ONCOR
ELECTRIC DELIVERY COMPANY LLC,
AS
BORROWER
REVOLVING
CREDIT AGREEMENT
Dated
as of October 10, 2007
______________________
JPMORGAN
CHASE BANK, N.A.,
AS
ADMINISTRATIVE AGENT,
FRONTING
BANK AND SWINGLINE LENDER
CITIBANK,
N.A.,
AS
SYNDICATION AGENT AND FRONTING BANK
CREDIT
SUISSE, CAYMAN ISLAND BRANCH,
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
LEHMAN
COMMERCIAL PAPER INC.,
MORGAN
STANLEY SENIOR FUNDING, INC.,
AS
CO-DOCUMENTATION AGENTS
J.P.
MORGAN SECURITIES INC.,
CITIGROUP
GLOBAL MARKETS INC.,
CREDIT
SUISSE SECURITIES (USA) LLC,
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
LEHMAN
BROTHERS INC.,
MORGAN
STANLEY SENIOR FUNDING, INC.,
AS
JOINT LEAD ARRANGERS AND BOOKRUNNERS
| |
|
TABLE OF CONTENTS
|
Page
|
|
ARTICLE
I DEFINITIONS; CONSTRUCTION
|
1
|
| |
SECTION
1.01.
|
Defined
Terms.
|
1
|
| |
SECTION
1.02.
|
Terms
Generally.
|
24
|
|
ARTICLE
II THE CREDITS
|
24
|
| |
SECTION
2.01.
|
Commitments.
|
24
|
| |
SECTION
2.02.
|
Revolving
Credit Loans.
|
25
|
| |
SECTION
2.03.
|
Borrowing
Procedure.
|
26
|
| |
SECTION
2.04.
|
Fees.
|
27
|
| |
SECTION
2.05.
|
Repayment
of Loans; Evidence of Indebtedness.
|
27
|
| |
SECTION
2.06.
|
Interest
on Loans.
|
28
|
| |
SECTION
2.07.
|
Alternate
Rate of Interest.
|
29
|
| |
SECTION
2.08.
|
Termination
and Reduction of Commitments.
|
29
|
| |
SECTION
2.09.
|
Prepayment.
|
30
|
| |
SECTION
2.10.
|
Reserve
Requirements; Change in Circumstances.
|
30
|
| |
SECTION
2.11.
|
Change
in Legality.
|
32
|
| |
SECTION
2.12.
|
Pro
Rata Treatment.
|
33
|
| |
SECTION
2.13.
|
Sharing
of Setoffs.
|
33
|
| |
SECTION
2.14.
|
Payments.
|
34
|
| |
SECTION
2.15.
|
Taxes.
|
34
|
| |
SECTION
2.16.
|
Assignment
of Commitments Under Certain Circumstances.
|
37
|
| |
SECTION
2.17.
|
Letters
of Credit.
|
38
|
| |
SECTION
2.18.
|
Swingline
Loans.
|
42
|
| |
SECTION
2.19.
|
Increase
in Commitments.
|
43
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES
|
45
|
| |
SECTION
3.01.
|
Organization;
Powers.
|
45
|
| |
SECTION
3.02.
|
Authorization.
|
45
|
| |
SECTION
3.03.
|
Enforceability.
|
45
|
| |
SECTION
3.04.
|
Governmental
Approvals.
|
45
|
| |
SECTION
3.05.
|
Financial
Statements.
|
46
|
| |
SECTION
3.06.
|
Litigation.
|
46
|
| |
SECTION
3.07.
|
Federal
Reserve Regulations.
|
46
|
| |
SECTION
3.08.
|
Investment
Company Act.
|
46
|
| |
SECTION
3.09.
|
No
Material Misstatements.
|
47
|
| |
SECTION
3.10.
|
Taxes.
|
47
|
| |
SECTION
3.11.
|
Employee
Benefit Plans.
|
47
|
| |
SECTION
3.12.
|
Significant
Subsidiaries.
|
48
|
| |
SECTION
3.13.
|
Environmental
Matters.
|
48
|
| |
SECTION
3.14.
|
Solvency.
|
48
|
| |
SECTION
3.15.
|
Properties.
|
48
|
| |
Page
|
|
ARTICLE
IV-A INITIAL EXTENSIONS OF
CREDIT
|
49
|
| |
SECTION
4.01
|
Credit
Documents
|
49
|
| |
SECTION
4.02.
|
Legal
Opinions
|
49
|
| |
SECTION
4.03.
|
Debt
Repayments
|
49
|
| |
SECTION
4.04.
|
Representations
and Warranties
|
49
|
| |
SECTION
4.05.
|
Closing
Certificates
|
49
|
| |
SECTION
4.06.
|
Fees
|
50
|
| |
SECTION
4.07.
|
PATRIOT
Act
|
50
|
| |
SECTION
4.08.
|
Merger
|
50
|
| |
SECTION
4.09.
|
Equity
Investment
|
50
|
|
ARTICLE
IV-B CONDITIONS FOR ALL EXTENSIONS OF
CREDIT
|
51
|
|
ARTICLE
V COVENANTS
|
51
|
| |
SECTION
5.01.
|
Existence.
|
51
|
| |
SECTION
5.02.
|
Compliance
With Laws; Business and Properties.
|
52
|
| |
SECTION
5.03.
|
Financial
Statements, Reports, Etc.
|
52
|
| |
SECTION
5.04.
|
Insurance.
|
53
|
| |
SECTION
5.05.
|
Taxes,
Etc.
|
54
|
| |
SECTION
5.06.
|
Maintaining
Records; Access to Properties and Inspections.
|
54
|
| |
SECTION
5.07.
|
ERISA.
|
54
|
| |
SECTION
5.08.
|
Use
of Proceeds.
|
54
|
| |
SECTION
5.09.
|
Consolidations,
Mergers, Sales and Acquisitions of Assets and Investments in
Subsidiaries.
|
54
|
| |
SECTION
5.10.
|
Limitations
on Liens.
|
55
|
| |
SECTION
5.11.
|
Reserved.
|
57
|
| |
SECTION
5.12.
|
Debt
to Total Capitalization Ratio.
|
57
|
| |
SECTION
5.13.
|
Reserved.
|
57
|
| |
SECTION
5.14.
|
Reserved.
|
57
|
| |
SECTION
5.15.
|
Reserved.
|
57
|
| |
SECTION
5.16.
|
Further
Assurances
|
57
|
| |
SECTION
5.17.
|
Post-Closing
Matters.
|
58
|
|
ARTICLE
VI EVENTS OF DEFAULT
|
58
|
|
ARTICLE
VII THE AGENT
|
62
|
|
ARTICLE
VIII MISCELLANEOUS
|
65
|
| |
SECTION
8.01.
|
Notices.
|
65
|
| |
SECTION
8.02.
|
Survival
of Agreement.
|
65
|
| |
SECTION
8.03.
|
Binding
Effect.
|
66
|
| |
SECTION
8.04.
|
Successors
and Assigns.
|
66
|
| |
SECTION
8.05.
|
Expenses;
Indemnity.
|
69
|
| |
SECTION
8.06.
|
Right
of Setoff.
|
71
|
| |
|
|
Page
|
| |
SECTION
8.07.
|
Applicable
Law.
|
71
|
| |
SECTION
8.08.
|
Waivers;
Amendment and Releases.
|
71
|
| |
SECTION
8.09.
|
Resignation
of Swingline Lender.
|
73
|
| |
SECTION
8.10.
|
Entire
Agreement.
|
74
|
| |
SECTION
8.11.
|
Severability.
|
74
|
| |
SECTION
8.12.
|
Counterparts.
|
74
|
| |
SECTION
8.13.
|
Headings.
|
74
|
| |
SECTION
8.14.
|
Interest
Rate Limitation.
|
74
|
| |
SECTION
8.15.
|
Jurisdiction;
Venue.
|
75
|
| |
SECTION
8.16.
|
Confidentiality.
|
76
|
| |
SECTION
8.17.
|
Electronic
Communications.
|
76
|
| |
SECTION
8.18.
|
Acknowledgements.
|
78
|
| |
SECTION
8.19.
|
WAIVERS
OF JURY TRIAL.
|
79
|
| |
SECTION
8.20.
|
USA
PATRIOT Act.
|
79
|
| |
SECTION
8.21.
|
Separateness
of the Borrower from Parent and its Subsidiaries.
|
79
|
EXHIBITS,
SCHEDULES AND ANNEXES
|
Exhibit
A
|
Form
of Assignment and Acceptance
|
|
Exhibit
B
|
Form
of Borrowing Request
|
|
Exhibit
C-1
|
Form
of Request for Issuance by JPMorgan Chase Bank
|
|
Exhibit
C-2
|
Form
of Request for Issuance by Citibank
|
|
Exhibit
D
|
Form
of Prepayment Notice
|
|
Exhibit
E
|
Form
of Non-U.S. Lender Certification
|
| |
|
|
Schedule
2.01
|
Commitments
|
|
Schedule
2.17(i)
|
LC
Fronting Bank Commitments
|
|
Schedule
5.10
|
Existing
Liens
|
|
Schedule
5.17
|
Post-Closing
Matters
|
REVOLVING
CREDIT AGREEMENT (this “
Agreement ”), dated as of
October 10, 2007, among Oncor Electric Delivery Company
LLC, a Delaware limited liability company (the “
Borrower ”), the lenders
listed in Schedule 2.01 (together with their successors and
assigns, the “ Lenders
”), JPMorgan Chase Bank, N.A. (“
JPMorgan Chase ”), as
administrative agent for the Lenders (in such capacity, the
“ Agent ”), Citibank,
N.A. (“ Citibank ”), as
syndication agent (in such capacity, the “
Syndication Agent ”), Credit
Suisse, Cayman Island Branch (“
CS ”), Goldman Sachs Credit
Partners L.P. (“ GSCP
”), Lehman Commercial Paper Inc. (the “
Lehman Lender ”), Morgan
Stanley Senior Funding, Inc. (“
MSSF ”, together with CS, GSCP
and the Lehman Lender, collectively, the “
Co-Documentation Agents ”),
J.P. Morgan Securities Inc. (“
JPMSI ”), Citigroup Global
Markets Inc. (“ Citigroup
”), Credit Suisse Securities (USA) LLC (“
CS Securities ”), GSCP, Lehman
Brothers Inc. (“ Lehman
”) and MSSF (collectively, the “ Joint
Lead Arrangers and Bookrunners ”), JP
Morgan Chase, as swingline lender (in such capacity, the
“ Swingline Lender ”)
and JP Morgan Chase and Citibank as fronting banks for letters
of credit issued hereunder (each a “
Fronting Bank ”).
WITNESSETH:
WHEREAS,
the Borrower has requested that the Lenders and the Fronting
Banks provide the revolving credit, letter of credit and
swingline facilities hereinafter described in the amounts and
on the terms and conditions set forth herein; and
WHEREAS,
the Lenders and the Fronting Banks have agreed to provide such
facilities on the terms and conditions set forth herein, and
JPMorgan Chase has agreed to act as Agent on behalf of the
Lenders and the Fronting Banks on such terms and
conditions.
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
|
|
SECTION 1.01.
|
Defined Terms .
|
As
used in this Agreement, the following terms shall have the
meanings specified below:
“
ABR Borrowing ” shall mean a
Borrowing comprised of ABR Loans.
“
ABR Loan ” shall mean any Loan
bearing interest at a rate determined by reference to the
Alternate Base Rate in accordance with the provisions of
Article II or any Eurodollar Loan converted (pursuant to
Section 2.03, 2.07 or 2.11(a)(ii)) to a loan bearing interest
at a rate determined by reference to the Alternate Base Rate
and in any event shall include all Swingline
Loans.
“
Additional Lender ” shall have
the meaning assigned to such term in Section
2.19(a).
