CREDIT AGREEMENT

Exhibit 10.3

EXECUTION COPY

 

CREDIT AGREEMENT

Dated as of April 9, 2009

among

ENBRIDGE ENERGY PARTNERS, L.P.,

as Borrower,

The Lenders Party Hereto

BARCLAYS BANK PLC,

as Administrative Agent

and

EXPORT DEVELOPMENT CANADA,

as Documentation Agent

 

BARCLAYS CAPITAL

as Sole Lead Arranger and Book Runner

EXPORT DEVELOPMENT CANADA

as Arranger

 

TABLE OF CONTENTS

 

TABLE OF CONTENTS

continued

 

 

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TABLE OF CONTENTS

continued

 

 

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TABLE OF CONTENTS

continued

 

SCHEDULES

Schedule 2.01  Commitments and Pro Rata Shares

Schedule 5.06  Litigation

Schedule 5.09  Environmental Matters

Schedule 5.13  Subsidiaries and Other Equity Interests

Schedule 7.01  Existing Liens

Schedule 7.03  Existing Indebtedness

Schedule 10.02  Eurodollar and Domestic Lending Offices, Addresses for Notices

EXHIBITS

 

 

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CREDIT AGREEMENT

THIS CREDIT AGREEMENT (this “ Agreement ”) dated as of April 9, 2009 is made and entered into by and among ENBRIDGE ENERGY PARTNERS, L.P., a Delaware limited partnership (the “ Borrower ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), BARCLAYS BANK PLC , as Administrative Agent, and EXPORT DEVELOPMENT CANADA , as Documentation Agent.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS

1.01        Defined Terms.

As used in this Agreement, the following terms shall have the meanings set forth below:

“ Acquired Assets ” has the meaning set forth in the definition of “ Incremental EBITDA ”.

“ Acquired Subsidiary ” has the meaning set forth in the definition of “ Incremental EBITDA ”.

“ Acquisition Period ” means the period beginning with the date of payment of the purchase price for a Specified Acquisition (the “ Acquisition Closing Date ”) and continuing through the earliest of (a) the last day of the second fiscal quarter following the quarter in which the Acquisition Closing Date occurs, (b) the date designated by the Borrower as the termination date of such Acquisition Period, or (c) the Quarter End Date on which the Borrower is in compliance with Section 7.13 as such compliance is determined as if such period was not the Acquisition Period. As used in this definition, “ Specified Acquisition ” means any one or more transactions (a) consummated during a consecutive 9-month period pursuant to which the Borrower or one or more of its Subsidiaries, or any combination of the foregoing, directly or indirectly, whether in the form of capital expenditure, an investment, a merger, a consolidation, an amalgamation or otherwise and whether through a solicitation of tender of equity interests, one or more negotiated block, market, private or other transactions, or any combination of the foregoing, acquires for an aggregate purchase price of not less than $50,000,000 (i) all or substantially all of the business or assets of any other Person or operating division or business unit of any other Person or (ii) more than 50% of the equity interests in any other Person and (b) designated by the Borrower to the Administrative Agent as a “Specified Acquisition” (such designation may be made at any time during an Acquisition Period that began on the Acquisition Closing Date for such Specified Acquisition); provided that following a designation of a Specified Acquisition, the Borrower may not designate a subsequent Specified Acquisition unless, after the end of the most recent Acquisition Period there shall have occurred at least one Quarter End Date on which the Borrower is in compliance with Section 7.13 , as such compliance is determined as if such period was not an Acquisition Period. As used in this definition, “ Quarter End Date ” means the last date of a fiscal quarter.

“ Administrative Agent ” means Barclays in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

“ Administrative Questionnaire ” means an Administrative Questionnaire in the form supplied by the Administrative Agent to be completed by the Lenders.

“ Affiliate ” means, as 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 be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“ Agent-Related Persons ” means the Administrative Agent (including any successor administrative agent permitted hereby) and the Lead Arranger, together with their respective Affiliates, and the officers, directors, employees, agents, advisors and attorneys-in-fact of such Persons and Affiliates.

“ Aggregate Commitments ” means at any time the sum of the Commitments of all the Lenders under this Agreement.

“ Aggregate Commitment Utilization Percentage ” means, as of any date of determination, an amount (expressed as a percentage) equal to (a) the aggregate Outstanding Amount of all Loans as of such date divided by (b) the Aggregate Commitments as of such date.

“ Applicable Rate ” means, for any day with respect to any Loan, (a) in the case of a Fixed Period Eurodollar Rate Loan, a rate per annum equal to the Borrower’s senior credit default swap mid-rate spread provided by Markit through its website for the two-year period commencing on the most recent Spread Determination Date for such Loan and obtained by the Administrative Agent from such website on such Spread Determination Date and (b) in the case of a Base Rate Loan, a rate per annum equal to the greater of (i) the Borrower’s senior credit default swap mid-rate spread provided by Markit through its website for the two-year period commencing on the most recent Spread Determination Date for such Loan and obtained by the Administrative Agent from such website on such Spread Determination Date minus 1.00% and (ii) 0%; provided , that if for any reason such spread is not available on such Spread Determination Date, the term “Applicable Rate” shall mean, with respect to such Loan, the average (rounded upwards, if necessary, to the nearest 1/100 of 1%) of three quotations received by the Administrative Agent from prospective swap counterparties reasonably acceptable to the Administrative Agent of the Borrower’s senior credit default swap mid-rate spread for the two-year period commencing on such Spread Determination Date. Each change in the Applicable Rate applicable to Fixed Period Eurodollar Rate Loans or Base Rate Loans shall be effective with respect to all such Loans outstanding on and after the applicable Spread Determination Date until the date immediately preceding the next applicable Spread Determination Date on which the Applicable Rate differs from the previously effective Applicable Rate.

 

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“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) a Syndicated Lender, (c) an Affiliate of a Lender or a Syndicated Lender or (d) an entity or an Affiliate of an entity that administers or manages a Lender or a Syndicated Lender.

“ Arranger ” means Export Development Canada.

“ Assignee Conditions ” means, in relation to any Approved Fund that is financially capable of performing the obligations of a Lender under this Agreement and takes an assignment from the entity that administers or manages such Fund (or an Affiliate or Approved Fund with respect thereto), the conditions as follows: (i) if a Lender assigns to such an Eligible Assignee less than all of its Commitment and the Loans at the time owing to it, any right of such assigning Lender and such assignee to vote as a Lender, or any other direct claim or right against the Borrower in relation to this Agreement, shall be uniformly exercised or pursued by such assigning Lender and such assignee; and (ii) such assignee shall not be entitled to payment from the Borrower under Article III of amounts in excess of those payable to such Lender assignor under such Article (determined without regard to such assignment or transfer).

“ Assignment and Assumption ” means an Assignment and Assumption substantially in the form of Exhibit D.

“ Attorney Costs ” means and includes all fees and disbursements of any law firm or other external counsel but expressly excludes the allocated cost of internal legal services and all disbursements of internal counsel.

“ Attributable Indebtedness ” means, on any date, in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

“ Audited Financial Statements ” means the audited consolidated balance sheet of the Borrower and its Subsidiaries and Unrestricted Subsidiaries for the fiscal year ended December 31, 2008, and the related consolidated statements of income and cash flows for such fiscal year of such Persons.

“ Barclays ” means Barclays Bank PLC, an English banking corporation.

“ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%; (b) the rate of interest in effect for such day as publicly announced from time to time by Barclays as its “prime rate”; and (c) the Fixed Period Eurodollar Rate for a one (1) month Interest Period on such day (or, if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%. Such prime rate is a rate set by Barclays based upon various factors including Barclays’ 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 prime rate. Any change in such prime rate announced by Barclays shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Base Rate Committed Loan ” means a Committed Loan that is a Base Rate Loan.

