit
Commitment, in each case, to the extent provided in the applicable
Extension Amendment; provided that, notwithstanding anything
to the contrary in this Section 2.15 or otherwise,
(1) the borrowing and repayment (other than in connection with
a permanent repayment and termination of commitments) of Loans with
respect to Old Revolving Credit Commitments shall be made on a
pro rata basis with all other Old Revolving Credit
Commitments, (2) assignments and participations of Extended
Revolving Credit Commitments and Extended Revolving Credit Loans
shall be governed by the same assignment and participation
provisions applicable to Revolving Credit Commitments and the
Revolving Credit Loans related to such Commitments set forth in
Section 13.6 and (3)(I) in the case of
Section 4.2 , Section 5.2(a)(iii) or
Section 10.1(y)(ii) , no permanent repayment of Old
Revolving Credit Loans (and corresponding permanent reduction in
Old Revolving Credit Commitments) or permanent reduction of Old
Revolving Credit Commitments shall be permitted unless all earlier
maturing Old Revolving Credit Commitments and Old Revolving Credit
Loans related to such Commitments shall have been terminated and
repaid in full and (II) in all other cases, no termination of Old
Revolving Credit Commitments and no repayment of Old Revolving
Credit Loans accompanied by a corresponding permanent reduction in
Old Revolving Credit Commitments shall be permitted unless such
termination or repayment (and corresponding reduction) is
accompanied by at least a pro rata termination or permanent
repayment (and corresponding pro rata permanent reduction),
as applicable, of all earlier maturing Old Revolving Credit
Commitments and Old Revolving Credit Loans related to
such
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Commitments (or all earlier maturing
Old Revolving Credit Commitments and Old Revolving Credit Loans
related to such Commitments shall have otherwise been terminated
and repaid in full). Any Extended Revolving Credit Commitments of
any Extension Series shall constitute a separate Class of revolving
credit commitments from the Specified Existing Revolving Credit
Commitments and from any other Existing Revolving Credit
Commitments (together with any other Extended Revolving Credit
Commitments so established on such date).
(b) The Borrower shall provide the
applicable Extension Request at least ten (10) Business Days
prior to the date on which Lenders under the Existing Class are
requested to respond. Any Lender (an “ Extending
Lender ”) wishing to have all or a portion of its Term
Loans, Revolving Credit Commitments, New Revolving Credit
Commitments or Extended Revolving Credit Commitments of the
Existing Class subject to such Extension Request converted into
Extended Loans/Commitments shall notify the Administrative Agent
(an “ Extension Election ”) on or prior to the
date specified in such Extension Request of the amount of its Term
Loans, Revolving Credit Commitments, New Revolving Credit
Commitments or Extended Revolving Credit Commitments of the
Existing Class which it has elected to convert into Extended
Loans/Commitments. In the event that the aggregate amount of Term
Loans, Revolving Credit Commitments, New Revolving Credit
Commitments or Extended Revolving Credit Commitments of the
Existing Class subject to Extension Elections exceeds the amount of
Extended Loans/Commitments requested pursuant to the Extension
Request, Term Loans, Revolving Credit Commitments, New Revolving
Credit Commitments or Extended Revolving Credit Commitments subject
to Extension Elections shall be converted to Extended
Loans/Commitments on a pro rata basis based on the amount of
Term Loans, Revolving Credit Commitments, New Revolving Credit
Commitments or Extended Revolving Credit Commitments included in
each such Extension Election. Notwithstanding the conversion of any
Existing Revolving Credit Commitment (other than a New Revolving
Credit Commitment) into an Extended Revolving Credit Commitment,
such Extended Revolving Credit Commitment shall be treated
identically to all other Old Revolving Credit Commitments for
purposes of the obligations of a Revolving Credit Lender in respect
of Swingline Loans under Section 2.1(e) and Revolving Letters
of Credit under Article 3, except that the applicable Extension
Amendment may provide that the Swingline Maturity Date and/or the
Revolving Letter of Credit Maturity Date may be extended and the
related obligations to make Swingline Loans and issue Revolving
Letters of Credit may be continued so long as the Swingline Lender
and/or the applicable Revolving Letter of Credit Issuer, as
applicable, have consented to such extensions (it being understood
that no consent of any other Lender shall be required in connection
with any such extension).
(c) Extended Loans/Commitments shall
be established pursuant to an amendment (an “ Extension
Amendment ”) to this Credit Agreement (which, except to
the extent expressly contemplated by the penultimate sentence of
this Section 2.15(c) and notwithstanding anything to
the contrary set forth in Section 13.1 , shall not
require the consent of any Lender other than the Extending Lenders
with respect to the Extended Loans/Commitments established thereby)
executed by the Loan Parties, the Administrative Agent and the
Extending Lenders. No Extension Amendment shall provide for
any
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