Amendment To Credit Agreement

Fifth Amendment to Credit Agreement

Exhibit 10.2

 

Execution Version

 

FIFTH AMENDMENT TO CREDIT AGREEMENT

 

This FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Fifth Amendment”) is entered into as of February 7, 2017 among Dynegy Inc., a Delaware corporation (the “Borrower”), the Guarantors party hereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), each Converting Lender (as defined below) party hereto and the Fronting Bank (as defined below). Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Credit Agreement referred to below.

 

RECITALS

 

WHEREAS, the Borrower, the lenders party thereto prior to the effectiveness of this Fifth Amendment (each, a “Lender” and, collectively, the “Lenders”) and the Administrative Agent are parties to that certain Credit Agreement, dated as of April 23, 2013 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which (i) certain of the Lenders (the “Existing Tranche B-2 Term Lenders”) provided the Borrower with Initial Tranche B-2 Term Loans with an outstanding aggregate principal amount of $224,000,000 as of the date hereof and (ii) certain of the Lenders (the “Existing Tranche C Term Lenders” and, together with the Existing Tranche B-2 Term Lenders, the “Existing Term Lenders”) provided the Borrower with Incremental Tranche C Term Loans in an aggregate principal amount of $2,000,000,000;

 

WHEREAS, the Borrower has requested that (i) the Existing Tranche C Term Lenders reduce the interest rate applicable to the Incremental Tranche C Term Loans on the terms and conditions set forth herein, which reduction in interest rate with respect to the Incremental Tranche C Term Loans shall be effected by the exchange of Incremental Tranche C Term Loans for Tranche C-1 Term Loans (as defined below) otherwise having the same terms (except as otherwise provided in this Fifth Amendment) as the Incremental Tranche C Term Loans, and which Tranche C-1 Term Loans shall constitute Other Term Loans and Term Loans for all purposes of the Credit Agreement and the other Credit Documents, (ii) the Existing Tranche B-2 Term Lenders exchange the outstanding Initial Tranche B-2 Term Loans for Tranche C-1 Term Loans and (iii) that the Lenders agree to make certain other changes to the Credit Agreement as set forth herein;

 

WHEREAS, the Borrower has requested Other Term Loans in an aggregate principal amount of $2,224,000,000 (the “Tranche C-1 Term Loans”; the commitments in respect of such Tranche C-1 Term Loans, the “Tranche C-1 Term Loan Commitments”), which will be available on the Fifth Amendment Effective Date to refinance all existing Incremental Tranche C Term Loans and all existing Initial Tranche B-2 Term Loans, in each case, outstanding under the Credit Agreement immediately prior to effectiveness of this Fifth Amendment (collectively, the “Existing Term Loans”);

 

WHEREAS, each Existing Term Lender executing and delivering a notice of participation in the Tranche C-1 Term Loans in the form attached as Exhibit A hereto (a “Tranche C-1 Participation Notice”) and electing the cashless settlement option therein (each such Lender in such capacity, a “Converting Lender”) shall be deemed to have exchanged on the Fifth Amendment Effective Date the aggregate outstanding principal amount of its Initial Tranche B-2 Term Loans and/or Incremental Tranche C Term Loans, as applicable, under the Credit Agreement for an equal aggregate principal amount of Tranche C-1 Term Loans under the Credit Agreement;

 

WHEREAS, Morgan Stanley Senior Funding, Inc. has agreed to act as the fronting bank for the syndication of the Tranche C-1 Term Loans (in such capacity, the “Fronting Bank”) that are not being

 



 

provided by a Converting Lender, and, in such capacity, has agreed to fund Tranche C-1 Term Loans in the amount set forth opposite such Fronting Bank’s name on Annex I hereto (the “Fronted Loans”);

 

WHEREAS, the Tranche C-1 Term Loans are being arranged by Morgan Stanley Senior Funding, Inc., Deutsche Bank Securities Inc., Barclays Bank PLC, Credit Agricole Corporate and Investment Bank, The Bank of Tokyo-Mitsubishi UFJ, Ltd., a member of MUFG, a global financial group, RBC Capital Markets*, Credit Suisse Securities (USA) LLC, UBS Securities LLC, BNP Paribas Securities Corp. and Goldman Sachs Lending Partners LLC;

 

WHEREAS, each Existing Term Lender executing and delivering a Tranche C-1 Participation Notice and electing the post-closing cash settlement option therein (each such Lender in such capacity, a “Cash Settlement Lender” and, together with each Converting Lender, collectively, the “Participating Lenders”) shall purchase Fronted Loans from the Fronting Bank in accordance with such Cash Settlement Lender’s Tranche C-1 Participation Notice and as more fully set forth herein;

 

WHEREAS, this Fifth Amendment constitutes a Refinancing Amendment pursuant to Section 2.17(a) of the Credit Agreement; and

 

WHEREAS, contemporaneously with the effectiveness of the Tranche C-1 Term Loan Commitments the Borrower wishes to make certain amendments to the Credit Agreement to provide for the incurrence of the Tranche C-1 Term Loans and the other modifications to the Credit Agreement set forth herein.