“
Administrative Fees ” shall
have the meaning assigned to such term in Section
2.04(d).
“
Affiliate ” shall mean, when
used with respect to a specified person, another person that
directly or indirectly controls or is controlled by or is
under common control with the person specified.
“
Agent ” shall have the meaning
given such term in the preamble hereto.
“Agent Party” and
“Agent Parties” shall have
the meaning given such term in Section 8.17(e).
“
Agreement ” shall have the
meaning given such term in the preamble hereto.
“
Alternate Base Rate ” shall
mean, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (i)
the Federal Funds Effective Rate in effect on such day plus
1/2 of 1% and (ii) the Prime Rate in effect on such
day. For purposes hereof, “ Prime
Rate ” shall mean the rate of interest per
annum publicly announced from time to time by JPMorgan Chase
as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on
the date such change is publicly announced as effective; and
“ Federal Funds Effective Rate
” shall mean, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers,
as released on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so released
for any day which is a Business Day, the arithmetic average
(rounded upwards to the next 1/100th of 1%), as determined by
JPMorgan Chase, of the quotations for the day of such
transactions received by JPMorgan Chase from three Federal
funds brokers of recognized standing selected by
it. If for any reason JPMorgan Chase shall have
determined (which determination shall be conclusive absent
manifest error; provided that JPMorgan Chase shall,
upon request, provide to the Borrower a certificate setting
forth in reasonable detail the basis for such determination)
that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including the inability of JPMorgan Chase
to obtain sufficient quotations in accordance with the terms
thereof, the Alternate Base Rate shall be determined without
regard to clause (i) of the first sentence of this definition
until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
“
Applicable Law ” shall mean,
as to any Person, any law (including common law), statute,
regulation, ordinance, rule, order, decree, judgment, consent
decree, writ, injunction, settlement agreement or governmental
requirement enacted, promulgated or imposed or entered into or
agreed by any Governmental Authority (including the PUCT and
ERCOT), in each case applicable to or binding on such Person
or any of its property or assets or to which such Person or
any of its property or assets is
subject. Applicable Law shall also include
commitments, undertakings and stipulations set forth in the
Joint Report and Application of Oncor Electric Delivery
Company and Texas Energy Future Holdings Limited Partnership
Pursuant to Public Utility Regulatory Act 14.101 before the
PUCT, to the extent such commitments, undertakings and
stipulations are embodied in a final order issued by the
PUCT.
“
Applicable Margin ” shall
mean, at any time and for any Type of Loan, the percentage per
annum set forth below corresponding to such Type of Loan in
the column under the Applicable Rating Level at such
time. At any time an Event of Default specified in
Article VI(b) has occurred and is continuing, the Applicable
Margins set forth below shall be increased for each Applicable
Rating Level by 2.00% with respect to overdue
principal. At any time an Event of Default
specified in Article VI(c) has occurred and is continuing, the
Applicable Margin with respect to any such overdue amounts
will be the rate applicable to ABR Loans plus 2.00% per
annum.
|
Applicable
Rating
|
|
|
|
|
|
|
Level
|
|
|
|
|
|
|
Percentage
Per Annum
|
|
|
|
|
|
|
Eurodollar
Loan
|
0.275%
|
0.350%
|
0.425%
|
0.575%
|
0.800%
|
|
ABR
Loan
|
0%
|
0%
|
0%
|
0%
|
0%
|
“
Applicable Rating Level ”
shall mean, at any time, the level set forth below in the row
next to the then applicable Debt Ratings. If there
is a difference of one level in the Debt Ratings, then the
higher Debt Rating shall be used for purposes of determining
the Applicable Rating Level, and if there is a difference of
more than one level in the Debt Ratings, then the Debt Rating
one level higher than the lower Debt Rating will be used for
purposes of determining the Applicable Rating
Level. Any change in the Applicable Rating Level
shall be effective on the date on which the applicable rating
agency announces any change in the applicable Debt
Rating.
S&P
Debt Rating
Moody’s
Debt Rating
|
|
|
A-
or better
A3
or better
|
1
|
|
BBB+
Baal
|
2
|
|
BBB
Baa2
|
3
|
|
BBB-
Baa3
|
4
|
|
Below
BBB-*
Below
Baa3*
|
5
|
*
or unrated
“Assignment and Acceptance ” shall
mean an assignment and acceptance entered into by a Lender and an
assignee in the form of Exhibit A.
“
Available Commitment ” shall
mean, for each Lender, the excess of such Lender’s
Commitment over such Lender’s Outstanding
Credits.
“
Available Commitments ” shall
refer to the aggregate of the Lenders’ Available
Commitments.
“
Authorized Officer ” shall
mean the President, the Chief Executive Officer, the Chief
Financial Officer, the Chief Operating Officer, the Treasurer,
the Assistant Treasurer, with respect to certain limited
liability companies or partnerships that do not have officers,
any manager, managing member or general partner thereof, any
other senior officer of the Borrower designated as such in
writing to the Agent by the Borrower and, with respect to any
document delivered on the Closing Date, the Secretary or the
Assistant Secretary of the Borrower. Any document
delivered hereunder that is signed by an Authorized Officer
shall be conclusively presumed to have been authorized by all
necessary corporate, limited liability company, partnership
and/or other action on the part of the Borrower and such
Authorized Officer shall be conclusively presumed to have
acted on behalf of the Borrower.
“
Bankruptcy Code ” shall have
the meaning given to such term in Section 2.13.
“
Board ” shall mean the Board
of Governors of the Federal Reserve System of the United
States.
“
Borrower ” shall have the
meaning given such term in the preamble hereto.
“
Borrower Information" shall have the
meaning given to such term in Section 3.05(b).
“
Borrower Payments ” shall have
the meaning given to such term in Section
2.15(a).
“
Borrowing ” shall mean
(a) the incurrence of a Swingline Loan from the Swingline
Lender on a given date and (b) a group of Loans of a
single Type made by the Lenders on a single date and as to
which a single Interest Period is in effect.
“
Borrowing Request ” shall mean
a request made pursuant to Section 2.03 in the form of Exhibit
B.
“
Business Day ” shall mean any
day (other than a day that is a Saturday, Sunday or legal
holiday in the State of New York) on which banks are open for
business in New York City; provided ,
however , that, when used in connection with a
Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings
in dollar deposits in the London interbank
market.
“
Capitalization
” shall mean the total of all the following
items appearing on, or included in, the Borrower’s
unconsolidated balance sheet: (i) liabilities for Indebtedness
maturing more than 12 months from the date of determination,
and (ii) common stock, common stock expense, accumulated other
comprehensive income or loss, preferred stock, preference
stock, premium on common stock and retained earnings (however
the foregoing may be designated), less, to the extent not
otherwise deducted, the cost of shares of the Borrower's
capital stock held in the Borrower’s treasury, if
any. Capitalization shall be determined in
accordance with GAAP and practices applicable to the type of
business in which the Borrower is engaged, and may be
deter-
mined
as of the date not more than 60 days prior to the happening of
the event for which the determination is being
made.
“
Cash Collateral Account ”
shall have the meaning assigned to such term in Article
VI.
“Cash Management Agreement ” shall
mean any agreement or arrangement to provide Cash Management
Services.
“
Cash Management Bank ” shall
mean any person that either (x) at the time it enters into a
Cash Management Agreement or provides Cash Management Services
or (y) with respect to Cash Management Agreements entered into
prior to the Closing Date, on the Closing Date, is a Lender or
an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement or a provider of such Cash
Management Services.
“
Cash Management Obligations ”
shall mean obligations owed by the Borrower or any other
Subsidiary of Holdings to any Cash Management Bank in
connection with, or in respect of, any Cash Management
Services or under any Cash Management Agreement.
“
Cash Management Services ”
shall mean treasury, depository, overdraft, credit or debit
card, purchase card, electronic funds transfer (including
automated clearing house fund transfer services) and other
cash management services.
“
Change in Control ” shall mean
and be deemed to have occurred if any person, entity or
“group” (within the meaning of Section 13(d) or
14(d) of the Exchange Act), other than the Permitted Holders,
shall at any time have acquired direct or indirect beneficial
ownership of a percentage of the voting power of the
outstanding Voting Shares of the Borrower that exceeds 35%
thereof, unless the Permitted Holders have, at such time, the
right or the ability by voting power, contract or otherwise to
elect or designate for election at least a majority of the
board of directors of the Parent.
“
Closing Date ” shall mean
October 10, 2007.
“
Code ” shall mean the Internal
Revenue Code of 1986, as the same may be amended from time to
time.
“
Collateral ” shall mean all
property pledged, mortgaged or purported to be pledged or
mortgaged pursuant to the Security Documents.
“
Collateral Agent ” shall mean
JPMorgan Chase Bank, N.A., as collateral agent under the
Security Documents, or any successor collateral
agent.
“
Commission ” shall mean the
Public Utility Commission of the State of Texas.
“
Commitment ” shall mean, with
respect to any Lender, the commitment of such Lender in an
amount set forth in Schedule 2.01 hereto to make Revolving
Credit Loans and in the case of the Swingline Lenders,
Swingline Loans, and to purchase participations in Letters of
Credit and Swingline Loans as such Commitment may be
permanently terminated or reduced from time
to
time pursuant to Section 2.08 or modified from time to time
pursuant to Section 8.04. The Commitment of each
Lender shall automatically and permanently terminate on the
Commitment Termination Date if not terminated earlier pursuant
to the terms hereof.
“
Commitment Termination Date ”
shall mean October 10, 2013.
“
Consolidated Senior Debt ”
shall mean the Senior Debt (other than the Qualified
Transition Bonds) of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis.
“
Consolidated Shareholders’
Equity ” shall mean the sum (without
duplication) of (i) total common stock or common
members’ interest plus (ii) preferred and preference
stock or preferred members’ interest not subject to
mandatory redemption, each (in the case of clauses (i) and
(ii)) determined with respect to the Borrower and its
Consolidated Subsidiaries on a consolidated basis, plus (iii)
Equity-Credit Preferred Securities in an aggregate liquidation
preference amount not in excess of $1,000,000,000;
provided , however , that in computing
Consolidated Shareholders’ Equity at any time, the
following shall be added to the extent that the following
decreased total common members’ interest: any
cash and non-cash charges, in an amount of up to $750,000,000
(calculated on an aggregate basis throughout the term of this
Agreement), as a result of (x) rulings by federal or state
regulatory bodies having jurisdiction over the Borrower or its
Consolidated Subsidiaries, (y) the early retirement,
repurchase or termination of debt or other securities or
financing arrangements, including premiums, relating to
liability management activities and (z) initiatives
implemented pursuant to Parent’s performance improvement
program, as described by Parent in Spring 2004, including, but
not limited to, severance costs, plant or mine closings, asset
dispositions, restructuring charges and transaction
costs.
“
Consolidated Subsidiary ” of
any person shall mean at any date any Subsidiary or other
entity the accounts of which would be consolidated with those
of such person in such person’s consolidated financial
statements as of such date.
“
Consolidated Total Capitalization
” shall mean the sum of (i) Consolidated
Shareholders’ Equity and (ii) Consolidated Senior
Debt.
“
Controlled Group ” shall mean
all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated
as a single employer under Section 414(b) or 414(c) of the
Code.
“
Credit Documents ” shall mean
this Agreement, the Security Documents, each Letter of Credit
and any promissory notes issued by the Borrower
hereunder.
“
Debt Ratings ” shall mean the
ratings (whether explicit or implied) assigned by S&P and
Moody’s to the senior secured non-credit enhanced long
term debt of the Borrower.
“
Default ” shall mean any event
or condition, which upon notice, lapse of time or both would
constitute an Event of Default.
“
dollars ” or “
$ ” shall mean lawful money of
the United States of America.