 

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“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

“ Borrower ” has the meaning set forth in the introductory paragraph hereto, and includes its successors and assigns permitted hereby, if any.

“ Borrower Materials ” has the meaning specified in Section 6.02 .

“ Borrowing ” means a borrowing consisting of simultaneous Loans of the same Type and having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .

“ Business Day ” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, each of (a) New York City and (b) the City of Calgary, Alberta, Canada, and if such day relates to any Fixed Period Eurodollar Rate Loan, it must also be a day on which dealings in Dollar deposits are conducted by and between banks in the applicable offshore Dollar interbank market.

“ Change of Control ” shall mean (i) the failure of Enbridge Energy Company, Inc., a Delaware corporation, or any other Person, in each case during the period that such Person is the general partner of the Borrower, to constitute a Wholly-Owned Subsidiary of Enbridge Inc., (ii) the failure of Enbridge Energy Company, Inc. or any other Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries of Enbridge Inc. at any time to constitute all of the general partners of the Borrower, (iii) the failure of the Operating Partnership to constitute a Subsidiary of the Borrower or (iv) the failure of any general partner of the Operating Partnership to constitute a Wholly-Owned Subsidiary of the Borrower.

“ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the case of Section 4.01(b) , waived by the Person entitled to receive the applicable payment).

“ Code ” means the Internal Revenue Code of 1986.

“ Commercial Operation Date ” means the date on which a Material Project is substantially complete and commercially operable.

“ Commitment ” means, as to each Lender, its obligation to make Committed Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption or joinder agreement pursuant to which such Person becomes a Lender, as applicable, as such amount may be reduced or adjusted from time to time in accordance with this Agreement.

“ Committed Loan ” has the meaning specified in Section 2.01 .

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit C .

 

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“Consolidated” or “consolidated” when used with reference to a Subsidiary or an Unrestricted Subsidiary means that such Subsidiary or Unrestricted Subsidiary is consolidated for financial reporting purposes in accordance with GAAP.

“Consolidated EBITDA” means, for any period, an amount equal to the sum of (a) Consolidated Net Income for such period, (b) consolidated interest expense deducted in determining such Consolidated Net Income, (c) the amount of taxes, based on or measured by income, used or included in the determination of such Consolidated Net Income, and (d) the amount of depreciation and amortization expense deducted in determining such Consolidated Net Income.

“Consolidated Funded Debt” means, as of any date of determination, for the Borrower and its Subsidiaries (for the avoidance of doubt, excluding the Unrestricted Subsidiaries) on a consolidated basis, the sum of (without duplication) the following: (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including all Obligations hereunder); (b) that portion of obligations with respect to capital leases that are capitalized in the consolidated balance sheet of the Borrower and its Subsidiaries; and (c) without duplication, the unpaid principal amount of all Guarantee Obligations with respect to Indebtedness of the type specified in subsections (a) and (b) above of Persons other than the Borrower or any of its Subsidiaries and excluding in all cases (i) Qualifying Subordinated Indebtedness owing to an Affiliate of the Borrower and (ii) to the extent included in any of clauses (a) through (c) above, Designated Hybrid Securities.

“Consolidated Net Income” means, for any period, the net income of the Borrower and its Subsidiaries (for the avoidance of doubt, excluding the Unrestricted Subsidiaries) from continuing operations (excluding gains or losses resulting from mark to market activity as a result of the implementation of Statement of Financial Accounting Standard 133, as amended) before extraordinary items (excluding gains or losses from Dispositions of assets) for that period determined on a consolidated basis; provided , for the purposes of the definition of Consolidated Operating Income, Consolidated Net Income shall be calculated by including the Unrestricted Subsidiaries.

“Consolidated Net Worth” means, as to the Borrower at any date, the sum of (i) the amount of partners’ capital of the Borrower determined as of such date in accordance with GAAP, and (ii) Designated Hybrid Securities; provided , there shall be excluded, without duplication, from such determination (to the extent otherwise included therein) the amount of accumulated other comprehensive gain or loss as of such date determined in accordance with GAAP.

“Consolidated Operating Income” means, for any period, (i) the sum of Consolidated Net Income and consolidated interest expense for such period less (ii) the sum of consolidated interest income and consolidated income classified as “Other” for such period, and in each of the foregoing instances, “consolidated” refers to the Borrower, its Subsidiaries and Unrestricted Subsidiaries on a consolidated basis determined in accordance with GAAP.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound pursuant to which such Person is obligated to perform an agreement or other undertaking.

 

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“Credit Extension” means each of the following: (a) a Borrowing, or (b) a conversion of Committed Loans to Term Loans pursuant to Section 2.17 .

“Data Provider” has the meaning specified in Section 10.22(c) .

“Debt Rating” means, as of any date of determination, the rating as determined by either S&P or Moody’s (collectively, the “Debt Ratings” ) of the Borrower’s non-credit-enhanced, senior unsecured long-term debt.

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States of America or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” means any event that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2% per annum; provided , however , that with respect to a Fixed Period Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.

“Delegate” means Enbridge Energy Management, L.L.C., a Delaware limited liability company, the delegate of the General Partner, and its successors and permitted assigns.

“Designated Hybrid Securities” means at the end of any fiscal quarter, the outstanding Hybrid Securities at such time in a face amount that does not exceed 15% of Total Capitalization at such time.

“Designated User” shall mean any individual recipient of the Markit Data who is from time to time authorized by a Lender or the Administrative Agent to access and use the Markit Data on behalf of such Lender or the Administrative Agent in connection with this Agreement. For the avoidance of doubt, each Lender or the Administrative Agent may have as many Designated Users within their respective firms (or affiliates thereof) as such Lender or the Administrative Agent, as applicable, so determines for these purposes.

“Disposition” or “Dispose” means the sale, transfer, license or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Disposition Percentage” means, with respect to any sale or disposition of assets by the Borrower or any Subsidiary, an amount (expressed as a percentage) equal to the Consolidated EBITDA generated by such assets during the four-fiscal-quarter period most recently ended prior to such disposition divided by Consolidated EBITDA for such four-fiscal-quarter period.

 

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“Distribution” for any Person means, with respect to any shares of any capital stock, any units, any partnership interests or other equity securities or ownership interests issued by such Person, (a) the retirement, redemption, purchase, or other acquisition for value of any such securities, (b) the declaration or payment of any dividend on or with respect to any such securities, and (c) any other payment by such Person with respect to such securities.

“Dollar” and “$” means lawful money of the United States of America.

“EBITDA” means for any period and for any Person and its consolidated Subsidiaries the sum of (a) net income of such Person and its consolidated Subsidiaries from continuing operations (excluding gains or losses resulting from mark to market activity as a result of the implementation of Statement of Financial Accounting Standard 133, as amended) before extraordinary items (excluding gains or losses from dispositions of assets), and (b) to the extent deducted in determining net income of such Person and its consolidated Subsidiaries (i) all interest expense plus the portion of rent expense of such Person under capitalized leases that is treated as interest in accordance with GAAP, (ii) the amount of taxes, based on or measured by income, and (iii) the amount of depreciation and amortization expense, in each case of such Person and its consolidated Subsidiaries for such period.

“Eligible Assignee” means any Person that meets all of the requirements to be an assignee under Section 10.07(b)(iii) , and is not precluded by Section 10.07(b)(v) and 10.07(b)(vi) (subject to such consents, if any, as may be required under Section 10.07(b)(iii) ).

“Enbridge Inc.” means Enbridge Inc., a corporation incorporated under the federal laws of Canada.

“Environmental Laws” means all Laws relating to environmental, health, safety and land use matters applicable to any property.

“EPRM” means Enbridge Partners Risk Management, L.P., a Delaware limited partnership, and a Wholly-Owned Subsidiary of the Borrower.