 

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

 

1.                                      Fronting Bank.  The Fronting Bank (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the exhibits and schedules thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Fifth Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender, as the case may be.

 

2.                                      Credit Agreement Amendments.  Effective as of the Fifth Amendment Effective Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.

 

3.                                      Tranche C-1 Term Loans.  Subject to the terms and conditions set forth herein, each Participating Lender and the Fronting Bank severally agrees to exchange Existing Term Loans for

 


* RBC Capital Markets is a brand name for the capital markets activities of Royal Bank of Canada and its affiliates.

 

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Tranche C-1 Term Loans and/or make Tranche C-1 Term Loans to the Borrower in a single borrowing in Dollars, as applicable, on the Fifth Amendment Effective Date.  The Tranche C-1 Term Loans shall be subject to the following terms and conditions:

 

(a)                                 Proposed Borrowing.  This Fifth Amendment represents a request by the Borrower to borrow Tranche C-1 Term Loans from the Tranche C-1 Term Lenders as set forth on the applicable Notice of Borrowing to be delivered by the Borrower under the Credit Agreement, the parties hereto hereby waiving advance notice of such Borrowing to the extent required under the Credit Agreement.

 

(b)                                 Fronting Bank.  The Fronting Bank acknowledges and agrees that it shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.

 

(c)                                  Credit Agreement Governs.  Except as set forth in this Fifth Amendment, the Tranche C-1 Term Loans shall otherwise be subject to the provisions of the Credit Agreement and the other Credit Documents.

 

(d)                                 Exchange Mechanics.  (i) On the Fifth Amendment Effective Date, upon the satisfaction of the conditions set forth in Section 4 hereof, the outstanding amount of Existing Term Loans of each Converting Lender shall be deemed to be exchanged for an equal outstanding amount of Tranche C-1 Term Loans under the Credit Agreement.  Such exchange shall be effected by book entry in such manner, and with such supporting documentation, as may be reasonably determined by the Administrative Agent.

 

(ii)                                  To the extent there exists any Fronted Loans, (x) on the Fifth Amendment Effective Date, the Fronting Bank shall advance such Fronted Loans to the Borrower in the amount set forth opposite the Fronting Bank’s name on Annex I hereto and (y) with respect to each Cash Settlement Lender, promptly following the Fifth Amendment Effective Date (but not later than 30 days following the Fifth Amendment Effective Date (or such later date as may be agreed to by the Fronting Bank in its discretion)), each Cash Settlement Lender shall purchase Fronted Loans from the Fronting Bank in accordance with such Cash Settlement Lender’s Tranche C-1 Participation Notice.  Purchases and sales of Fronted Loans pursuant to this clause (ii) shall be without representations from the Fronting Bank other than as provided for in the relevant Assignment and Assumption.

 

4.                                      Effective Date Conditions.  This Fifth Amendment will become effective on the date (the “Fifth Amendment Effective Date”), on which each of the following conditions have been satisfied (or waived) in accordance with the terms therein:

 

(a)                                 this Fifth Amendment shall have been duly executed and delivered by the Borrower, the other Credit Parties and each Participating Lender (which, in the case of the Participating Lenders, may be in the form of a Tranche C-1 Participation Notice);

 

(b)                                 the Administrative Agent shall have received a certificate of the Borrower dated as of the Fifth Amendment Effective Date signed by an Authorized Officer of the Borrower (i) (A) certifying and attaching the resolutions or similar consents adopted by the Borrower approving or consenting to this Fifth Amendment and the Tranche C-1 Term Loans, (B) certifying that the certificate or articles of incorporation or formation and by-laws or operating (or limited liability company) agreement of the Borrower either (x) have not been amended since the Amendment No. 4 Effective Date or (y) are attached as an exhibit to such certificate, and (C) certifying as to the incumbency and specimen signature of each

 

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officer executing this Fifth Amendment and any related documents on behalf of the Borrower and (ii) certifying as to the matters set forth in clauses (c) and (d) below;

 

(c)                                  all representations and warranties contained in the Credit Agreement and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the Fifth Amendment Effective Date (it being understood and agreed that (i) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (ii) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date);

 

(d)                                 no Default or Event of Default shall have occurred and be continuing or shall result from the effectiveness of this Fifth Amendment the incurrence of the Tranche C-1 Term Loans;

 