“
Equity Contribution ” shall
mean the cash equity contributions made by the Sponsors and
certain other investors to Newco and/or a direct or indirect
parent thereof in exchange for Stock or Stock Equivalents
(which cash will be contributed to Newco in exchange for
common Stock of Newco) in an aggregate amount equal to, when
combined with the fair market value of the equity of
management and existing shareholders of Parent rolled over or
invested in connection with the Transactions, at least 15% of
the total sources (including the Existing Notes, but excluding
Qualified Transition Bonds) required to consummate the Merger,
to redeem, refinance or repay certain existing indebtedness or
repurchase receivables of Parent and its Subsidiaries,
including the Repaid Indebtedness (the “
Refinancing ”), and to pay
fees, premiums and expenses incurred in connection with the
Transactions.
“
Equity-Credit Preferred Securities
” shall mean securities, however denominated, (i) issued
by the Borrower or a Consolidated Subsidiary of the Borrower,
(ii) that are not subject to mandatory redemption or the
underlying securities, if any, of which are not subject to
mandatory redemption, (iii) that are perpetual or mature no
less than 30 years from the date of issuance, (iv) the
indebtedness issued in connection with which, including any
guaranty, is subordinate in right of payment to the unsecured
and unsubordinated indebtedness of the issuer of such
indebtedness or guaranty, and (v) the terms of which permit
the deferral of the payment of interest or distributions
thereon to a date occurring after the Commitment Termination
Date.
“
ERCOT ” shall mean the
Electric Reliability Council of Texas or any other entity
succeeding thereto.
“
ERISA ” shall mean the
Employee Retirement Income Security Act of 1974, as the same
may be amended from time to time.
“
ERISA Affiliate ” shall mean
any trade or business (whether or not incorporated) that is a
member of a group of (i) organizations described in Section
414(b) or (c) of the Code and (ii) solely for purposes of
the Lien created under Section 412(n) of the Code,
organizations described in Section 414(m) or (o) of the Code
of which the Borrower or any Subsidiary is a
member.
“
ERISA Event ” shall mean (i)
any Reportable Event; (ii) the incurrence of any liability
under Title IV of ERISA with respect to the termination of any
Plan or the withdrawal or partial withdrawal of the Borrower
or any of its ERISA Affiliates from any Plan or Multiemployer
Plan; (iii) the receipt by the Borrower or any ERISA Affiliate
from the PBGC of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (iv) the receipt by the Borrower or any
ERISA Affiliate of any notice concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; and (v) the
occurrence of a nonexempt “prohibited transaction”
as defined in Section 4975(c) of the Code or Section 406 of
ERISA with respect to which the Borrower or any of its
Subsidiaries is liable.
“
Eurodollar Borrowing ” shall
mean a Borrowing comprised of Eurodollar Loans.
“
Eurodollar Loan ” shall mean
any Revolving Credit Loan bearing interest at a rate
determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
“
Event of Default ” shall have
the meaning assigned to such term in Article VI.
“
Exchange Act ” shall mean the
Securities Exchange Act of 1934, as amended.
“
Existing Notes ” shall
mean:
|
|
·
|
$700,000,000
aggregate principal amount of the Borrower 6.375% Fixed Senior
Notes due 2012;
|
|
|
·
|
$500,000,000
aggregate principal amount of the Borrower 7.000% Fixed Senior
Notes due 2032;
|
|
|
·
|
$500,000,000
aggregate principal amount of the Borrower 6.375% Fixed Senior
Notes due 2015;
|
|
|
·
|
$350,000,000
aggregate principal amount of the Borrower 7.250% Fixed Senior
Notes due 2033; and
|
|
|
·
|
$800,000,000
aggregate principal amount of the Borrower 7.000% Fixed Debentures
due 2022.
|
“
Extension of Credit ” shall
mean (i) the making of a Revolving Credit Loan,
(ii) the issuance of a Letter of Credit or the amendment
of any Letter of Credit having the effect of extending the
stated termination date thereof or increasing the maximum
amount available to be drawn thereunder or (iii) the making of
a Swingline Loan.
“
Facility Fee ” shall have the
meaning assigned to such term in Section 2.04(a).
“
Facility Fee Percentage ”
shall mean, at any time, the percentage per annum set forth
below in the column under the Applicable Rating Level of the
Borrower with the lower Applicable Rating Level at such
time.
|
Applicable
Rating
|
|
|
|
|
|
|
Level
|
|
|
|
|
|
|
Percentage
Per Annum
|
|
|
|
|
|
|
Facility
Fee
|
0.100%
|
0.125%
|
0.150%
|
0.175%
|
0.200%
|
“
Federal Funds Effective Rate ”
shall have the meaning set forth in the definition of
“Alternate Base Rate”.
“
Fees ” shall mean the Facility
Fee, the Utilization Fee, the Administrative Fees, the
Fronting Fee, the LC Fee and any other fees provided for in
the Letter Agreements.
“
Financial Officer ” of any
corporation or limited liability company shall mean the chief
financial officer, principal accounting officer, treasurer,
associate or assistant treasurer, or any responsible officer
designated by one of the foregoing persons, of such
corporation or limited liability company.
“
Fronting Banks ” shall mean
(i) JPMorgan Chase and Citibank and (ii) any Affiliate of any
person listed in clause (i) and any other Lender or Affiliate
of any Lender, in each case, having a long-term credit rating
acceptable to the Borrower (and, in the case of any such
Affiliate, being otherwise reasonably acceptable to the
Borrower) that delivers an instrument in form and substance
satisfactory to the Borrower and the Agent whereby such other
Lender or Affiliate agrees to act as a “Fronting
Bank” hereunder and states the amount of its LC Fronting
Bank Commitment.
“
Fronting Fee ” shall have the
meaning assigned to such term in Section 2.04(e).
“
GAAP ” shall mean generally
accepted accounting principles, applied on a consistent
basis.
“
Governmental Authority ” shall
mean any Federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory
body.
“
Hedge Bank ” shall mean any
person (other than the Borrower or any other Subsidiary of the
Borrower) that with respect to any other Hedging Agreement,
either (x) at the time it enters into a Secured Hedging
Agreement or (y) with respect to any Secured Hedging
Agreement that is in effect on the Closing Date, on the
Closing Date, is a Lender or an Affiliate of a Lender, in its
capacity as a party to a Secured Hedging
Agreement.
“
Hedging Agreements ” shall
mean (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions,
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.
“
Hedging Obligations ” shall
mean, with respect to any person, the obligations of such
person under Hedging Agreements.
“
Holdings ” shall mean Oncor
Electric Delivery Holdings Company LLC.
“
Improvements ” shall have the
meaning assigned to such term in the applicable
Mortgage.
“
Increase Effective Date ”
shall have the meaning assigned to such term in Section
2.19(a).
“
Increase Joinder ”
shall have the meaning assigned to
such term in Section 2.19(c).
“
Incremental Commitment Increase
” shall have the meaning assigned to such term in
Section 2.19(a).
“
Indebtedness ” of any Person
shall mean (without duplication) all indebtedness of such
Person (i) for borrowed money or evidenced by bonds,
indentures, notes or other similar instruments, (ii) to pay
the deferred purchase price of property or services that in
accordance with GAAP would be included as a liability on the
balance sheet of such Person, (iii) as lessee for the
principal component of all leases that are recorded as capital
leases, (iv) under reimbursement agreements or similar
agreements with respect to the issuance of letters of credit
(other than obligations in respect of letters of credit opened
to provide for the payment of goods or services purchased in
the ordinary course of business), (v) in respect of
Indebtedness of others secured by a Lien on any asset of such
Person (with the Indebtedness of such person described in this
clause (v) deemed to be equal to the lesser of (a) the
aggregate unpaid amount of such Indebtedness and (b) the fair
market value of the property encumbered thereby as determined
by such Person in good faith), (vi) all net payment
obligations of such person in respect of interest rate swap
agreements, currency swap agreements and other similar
agreements designed to hedge against fluctuations in interest
rates or foreign exchange rates and (vii) under direct or
indirect guaranties in respect of, and to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, liabilities, obligations or indebtedness
of others of the kinds referred to in clauses (i) through (vi)
above (provided that this clause (vii) shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business or customary and reasonable
indemnity obligations in effect on the Closing Date or entered
into in connection with any acquisition or disposition of
assets permitted under this Agreement (other than such
obligations with respect to Indebtedness)); provided
, however , that for all purposes, the following
shall be excluded from the definition of
“Indebtedness”: (A) Qualified
Transition Bonds (including interest rate swaps entered into
by any Qualified Transition Bond Issuer of the Borrower in
connection with Qualified Transition Bonds issued by such
Qualified Transition Bond Issuer), (B) amounts payable from
the Borrower to an Affiliate in connection with nuclear
decommissioning costs, retail clawback or other regulatory
transition issues and (C) any Indebtedness defeased by such
person or by any Subsidiary of such person.
“
Interest Payment Date ” shall
mean, with respect to any Loan (including any Swingline Loan),
the last day of the Interest Period applicable thereto and, in
the case of a Eurodollar Loan with an Interest Period of more
than three months’ duration, each day that would have
been an Interest Payment Date for such Loan had successive
Interest Periods of three months’ duration or 90
days’ duration, as the case may be, been applicable to
such Loan and, in addition, the date of any prepayment of such
Loan or conversion of such Revolving Credit Loan to a
Revolving Credit Loan of a different Type.
“
Interest Period ” shall mean
(i) as to any Eurodollar Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that
is 1, 2, 3 or 6 (or, if agreed to by all Lenders hereunder, 9
or 12) months (or, if agreed to by all Lenders hereunder, a
period shorter than 1 month) thereafter; provided
that, in the case of any Eurodollar Borrowing made during the
30-day period ending on the Commitment Termination Date, such
period may end on the seventh or fourteenth day thereafter, as
the Borrower may elect and (ii) as to any ABR Borrowing, the
period commencing on the date of such Borrowing and ending on
the earliest of (A) the next succeeding March 31, June 30,
September 30 or December 31, (B) the Commitment Termination
Date, and (C) the date such Borrowing is repaid or prepaid in
accordance with Section 2.05, Section 2.08(b) or Section 2.09;
provided , however , that if any Interest
Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding
Business Day unless, in the case of Eurodollar Loans only,
such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end
on the next preceding Business Day. Interest shall
accrue from and including the first day of an Interest Period
to but excluding the last day of such Interest
Period.
“
KKR ” shall mean each of
Kohlberg Kravis Roberts & Co., L.P. and KKR
Associates, L.P.
“
LC Fee ” shall have the
meaning assigned to such term in Section 2.04(e).
“
LC Fronting Bank Commitment ”
shall mean, with respect to any Fronting Bank, the aggregate
stated amount of all Letters of Credit that such Fronting Bank
agrees to issue, as modified from time to time pursuant to
agreement among such Fronting Bank, the Borrower and the
Agent. With respect to each person that is a
Fronting Bank on the date hereof, such Fronting Bank’s
LC Fronting Bank Commitment shall equal such Fronting
Bank’s “LC Fronting Bank Commitment” listed
on Schedule 2.17(i) (as modified from time to time in a
written agreement between such LC Fronting Bank and the
Borrower) and, with respect to any person that becomes a
Fronting Bank after the date hereof, such person’s LC
Fronting Bank Commitment shall equal the amount agreed upon
between the Borrower and such person at the time such person
becomes a Fronting Bank.
“
LC Outstandings ” shall mean,
on any date of determination, the sum of (i) the undrawn
stated amounts of all Letters of Credit that are outstanding
on such date and (ii) the aggregate principal amount of all
unpaid reimbursement obligations of the Borrower on such date
with respect to payments made by the Fronting Banks under
Letters of Credit (excluding reimbursement obligations that
have been repaid with the proceeds of any Loan). A
Lender’s “LC Outstandings” shall mean such
Lender’s participation interest in undrawn Letters of
Credit and its Percentage of all unpaid reimbursement
obligations in respect of the Letters of Credit.