“EPRM Swap Contracts” means Swap Contracts to which EPRM is a counterparty, provided that (a) no other Subsidiary of the Borrower is a counterparty thereto or has Guarantee Obligations with respect thereto, (b) EPRM engages in no business other than the entry into Swap Contracts and related documents, instruments and agreements, and the performance of obligations and duties, the taken of actions, and the exercise of rights, privileges, interests or benefits under and incidental thereto, and (c) EPRM’s assets consist solely of Swap Contracts and related documents, instruments and agreements, and rights, privileges, interests and benefits thereunder, and other assets related to, or needed or needful for, the performance of obligations, taking of actions or exercise of rights, privileges, interests or benefits thereunder or arising under, or in connection with, revenues and operations with respect thereto.

“ERISA” means the Employee Retirement Income Security Act of 1974 and any rules and regulations issued pursuant thereto.

 

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“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the incurrence by the Borrower of liability with respect to a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the incurrence by the Borrower of liability with respect to a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the incurrence by the Borrower of liability with respect to the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the incurrence by the Borrower of liability with respect to an event or condition which could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; and with respect to each of the occurrences described in the presiding clauses (a) through (f), which could reasonably be expected to have a Material Adverse Effect.

“Event of Default” means any of the events or circumstances specified in Article VIII .

“Excess Swap Termination Value” means, as of any quarter-end date of determination, an amount equal to the excess of (a) the net aggregate Swap Termination Value as of such quarter-end date of (i) all Swap Contracts (other than EPRM Swap Contracts) pursuant to which one or more Subsidiaries of the Borrower are obligated as a counterparty and for which no other Subsidiary of the Borrower has a Guarantee Obligation with respect thereto, and (ii) all Swap Contracts for which one or more Subsidiaries of the Borrower has a Guarantee Obligation, in each case without duplication of any such Swap Contracts and Guarantee Obligations with respect thereto over (b) $150,000,000.

“Excluded Subsidiary” means any Subsidiary which is subject to any Excluded Subsidiary Transfer Restrictions; provided, however , that a Subsidiary that is subject to Excluded Subsidiary Transfer Restrictions will not be deemed to be an Excluded Subsidiary by reason of such Excluded Subsidiary Transfer Restrictions if, after giving effect thereto, such Subsidiary is permitted to make the payments, loans, advances and transfers of the type described in clauses (w), (x), (y) and (z)  of the definition of Intercompany Restrictions to the Borrower or to at least one other Subsidiary that is not subject to any Excluded Subsidiary Transfer Restrictions that restrict such Subsidiary’s ability to make such payments, loans, advances and transfers to the Borrower.

“Excluded Subsidiary Transfer Restrictions” means restrictions of the type described in clauses (w), (x), (y), or (z)  of the definition of Intercompany Restrictions, other than restrictions

 

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of the type described in clause (z)  which are otherwise excepted by any of clauses (B)(d), (B)(e), (B)(f), (B)(g), or (B)(h) of Section 7.03(a)(i) , (a) which are set forth in agreements governing Refinancings of or other amendments to Indebtedness of the Borrower that were not set forth in the agreements governing such Indebtedness prior to such Refinancing or amendment, or (b) which would be Intercompany Restrictions absent the exception set forth in clause (B)(c) of Section 7.03(a)(i) .

“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Barclays on such day on such transactions as determined by the Administrative Agent.

“Fee Letters” means (a) that certain letter agreement, dated April 9, 2009, among the Borrower and Barclays and (b) that certain letter agreement, dated April 9, 2009, between the Borrower and Export Development Canada.

“Financial Restrictions” has the meaning specified in Section 6.14 .

“Financing Vehicle ” has the meaning set forth in the definition of “Hybrid Securities.”

“Fixed Period Eurodollar Rate” means, with respect to any Fixed Period Eurodollar Rate Loan for the Interest Period applicable to such Fixed Period Eurodollar Rate Loan, 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 from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “Fixed Period Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent in accordance with its usual practice to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Fixed Period Eurodollar Rate Loan being made, continued or converted by the Person then serving as the Administrative Agent and with a term equivalent to such Interest Period would be offered by such Person’s London Branch (or if such Person has no London Branch, by the London Branch of a major financial institution that is reasonably selected by the Administrative Agent and reasonably acceptable to the Borrower) to major banks in the 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.

“Fixed Period Eurodollar Rate Loan” means a Loan that bears interest at a rate of interest based on the Fixed Period Eurodollar Rate.

 

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“Foreign Lender” has the meaning specified in Section 10.15 .

“Fund” means 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 of its business.

“Funded Debt” of any Person (an “Obligor” ), means, as of any date of determination, the sum of (without duplication) the following: (a) the outstanding principal amount of all obligations of such Obligor, whether current or long-term, for borrowed money, (b) that portion of obligations of such Obligor with respect to capital leases that are capitalized in a balance sheet of such Obligor; and (c) without duplication, the unpaid principal amount of all Guarantee Obligations of such Obligor with respect to Indebtedness of the type specified in subsections (a) and (b) above of Persons other than such Obligor.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession, that are applicable to the circumstances as of the date of determination, consistently applied.

“General Partner” means Enbridge Energy Company, Inc., a Delaware corporation, and after the date hereof, any one or more Wholly-Owned Subsidiaries of Enbridge Inc. that shall succeed Enbridge Energy Company, Inc. in the capacity as general partner of the Borrower.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

“Guarantee Obligation” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guarantying or having the economic effect of guarantying any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligees in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligees against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person; provided , however , that

 

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the term “Guarantee Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guarantying Person in good faith.

“Hybrid Securities” means any trust preferred securities or deferrable interest subordinated debt with a maturity of at least 20 years, which provides for the optional or mandatory deferral of interest or distributions issued by the Borrower or a Financing Vehicle. “ Financing Vehicle ” means a business trust, limited liability company, limited partnership or similar entity (i) substantially all of the common equity, general partner or similar interests of which are owned (either directly or indirectly through one or more Wholly-Owned Subsidiaries of the Borrower) at all times by the Borrower, (ii) that has been formed for the sole purpose of issuing trust preferred securities or deferrable interest subordinated debt, and (iii) substantially all the assets of which consist of (A) subordinated debt of the Borrower and (B) payments made from time to time on such subordinated debt. In order for any trust preferred securities or deferrable interest subordinated debt to be considered “Hybrid Securities” for purposes of this Agreement, not later than 20 Business Days prior to the delivery of any Compliance Certificate (or such shorter time period as may be agreed by the Administrative Agent), if the Borrower or any Financing Vehicle has issued any trust preferred securities or deferrable interest subordinated debt that it intends to treat as Hybrid Securities in connection with the calculations set forth on such Compliance Certificate, the Borrower shall have delivered to the Administrative Agent information sufficient to demonstrate that the terms of such trust preferred securities or deferrable interest subordinated debt, as the case may be, meet the criteria set forth in this definition.

“Incremental EBITDA” means, (i) as to any Person which becomes a Subsidiary (an “Acquired Subsidiary” ) as a result of an acquisition by the Borrower or a Subsidiary of such Acquired Subsidiary, EBITDA of such Person for the four full quarters ending immediately prior to the acquisition of such Acquired Subsidiary, or (ii) in regard to the acquisition of all or substantially all of the business or assets of any Person or the operating division or business unit of any Person (an “Acquired Asset” ) by the Borrower or a Subsidiary, EBITDA with respect to the Acquired Asset for the four full quarters ending immediately prior to the acquisition of such Acquired Asset, as reasonably determined by the Borrower and reasonably acceptable to the Administrative Agent.