(e)                                  (i) all fees required to be paid on the Fifth Amendment Effective Date and all expenses required to be paid on the Fifth Amendment Effective Date, in each case, in connection with the incurrence of the Tranche C-1 Term Loans, the repayment of the Incremental Tranche C Term Loans (including, without limitation, the payment of the prepayment premium applicable to the Incremental Tranche C Term Loans payable on the Fifth Amendment Effective Date pursuant to Section 4.01(f) of the Credit Agreement (as in effect immediately prior to the Fifth Amendment Effective Date) and this Fifth Amendment and, in the case of expenses, to the extent invoiced at least two business days prior to the Fifth Amendment Effective Date, shall have been paid and (ii) all accrued interest and fees in respect of the Existing Term Loans outstanding immediately prior to effectiveness of this Fifth Amendment shall have been paid;

 

(f)                                   the Administrative Agent shall have received a customary legal opinion from (i) White & Case LLP, New York counsel to the Credit Parties and (ii) to the extent the opinion referred to in the foregoing clause (i) does not address matters relating to Delaware law, Saul Ewing LLP, Delaware counsel to the Credit Parties, which shall, in each case, be addressed to the Administrative Agent, the Collateral Trustee and the Participating Lenders and dated the Fifth Amendment Effective Date; and

 

(g)                                  the Administrative Agent shall have received a solvency certificate from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Borrower substantially in the form of Exhibit F to the Credit Agreement.

 

5.                                      FATCA.  For purposes of determining withholding Taxes imposed under FATCA, from and after the Fifth Amendment Effective Date, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Credit Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

6.                                      Use of Proceeds.  The Borrower covenants and agrees that it will use the proceeds of the Tranche C-1 Term Loans to refinance the aggregate principal amount of Existing Term Loans outstanding on the Fifth Amendment Effective Date and to pay any interest, fees and/or expenses related thereto.

 

7.                                      Reference To and Effect Upon The Credit Agreement.

 

(a)                                 From and after the Fifth Amendment Effective Date, (i) the term “Agreement” in the Credit Agreement, and all references to the Credit Agreement in any other Credit Document, shall mean the Credit Agreement as modified hereby, and (ii) this Fifth Amendment shall constitute a Credit Document for all purposes of the Credit Agreement and the other Credit Documents.

 

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(b)                                 Each Credit Party, by its signature below, hereby confirms that (i) its Guaranty and each Security Document to which it is a party remains in full force and effect and (ii) its Guaranty and each Security Document to which it is a party covers all Obligations, in each case after giving effect to this Fifth Amendment.

 

(c)                                  This Fifth Amendment is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Credit Agreement or any other Credit Document.

 

8.                                      Request for Borrowing.  Pursuant to this Fifth Amendment, the Borrower hereby requests a Borrowing of Tranche C-1 Term Loans in an aggregate principal amount of $2,224,000,000, with such Borrowing to be made on the Fifth Amendment Effective Date and to have an Interest Period of one month.  It is understood and agreed that this Fifth Amendment shall serve as the request for Borrowing referred to in Section 2.03 of the Credit Agreement.

 

9.                                      Notice.  For purposes of the Credit Agreement, the initial notice address of the Fronting Bank shall be as separately identified to the Administrative Agent.

 

10.                               Tax Forms.  For the Fronting Bank, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as the Fronting Bank may be required to deliver to the Administrative Agent pursuant to Section 5.04(f) of the Credit Agreement.

 

11.                               Recordation of the New Loans.  Upon execution and delivery hereof, the Administrative Agent will record the Tranche C-1 Term Loans made by each Participating Lender and the Fronting Bank in the Register.

 

12.                               Amendment, Modification and Waiver.  This Fifth Amendment may not be amended, modified or waived except as permitted by Section 13.10 of the Credit Agreement.

 

13.                               GOVERNING LAW.  THIS FIFTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

14.                               Severability.  Any provision of this Fifth Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

 

15.                               Counterparts.  This Fifth Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart.  Any party hereto may execute and deliver a counterpart of this Fifth Amendment by delivering by facsimile or other electronic transmission a signature page of this Fifth Amendment signed by such party, and any such facsimile or other electronic signature shall be treated in all respects as having the same effect as an original signature.  Section headings in this Fifth Amendment are included herein for convenience of reference only and shall not constitute part of this Fifth Amendment for any other purpose.

 

16.                               WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A

 

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TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS FIFTH AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS FIFTH AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.

 

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, this Fifth Amendment has been executed by the parties hereto as of the date first written above.

 

 

 

DYNEGY INC.

 

 

 

 

 

By:

/s/ Clint C. Freeland

 

 

Name: Clint C. Freeland

 

 

Title: Executive Vice President and Chief Financial Officer

 

[Signature Page to Fifth Amendment to Dynegy Credit Agreement]

 



 

 

BLUE RIDGE GENERATION LLC

 

CASCO BAY ENERGY COMPANY, LLC

 

DYNEGY COAL HOLDCO, LLC

 

DYNEGY COAL INVESTMENTS HOLDINGS, LLC

 

DYNEGY COAL TRADING & TRANSPORTATION, L.L.C.