“
LC Payment Notice ” shall have
the meaning assigned to such term in Section
2.17(d).
“
Leases ” shall mean any and
all leases, subleases, tenancies, options, concession
agreements, rental agreements, occupancy agreements, franchise
agreements, access agreements and any other agreements
(including all amendments, extensions, replacements, renewals,
modifica-
tions
and/or guarantees thereof), whether or not of record and
whether now in existence or hereafter entered into, affecting
the use or occupancy of all or any portion of any Real
Property.
“
Lenders ” shall have the
meaning given such term in the preamble
hereto. Unless the context clearly indicates
otherwise, the term “Lenders” shall include the
Swingline Lender.
“
Letter Agreements ” shall mean
(i) the Amended and Restated Commitment Letter, dated July 20,
2007, as amended, among Newco, Citigroup, CS, CS Securities,
GSCP, JPMorgan Chase, JPMSI, the Lehman Lender, Lehman
Brothers Holdings, Inc., Lehman Brothers Commercial Bank,
Lehman and MSSF and (ii) the Amended and Restated Fee Letter,
dated July 20, 2007, among Newco, Citigroup, CS, CS
Securities, GSCP, JPMorgan Chase, JPMSI, the Lehman Lender,
Lehman Brothers Holdings, Inc., Lehman Brothers Commercial
Bank, Lehman and MSSF, each as amended, modified or
supplemented from time to time.
“
Letter of Credit ” shall mean
a letter of credit that is issued by a Fronting Bank pursuant
to a Request for Issuance, as such letter of credit may from
time to time be amended, modified or extended in accordance
with the terms of this Agreement.
“
LIBO Rate ” shall mean, for
any Interest Period with respect to a Eurodollar Borrowing,
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 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 deposits in dollars
(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
“LIBO Rate” for such Interest Period shall be a
rate per annum as may be agreed upon by the Borrower and the
Agent to be a 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 Eurodollar Borrowing being made,
continued or converted by the Agent and with a term equivalent
to such Interest Period would be offered by the Agent’s
London Branch to major banks in the applicable London
interbank Eurodollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
“
Lien ” shall mean, with
respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, any
person shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such
asset.
“
Loan ” shall mean a Revolving
Credit Loan or a Swingline Loan.
“
Management Investors ” shall
mean the directors, management, officers and employees of the
Parent and its Subsidiaries who are or become investors in
Texas Energy Future Holdings Limited Partnership, any of its
direct or indirect parent entities or in the Parent at any
time prior to the first anniversary of Closing
Date.
“
Mandatory Borrowing ” shall
have the meaning provided in Section 2.18(d).
“
Margin Regulations ” shall
mean Regulations T, U and X of the Board as from time to time
in effect, and all official rulings and interpretations
thereunder or thereof.
“
Margin Stock ” shall have the
meaning given such term under Regulation U of the
Board.
“
Material Adverse Change ”
shall mean any circumstances or conditions affecting the
business, assets, operations, properties or financial
condition of the Borrower and its Subsidiaries, taken as a
whole, that would, individually or in the aggregate,
materially adversely affect (a) the ability of the
Borrower to perform its payment obligations under this
Agreement or any of the other Credit Documents or (b) the
rights and remedies of the Agent or the Collateral Agent and
the Lenders and Fronting Banks under this Agreement or any of
the other Credit Documents.
“
Merger ” shall mean the
consummation of the transaction whereby Newco is merged with
and into Parent in accordance with the terms of the Purchase
Agreement.
“
Minimum Equity Amount ” shall
mean the cash equity contributions by the Sponsors to Parent
and/or a direct or indirect parent thereof in exchange for
Stock and Stock Equivalents in an aggregate amount equal to,
when combined with the fair market value of the Stock and
Stock Equivalents of management and existing shareholders of
the Parent rolled over or invested in connection with the
Transactions, at least 15% of the total sources (including the
Existing Notes, but excluding Qualified Transition Bonds)
required to consummate the Merger.
“
Moody’s ” shall mean
Moody’s Investors Service, Inc.
“
Mortgage ” shall mean a
mortgage or a deed of trust, deed to secure debt, trust deed
or other security document entered into by the owner of a
Mortgaged Property and the Collateral Agent for the benefit of
the Secured Parties in respect of the Mortgaged Property, in
such form as agreed between the Borrower and the Collateral
Agent.
“
Mortgaged Property ” shall
mean (a) the Borrower’s electric transmission and
distribution properties and (b) each Real Property with
respect to which a Mortgage is required to be granted pursuant
to Section 5.16(b).
“
Multiemployer Plan ” shall
mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA to which any of the Borrower, any Subsidiary or any
ERISA Affiliate is making, or accruing an obligation to make,
contributions or with respect to which the Borrower, any
Subsidiary or any ERISA Affiliate could incur liability under
Title IV of ERISA.
“
Net Tangible Assets ” shall
mean the amount shown as total assets on the Borrower’s
unconsolidated balance sheet, less (i) intangible assets
including, but without limitation, such items as goodwill,
trademarks, trade names, patents, unamortized debt discount
and expense and other regulatory assets carried as an asset on
the Borrower's unconsolidated balance sheet, (ii) appropriate
adjustments, if any, on account of minority
interests. Net Tangible Assets shall be determined
in accordance with GAAP and practices applicable to the type
of business in which the Borrower is engaged.
“
Newco ” shall mean Texas
Energy Future Merger Sub Corp., a Texas
corporation.
“
New Lending Office ” has the
meaning provided in Section 2.15(g).
“
Non-U.S. Agent ” has the
meaning provided in Section 2.15(g).
“
Non-U.S. Lender ” has the
meaning provided in Section 2.15(g).
“
Obligations ” shall mean all
advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Credit Document
or otherwise with respect to any Loan or Letter of Credit or
under any Secured Cash Management Agreement or Secured Hedging
Agreement, in each case, entered into with the Borrower or any
other Subsidiary of the Borrower, whether direct or indirect
(including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the
commencement by or against the Borrower of any proceeding
under any bankruptcy or insolvency law naming such Person as
the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such
proceeding. Without limiting the generality of the
foregoing, the Obligations of the Borrower under the Credit
Documents (and any of its Subsidiaries to the extent they have
obligations under the Credit Documents) include the obligation
to pay principal, interest, charges, expenses, fees, attorney
costs, indemnities and other amounts payable by the Borrower
under any Credit Document.
“
Organizational Documents ”
shall mean, with respect to any person, (i) in the case
of any corporation, the certificate of incorporation and
by-laws (or similar documents) of such person, (ii) in
the case of any limited liability company, the certificate of
formation and operating agreement (or similar documents) of
such person, (iii) in the case of any limited
partnership, the certificate of formation and limited
partnership agreement (or similar documents) of such person,
(iv) in the case of any general partnership, the
partnership agreement (or similar document) of such person and
(v) in any other case, the functional equivalent of the
foregoing.
“Other Taxes” shall have the meaning
provided in Section 2.15(b).
“
Outstanding Credits ” of any
Lender shall mean, on any date of determination, an amount
equal to (i) the aggregate principal amount of all
outstanding Revolving Credit Loans made by such Lender
plus (ii) such Lender’s LC Outstandings on
such date plus (iii) such Lender’s Swingline
Outstandings on such date.
“
Parent ” shall mean TXU Corp.,
a Texas corporation, and its successors.
“
Parent Senior Documents ”
shall mean either (a) (i) the indenture to be entered into in
connection with the refinancing of the $4,500,000,000
aggregate principal amount of senior unsecured interim loans
or the exchange of such interim loans, among the Parent, the
guarantors and a trustee, pursuant to which senior unsecured
exchange notes due 2017 shall be issued and (ii) the other
credit documents referred to therein or (b) (i) the senior
unsecured interim loan agreement, dated as of the date hereof
by and among the Parent, the lenders from time to time parties
thereto, MSSF, as administrative agent, GSCP, as syndication
agent, and GSCP, MSSF,
Citigroup,
CS Securities, JPMSI, and Lehman, as joint lead arrangers and
bookrunners and (ii) the other credit documents referred to
therein.
“
Participant Register ” shall
have the meaning given such term in Section
8.04(f).
“
Participating Receivables Grantor
” shall mean the Borrower or any Subsidiary that is or
that becomes a participant or originator in a Permitted
Receivables Financing.
“
Patriot Act ” shall have the
meaning given such term in Section 8.20.
“
PBGC ” shall mean the Pension
Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.
“
Percentage ” shall mean, for
any Lender on any date of determination, the percentage
obtained by dividing such Lender’s Commitment on such
date by the Total Commitment on such date.
“
Permitted Encumbrances ” shall
mean, as to any person at any date, any of the
following:
(a) (i)
Liens for taxes, assessments or governmental charges not then
delinquent and Liens for workers’ compensation awards
and similar obligations not then delinquent and undetermined
Liens or charges incidental to construction, Liens for taxes,
assessments or governmental charges then delinquent but the
validity of which is being contested at the time by such
person in good faith against which an adequate reserve has
been established, with respect to which levy and execution
thereon have been stayed and continue to be stayed and that do
not impair the use of the property or the operation of such
person’s business, (ii) Liens incurred or created in
connection with or to secure the performance of bids, tenders,
contracts (other than for the payment of money), leases,
statutory obligations, surety bonds or appeal bonds, and
mechanics’ or materialmen’s Liens, assessments or
similar encumbrances, the existence of which does not impair
the use of the property subject thereto for the purposes for
which it was acquired, and other Liens of like nature incurred
or created in the ordinary course of business;
(b) Liens
securing indebtedness, neither assumed nor guaranteed by such
person nor on which it customarily pays interest, existing
upon real estate or rights in or relating to real estate
acquired by such person for any substation, transmission line,
transportation line, distribution line, right of way or
similar purpose;
(c) rights
reserved to or vested in any municipality or public authority
by the terms of any right, power, franchise, grant, license or
permit, or by any provision of law, to terminate such right,
power, franchise, grant, license or permit or to purchase or
recapture or to designate a purchaser of any of the property
of such person;
(d) rights
reserved to or vested in others to take or receive any part of
the power, gas, oil, coal, lignite or other minerals or timber
generated, developed, manufactured or produced by, or grown
on, or acquired with, any property of such person
and
Liens
upon the production from property of power, gas, oil, coal,
lignite or other minerals or timber, and the by-products and
proceeds thereof, to secure the obligations to pay all or a
part of the expenses of exploration, drilling, mining or
development of such property only out of such production or
proceeds;
(e) easements,
licenses, restrictions, exceptions or reservations in any
property and/or rights of way of such person for the purpose
of roads, pipe lines, substations, transmission lines,
transportation lines, distribution lines, removal of oil, gas,
lignite, coal or other minerals or timber, and other like
purposes, or for the joint or common use of real property,
rights of way, facilities and/or equipment, and defects,
irregularities and deficiencies in titles of any property
and/or rights of way, which do not materially impair the use
of such property and/or rights of way for the purposes for
which such property and/or rights of way are held by such
person;
(f) rights
reserved to or vested in any municipality or public authority
to use, control or regulate any property of such
person;
(g) any
obligations or duties, affecting the property of such person,
to any municipality or public authority with respect to any
franchise, grant, license or permit;
(h) as
of any particular time any controls, Liens, restrictions,
regulations, easements, exceptions or reservations of any
municipality or public authority applying particularly to
space satellites or nuclear fuel;
(i) any
judgment Lien against such person securing a judgment for an
amount not exceeding 25% of Consolidated Shareholders’
Equity of such person, so long as the finality of such
judgment is being contested by appropriate proceedings
conducted in good faith and execution thereon is
stayed;
(j) any
Lien arising by reason of deposits with or giving of any form
of security to any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, for any purpose at any
time as required by law or governmental regulation as a
condition to the transaction of any business or the exercise
of any privilege or license, or to enable such person to
maintain self-insurance or to participate in any fund for
liability on any insurance risks or in connection with
workers’ compensation, unemployment insurance, old age
pensions or other social security or to share in the
privileges or benefits required for companies participating in
such arrangements; or
(k) any
landlords’ Lien on fixtures or movable property located
on premises leased by such person in the ordinary course of
business so long as the rent secured thereby is not in
default.