“Indebtedness” means, as to any Person at a particular time, all of the following (without duplication):

(a)        all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)        any direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, surety bonds and similar instruments;

 

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(c)        Intentionally Blank;

(d)        whether or not so included as liabilities in accordance with GAAP, all obligations of such Person to pay the deferred purchase price of property or services except trade accounts payable arising in the ordinary course of business of such Person, and indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(e)        capital leases;

(f)        all Guarantee Obligations of such Person in respect of any of the foregoing; and

(g)        for the purposes of determining compliance with the applicable provisions of Sections 7.15 or 7.16 , obligations of such Person under Swap Contracts, and Guarantee Obligations of such Person in respect of Swap Contracts, but only to the extent of Excess Swap Termination Value. For purposes of Section 7.15 , Indebtedness of the Non-OLP Subsidiaries shall be calculated quarterly and include the Non-OLP Subsidiaries’ Ratable Share of Excess Swap Termination Value as of the relevant quarter-end date of determination, and for purposes of Section 7.16 , Indebtedness of the Operating Partnership and the Operating Partnership Subsidiaries shall be calculated quarterly and include the Operating Partnership’s and the Operating Partnership Subsidiaries’ Ratable Share of Excess Swap Termination Value as of the relevant quarter-end date of determination.

For all purposes hereof, the Indebtedness of any Person shall include, without duplication, the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person by its governing agreements and applicable law except for customary exceptions acceptable to the Required Lenders. The amount of any capital lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any net obligation under any Swap Contract, and the amount of any Guarantee Obligations in respect of any Swap Contract, on any date shall be deemed to be the Swap Termination Value of such Swap Contract as of such date.

“Indemnitees” has the meaning set forth in Section 10.05(a) .

“Intercompany Restrictions” has the meaning set forth in Section 7.03(a)(i) .

“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Fixed Period Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.

“Interest Period” means, with respect to any Fixed Period Eurodollar Rate Loan, the period commencing on the date such Fixed Period Eurodollar Rate Loan is disbursed or converted to or continued as a Fixed Period Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Loan Notice; provided that:

(i)         any Interest Period applicable to any Fixed Period Eurodollar Rate Loan that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;

 

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(ii)        any Interest Period applicable to any Fixed Period Eurodollar Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to the provisions of clause (i) above, end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii)       no Interest Period shall extend beyond the Maturity Date.

“IRS” means the United States Internal Revenue Service.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“Lead Arranger” means Barclays Capital, the investment banking division of Barclays, as sole lead arranger and bookrunner.

“Lender” has the meaning specified in the introductory paragraph hereto.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such on Schedule 10.02 , or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

“Lien” means any mortgage, pledge, hypothecation, collateral assignment, encumbrance, lien (statutory or other), charge, security interest or any other arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, a deposit arrangement and the filing of any financing statement under the Uniform Commercial Code or comparable Laws of any jurisdiction) for a creditor’s claim to be satisfied from assets or proceeds prior to the claims of other creditors or the owners, including, if applicable, the interest of a purchaser of accounts receivable but excluding the title of the lessor under any operating lease.

“Loan” means a loan made by a Lender to Borrower pursuant to Article II of this Agreement, in the form of a Committed Loan or, if the Borrower elects its Term-Out option pursuant to Section 2.17 , a Term Loan, each of the foregoing types of Loans being mutually exclusive of the other type of Loan.

 

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“Loan Documents” means this Agreement, each Note, each Fee Letter, each Loan Notice and each Compliance Certificate.

“Loan Notice” means written or telephonic notice of (a) a Borrowing of Committed Loans, (b) a conversion of Committed Loans or Term Loans, as the case may be, from one Type to the other, or (c) a continuation of Committed Loans or Term Loans, as the case may be, as the same Type, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A or if telephonic, shall be immediately followed by written notice in the form of Exhibit A ; provided , any such telephone notice shall be irrevocable when given notwithstanding that it is required to be so confirmed in writing.

“Markit” means Markit Group, Ltd. and its successors.

“Markit Data” has the meaning specified in Section 10.22(a) .

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, financial condition, prospects or assets of the Borrower and its consolidated Subsidiaries (other than the Unrestricted Subsidiaries) taken as a whole; (b) a material impairment of the ability of the Borrower to pay any Obligation when due or otherwise to perform its material obligations under this Agreement or any Note; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of this Agreement or any Note.

“Material Project” means any capital construction or expansion project of the Borrower or its Subsidiaries, the aggregate capital cost or budgeted capital cost of which, in each case, including capital costs expended prior to the acquisition of any such project by the Borrower or its Subsidiaries, as the case may be, exceeds $25,000,000.00.

“Material Project EBITDA Adjustments” means, with respect to each Material Project:

(A)        prior to the Commercial Operation Date of such Material Project (but including the fiscal quarter in which such Commercial Operation Date occurs) a percentage (based on the then-current completion percentage of such Material Project) of an amount to be approved by the Administrative Agent as the projected Consolidated EBITDA attributable to such Material Project for the first 12-month period following the scheduled Commercial Operation Date of such Material Project (such amount to be determined based on customer contracts relating to such Material Project (or negotiated settlements in place in connection with such Material Project which the Borrower has demonstrated to the reasonable satisfaction of the Administrative Agent have the same effect), the creditworthiness of the other parties to such contracts, and projected revenues from such contracts, capital costs and expenses, scheduled Commercial Operation Date, oil and gas reserve and production estimates, commodity price assumptions and other factors deemed appropriate by the Administrative Agent) which may, at the Borrower’s option, be added to Consolidated EBITDA for the fiscal quarter in which construction or expansion of such Material Project commences and for each fiscal quarter thereafter until the Commercial Operation Date of such Material Project (including the fiscal quarter in which such Commercial Operation Date occurs, but without duplication of any actual Consolidated EBITDA attributable to such Material Project following such Commercial Operation Date); provided that

 

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if the actual Commercial Operation Date does not occur by the scheduled Commercial Operation Date (as used in this Agreement, references to “ scheduled Commercial Operation Date ” mean the scheduled Commercial Operation Date as reflected in the request from the Borrower to the Administrative Agent for approval of the applicable Material Project EBITDA Adjustments), then the foregoing amount shall be reduced, for quarters ending after the scheduled Commercial Operation Date to (but excluding) the first full quarter after the actual Commercial Operation Date, by the following percentage amounts depending on the period of delay (based on the actual period of delay or then-estimated delay, whichever is longer): (i) 90 days or less, 0%, (ii) longer than 90 days, but not more than 180 days, 25%, (iii) longer than 180 days but not more than 270 days, 50%, (iv) longer than 270 days but not more than 365 days, 75%, and (v) longer than 365 days, 100%; and

(B)        beginning with the first full fiscal quarter following the Commercial Operation Date of a Material Project and for the two immediately succeeding fiscal quarters, an amount to be approved by the Administrative Agent as the projected Consolidated EBITDA attributable to such Material Project (determined in the same manner set forth in clause (A) above) for the balance of the four full fiscal quarter period following such Commercial Operation Date, which may, at the Borrower’s option, be added to actual Consolidated EBITDA for such fiscal quarters.

Notwithstanding the foregoing:

    (i)        no such additions shall be allowed with respect to any Material Project unless:

(a)        at least 20 days prior to the delivery of any Compliance Certificate (or such shorter time period as may be agreed by the Administrative Agent) to the extent Material Project EBITDA Adjustments will be made to Consolidated EBITDA in determining compliance with Section 7.13 , the Borrower shall have delivered to the Administrative Agent a written request for Material Project EBITDA Adjustments setting forth (i) the scheduled Commercial Operation Date for such Material Project, (ii) information regarding such scheduled Commercial Operation Date sufficient to demonstrate that such date meets the criteria sets forth in the definition of Commercial Operation Date, (iii) pro forma projections of Consolidated EBITDA attributable to such Material Project, (iv) information, as applicable, regarding (A) customer contracts relating to such Material Project (or negotiated settlements in connection with such Material Project), (B) the creditworthiness of the other parties to such contracts or settlements, as the case may be, (C) projected revenues from such contracts or settlements, as the case may be, (D) projected capital costs and expenses, (E) oil and gas reserve and production estimates, and (F) commodity price assumptions, and (v) such other information previously requested by the Administrative Agent which it reasonably deemed necessary to approve such Material Project EBITDA Adjustments, and

(b)        prior to the date any Compliance Certificate is required to be delivered, the Administrative Agent shall have approved (such approval not to be unreasonably withheld) such projections and shall have received such other information and documentation as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent, and

 

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(ii)        the aggregate amount of all Material Project EBITDA Adjustments during any period shall be limited to 25% of the total actual Consolidated EBITDA for such period (which total actual Consolidated EBITDA shall be determined without including any Material Project EBITDA Adjustments or any adjustments for acquisitions pursuant to clause (1) of the definition of Pro Forma EBITDA).