 

DYNEGY ENERGY SERVICES, LLC

 

DYNEGY ENERGY SERVICES (EAST), LLC

 

DYNEGY EQUIPMENT, LLC

 

DYNEGY GAS HOLDCO, LLC

 

DYNEGY GAS IMPORTS, LLC

 

DYNEGY GAS INVESTMENTS, LLC

 

DYNEGY GAS INVESTMENTS HOLDINGS, LLC

 

DYNEGY GASCO HOLDINGS, LLC

 

DYNEGY KENDALL ENERGY, LLC

 

DYNEGY MARKETING AND TRADE, LLC

 

DYNEGY MIDWEST GENERATION, LLC

 

DYNEGY MORRO BAY, LLC

 

DYNEGY MOSS LANDING, LLC

 

DYNEGY OAKLAND, LLC

 

DYNEGY POWER, LLC

 

DYNEGY POWER MARKETING, LLC

 

DYNEGY SOUTH BAY, LLC

 

HAVANA DOCK ENTERPRISES, LLC

 

ONTELAUNEE POWER OPERATING COMPANY, LLC

 

SITHE/INDEPENDENCE LLC

 

 

 

 

 

 

 

By:

/s/ Clint C. Freeland

 

 

Name: Clint C. Freeland

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

 

BLACK MOUNTAIN COGEN, INC.

 

DYNEGY ADMINISTRATIVE SERVICES COMPANY

 

DYNEGY GLOBAL LIQUIDS, INC.

 

DYNEGY OPERATING COMPANY

 

DYNEGY POWER GENERATION INC.

 

ILLINOVA CORPORATION

 

SITHE ENERGIES, INC.

 

 

 

 

 

 

 

By:

/s/ Clint C. Freeland

 

 

Name: Clint C. Freeland

 

 

Title: Executive Vice President and Chief Financial Officer

 

[Signature Page to Fifth Amendment to Dynegy Credit Agreement]

 



 

 

MASSPOWER, a Massachusetts general partnership

 

By: Masspower Partner II, LLC, its Managing Partner

 

 

 

By:

/s/ Clint C. Freeland

 

 

Name: Clint C. Freeland

 

 

Title: Executive Vice President and Chief Financial Officer

 

[Signature Page to Fifth Amendment to Dynegy Credit Agreement]

 



 

 

DIGHTON POWER, LLC

 

DYNEGY RESOURCE II, LLC

 

DYNEGY RESOURCE III, LLC

 

DYNEGY RESOURCE HOLDINGS, LLC

 

DYNEGY RESOURCES GENERATING HOLDCO, LLC

 

DYNEGY RESOURCES HOLDCO I, LLC

 

DYNEGY RESOURCES HOLDCO II, LLC

 

DYNEGY RESOURCES MANAGEMENT, LLC

 

ELWOOD ENERGY HOLDINGS, LLC

 

ELWOOD ENERGY HOLDINGS II, LLC

 

ELWOOD EXPANSION HOLDINGS, LLC

 

EQUIPOWER RESOURCES CORP.

 

KINCAID ENERGY SERVICES COMPANY, LLC

 

KINCAID GENERATION, L.L.C.

 

KINCAID HOLDINGS, LLC

 

LAKE ROAD GENERATING COMPANY, LLC

 

LIBERTY ELECTRIC POWER, LLC

 

MASSPOWER HOLDCO, LLC

 

MASSPOWER PARTNERS I, LLC

 

MASSPOWER PARTNERS II, LLC

 

MILFORD POWER COMPANY, LLC

 

RICHLAND GENERATION EXPANSION, LLC

 

RICHLAND-STRYKER GENERATION LLC

 

RSG POWER, LLC

 

TOMCAT POWER, LLC

 

 

 

 

 

 

 

By:

/s/ Clint C. Freeland

 

 

Name: Clint C. Freeland

 

 

Title: Executive Vice President and Chief Financial Officer

 

[Signature Page to Fifth Amendment to Dynegy Credit Agreement]

 



 

 

DYNEGY COAL GENERATION, LLC

 

DYNEGY COMMERCIAL ASSET MANAGEMENT, LLC

 

DYNEGY CONESVILLE, LLC

 

DYNEGY DICKS CREEK, LLC

 

DYNEGY FAYETTE II, LLC

 

DYNEGY GAS GENERATION, LLC

 

DYNEGY GENERATION HOLDCO, LLC

 

DYNEGY HANGING ROCK II, LLC

 

DYNEGY KILLEN, LLC

 

DYNEGY LEE II, LLC

 

DYNEGY MIAMI FORT, LLC

 

DYNEGY RESOURCE I, LLC

 

DYNEGY STUART, LLC

 

DYNEGY WASHINGTON II, LLC

 

DYNEGY ZIMMER, LLC

 

 

 

 

 

 

 

By:

/s/ Clint C. Freeland

 

 

Name: Clint C. Freeland

 

 

Title: Executive Vice President and Chief Financial Officer

 