“
Permitted Holders ” shall mean
each of (a) the Sponsors and (b) the Management
Investors.
“
Permitted Receivables Financing
” shall mean any of one or more receivables financing
programs as amended, supplemented, modified, extended,
renewed, restated or refunded from time to time, the
obligations of which are limited recourse (except for
representations, warranties, covenants and indemnities made in
connection with such facilities) to the Borrower and its
Subsidiaries (other than a Receivables Entity) providing for
the sale, conveyance, or contribution to capital of
Receivables Facility Assets by Participating Receivables
Grantors in transactions purporting to be sales of Receivables
Facility Assets to either (a) a Person that is not a
Subsidiary or (b) a Receivables Entity that in turn funds such
purchase by the direct or indirect sale, transfer, conveyance,
pledge, or grant of participation or other interest in such
Receivables Facility Assets to a Person that is not a
Subsidiary.
“
Permitted Sale Leaseback ”
shall mean any Sale Leaseback existing on the Closing Date or
consummated by the Borrower or any Subsidiary after the
Closing Date; provided that any such Sale Leaseback
consummated after the Closing Date not between the Borrower
and one of its Subsidiaries is consummated for fair value as
determined at the time of consummation in good faith by (i)
the Borrower or such Subsidiary and (ii) in the case of
any Sale Leaseback (or series of related Sales Leasebacks) the
aggregate proceeds of which exceed $100,000,000, the board of
directors of the Borrower or such Subsidiary (which such
determination may take into account any retained interest or
other Investment of the Borrower or such Subsidiary in
connection with, and any other material economic terms of,
such Sale Leaseback).
“
Person ” or “
person ” shall mean any
natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership
or government, or any agency or political subdivision
thereof.
“
Plan ” shall mean any employee
pension benefit plan described under Section 3(2) of ERISA
(other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA that is maintained by the Borrower or any
ERISA Affiliate.
“Platform” shall have the meaning
given such term in Section 8.17(d).
“
Post-Increase Revolving Lenders
” shall have the meaning assigned such term in Section
2.19(d).
“
Pre-Increase Revolving Lenders
” shall have the meaning
assigned such term in Section 2.19(d).
“
Prepayment Notice ” shall have
the meaning assigned such term in Section
2.09(a).
“
Pro Forma Basis ” shall mean
on a basis in accordance with GAAP and Regulation S-X and
otherwise reasonably satisfactory to the Agent.
“PUCT” shall mean the Public Utility
Commission of Texas or any successor.
“
Purchase Agreement ” shall
mean the agreement and plan of merger, dated as of February
25, 2007, with respect to the Merger (together with all
exhibits and schedules thereto).
“
Qualified Transition Bond Issuer
” shall mean, with respect to the Borrower, (i) Oncor
Electric Delivery Transition Bond Company LLC, (ii) the
Borrower, (iii) a Subsidiary of the Borrower formed and
operating solely for the purpose of (A) purchasing and owning
transition property created under a “financing
order” (as such term is defined in the Texas Utilities
Code) issued by the Commission, (B) issuing such securities
pursuant to such order, (C) pledging its interests in such
transition property to secure such securities and (D) engaging
in activities ancillary to those described in (A), (B) and (C)
or (iv) any directly or indirectly held Subsidiary of the
Borrower formed and operating for purposes that include owning
Oncor Electric Delivery Transition Bond Company
LLC.
“
Qualified Transition Bonds ”
of the Borrower shall mean securities, however denominated,
that are (i) issued by a Qualified Transition Bond Issuer of
the Borrower, (ii) secured by or otherwise payable from
transition charges authorized pursuant to the financing order
referred to in clause (iii) (A) of the definition of
“Qualified Transition Bond Issuer”, and (iii)
non-recourse to the Borrower or any of its Consolidated
Subsidiaries (other than the issuer of such
securities).
“
Real Property ” shall mean,
collectively, all right, title and interest (including any
leasehold, mineral interests, reserves, land positions, and
any other estate) in and to any and all parcels of or
interests in real property owned, leased or operated by any
person, whether by lease, license or other means, together
with, in each case, all easements, hereditaments and
appurtenances relating thereto, all improvements and
appurtenant fixtures and equipment, all general intangibles
contract rights, as extracted collateral and other property
and rights incidental to the ownership, lease or operation
thereof.
“
Receivables Entity ” shall
mean any Person formed solely for the purpose of (i)
facilitating or entering into one or more Permitted
Receivables Financings, and (ii) in each case, engaging in
activities reasonably related or incidental
thereto.
“
Receivables Facility Assets ”
shall mean presently existing and hereafter arising or
originated Accounts, Payment Intangibles and Chattel Paper (as
each such term is defined in the UCC) owed or payable to any
Participating Receivables Grantor, and to the extent related
to or supporting any Accounts, Chattel Paper or Payment
Intangibles, or constituting a receivable, all General
Intangibles and other forms of obligations and receivables
owed or payable to any Participating Receivables Grantor,
including the right to payment of any interest, finance
charges, late payment fees or other charges with respect
thereto (the foregoing, collectively, being
“receivables”), all of such Participating
Receivables Grantor’s rights as an unpaid vendor
(including rights in any goods the sale of which gave rise to
any receivables), all security interests or liens and property
subject to such security interests or liens from time to time
purporting to secure payment of any receivables or other items
described in this definition, all guarantees, letters of
credit, security agreements, insurance and other agreements or
arrangements from time to time supporting or securing payment
of any receivables or other items described in this
definition, all customer deposits with respect thereto, all
rights under any contracts giving rise to or evidencing any
receivables or other items described in this definition, and
all documents, books, records and information (including
computer programs, tapes, disks, data processing software and
related property and rights) relating to any receivables or
other items described in this definition or to any obligor
with respect thereto, and all proceeds of the
foregoing.
“
Refinancing ” shall have the
meaning given such term in the definition of “
Equity Contribution
.”
“
Register ” shall have the
meaning given such term in Section 8.04(d).
“
Related Parties ” shall mean,
with respect to any specified Person, such Person’s
Affiliates and the directors, officers, employees, agents,
trustees and advisors of such Person and any Person that
possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of such
Person, whether through the ability to exercise voting power,
by contract or otherwise.
“
Repaid Indebtedness ” shall
mean:
|
|
·
|
$800,000,000
aggregate principal amount of the Borrower’s 5.735% Floating
Senior Notes due September 16, 2008;
|
|
|
·
|
All
amounts due and owing by the Borrower pursuant to the Revolving
Credit Agreement, dated as of August 12, 2005, by and among TXU
Energy Company LLC, Citibank, N.A., JPMorgan Chase Bank, N.A.,
Calyon New York Branch, Deutsche Bank AG New York Branch, Wachovia
Bank, National Association, and Citigroup;
|
|
|
·
|
All
amounts due and owing by the Borrower pursuant to the Amended and
Restated Revolving Credit Agreement, dated as of March 31, 2005,
among TXU Energy Company LLC, the Borrower, the lenders parties
thereto, JPMorgan Chase Bank, N.A., Citibank, N.A., Wachovia Bank,
National Association, Bank of America N.A. and Calyon New York
Branch;
|
|
|
·
|
All
borrowings by the Borrower in connection with the money pool,
consisting of one or more bank accounts of TXU Business Services
Company or the Parent used to (i) deposit or cause to be deposited
for the Borrower’s account cash into such accounts and (ii)
make or cause to be made for the Borrower’s account payments
to certain of its vendors and employees; and
|
|
|
·
|
All
amounts due and owing by the Borrower in connection with the
termination of it participation in an accounts receivable program
evidenced by the Eighth Omnibus Amendment Agreement by and among
TXU Receivables Company, TXU Business Services Company, Citicorp
North America, Inc., ABN AMRO Bank N.V., JPMorgan Chase Bank, N.A.,
Calyon, TXU Energy Retail Company LLC, TXU SESCO Energy Services
Company, and the Parent.
|
“
Reportable Event ” shall mean
any reportable event as defined in Sections 4043(c)(1)-(8) of
ERISA or the regulations issued thereunder (other than a
reportable event for which the 30 day notice requirement has
been waived) with respect to a Plan (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code
Section 414).
“
Request for Issuance ” shall
mean a request for issuance of a Letter of Credit pursuant to
Section 2.17(a), in a form substantially similar to Exhibit
C-1 , if JPMorgan Chase is the applicable Fronting Bank,
C-2 , if Citibank is the applicable Fronting Bank, and,
in the case of any other Fronting Bank, the form that is
customary for such Fronting Bank.
“
Required Lenders ” shall mean,
at any time, Lenders having Commitments representing in excess
of 50% of the Total Commitment or, (i) for purposes of
acceleration pursuant to clause (ii) of the first paragraph of
Article VI, or (ii) if the Total Commitment has been
terminated, Lenders with Outstanding Credits in excess of 50%
of the aggregate amount of Outstanding Credits.
“
Responsible Officer ” of any
corporation shall mean any executive officer or Financial
Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the
obligations of such corporation in respect of this
Agreement.
“
Revolving Credit Loan ” shall
mean Loan made pursuant to Section 2.02, whether made as a
Eurodollar Loan or as an ABR Loan.
“
S&P ” shall mean Standard
& Poor’s Ratings Services (a division of The
McGraw-Hill Companies, Inc.).
“
Sale Leaseback ” shall mean
any transaction or series of related transactions pursuant to
which the Borrower or one of its Subsidiaries (a) sells,
transfers or otherwise disposes of any property, real or
personal, whether now owned or hereafter acquired, and (b) as
part of such transaction, thereafter rents or leases such
property or other property that it intends to use for
substantially the same purpose or purposes as the property
being sold, transferred or disposed.
“
SEC ” shall mean the
Securities and Exchange Commission.
“Secured Cash Management Agreement ”
shall mean any agreement relating to Cash Management Services that
is entered into by and between the Borrower or any other Subsidiary
of the Borrower and any Cash Management Bank.
“
Secured Hedging Agreement ”
shall mean any Hedging Agreement that is entered into by and
between the Borrower or any other Subsidiary of the Borrower
and any Hedge Bank.
“
Secured Parties ” shall mean
the Agent, the Collateral Agent, the Fronting Banks, each
Lender, each Hedge Bank that is party to any Secured Hedging
Agreement, each Cash Management Bank that is party to a
Secured Cash Management Agreement and each of the holders of
the Existing Notes and the trustee under the indentures for
the Existing Notes.
“
Securities Act ” shall mean
the Securities Act of 1933.
“
Securitization ” shall mean a
public or private offering by a Lender or any of its
Affiliates or their respective successors and assigns of
securities or notes which represent an interest in, or which
are collateralized, in whole or in part, by the Loans and the
Lender’s rights under the Credit Documents.
“
Security Documents ” shall
mean, collectively, (a) the Mortgages and (b) each
other instrument or document executed and delivered pursuant
to Section 5.16 or pursuant to any other such Security
Documents or otherwise to secure or perfect the security
interest in any or all of the Obligations.
“
Senior Debt ” of any person
shall mean (without duplication) (i) all Indebtedness of such
person described in clauses (i) through (iii) of the
definition of “Indebtedness,” (ii) all
Indebtedness of such person described in clause (iv) of the
definition of “Indebtedness” in respect of
unreimbursed drawings under letters of credit described in
such clause (iv), and (iii) all direct or indirect guaranties
of such person in respect of, and to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in
respect of, liabilities, obligations or indebtedness of others
of the kinds referred to in clauses (i) and (ii) above;
provided , however , that in calculating
“Senior Debt” of the Borrower, any amount of
Equity Credit-Preferred Securities not included in the
definition of “Consolidated Shareholders Equity”
shall be included.