“Material Subsidiary ” means any Subsidiary that directly or through one or more Subsidiaries (a) owns assets with a book value equal to 10% or more of the book value of the consolidated assets of the Borrower, its Consolidated Subsidiaries and its Consolidated Unrestricted Subsidiaries, (b) contributed 10% or more of Consolidated Operating Income for any fiscal quarter during the four fiscal quarters most recently ended of the Borrower, its Consolidated Subsidiaries and its Consolidated Unrestricted Subsidiaries, or (c) is a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as amended, as such Regulation is in effect on any date of determination. A Subsidiary will be deemed to have become a Material Subsidiary on either (i) the date of its acquisition or formation, if after giving effect to such acquisition or formation, it constitutes a Material Subsidiary, as reasonably determined by the Borrower and reasonably acceptable to the Administrative Agent, or, if applicable (ii) the 75 ^th day following the end of each of the first 3 fiscal quarters of the Borrower or the 120 ^th day following the end of each fiscal year of the Borrower, as applicable, if as of the immediately preceding quarter-end or year-end, as applicable, and based on the financial statements prepared for such ending quarterly or annual period, it constituted a Material Subsidiary, as reasonably determined by the Borrower and reasonably acceptable to the Administrative Agent.

“Maturity Date” means the earlier of (i) the Scheduled Maturity Date or (ii) the date upon which the Commitments may be terminated in accordance with the terms hereof; provided, however , that if the Borrower exercises the Term-Out option pursuant to Section 2.17 , the “ Maturity Date ” shall mean the Term Loan Maturity Date.

“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof, or if no such successor, any other debt rating agency selected by the Borrower and approved by the Required Lenders.

“Mortgage” shall mean, collectively, the mortgage, security agreement and fixture filings between the Operating Partnership and the Trustee, each dated as of December 12, 1991, as amended, modified or supplemented from time to time and in effect, and covering assets located in Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin.

“Mortgage Note Agreements” shall mean, collectively, those certain Note Agreements, each dated as of December 12, 1991, between the Operating Partnership and each of the respective purchasers of the Mortgage Notes, as amended, modified or supplemented from time to time and in effect.

“Mortgage Notes” shall mean, collectively, the promissory notes aggregating $310,000,000 principal amount issued pursuant to the Mortgage Note Agreements, dated December 12, 1991 and executed by the Operating Partnership, together with and any loan agreement and security documents executed in connection therewith, any and all instruments

 

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given in renewal, extension, modification, or rearrangement of or in substitution or replacement for any one or more of the foregoing described promissory notes and other documents, whether given to the original purchaser thereof (or its designee) or any other Person and other documents.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions.

“Net Tangible Assets” means tangible assets of the Borrower and its Subsidiaries (for the avoidance of doubt, excluding the Unrestricted Subsidiaries) on a consolidated basis.

“Non-OLP Consolidated Net Income” means, for any period, the net income of the Non-OLP Subsidiaries from continuing operations (excluding gains or losses resulting from mark to market activity as a result of the implementation of Statement of Financial Accounting Standard 133, as amended) before extraordinary items (excluding gains or losses from Dispositions of assets) for that period.

“Non-OLP Indebtedness Limitation” has the meaning specified in Section 7.15 .

“Non-OLP Inter-Company Indebtedness” means Indebtedness owed by a Non-OLP Subsidiary to the Borrower or to a Wholly-Owned Non-OLP Subsidiary (other than, for the avoidance of doubt, an Unrestricted Subsidiary).

“Non-OLP Pro Forma EBITDA” means, for any period, at the time of any determination thereof, without duplication, (a) Non-OLP Consolidated Net Income, plus (b) to the extent actually deducted in determining such Non-OLP Consolidated Net Income, interest expense (and in the case of capital leases the portion of rent expense that is treated as interest in accordance with GAAP), income taxes, depreciation and amortization for the Non-OLP Subsidiaries for such period, calculated on a pro forma basis making adjustments for acquisitions of any Person or all or substantially all of the business or assets of any other Person or the operating division or business unit of any Person made during such period, to the extent not reflected in such Non-OLP Consolidated Net Income.

“Non-OLP Subsidiaries” means Subsidiaries (for the avoidance of doubt, excluding Unrestricted Subsidiaries) of the Borrower other than the Operating Partnership and Operating Partnership Subsidiaries.

“Note” means, a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B .

“Obligations” means all advances to, and debts, liabilities and obligations of the Borrower arising under any Loan Document, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising and including interest that accrues after the commencement by or against the Borrower of any proceeding under any Debtor Relief Laws naming the Borrower as the debtor in such proceeding.

“OLP Indebtedness Limitation” has the meaning specified in Section 7.16 .

 

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“OLP Inter-Company Indebtedness” means Indebtedness owed by the Operating Partnership or by an Operating Partnership Subsidiary to the Borrower, to the Operating Partnership, or to a Wholly-Owned Operating Partnership Subsidiary (other than, for the avoidance of doubt, an Unrestricted Subsidiary).

“Operating Partnership” means Enbridge Energy, Limited Partnership, a Delaware limited partnership, a Subsidiary of the Borrower.

“Operating Partnership Subsidiary” means any Subsidiary (for the avoidance of doubt, excluding Unrestricted Subsidiaries) of the Operating Partnership.

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate of formation 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 and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time.

“Outstanding Amount” means with respect to Committed Loans and Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Term Loans, as the case may be, occurring on such date.

“Parent Commitment” means, as of any date of determination, the funding commitment of the Parent Lenders under the Parent Credit Agreement as of such date.

“Parent Commitment Utilization Percentage” means, as of any date of determination, an amount (expressed as a percentage) equal to (a) the aggregate principal balance of all loans outstanding under the Parent Credit Agreement as of such date divided by (b) the Parent Commitment as of such date.

“Parent Credit Agreement” means that certain Credit Agreement, dated as of the Closing Date, among the Borrower, the lenders party thereto and Enbridge (U.S.) Inc., a Delaware corporation, as the administrative agent.

“Parent Lenders” means, as of any date of determination, a Person that is a lender party to the Parent Credit Agreement as of such date. The initial Parent Lender shall be Enbridge (U.S.) Inc., a Delaware corporation.

“Participant” has the meaning specified in Section 10.07(d) .

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA, and in respect of which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of (or if such plan were terminated would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA at any time during the immediately preceding five plan years.

 

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“Person” means any individual, trustee, corporation, general partnership, limited partnership, limited liability company, joint stock company, trust, unincorporated organization, bank, business association, firm, joint venture or Governmental Authority.

“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.

“Platform” has the meaning specified in Section 6.02 .