[Signature Page to Fifth Amendment to Dynegy Credit Agreement]

 



 

 

IPH II, LLC

 

IPH, LLC

 

ILLINOIS POWER RESOURCES, LLC

 

ILLINOIS POWER RESOURCES GENERATING, LLC

 

COFFEEN AND WESTERN RAILROAD COMPANY

 

ILLINOIS POWER FUELS AND SERVICES COMPANY

 

ILLINOIS POWER GENERATING COMPANY

 

ILLINOIS POWER MARKETING COMPANY

 

 

 

 

 

 

 

By:

/s/ Siddharth Manjeshwar

 

 

Name: Siddharth Manjeshwar

 

 

Title: Vice President and Treasurer

 

[Signature Page to Fifth Amendment to Dynegy Credit Agreement]

 



 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent

 

 

 

 

 

 

 

By:

/s/  Mikhail Faybusovich

 

 

Name: Mikhail Faybusovich

 

 

Title: Authorized Signatory

 

 

 

 

 

 

 

By:

/s/ Karim Rahimtoola

 

 

Name: Karim Rahimtoola

 

 

Title: Authorized Signatory

 

[Signature Page to Fifth Amendment to Dynegy Credit Agreement]

 



 

 

MORGAN STANLEY SENIOR FUNDING, INC., as Fronting Bank

 

 

 

 

 

 

 

By:

/s/ William Graham

 

 

Name: William Graham

 

 

Title: Managing Director

 

Signature Page to Fifth Amendment to Dynegy Credit Agreement

 



 

[Participation notices on file with the Administrative Agent]

 

Signature Page to Fifth Amendment to Dynegy Credit Agreement

 



 

EXHIBIT A
Form of Tranche C-1 Participation Notice

 

Date: January    , 2017

 

To: Morgan Stanley Senior Funding, Inc.,
as the Fronting Bank; and

 

Credit Suisse AG, Cayman Islands Branch
as Administrative Agent (as defined below)

 

DYNEGY INC.

Tranche C-1 Participation Notice

 

Ladies and Gentlemen:

 

Reference is made to the Fifth Amendment (the “Amendment”) to that certain Credit Agreement, dated as of April 23, 2013 (as amended by the Amendment and as otherwise may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Dynegy Inc. (the “Borrower”), the Lenders party thereto, and Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”).  Unless otherwise specified herein, capitalized terms used but not defined herein are used as defined in the Amendment.

 

By delivery of this Tranche C-1 Participation Notice, each of the undersigned (each a “Participating Lender”), hereby irrevocably consents to the Amendment and the amendment of the Credit Agreement contemplated thereby and (check as applicable):

 

NAME OF PARTICIPATING EXISTING TERM LENDER:

 

AMOUNT OF INCREMENTAL TRANCHE C TERM LOANS:

 

o                                   Cashless Settlement Option.  Hereby (i) elects, upon the Fifth Amendment Effective Date, to exchange the full amount of the outstanding Incremental Tranche C Term Loans of such Participating Lender for an equal outstanding amount of Tranche C-1 Term Loans under the Credit Agreement and (ii) represents and warrants to the Administrative Agent that it has the organizational power and authority to execute, deliver and perform its obligations under this letter agreement and the Amendment (including, without limitation, with respect to any exchange contemplated hereby) and has taken all necessary corporate and other organizational action to authorize the execution, delivery and performance of this letter agreement and the Amendment.

 

o                                   Post-Closing Cash Settlement Option.  Hereby (i) elects to have the full amount of the outstanding Incremental Tranche C Term Loans of such Participating Lender repaid or purchased and agrees to promptly (but in any event, on or prior to the date that is 30 days following the Fifth Amendment Effective Date) purchase Tranche C-1 Term Loans in an equivalent amount and (ii) represents and warrants to the Administrative Agent that it has the organizational power and authority to execute, deliver and perform its obligations under this letter agreement and the Amendment (including, without limitation, with respect to any exchange contemplated hereby) and has taken all necessary corporate and other organizational action to authorize the execution, delivery and performance of this letter agreement and the Amendment.

 

Exhibit A-1



 

[Signature Page Follows]

 



 

 

Very truly yours,

 

 

 

 

 

 

 

 

,

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:*

 

 

 

Name:

 

 

Title:

 


*If a second signature is necessary.

 

[Signature Page to Tranche C-1 Participation Notice]

 



 

Annex I
Fronting Bank

 

Fronting Bank

 

Fronted Loans

 

Morgan Stanley Senior Funding, Inc.

 

$

362,200,000.00

 

 

Annex I



 

Exhibit A

 

[Attached.]