“Senior Secured Facilities” shall
mean (i) (a) the initial term loan facility of $16,450,000,000 in
aggregate principal amount to be borrowed by TCEH, (b) a delayed
draw term loan facility of up to $4,100,000,000 in aggregate
principal amount to be made available to TCEH, (c) a deposit line
of credit loan facility of $1,250,000,000 in aggregate principal
amount, (d) a revolving credit facility of up to $2,700,000,000 in
aggregate principal amount and (e) an extension of credit to TCEH
in the form of a posting facility, the aggregate principal amount
of which is capped by the terms of the agreement, in each case
dated the date hereof by and among Energy Future Competitive
Holdings Company and TCEH, the lenders from time to time parties
thereto, Citibank, as administrative agent, JPMorgan Chase, as
syndication agent, and GSCP, MSSF, Citigroup, CS Securities, JPMSI,
and Lehman, as joint lead arrangers and bookrunners and (ii) the
other credit documents referred to therein.
“
Significant Disposition ”
shall mean a sale, lease, disposition or other transfer by a
person, or any Subsidiary of such person, during any 12-month
period commencing on or after the date hereof, of assets
constituting, either individually or in the aggregate with all
other assets sold, leased, disposed or otherwise transferred
by such person or any Subsidiary thereof during such period,
10% or more of the assets of such person and its Subsidiaries
taken as a whole, excluding (i) any such sale, lease,
disposition or other transfer to a Wholly-Owned Subsidiary of
such person, (ii) dispositions of accounts receivable in
connection with the collection or compromise thereof, (iii)
any dispositions of Receivables Facility Assets in connection
with any Permitted Receivables Financing, (iv) a sale of a
minority interest in the Borrower and (v) (A) any disposition
of any assets required by any Governmental Authority or (B)
other dispositions (other than dispositions of Collateral)
pursuant to Permitted Sale Leaseback transactions so long as
the aggregate consideration for all dispositions consummated
pursuant to this clause (v) after the Closing Date does not
exceed $500,000,000.
“
Significant Subsidiary ” shall
mean, at any time, any Subsidiary of the Borrower that as of
such time has total assets in excess of 10% of the total
assets of the Borrower and its Consolidated
Subsidiaries.
“
Solvent ” shall mean, with
respect to any person as of a particular date, that on such
date such person is able to pay its debts and other
liabilities, contingent obligations and other commitments as
they mature in the normal course of business. In
computing the amount of contingent liabilities at any time, it
is intended that such liabilities will be computed as the
amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can
reasonably be expected to become an actual or matured
liability.
“
Sponsors ” shall mean any of
KKR, TPG, J.P. Morgan Ventures Corporation, Citigroup Global
Markets Inc., Morgan Stanley & Co. Incorporated, Goldman,
Sachs & Co. and LB I Group, and each of their respective
Affiliates, but excluding portfolio companies of any of the
foregoing.
“
Stated Amount ” shall mean the
maximum amount available to be drawn by a beneficiary under a
Letter of Credit.
“
Stock ” shall mean shares of
capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or
ordinary shares or preferred shares, as the case may be),
beneficial, partnership or membership interests,
participations or partnership, limited liability company or
equivalent entity, whether voting or non-voting.
“
Stock Equivalents ” shall mean
all securities convertible into or exchangeable for Stock and
all warrants, options or other rights to purchase or
subscribe.
“
Subsidiary ” shall mean, with
respect to any person (the “
parent ”), any corporation or
other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board
of directors or other persons performing similar functions are
at the time directly or indirectly owned by such parent;
provided , however , that Qualified
Transition Bond Issuers and Subsidiaries of Qualified
Transition Bond Issuers shall not be deemed to be Subsidiaries
of the Borrower.
“
Substantial ” shall mean an
amount in excess of l0% of the consolidated assets of the
Borrower and its Consolidated Subsidiaries taken as a
whole.
“
Swingline Commitment ” shall
mean the commitment of the Swingline Lender to make loans
pursuant to Section 2.18, as the same may be reduced from
time to time pursuant to Section 2.07 or
Section 2.18. The amount of the Swingline
Commitment shall initially be $100,000,000, but shall in no
event exceed the Total Commitment.
“
Swingline Lender ” shall have
the meaning provided in the preamble hereto and any successor
thereto designated in an accordance with 8.09.
“
Swingline Loan ” shall mean
any Loan made by the Swingline Lender pursuant to
Section 2.18.
“
Swingline Outstandings ” shall
mean at any time the aggregate principal amount at such time
of all outstanding Swingline Loans. The Swingline
Outstandings of any Lender at any time shall equal its
Percentage of the aggregate Swingline Outstandings at such
time.
“
Swingline Termination Date ”
shall mean the date that is three Business Days before the
Commitment Termination Date.
“
Taxes ” shall have the meaning
provided in Section 2.15(a).
“
TCEH ” shall mean Texas
Competitive Electric Holdings Company LLC.
“
Texas Competitive Electric Holdings Company LLC
Senior Documents ” shall mean (a) (i) the
indenture to be entered into in connection with the
refinancing of the $6,750,000,000 aggregate principal amount
of TCEH and Energy Future Competitive Holdings Company senior
unsecured interim loans made on the Closing Date or the
exchange thereof, among TCEH, Energy Future Competitive
Holdings Company, the guarantors and a trustee, pursuant to
which senior unsecured exchange notes due 2015 and 2016 shall
be issued and (ii) the other credit documents referred to
therein and (b) (i) the senior unsecured interim loan
agreement, dated as of the date hereof by and among TCEH,
Energy Future Competitive Holdings Company, the lenders from
time to time parties thereto, MSSF, as administrative agent,
GSCP, as syndication agent, and GSCP., MSSF, Citigroup, CS
Securities, JPMSI, and Lehman, as joint lead arrangers and
bookrunners and (ii) the other credit documents referred to
therein.
“
Total Commitment ” shall mean,
at any time, the aggregate amount of Commitments of all the
Lenders, as in effect at such time (including the Incremental
Commitment Increase of any Lender that becomes a Post-Increase
Revolving Lender pursuant to Section 2.19). The
initial amount of the Total Commitment is
$2,000,000,000.
“
TPG ” shall mean TPG Capital,
L.P.
“
Transaction ” shall mean,
collectively, the transactions contemplated by Senior Secured
Facilities, this Agreement, the receivables financing program
entered into by TCEH and certain of its subsidiaries on the
Closing Date, the Texas Competitive Electric Holdings Company
LLC Senior Documents, the Parent Senior Documents, the Merger
and the Equity Contribution, the Refinancing, the payment of
fees and expenses in connection therewith and the consummation
of any other transaction connected with the
foregoing.
“
Transferee ” shall have the
meaning provided in Section 2.15(a).
“
Type ”, when used in respect
of any Loan or Borrowing, shall refer to the Rate by reference
to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof,
“ Rate ” shall include
the LIBO Rate and the Alternate Base Rate.
“
Utilization Amount ” means the
amount on any day by which the Outstanding Credits exceeds 50%
of the Total Commitments. Notwithstanding anything
to the contrary, the Utilization Amount shall not be less than
0.
“
Utilization Fee ” shall have
the meaning provided in Section 2.04(b).
“
Voting Shares ” shall mean, as
to shares or other equity interests of a particular
corporation or other type of person, outstanding shares of
stock or other equity interests of any class of
such
corporation or other person entitled to vote in the election
of directors or other comparable managers of such person,
excluding shares or other interests entitled so to vote only
upon the happening of some contingency.
“
Wholly Owned Subsidiary ” of
any person shall mean any Consolidated Subsidiary of such
person all the shares of common stock and other voting capital
stock or other voting ownership interests having ordinary
voting power to vote in the election of the board of directors
or other governing body performing similar functions (except
directors’ qualifying shares) of which are at the time
directly or indirectly owned by such person.
“
Withdrawal Liability ” shall
mean liability of the Borrower established under Section 4201
of ERISA as a result of a complete or partial withdrawal from
a Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
|
|
SECTION 1.02.
|
Terms Generally .
|
The
definitions in Section 1.01 shall apply equally to both the
singular and plural forms of the terms
defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine
and neuter forms. The words “include,”
“includes” and “including” shall be
deemed to be followed by the phrase “without
limitation.” All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise
require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time
to time; provided , however , that for
purposes of determining compliance with any covenant set forth
in Article V, such terms shall be construed in accordance with
GAAP as in effect on the date hereof applied on a basis
consistent with the application used in preparing the
Borrower’s audited financial statements referred to in
Section 3.05.
ARTICLE II
THE CREDITS
|
|
SECTION 2.01.
|
Commitments .
|
(a) Subject
to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender
and each Fronting Bank (as applicable) agrees, severally and
not jointly, as follows: (i) each Lender agrees to
make Revolving Credit Loans to the Borrower at any time and
from time to time until the Commitment Termination Date up to
the amount of such Lender’s Available Commitment;
(ii) each Fronting Bank agrees to issue Letters of Credit
for the account of the Borrower at any time and from time to
time until the third Business Day preceding the Commitment
Termination Date in an aggregate stated amount at any time
outstanding not to exceed such Fronting Bank’s LC
Fronting Bank Commitment; and (iii) each Lender agrees to
purchase participations in such Letters of Credit as more
fully set forth in Section 2.17.
Notwithstanding
the foregoing, at no time shall (A) the aggregate amount of
Outstanding Credits exceed the Total Commitment, (B) any
Lender’s Outstanding Credits exceed the
amount
of
such Lender’s Commitment and (C) any Fronting Bank make
any Extension of Credit relating to a Letter of Credit if such
Extension of Credit would cause (x) the aggregate amount of
Outstanding Credits to exceed the Total Commitment or (y) the
aggregate LC Outstandings relating to such Fronting Bank to
exceed such Fronting Bank’s LC Fronting Bank
Commitment.
(b) Within
the foregoing limits, the Borrower may borrow, pay or prepay
Revolving Credit Loans and request new Extensions of Credit on
and after the date hereof and prior to the Commitment
Termination Date subject to the terms, conditions and
limitations set forth herein.
|
|
SECTION 2.02.
|
Revolving Credit Loans .
|
(a) Each
Revolving Credit Loan shall be made as part of a Borrowing
consisting of Revolving Credit Loans made by the Lenders
ratably in accordance with their respective Commitments;
provided , however , that the failure of any
Revolving Credit Lender to make any Revolving Credit Loan
shall not in itself relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other
Lender to make any Revolving Credit Loan required to be made
by such other Lender). The Revolving Credit Loans
comprising any Borrowing shall be in an aggregate principal
amount that is an integral multiple of $1,000,000 and not less
than $10,000,000 (or an aggregate principal amount equal to
the remaining balance of the Available
Commitments).
(b) Each
Borrowing under this Section 2.02 shall be comprised entirely
of Eurodollar Loans or ABR Loans, as the Borrower may request
pursuant to Section 2.03. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make
such Revolving Credit Loan; provided that
any exercise of such option shall not affect the obligation of
the Borrower to repay such Revolving Credit Loan in accordance
with the terms of this Agreement. Borrowings of
more than one Type may be outstanding at the same
time.
(c) Subject
to subsection (d) below, each Lender shall make each Revolving
Credit Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to the
Agent in New York, New York, not later than noon, New York
City time, and the Agent shall by 2:00 p.m., New York City
time, credit the amounts so received to the account or
accounts specified from time to time in one or more notices
delivered by the Borrower to the Agent or, if a Borrowing
shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts
so received to the respective Lenders. Revolving
Credit Loans shall be made by the Lenders pro rata in
accordance with Section 2.12. Unless the Agent
shall have received notice from a Lender prior to the date of
any Borrowing that such Lender will not make available to the
Agent such Lender’s portion of such Borrowing, the Agent
may assume that such Lender has made such portion available to
the Agent on the date of such Borrowing in accordance with
this subsection (c) and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that
such Lender shall not have made such portion available to the
Agent, such Lender and the Borrower (without waiving any claim
against such Lender for such Lender’s failure to make
such portion available) severally agree to repay to the Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such
amount
is made available to the Borrower until the date such amount
is repaid to the Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the
Revolving Credit Loans comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Effective
Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount shall constitute such
Lender’s Revolving Credit Loan as part of such Borrowing
for purposes of this Agreement.