“Pro Forma EBITDA” means, at the time of any determination thereof, without duplication, Consolidated EBITDA for the preceding four quarters ending on such date (the “ Subject Period ”), calculated on a pro forma basis (1) at the Borrower’s option, making adjustments for acquisitions of any Person or all or substantially all of the business or assets of any other Person or the operating division or business unit of any Person made during such Subject Period, to the extent not reflected in such Consolidated Net Income, (2) at the Borrower’s option, making Material Project EBITDA Adjustments and (3) if the aggregate Disposition Percentage with respect to all sales and other dispositions of assets by the Borrower or any Subsidiary during such Subject Period exceeds 7.5%, making adjustments for all sales and other dispositions of assets by the Borrower or any Subsidiary during such Subject Period; provided that the Borrower shall not be permitted to make any adjustment pursuant to the foregoing clauses (1)  and (2)  unless such adjustment is also made in the calculation of Consolidated EBITDA (or equivalent term) under the Syndicated Credit Agreement and the Parent Credit Agreement. If any Subsidiary is an Excluded Subsidiary on both (i) the last day of a Subject Period and (ii) on the date (as used in this paragraph, the “Determination Date” ) that is the earlier of (x) the date that the Borrower delivers a Compliance Certificate pursuant to Section 6.02(b) for such Subject Period and (y) the date that the Borrower is required to deliver such Compliance Certificate pursuant to Section 6.02(b) , then the net income of such Subsidiary shall not be included in the calculation of Consolidated Net Income for such Subject Period and such Subsidiary’s interest expense, income taxes, depreciation and amortization shall not be added to Consolidated Net Income pursuant to clause (b) above. If a Subsidiary is not an Excluded Subsidiary on the last day of the Subject Period, or if such Subsidiary is an Excluded Subsidiary on the last day of a Subject Period but is no longer an Excluded Subsidiary on the Determination Date, then such Subsidiary will not be considered an Excluded Subsidiary during any part of the Subject Period, its net income will be included in the calculation of Consolidated Net Income for the Subject Period to the same extent as if it had not been an Excluded Subsidiary during any part of the Subject Period, and its interest expense, income taxes, depreciation and amortization will be added to Consolidated Net Income pursuant to clause (b) above. For the avoidance of doubt, and by way of an example (but not exhaustive of all other applicable examples), the EBITDA for a Subject Period which is attributable to a Subsidiary, that at any time during that Subject Period was an Excluded Subsidiary, shall nonetheless be included in the Pro Forma EBITDA for such Subject Period if, on either the last day of the Subject Period or the Determination Date such Subsidiary is, for whatever reason, no longer an Excluded Subsidiary, including by reason of discharging the Indebtedness that imposed the applicable Excluded Subsidiary Transfer Restriction or Excluded Subsidiary Transfer Restrictions or having otherwise terminated the application of all related provisions that imposed such restriction or restrictions.

 

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“Pro Rata Share” means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time. If the Commitment of each Lender to make Loans has been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired (on the Revolving Termination Date or otherwise), then the Pro Rata Share with respect to each Lender at any such time shall be the percentage (carried out to the ninth decimal place) of the Outstanding Amount of the Loans represented by the outstanding principal balance of the Loans owing to such Lender. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or joinder agreement pursuant to which such Person becomes a Lender hereunder, as applicable.

“Public Lender” has the meaning specified in Section 6.02 .

“Qualifying Subordinated Indebtedness” means unsecured Indebtedness of the Borrower owing to a Subsidiary or other Affiliate of the Borrower (in each case, other than an Unrestricted Subsidiary) provided that (i) such Indebtedness has a maturity date of at least six months subsequent to the Maturity Date, (ii) interest accruing on such Indebtedness is, at the option of the Borrower payable not in cash but in additional Indebtedness of like tenor and term, (iii) no amortization of principal of such Indebtedness is scheduled prior to the date that is at least six months subsequent to the Scheduled Maturity Date, (iv) no Subsidiary of the Borrower has any Guarantee Obligation or other repayment obligation with respect thereto, and (v) such Indebtedness is expressly subordinated to the Obligations under the Loan Documents pursuant to a subordination agreement in the form of Exhibit F hereto.

“Ratable Share of Excess Swap Termination Value” means, as of any quarter-end date of determination:

(a)        for the Non-OLP Subsidiaries, an amount equal to (i) the sum of (A) the net aggregate Swap Termination Value of all Swap Contracts pursuant to which any Non-OLP Subsidiary is obligated as a counterparty and (B) the net aggregate Swap Termination Value of all Swap Contracts for which any Non-OLP Subsidiary has a Guarantee Obligation, in each case without duplication of any such Swap Contracts and Guarantee Obligations with respect thereto, divided by the sum of (A) the net aggregate Swap Termination Value of all Swap Contracts pursuant to which any Subsidiary is obligated as a counterparty and (B) the net aggregate Swap Termination Value of all Swap Contracts for which any Subsidiary has a Guarantee Obligation, in each case without duplication of any such Swap Contracts and Guarantee Obligations with respect thereto (the “Aggregate Subsidiary Swap Obligations” ), times (ii) the Excess Swap Termination Value as of such date; and

(b)        for the Operating Partnership and the Operating Partnership Subsidiaries, an amount equal to (i) the sum of (A) the net aggregate Swap Termination Value of all Swap Contracts pursuant to which any of the Operating Partnership or any Operating Partnership Subsidiary is obligated as a counterparty and (B) the net aggregate Swap Termination Value of all Swap Contracts for which any of the Operating Partnership or any Operating Partnership

 

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Subsidiary has a Guarantee Obligation, in each case without duplication of any such Swap Contracts and Guarantee Obligations with respect thereto, divided by the Aggregate Subsidiary Swap Obligations (as defined in clause (a) above), times (ii) the Excess Swap Termination Value as of such date.

“Refinancing” means, with respect to any Indebtedness, the extension, refinancing, renewal, replacement, defeasance or refunding of such Indebtedness.

“Register” has the meaning set forth in Section 10.07(c) .

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

“Required Lenders” means, as of any date of determination, Lenders whose Voting Percentages aggregate to more than 50%.

“Responsible Officer” means the president, chief financial officer, chief accountant, controller, treasurer, assistant treasurer, secretary or assistant secretary of the Borrower, the General Partner or the Delegate.

“Restrictive Agreement” has the meaning set forth in Section 6.14(i) .

“Revolving Fee Payment Date” means each of (a) the last Business Day of each March, June, September and December occurring during the period from the Closing Date through the earlier of the Maturity Date and the Revolving Termination Date and (b) the earlier of the Maturity Date and the Revolving Termination Date.

“Revolving Termination Date” has the meaning set forth in Section 2.17 .

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or any successor to the rating agency business thereof, or if no such successor, any other debt rating agency selected by the Borrower and approved by the Required Lenders.

“Scheduled Maturity Date” means April 7, 2010.

“Senior Indenture” means that certain Indenture dated September 15, 1998 providing for the issuance of senior debt securities of the Operating Partnership, which indenture is between the Operating Partnership, as issuer, and JPMorgan Chase Bank, N.A., successor to The Chase Manhattan Bank, as trustee.

“Spread Determination Date” means, (a) as to any Fixed Period Eurodollar Rate Loan, the day that is two (2) Business Days before the Business Day on which such Eurodollar Loan is made and the last Business Day of each March, June, September and December to occur while such Fixed Period Eurodollar Rate Loan is outstanding, (b) as to any Base Rate Loan, the

 

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Business Day on which such Base Rate Loan is made and the last Business Day of each calendar month to occur while such Base Rate Loan is outstanding and (c) as to the Undrawn Fee Rate, the Closing Date and the last Business Day of each calendar month to occur prior to the earlier of the Maturity Date and the Revolving Termination Date.

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower. In the definition of “Unrestricted Subsidiaries”, the term “Subsidiary” means each Subsidiary of the Borrower. In all other provisions of this Credit Agreement and the other Loan Documents, the term “Subsidiary” does not include any Unrestricted Subsidiary.

“Swap Contract” means (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, and (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.

“Swap Termination Value” means, in respect of each Swap Contract, after taking into account the effect of any netting agreement related to such Swap Contract, (a) for any date on or after the date there has been an early termination of the transactions under such Swap Contract and a termination value has been determined in accordance therewith, such termination value, and (b) for any date prior to the date referenced in clause (a) the amount determined as the mark-to-market value for such Swap Contract, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contract (which may include any Lender).