 



 

Execution Version

 

 

$1,775,000,000

CREDIT AGREEMENT

 

among

 

DYNEGY INC.,

 

VARIOUS LENDERS,

 

and

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

as ADMINISTRATIVE AGENT

 


 

Dated as of April 23, 2013

 


 

CREDIT SUISSE SECURITIES (USA) LLC, MORGAN STANLEY SENIOR FUNDING, INC.,

BARCLAYS BANK PLC, DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS LENDING PARTNERS LLC, J.P. MORGAN SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBC CAPITAL MARKETS and UBS SECURITIES LLC,
as JOINT LEAD ARRANGERS and JOINT BOOK RUNNERS,

 

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

SECTION 1.

Defined Terms

2

 

 

 

1.01.

Other Definitional Provisions, etc.

5255

1.02.

Accounting Terms

5356

1.03.

Rounding

5356

1.04.

Times of Day

5356

1.05.

Timing of Payment of Performance

5356

1.06.

Pro Forma Calculations

5356

1.07.

Calculations, Computations

5457

1.08.

Interest Rate Calculations

5558

 

 

 

SECTION 2.

Amount and Terms of Credit

5558

 

 

 

2.01.

The Commitments

5558

2.02.

Minimum Amount of Each Borrowing

5760

2.03.

Notice of Borrowing

5761

2.04.

Disbursement of Funds

5861

2.05.

Notes

5962

2.06.

Conversions

5963

2.07.

Pro Rata Borrowings

6063

2.08.

Interest

6063

2.09.

Interest Periods

6164

2.10.

Increased Costs, Illegality, etc.

6165

2.11.

Compensation

6367

2.12.

Change of Lending Office

6467

2.13.

Replacement of Lenders

6468

2.14.

Defaulting Lenders

6670

2.15.

Incremental Term Loans; Incremental Revolving Loans

6771

2.16.

Extensions of Term Loans and Revolving Loan Commitments

7175

2.17.

Refinancing Amendments

7477

2.18.

Reverse Dutch Auction Repurchases

7579

 

 

 

SECTION 3.

Letters of Credit

7781

 

 

 

3.01.

Letters of Credit

7781

3.02.

Maximum Letter of Credit Outstandings; Final Maturities

7882

3.03.

Letter of Credit Requests; Minimum Stated Amount

7883

3.04.

Letter of Credit Participations

7984

3.05.

Agreement to Repay Letter of Credit Drawings

8085

3.06.

Increased Costs

8186

3.07.

Provisions Related to Extended Revolving Loan Commitments

8287

3.08.

Conflict with Letter of Credit Request

8287

3.09.

Existing Letters of Credit

8287

 

 

 

SECTION 4.

RL Commitment Commission; Fees; Reductions of Commitment

8287

 

 

 

4.01.

Fees

8287

4.02.

Voluntary Termination of Unutilized Revolving Loan Commitments

8388

4.03.

Mandatory Reduction of Commitments

8489

 

 

 

SECTION 5.

Prepayments; Payments; Taxes

8489

 

i



 

5.01.

Voluntary Prepayments

8489

5.02.

Mandatory Repayments

8590

5.03.

Method and Place of Payment

9196

5.04.

Taxes

9196

 

 

 

SECTION 6.

Conditions Precedent to Credit Events on the Closing Date

9499

 

 

 

6.01.

Closing Date; Notes

9499

6.02.

Opinions of Counsel

94100

6.03.

Company Documents; Proceedings; etc.

94100

6.04.

Consummation of the Refinancing

95100

6.05.

Intercreditor Agreement

95100

6.06.

Adverse Change

95101

6.07.

Security Documents

95101

6.08.

Financial Statements

96102

6.09.

Solvency Certificate

96102

6.10.

Fees, etc.

96102

6.11.

PATRIOT ACT

97102

 

 

 

SECTION 7.

Conditions Precedent to All Credit Events

97102

 

 

 

7.01.

No Default; Representations and Warranties

97102

7.02.

Notice of Borrowing; Letter of Credit Request

97103

 

 

 

SECTION 8.

Representations and Warranties

97103

 

 

 

8.01.

Company Status

97103

8.02.

Power and Authority

98103

8.03.

No Violation

98103

8.04.

Approvals

98104

8.05.

Financial Statements; Solvency; Projections

99104

8.06.

Litigation

99105

8.07.

True and Complete Disclosure

99105

8.08.

Margin Regulations

100105

8.09.

Tax Returns and Payments

100105

8.10.

Compliance with ERISA

100106

8.11.

Security Documents

101106

8.12.

Properties

102107

8.13.

Subsidiaries

102107

8.14.

Compliance with Statutes, etc.

102108

8.15.

Investment Company Act

102108

8.16.

Environmental Matters

102108

8.17.

Employment and Labor Relations

103108

8.18.

Intellectual Property, etc.

103109

8.19.

Anti-Terrorism Laws; OFAC; FCPA

103109

 

 

 

SECTION 9.

Affirmative Covenants

104109

 

 

 

9.01.

Information Covenants

104109

9.02.

Books, Records and Inspections

106112

9.03.

Maintenance of Property; Insurance

107112

9.04.

Existence; Franchises

107113

9.05.