(d) The
Borrower may refinance all or any part of any Borrowing of
Revolving Credit Loans with a Borrowing of Revolving Credit
Loans of the same or a different Type, subject to the
conditions and limitations set forth in this
Agreement.
Any
Borrowing or part thereof so refinanced shall be deemed to be
repaid or prepaid in accordance with Section 2.05 or 2.09, as
applicable, with the proceeds of a new Borrowing, and the
proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced,
shall not be paid by the Lenders to the Agent or by the Agent
to the Borrower pursuant to subsection (c) above.
|
|
SECTION 2.03.
|
Borrowing Procedure .
|
In
order to request a Borrowing (other than a Swingline Loan or a
Mandatory Borrowing), the Borrower shall hand deliver or send
via facsimile to the Agent a duly completed Borrowing Request
(i) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before
such Borrowing, and (ii) in the case of an ABR Borrowing,
not later than 11:00 a.m., New York City time, one Business
Day before such Borrowing. Such notice shall be
irrevocable and shall in each case specify (A) whether
the Borrowing then being requested is to be a Eurodollar
Borrowing or an ABR Borrowing, (B) the date of such Borrowing
(which shall be a Business Day) and the amount thereof, (C) if
such Borrowing is to be a Eurodollar Borrowing, the Interest
Period with respect thereto, which shall not end after the
Commitment Termination Date and (D) the location and
number of the Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of this
Agreement. If no election as to the Type of
Borrowing is specified in any such notice, then the requested
Borrowing shall be deemed an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one
month’s duration (subject to the limitations set forth
in the definition of “Interest
Period”). If the Borrower shall not have
given notice in accordance with this Section of its election
to refinance a Borrowing prior to the end of the Interest
Period in effect for such Borrowing, then the Borrower shall
(unless such Borrowing is repaid at the end of such Interest
Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR
Borrowing. Notwithstanding any other provision of
this Agreement to the contrary, no Borrowing shall be
requested if the Interest Period with respect thereto would
end after the Commitment Termination Date. The
Agent shall promptly advise the Lenders of any notice given
pursuant to this Section and of each Lender’s portion of
the requested Borrowing.
SECTION
2.04.
Fees .
(a) The
Borrower agrees to pay to each Lender, through the Agent, on
each March 31, June 30, September 30 and December 31 (with the
first payment being due on December 31, 2007) and on each
date on which the Commitment of such Lender shall be
terminated or reduced as provided herein, a facility fee (a
“ Facility Fee ”), at a
rate per annum equal to the Facility Fee Percentage from time
to time in effect on the Commitment of such Lender (without
regard to usage) during the preceding quarter (or other period
commencing on the date of this Agreement or ending on the
Commitment Termination Date or any date on which the
Commitment of such Lender shall be terminated).
(b) The
Borrower agrees to pay to each Lender, through the Agent, on
each March 31, June 30, September 30 and December 31 (with the
first payment being December 31, 2007) and on each date on
which the Commitment of such Lender shall be terminated or
reduced as provided herein, an utilization fee (a “
Utilization Fee ”), at a rate
per annum equal to 0.125% on the average daily Utilization
Amount during the preceding quarter (or other period
commencing on the date of this Agreement or ending on the
Commitment Termination Date or any date on which the
Commitment of such Lender shall be terminated).
(c) All
Facility Fees and Utilization Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360
days. The Facility Fees and Utilization Fees due to
each Lender shall commence to accrue on the date of this
Agreement, and shall cease to accrue on the date of
termination of such Lender’s Commitment, as provided
herein.
(d) The
Borrower agrees to pay the Agent the fees from time to time
payable to it in its capacity as Agent pursuant to the Letter
Agreements (the “ Administrative
Fees ”).
(e) The
Borrower agrees to pay the Agent, for the account of the
Fronting Bank that issued any Letter of Credit, a fronting fee
equal to 0.125% of the stated amount of such Letter of Credit
(a “ Fronting Fee ”) and
such other charges with respect to such Letter of Credit as
are agreed upon with such Fronting Bank and as are
customary. The Borrower agrees to pay to the Agent
for the account of the Lenders a fee (the “
LC Fee ”) on the face amount
of each Letter of Credit issued by any Fronting Bank,
calculated at a rate per annum equal to the Applicable Margin
for Eurodollar Loans (regardless of whether any such Revolving
Credit Loans are then outstanding) less the Fronting
Fee. All Fronting Fees and LC Fees shall be
computed on the basis of the actual number of days that each
such Letter of Credit is outstanding, assuming a year of 360
days, payable in arrears on each March 31, June 30, September
30 and December 31, and on the date that such Letter of Credit
expires or is drawn in full.
(f) All
Fees shall be paid on the dates due, in immediately available
funds, to the Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees
shall be refundable under any circumstances.
|
|
SECTION 2.05.
|
Repayment of Loans; Evidence of Indebtedness .
|
(a) The
outstanding principal balance of each (i) Eurodollar Loan
shall be due and payable on the last day of the Interest
Period applicable thereto and on the Commitment
Termi-
nation
Date, (ii) Revolving Credit Loan that is an ABR Loan shall be
due and payable on the Commitment Termination Date and (iii)
Swingline Loan shall be due and payable on the earlier of the
Swingline Termination Date and the first date after such
Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after such
Swingline Loan is made.
(b) Each
Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness to such Lender
resulting from each Extension of Credit made by such Lender
from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
under this Agreement.
(c) The
Agent shall maintain accounts in which it will record (i) the
amount of each Extension of Credit made hereunder, the Type of
each Loan made and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender’s
share thereof.
(d) The
entries made in the accounts maintained pursuant to
subsections (b) and (c) above shall, to the extent permitted
by applicable law, be prima facie evidence of the
existence and amounts of the obligations therein recorded;
provided , however , that the failure of any
Lender or the Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the
Borrower to repay the Outstanding Credits in accordance with
their terms.
|
|
SECTION 2.06.
|
Interest on Loans .
|
(a) The
Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to the LIBO
Rate for the Interest Period in effect for such Borrowing plus
the Applicable Margin from time to time in effect for
Eurodollar Borrowings.
(b) The
Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual
number of days elapsed over a year of (i) 365 or 366 days, as
the case may be, for periods during which the Alternate Base
Rate is determined by reference to the Prime Rate and (ii) 360
days for other periods) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin from time to
time in effect for ABR Borrowings.
(c) Interest
on each Loan shall be payable on each Interest Payment Date
applicable to such Loan except as otherwise provided in this
Agreement. The applicable LIBO Rate or Alternate
Base Rate for each Interest Period or day within an Interest
Period, as the case may be, shall be determined by JPMorgan
Chase, and such determination shall be conclusive absent
manifest error; provided that JPMorgan Chase shall,
upon request, provide to the Borrower a certificate setting
forth in reasonable detail the basis for such
determination.
SECTION 2.07.
Alternate Rate of Interest .
In
the event, and on each occasion, that on the day two Business
Days prior to the commencement of any Interest Period for a
Eurodollar Borrowing the Agent shall have determined (i) that
dollar deposits in the principal amounts of the Eurodollar
Loans comprising such Borrowing are not generally available in
the London interbank market or (ii) that reasonable means do
not exist for ascertaining the LIBO Rate, the Agent shall, as
soon as practicable thereafter, give facsimile notice of such
determination to the Borrower and the Lenders. In
the event of any such determination under clause (i) or (ii)
above, until the Agent shall have advised the Borrower and the
Lenders that the circumstances giving rise to such notice no
longer exist, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.03 shall be deemed to be a
request for an ABR Borrowing. In the event the
Required Lenders notify the Agent that the rates at which
dollar deposits are being offered will not adequately and
fairly reflect the cost to such Lenders of making or
maintaining Eurodollar Loans during such Interest Period, the
Agent shall notify the Borrower of such notice and until the
Required Lenders shall have advised the Agent that the
circumstances giving rise to such notice no longer exist, any
request by the Borrower for a Eurodollar Borrowing shall be
deemed a request for an ABR Borrowing. Each
determination by the Agent hereunder shall be made in good
faith and shall be conclusive absent manifest error;
provided that the Agent, shall, upon request, provide
to the Borrower a certificate setting forth in reasonable
detail the basis for such determination.
|
|
SECTION 2.08.
|
Termination and Reduction of Commitments .
|
(a) The
Swingline Commitment shall terminate on the Swingline
Termination Date. The Commitments shall be
terminated automatically on the Commitment Termination
Date.
(b) Upon
at least two Business Days’ prior irrevocable written
notice to the Agent, the Borrower may, without premium or
penalty, at any time in whole permanently terminate, or from
time to time in part permanently reduce, the Commitments;
provided , however , that (i) each partial
reduction of the Commitments shall be in an integral multiple
of $5,000,000 and in a minimum principal amount of $10,000,000
and (ii) no such termination or reduction shall be made that
would reduce the Commitments to an amount less than
(1) the aggregate amount of Outstanding Credits on the
date of such termination or reduction (after giving effect to
any prepayment made pursuant to Section 2.09) or
(2) $50,000,000, unless the result of such termination or
reduction referred to in this clause (2) is to reduce the
Commitments to $0. The Agent shall advise the
Lenders of any notice given pursuant to this subsection (b)
and of each Lender’s portion of any such termination or
reduction of the Commitments.
(c) Each
reduction in the Commitments shall be made ratably among the
Lenders in accordance with their respective
Commitments. The Borrower shall pay to the Agent
for the account of the Lenders, on the date of each
termination or reduction of the Commitments, the Facility Fee
and Utilization Fee on the amount of the Commitments so
terminated or reduced, in each case accrued through the date
of such termination or reduction.
SECTION
2.09.
Prepayment .
(a) The
Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, upon giving
a written notice substantially in the form of Exhibit D (a
“ Prepayment Notice ”)
via facsimile (or telephone notice promptly confirmed by
facsimile) to the Agent: (i) before 11:00 a.m., New
York City time, three Business Days prior to prepayment, in
the case of Eurodollar Loans, and (ii) before 11:00 a.m., New
York City time, one Business Day prior to prepayment, in the
case of ABR Loans (other than Swingline Loans);
provided , however , that each partial
prepayment shall be in an amount which is an integral multiple
of $1,000,000 and not less than
$5,000,000. Prepayments of Swingline Loans are
permitted in accordance with Section 2.18(c).