“Syndicated Credit Agreement” means that certain Second Amended and Restated Credit Agreement, dated as of April 4, 2007, among the Borrower, the lenders party thereto and Bank of America, N.A., as administrative agent, letter of credit issuer and swingline lender, and any agreement executed in connection with the replacement or refinancing of the credit facility evidenced thereby.

 

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“Syndicated Lender” means, as of any date of determination, a Person that is a lender party to the Syndicated Credit Agreement as of such date.

“Term Loans” means the term loans made by the Lenders pursuant to Section 2.17.

“Term Loan Maturity Date” means the earlier of (i) the date that is one year after the Scheduled Maturity Date and (ii) the date upon which amounts payable under this Agreement are accelerated pursuant to Section 8.02 .

“Term-Out” has the meaning set forth in Section 2.17 .

“Threshold Amount” means $25,000,000.

“Total Capitalization” means, at any date, the total of (i) Consolidated Funded Debt plus (ii) Consolidated Net Worth.

“Type” means, with respect to a Committed Loan or a Term Loan, as the case may be, its character as a Base Rate Loan or a Fixed Period Eurodollar Rate Loan.

“Undrawn Fee Rate” means, for any day, a rate per annum equal to the lesser of (i) 25.0% multiplied by the Borrower’s senior credit default swap mid-rate spread provided by Markit through its website for the two-year period commencing on the most recent Spread Determination Date with respect to the Undrawn Fee Rate and obtained by the Administrative Agent from such website on such Spread Determination Date and (ii) 1.50%; provided , that if for any reason such spread is not available on such Spread Determination Date, the term “Undrawn Fee Rate” shall mean, for such day, 1.50%. Each change in the Undrawn Fee Rate shall be effective on and after the applicable Spread Determination Date until the date immediately preceding the next applicable Spread Determination Date on which the Undrawn Fee Rate differs from the previously effective Undrawn Fee Rate.

“Unrestricted Subsidiaries” means any Subsidiary of the Borrower that is designated to the Administrative Agent in writing by the Borrower as an Unrestricted Subsidiary after the date hereof; provided , however , that no Subsidiary may be designated as an Unrestricted Subsidiary if, (i) on the effective date of designation, a Default or Event of Default has occurred and is continuing, (ii) the creation, formation or acquisition of such Subsidiary would not otherwise be permitted under Section 7.04 hereof, (iii) the creation, acquisition or formation of such Subsidiary would not be permitted under the Mortgage Note Agreements or any other material contract or agreement to which the Borrower is a party, or (iv) based on the financial statements most recently delivered pursuant to Section 6.01 or the good faith determination by the Borrower, such Subsidiary is a Material Subsidiary. If an Unrestricted Subsidiary becomes a Material Subsidiary, such Subsidiary shall no longer be deemed an Unrestricted Subsidiary.

“Voting Percentage” means, as to any Lender, (a) at any time when the Commitments are in effect, such Lender’s Pro Rata Share and (b) at any time after the termination of the Commitments, the percentage (carried out to the ninth decimal place) which the sum of the Outstanding Amount of such Lender’s Loans then constitutes of the Outstanding Amount of all Loans; provided , however , that if any Lender has failed to fund any portion of the Loans required to be funded by it hereunder, such Lender’s Voting Percentage shall be deemed to be zero

 

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percent (0%), and the respective Pro Rata Shares and Voting Percentages of the other Lenders shall be recomputed for purposes of this definition and the definition of “Required Lenders” without regard to such Lender’s Commitment or the outstanding amount of its Loans.

“Wholly-Owned” when used to describe a Subsidiary of any Person means that all of the equity of such Subsidiary is wholly owned by such Person, either directly or indirectly through another wholly-owned Subsidiary of such Person.

1.02  Other Interpretive Provisions.

(a)    The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b)    (i)        The words “herein” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

(ii)       Unless otherwise specified herein, Article, Section, Exhibit and Schedule references are to this Agreement.

(iii)      The term “including” is by way of example and not limitation.

(iv)      The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced.

(v)       The verb “continue” , and its usage in correlative forms, with reference to a Default or an Event of Default, shall mean that such Default or Event of Default has occurred and continues and, if applicable, after the passage of the applicable notice or cure period continues uncured, unwaived or otherwise unremedied, or with respect to the event or circumstance giving rise thereto, and after the passage of the applicable notice or cure period, continues uncured, unwaived or otherwise unremedied.

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.”

Section headings herein and the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

1.03  Accounting Terms.

All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

 

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1.04     Rounding.

Any financial ratios required to be maintained by the Borrower pursuant to 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).

1.05     References to Agreements and Laws.

Unless otherwise expressly provided herein, (a) references to documents (including the Loan Documents) shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document, and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

1.06     Intentionally Blank.

ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01     Committed Loans.

Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each, a “Committed Loan” ) to the Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date (or, if earlier, the Revolving Termination Date); provided , however , that after giving effect to any Borrowing, (i) the aggregate Outstanding Amount of all Loans shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender shall not exceed such Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01 , prepay under Section 2.06 , and reborrow under this Section 2.01 . Committed Loans may be Base Rate Loans or Fixed Period Eurodollar Rate Loans, as further provided herein.

2.02     Borrowings, Conversions and Continuations of Committed Loans.

(a)        Each Borrowing, each conversion of Committed Loans or Term Loans, as the case may be, from one Type to the other, and each continuation of Committed Loans or Term Loans, as the case may be, as the same Type shall be made upon the relevant Borrower’s irrevocable notice to the Administrative Agent. Each such notice must be received by the Administrative Agent not later than 11:00 a.m., New York time, (i) three Business Days prior to the requested date of any such Borrowing of, conversion to or continuation of any such Fixed Period Eurodollar Rate Loans or of any conversion of any such Fixed Period Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Committed Base Rate Loans. Each Borrowing of, conversion to or continuation of any such Fixed Period Eurodollar Rate Loans shall be in a principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to any such Base Rate Loans

 

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shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Committed Loans or Term Loans, as the case may be, from one Type to the other, or a continuation of Committed Loans or Term Loans, as the case may be, as the same Type, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans or Term Loans, as the case may be, to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Committed Loans or Term Loans, as the case may be, are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan or Term Loan, as the case may be, in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans or Term Loans, as the case may be, shall be made or continued as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Fixed Period Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Fixed Period Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b)        Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of its Pro Rata Share of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m., New York time, on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by the Borrower.

(c)        Except as otherwise provided herein, a Fixed Period Eurodollar Rate Loan may be continued or converted only on the last day of the Interest Period for such Fixed Period Eurodollar Rate Loan. During the existence of a Default or Event of Default, no Loans may be requested as, converted to or continued as Fixed Period Eurodollar Rate Loans without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding Fixed Period Eurodollar Rate Loans be converted to Base Rate Loans at the end of the respective Interest Periods therefor, if at the end of such periods, a Default or an Event of Default is then in existence.

(d)        The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Fixed Period Eurodollar Rate Loan upon determination of such interest rate. The determination of the Fixed Period Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. The Administrative Agent shall notify the Borrower and the Lenders of any change in its referenced prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

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(e)           After giving effect to all Borrowings, all conversions of Committed Loans or Term Loans, as the case may be, from one Type to the other, and all continuations of Committed Loans or Term Loans, as the case may be, as the same Type, there shall not be more than 5 Interest Periods in effect with respect to Committed Loans or Term Loans, as the case may be.

2.03        Intentionally Blank.

2.04        Intentionally Blank.

2.05        Intentionally Blank.

2.06        Prepayments.

(a)           The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans or Term Loans, as the case may be, in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m., New York time, (A) three Business Days prior to any date of prepayment of Fixed Period Eurodollar Rate Loans, and (B) one Business Day prior to any date of prepayment of Base Rate Loans; (ii) any prepayment of Fixed Period Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of Fixed Period Eurodollar Rate Loans shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05 . Each such prepayment shall be applied to the Committed Loans or Term Loans, as the case may be, of the Lenders in accordance with their respective Pro Rata Shares.