Compliance with Statutes, etc.

107113

9.06.

Compliance with Environmental Laws

108113

9.07.

End of Fiscal Years; Fiscal Quarters

108113

 

ii



 

9.08.

Payment of Taxes

108114

9.09.

Use of Proceeds

108114

9.10.

Additional Security; Further Assurances; etc.

109114

9.11.

Designation of Subsidiaries

110116

9.12.

Ratings

112117

9.13.

Status as Senior Debt

112118

 

 

 

SECTION 10.

Negative Covenants

112118

 

 

 

10.01.

Liens

112118

10.02.

Consolidation, Merger or Sale of Assets, etc.

115121

10.03.

Restricted Payments

117123

10.04.

Indebtedness

120126

10.05.

Dividend and Other Payment Restrictions Affecting Subsidiaries

125131

10.06.

Transactions with Affiliates

127133

10.07.

Senior Secured Leverage Ratio

129135

10.08.

Asset Sales

130136

 

 

 

SECTION 11.

Events of Default and Remedies

131136

 

 

 

11.01.

Payments

131136

11.02.

Representations, etc.

131137

11.03.

Covenants

131137

11.04.

Default Under Other Agreements

131137

11.05.

Bankruptcy, etc.

132137

11.06.

ERISA

132138

11.07.

Security Documents

132138

11.08.

Judgments

133138

11.09.

Change of Control

133139

11.10.

Borrower’s Right to Cure

134140

 

 

 

SECTION 12.

The Administrative Agent

135141

 

 

 

12.01.

Appointment

135141

12.02.

Nature of Duties

135141

12.03.

Lack of Reliance on the Administrative Agent

136141

12.04.

Certain Rights of the Administrative Agent

136142

12.05.

Reliance

137142

12.06.

Indemnification

137143

12.07.

The Administrative Agent in its Individual Capacity

137143

12.08.

Holders

137143

12.09.

Resignation by the Administrative Agent

138143

12.10.

Collateral Matters

138144

12.11.

Delivery of Information

140146

12.12.

Intercreditor Agreement

140146

 

 

 

SECTION 13.

Miscellaneous

141147

 

 

 

13.01.

Payment of Expenses, etc.

141147

13.02.

Right of Setoff

143148

13.03.

Notices

143149

13.04.

Benefit of Agreement; Assignments; Participations

143149

13.05.

No Waiver; Remedies Cumulative

147153

13.06.

Payments Pro Rata

147153

 

iii



 

13.07.

GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL

148154

13.08.

Counterparts

149155

13.09.

Headings Descriptive

149155

13.10.

Amendment or Waiver; etc.

149155

13.11.

Survival

151157

13.12.

Register

151157

13.13.

Confidentiality

152158

13.14.

No Advisory or Fiduciary Responsibility

152158

13.15.

PATRIOT ACT

153159

13.16.

Post-Closing Actions

153159

13.17.

Interest Rate Limitation

153159

13.18.

Lender Action

154160

13.19.

Effectiveness

154160

13.20.

Domicile of Loans

154160

 

iv



 

SCHEDULE 1.01(a)

Lender Addresses

SCHEDULE 1.01(b)

Commitments

SCHEDULE 1.01(c)

Pro Forma Adjustments

SCHEDULE 2.18

Reverse Dutch Auction Procedures

SCHEDULE 3.09

Existing Letters of Credit

SCHEDULE 8.10

Plans

SCHEDULE 8.12

Real Property

SCHEDULE 8.13

Subsidiaries

SCHEDULE 8.16

Environmental Matters

SCHEDULE 10.01

Liens

SCHEDULE 10.04

Indebtedness

SCHEDULE 13.16

Post-Closing Matters

 

 

EXHIBIT A-1

Form of Notice of Borrowing

EXHIBIT A-2

Form of Notice of Conversion/Continuation

EXHIBIT B-1

Form of Term Note

EXHIBIT B-2

Form of Revolving Note

EXHIBIT B-3

Form of Swingline Note

EXHIBIT C

Form of Letter of Credit Request

EXHIBIT D-1

Form of U.S. Tax Compliance Certificate

EXHIBIT D-2

Form of U.S. Tax Compliance Certificate

EXHIBIT D-3

Form of U.S. Tax Compliance Certificate

EXHIBIT D-4

Form of U.S. Tax Compliance Certificate

EXHIBIT E

Form of Guarantee and Collateral Agreement

EXHIBIT F

Form of Solvency Certificate

EXHIBIT G

Form of Compliance Certificate

EXHIBIT H

Form of Assignment and Assumption Agreement

EXHIBIT I

Form of Intercreditor Agreement

 

v



 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT (this “Agreement”) is entered into as of April 23, 2013, among DYNEGY INC. (the “Borrower”), a Delaware corporation, CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as administrative agent (in such capacity, including any permitted successor thereto, the “Administrative Agent”) and as collateral trustee (in such capacity, including any permitted successor thereto, the “Collateral Trustee”) under the Credit Documents, and each Lender (such term having the meaning assigned in Section 1 hereto) from time to time party hereto.