(b) On
any date on which the Total Commitment shall be reduced
pursuant to Section 2.08(b) above, the Borrower shall, with
respect to outstanding Loans, prepay such Loans and/or, with
respect to LC Outstandings, deliver cash collateral to be held
by the Agent in the Cash Collateral Account to the extent and
for the duration necessary to cause the Outstanding Credits
minus the amount of cash held in the Cash Collateral Account
to be no greater than the Total Commitment (after giving
effect to any such reduction pursuant to Section
2.08(b). At such time that cash is no longer
required to be held by the Agent as collateral under this
Section 2.09(b), the Agent will repay and reassign to the
Borrower any such cash then on deposit in the Cash Collateral
Account, and the Lien of the Agent on the Cash Collateral
Account with respect to such cash shall automatically
terminate.
|
|
SECTION 2.10.
|
Reserve Requirements; Change in Circumstances .
|
(a) Notwithstanding
any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall
change the
basis of taxation of payments to any Lender or any Fronting
Bank hereunder (except for changes in respect of taxes on the
overall net income of such Lender or such Fronting Bank (as
the case may be) or its lending office imposed by the j
u
risdiction in
which such Lender’s or such Fronting Bank’s (as
the case may be) principal exec u tive office or lending
office is located), or result in the imposition,
modification or applicability of any reserve, special deposit
or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender or such
Fronting Bank (as the case may be) or shall result in the
imposition on any Lender, any Fronting Bank or the London
interbank market of any other condition affecting this
Agreement, such Lender’s Commitment or any Extension of
Credit (other than an ABR Loan) made by such Lender or such
Fronting Bank, and the result of any of the foregoing shall be
to increase the cost to such Lender or such Fronting Bank (as
the case may be) of making or maintaining any Outstanding
Credit (other than an ABR Loan) or to reduce the amount of any
sum received or receivable by such Lender or such Fronting
Bank (as the case may be) hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender or
such Fronting Bank (as the case may be) to be material, then
the Borrower shall, upon receipt of the notice and certificate
provided for in subsection (c) below promptly pay to such
Lender or such Fronting Bank (as the case may be) such
additional amount or amounts as
will
compensate such Lender or such Fronting Bank (as the case may
be) for such additional costs incurred or reduction
suffered.
(b) If
any Lender or Fronting Bank shall have determined that the
adoption of any law, rule, regulation or guideline arising out
of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled
“International Convergence of Capital Measurement and
Capital Standards,” or the adoption after the date
hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of
the foregoing by any Governmental Authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or
Fronting Bank (or any lending office of such Lender or such
Fronting Bank) or any Lender’s or any Fronting
Bank’s holding company with any request or directive
regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on
such Lender’s or such Fronting Bank’s (as the case
may be) capital or on the capital of such Lender’s or
such Fronting Bank’s (as the case may be) holding
company, if any, as a consequence of this Agreement, such
Lender’s Commitment or the Extensions of Credit made by
such Lender or such Fronting Bank (as the case may be)
pursuant hereto to a level below that which such Lender or
such Fronting Bank (as the case may be) or such Lender’s
or such Fronting Bank’s (as the case may be) holding
company could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or
such Fronting Bank’s (as the case may be) policies and
the policies of such Lender’s or such Fronting
Bank’s (as the case may be) holding company with respect
to capital adequacy) by an amount deemed by such Lender or
such Fronting Bank (as the case may be) to be material, then
from time to time such additional amount or amounts as will
compensate such Lender or such Fronting Bank (as the case may
be) for any such reduction suffered will be paid to such
Lender or such Fronting Bank (as the case may be) by the
Borrower. It is acknowledged that this Agreement is
being entered into by the Lenders and the Fronting Banks on
the understanding that neither the Lenders nor the Fronting
Banks will be required to maintain capital against their
Commitments or agreements to issue Letters of Credit, as the
case may be, under currently applicable laws, regulations and
regulatory guidelines. In the event the Lenders or
any Fronting Bank shall otherwise determine that such
understanding is incorrect, it is agreed that the Lenders or
any Fronting Bank, as the case may be, will be entitled to
make claims under this subsection (b) based upon market
requirements prevailing on the date hereof for commitments
under comparable credit facilities against which capital is
required to be maintained.
(c) A
certificate of each Lender or the applicable Fronting Bank
setting forth such amount or amounts as shall be necessary to
compensate such Lender or such Fronting Bank (as the case may
be) or its holding company as specified in subsection (a) or
(b) above, as the case may be, and containing an explanation
in reasonable detail of the manner in which such amount or
amounts shall have been determined, shall be delivered to the
Borrower and shall be conclusive absent manifest
error. The Borrower shall pay each Lender or
Fronting Bank (as the case may be) the amount shown as due on
any such certificate delivered by it within 10 days after its
receipt of the same. Each Lender and each Fronting
Bank shall give prompt notice to the Borrower of any event of
which it has knowledge, occurring after the date hereof, that
it has determined will require compensation by the Borrower
pursuant to this Section; provided , however
,
that
failure by such Lender or such Fronting Bank to give such
notice shall not constitute a waiver of such Lender’s or
such Fronting Bank’s (as the case may be) right to
demand compensation hereunder.
(d) Failure
on the part of any Lender or Fronting Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with
respect to any period shall not constitute a waiver of such
Lender’s or such Fronting Bank’s (as the case may
be) right to demand compensation with respect to such period
or any other period; provided , however ,
that no Lender or Fronting Bank shall be entitled to
compensation under this Section for any costs incurred or
reductions suffered with respect to any date unless it shall
have notified the Borrower that it will demand compensation
for such costs or reductions under subsection (c) above not
more than 90 days after the later of (i) such date and (ii)
the date on which it shall have become aware of such costs or
reductions. The protection of this Section shall be
available to each Lender and each Fronting Bank regardless of
any possible contention of the invalidity or inapplicability
of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been
imposed.
(e) Each
Lender and each Fronting Bank agrees that it will designate a
different lending office if such designation will avoid the
need for, or reduce the amount of, such compensation and will
not, in the reasonable judgment of such Lender or such
Fronting Bank (as the case may be), be disadvantageous to such
Lender or Fronting Bank (as the case may be).
|
|
SECTION 2.11.
|
Change in Legality .
|
(a) Notwithstanding
any other provision herein, if any change in any law or
regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and
to the Agent, such Lender may:
(i) declare
that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon any request for a Eurodollar
Borrowing shall, as to such Lender only, be deemed a request
for an ABR Loan unless such declaration shall be subsequently
withdrawn (any Lender delivering such a declaration hereby
agreeing to withdraw such declaration promptly upon
determining that such event of illegality no longer exists);
and
(ii) require
that all outstanding Eurodollar Loans made by it be converted
to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective
date of such notice as provided in subsection (b)
below.
In
the event any Lender shall exercise its rights under (i) or
(ii) above, all payments and prepayments of principal which
would otherwise have been applied to repay the Eurodollar
Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of,
or resulting from the conversion of, such Eurodollar
Loans.
(b) For
purposes of this Section, a notice by any Lender shall be
effective as to each Eurodollar Loan, if lawful, on the last
day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt.
|
|
SECTION 2.12.
|
Pro Rata Treatment .
|
Except
as required under Sections 2.10 and 2.15, each Extension of
Credit, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment
of a reimbursement obligation in respect of a drawn Letter of
Credit, each payment of the Facility Fees and Utilization
Fees, each reduction of the Total Commitment and each
refinancing or conversion of any Borrowing of Revolving Credit
Loans with a Borrowing of Revolving Credit Loans of any Type,
shall be allocated pro rata among the Lenders in accordance
with their respective Percentages (or, if such Lender’s
Commitment shall have expired or been terminated, in
accordance with the respective principal amounts of their
Outstanding Credits). For purposes of determining
the Available Commitments of the Lenders at any time, the LC
Outstandings and Swingline Outstandings shall be deemed to
have utilized the Commitments of the Lenders pro rata in
accordance with their respective Percentages at such
time. Each Lender agrees that in computing such
Lender’s portion of any Extension of Credit to be made
hereunder, the Agent may, in its discretion, round each
Lender’s percentage of such Extension of Credit to the
next higher or lower whole dollar amount.
|
|
SECTION 2.13.
|
Sharing of Setoffs .
|
Each
Lender agrees that if it shall, through the exercise of a
right of banker’s lien, setoff or counterclaim, or
pursuant to a secured claim under Section 506 of Title 11 of
the United States Bankruptcy Code (the “
Bankruptcy Code ”) or other
security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or
by any other means, obtain payment (voluntary or involuntary)
in respect of any Revolving Credit Loans, Swingline
Outstandings or LC Outstandings as a result of which the
unpaid principal portion of its Revolving Credit Loans,
Swingline Outstandings and LC Outstandings shall be
proportionately less than the unpaid principal portion of the
Revolving Credit Loans, Swingline Outstandings and LC
Outstandings of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at
face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Revolving Credit
Loans, Swingline Outstandings or LC Outstandings of such other
Lender, so that the aggregate unpaid principal amount of the
Revolving Credit Loans, Swingline Outstandings and LC
Outstandings and participations in the Revolving Credit Loans,
Swingline Outstandings and LC Outstandings held by each Lender
shall be in the same proportion to the aggregate unpaid
principal amount of all Revolving Credit Loans, Swingline
Outstandings and LC Outstandings then outstanding as the
principal amount of its Revolving Credit Loans, Swingline
Outstandings and LC Outstandings prior to such exercise of
banker’s lien, setoff or counterclaim or other event was
to the principal amount of all Revolving Credit Loans,
Swingline Outstandings and LC Outstandings outstanding prior
to such exercise of banker’s lien, setoff or
counterclaim or other event; provided ,
however , that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section and the
payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded
to the extent of such recovery and the purchase
price
or
prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in a Revolving
Credit Loans, Swingline Outstandings or any LC Outstandings
deemed to have been so purchased may exercise any and all
rights of banker’s lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made
an Extension of Credit in the amount of such
participation.
(a) The
Borrower shall make each payment (including principal of or
interest on any Outstanding Credit or any Fees or other
amounts) hereunder from an account in the United States not
later than 12:00 noon, New York City time, on the date when
due in dollars to the Agent at its offices at 1111 Fannin
Street, 10 th
Floor, Houston, Texas 77002, in immediately available
funds. Each such payment shall be made without
off-set, deduction or counterclaim; provided that the
foregoing shall not constitute a relinquishment or waiver of
the Borrower’s rights to any independent claim that the
Borrower may have against the Agent, any Fronting Bank or any
Lender.
(b) Whenever
any payment (including principal of or interest on any
Outstanding Credit or any Fees or other amounts) hereunder
shall become due, or otherwise would occur, on a day that is
not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees,
if applicable.
(a) Any
and all payments of principal and interest on any of the
Outstanding Credits or of any Fees or indemnity or expense
reimbursements by the Borrower hereunder or under any other
Credit Document (“ Borrower
Payments ”) shall be made, in accordance
with Section 2.14, free and clear of and without deduction for
any and all current or future United States federal, state and
local taxes, levies, imposts, deductions, charges or
withholdings, excluding (i) income taxes imposed on the net
income of the Agent, any Fronting Bank or any Lender (or any
transferee or assignee thereof, including a participation
holder (any such entity a “
Transferee ”)) and (ii)
franchise taxes imposed on the net income of the Agent, any
Fronting Bank or any Lender (or Transferee), in each case as a
result of a present or former connection between the Agent,
such Fronting Bank or such Lender (or Transferee) and the
jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from
the Agent, such Fronting Bank or such Lender having executed,
delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Credit
Document) (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities,
collectively or individually (“
Taxes ”). If the
Borrower or the Agent shall be required to deduct any Taxes
from or in respect of any sum payable hereunder or under any
other Credit Document to any Lender (or any Transferee) or the
Agent or any Fronting Bank, (i) the sum payable shall be
increased by the amount (an “ additional
amount ”) necessary so that after all
required deductions are made (including deductions applicable
to additional amounts payable under this Section) such Lender
(or Transferee) or the Agent
or
such Fronting Bank (as the case may be) shall receive an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower or the Agent
shall make such deductions and (iii) the Borrower or the Agent
shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable
law.
(b) In
addition, the Borrower shall pay to the relevant Governmental
Authority in accordance with applicable law any current or
future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any
payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement,
any other Credit Document or the Letter Agreements (“
Other Taxes ”).
(c) The
Borrower shall indemnify each Lender (or Transferee thereof),
the Agent and each Fronting Bank for the full amount of Taxes
and Other Taxes with respect to Borrower Payments paid by such
person, and any penalties, interest and expenses (including
reasonable attorney’s fees and expenses) arising
therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the
relevant Governmental Authority. A certificate
delivered to the Borrower setting forth and containing an
explanation in reasonable detail of the manner in which such
amount shall have been determined an