(b)          If for any reason the Outstanding Amount of all Loans at any time exceeds the Commitments then in effect, the Borrower shall immediately prepay its Loans in an aggregate amount equal to such excess.

2.07        Reduction or Termination of Commitments.

The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or permanently reduce the Aggregate Commitments to an amount not less than the then Outstanding Amount of all Loans; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m., five Business Days prior to the date of termination or reduction, and (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof. The Administrative Agent shall promptly notify the Lenders of any such notice of reduction or termination of the Aggregate

 

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Commitments. Once reduced in accordance with this Section, the Aggregate Commitments may not be increased. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Pro Rata Share. All undrawn fees and funding fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.

2.08  Repayment of Loans.

The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Loans outstanding on such date which were made to it.

2.09  Interest.

(a)     Subject to the provisions of subsection (b) below, (i) each Fixed Period Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Fixed Period Eurodollar Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

(b)     In the event any amount due hereunder or under any other Loan Document (including, without limitation, any interest payment) is not paid when due (whether by acceleration or otherwise), the Borrower shall pay interest on such unpaid amount (including, without limitation, interest on interest) at a fluctuating interest rate per annum equal to the Default Rate to the fullest extent permitted by applicable Law. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c)     Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.10    Fees.

(a)       Revolving Period Fees .

  (i)         Undrawn Fee .    The Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Pro Rata Share, an undrawn fee equal to the Undrawn Fee Rate multiplied by the actual daily amount by which the Aggregate Commitments exceed the Outstanding Amount of the Loans. The undrawn fee shall accrue at all times from the Closing Date until the earlier of the Maturity Date and the Revolving Termination Date and shall be due and payable quarterly in arrears on each Revolving Fee Payment Date. The undrawn fee shall be calculated quarterly in arrears, and if there is any change in the Undrawn Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the Undrawn Fee Rate separately for each period during such quarter that such Undrawn Fee Rate was in effect. The undrawn fee shall accrue at all times during which it is applicable, including at any such time during

 

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which one or more of the conditions in Article IV is not met. Notwithstanding anything in this paragraph to the contrary, the undrawn fee shall cease to accrue on and shall not be payable by Borrower with respect to the unfunded portion of the Commitment of any Lender if such Lender has failed to fund any portion of its Committed Loans within one Business Day following the date required to be funded by it hereunder.

(ii)       Funding Fee .    The Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Pro Rata Share, on each Revolving Fee Payment Date, a funding fee equal to 1.00% multiplied by the average aggregate Outstanding Amount of the Loans during the period from the previous Revolving Fee Payment Date (or, in the case of the first Revolving Fee Payment Date, the Closing Date) through such Revolving Fee Payment Date; provided , that in the case of the first and last Revolving Fee Payment Date, such amount shall be pro rated to the extent such period is less than a full calendar quarter.

(b)     Term-Out Period Fees .

(i)       Term-Out Fee .    If the Borrower exercises its option to Term-Out pursuant to Section 2.17 , then on the Revolving Termination Date, Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Pro Rata Share, an amount equal to 2.00% multiplied by the Outstanding Amount of Loans as of such date.

(ii)       Duration Fee .      If the Borrower has exercised its option to Term-Out pursuant to Section 2.17 , then Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Pro Rata Share (i) on the 90th day after the Revolving Termination Date, a fee in an amount equal to 0.50% multiplied by the Outstanding Amount of the Loans (if any) as of such date, (ii) on the 180th day after the Revolving Termination Date, a fee in an amount equal to 0.75% multiplied by the Outstanding Amount of the Loans (if any) as of such date, and (iii) on the 270th day after the Revolving Termination Date, a fee in an amount equal to 1.00% multiplied by the Outstanding Amount of the Loans (if any) as of such date.

(c)     Other Fees .    The Borrower shall pay to the Lead Arranger, the Administrative Agent and the applicable Lenders, for their own respective accounts, fees in the amounts and at the times specified in the Fee Letters.

2.11  Computation of Interest and Fees.

Computation of interest on Base Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed. Computation of all other types of interest and all fees shall be calculated on the basis of a year of 360 days and the actual number of days elapsed, which results in a higher yield to the payee thereof than a method based on a year of 365 or 366 days. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day.

 

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2.12     Evidence of Debt.

The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each such Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by such Lenders to the Borrower and the interest and payments thereon. Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Loans. In the event of any conflict between the accounts and records maintained by any such Lender, as the case may be, and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall be presumed to be prima facie evidence of such matters absent manifest error. Upon the request of any such Lender, made through the Administrative Agent, such Lender’s Loans may be evidenced by a Note, in addition to such accounts or records. Each such Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of the applicable Loans and payments with respect thereto.

2.13     Payments Generally.

(a)        All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, New York time, shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

(b)        Subject to the definition of “Interest Period,” if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

(c)        If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all Obligations then due hereunder, such funds shall be applied (i)  first , toward Obligations in respect of any cost or expense reimbursements (including Attorney Costs and amounts payable under Article III ), fees and indemnities then due hereunder to the Administrative Agent, (ii)  second , toward Obligations in respect of any cost or expense reimbursements (including Attorney Costs and amounts payable under Article III ), fees and indemnities then due hereunder to the Lenders, ratably among the parties entitled thereto in accordance with such amounts then due to such parties, (iii)  third , toward repayment of interest then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest then due to such parties, (iv)  fourth , toward repayment of principal then due hereunder,

 

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ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties and (v)  fifth , to all other Obligations then due hereunder, ratably among the parties entitled thereto in accordance with such amounts then due to such parties.

(d)        (i)        Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Fixed Period Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Committed Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period” ) at a rate per annum equal to the greater of (A) the Federal Funds Rate from time to time in effect and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay (subject to its recoupment rights from and remedies against such defaulting Lender of any breakage costs paid by the Borrower when repaying such amount) such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.

(ii)        Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

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A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.

(e)        If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(f)        The obligations of the Lenders hereunder to make Committed Loans and to make payments pursuant to Section 10.05(b) are several and not joint. The failure of any Lender to make any Committed Loan or to make any payment under Section 10.05(b) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan or to make its payment under Section 10.05(b) .

(g)        Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

2.14      Sharing of Payments.

If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Committed Loans or Term Loans, as the case may be, made by it, any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Committed Loans or Term Loans, as the case may be, made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Committed Loan or Term Loans, as the case may be, or such participations, as the case may be, pro rata with each of them; provided , however , that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender, such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off, but subject to Section 10.09 ) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

 

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2.15      Intentionally Blank.

2.16      Increase in Commitments.

(a)         Request for Increase . Provided there exists no Default or Event of Default, upon (1) notice to the Administrative Agent (which shall promptly notify the Lenders), and (2) contemporaneous notice (with copy thereof to the Administrative Agent) to Persons not then Lenders (each such Person, a “Proposed Lender” ), the Borrower shall have the right to effectuate from time to time and at any time, in accordance with the terms hereof, an increase in the aggregate amount of the then Commitments provided that (i) the aggregate Commitments as so increased may not exceed $350,000,000, (ii) any such request for an increase shall be in a minimum amount of $10,000,000, and in multiples of $5,000,000 in excess thereof and (iii) no such increase shall occur on or after the Revolving Termination Date. At the time of sending such notices, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender and Proposed Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).

(b)         Lender Elections to Increase . Each Lender shall notify the Administrative Agent and the Borrower within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share (as it existed immediately prior to such requested increase) of such requested increase. Each Proposed Lender shall notify the Administrative Agent and the Borrower within such time period whether or not it agrees to participate in such increased amount of the aggregate Commitments, and at what amount it proposes to participate in such increased amount. Unless otherwise agreed by the Borrower, any Lender or