 

WHEREAS, Dynegy Power, LLC (“GasCo”), an indirect Wholly-Owned Subsidiary of the Borrower, as the borrower, and Dynegy Gas Investments Holdings, LLC, an indirect Wholly-Owned Subsidiary of the Borrower, as holdings, previously entered into (i) that certain credit agreement, dated as of August 5, 2011 (the “GasCo Term Loan Agreement”), with the lenders party thereto from time to time, Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”), as administrative agent and collateral trustee, and the other parties thereto, whereby a $1,100,000,000 term loan credit facility was made available to GasCo and (ii) that certain credit agreement, dated as of January 16, 2013 (the “GasCo Revolving Credit Agreement”), with the lenders party thereto from time to time, the Royal Bank of Canada, as administrative agent, and the other parties thereto, whereby a $150,000,000 revolving credit facility was made available to GasCo.

 

WHEREAS, Dynegy Midwest Generation, LLC (“CoalCo”), an indirect Wholly-Owned Subsidiary of the Borrower, as the borrower, Dynegy Coal Investments Holdings, LLC, an indirect Wholly-Owned Subsidiary of the Borrower, as holdings, the lenders party thereto from time to time, Credit Suisse, as administrative agent and collateral trustee, and the other parties thereto previously entered into that certain credit agreement, dated as of August 5, 2011 (the “CoalCo Term Loan Agreement”), whereby a $600,000,000 term loan credit facility was made available to CoalCo.

 

WHEREAS, GasCo, as the account party, previously entered into that certain letter of credit reimbursement and collateral agreement, dated as of August 5, 2011 (the “GasCo CS Letter of Credit Agreement”), with Credit Suisse, as the issuing lender, whereby a $215,000,000 letter of credit facility was made available to GasCo.

 

WHEREAS, CoalCo, as the account party, and Credit Suisse, as the issuing lender, previously entered into that certain letter of credit reimbursement and collateral agreement, dated as of August 5, 2011 (the “CoalCo CS Letter of Credit Agreement”), whereby a $100,000,000 letter of credit facility was made available to CoalCo.

 

WHEREAS, (i) the Borrower, as successor in interest to Dynegy Holdings, LLC, as the account party, and Credit Suisse, as the issuing lender, are party to that certain letter of credit reimbursement and collateral agreement, dated as of August 5, 2011 (as amended, the “Holdings CS Letter of Credit Agreement”), whereby a $26,217,318 letter of credit facility was made available and (ii) the Borrower, as the account party, and Credit Suisse, as the issuing lender, previously entered into that certain letter of credit reimbursement and collateral agreement, dated as of October 17, 2011 (as amended, the “Dynegy Inc. CS Letter of Credit Agreement”), whereby a $1,250,000 letter of credit facility was made available to the Borrower.

 

WHEREAS, the Borrower and its Subsidiaries wish to refinance and repay or prepay in full (including the payment of all fees, accrued interest, premiums and transaction expenses incurred in connection therewith, but excluding letters of credit that become Existing Letters of Credit hereunder) and terminate the commitments under the credit facilities made available under each of the GasCo Term Loan Agreement, the CoalCo Term Loan Agreement, the GasCo Revolving Credit Agreement, the GasCo CS

 

1



 

Letter of Credit Agreement, the CoalCo CS Letter of Credit Agreement, the Holdings CS Letter of Credit Agreement and the Dynegy Inc. CS Letter of Credit Agreement.

 

WHEREAS, the Lenders are willing to extend credit to the Borrower on the terms and subject to the conditions set forth herein.

 

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

 

SECTION 1.                            Defined Terms.  As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

 

Acceptable Financial Counterparty” shall mean any Person who, at the time the applicable Treasury Services Agreement is entered into, (a) in the ordinary course provides treasury services or cash management services and (b)(i) has a corporate rating of A- or higher by S&P or a corporate family rating of A3 or higher by Moody’s (or an equivalent rating by another nationally recognized statistical rating organization of similar standing if either of such rating agencies is not then in the business of providing such ratings), or (ii) whose obligations are supported by collateral, guarantees or letters of credit in a manner consistent with the then prevailing industry practice from Persons that have the ratings described in clause (i) above.

 

Acquired Debt” shall mean, with respect to any specified Person:

 

(a)  Indebtedness of any other Person or asset existing at the time such other Person or asset is merged with or into, is acquired by, or became a Subsidiary of such specified Person, as the case may be, whether or not such Indebtedness is incurred in connection with, or in contemplation of, or to finance, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

 

(b)  Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

Act” shall have the meaning provided in Section 8.19.

 

Additional Lender” shall mean, at any time, any bank, other financial institution or debt provider that, in any case, is not an existing Lender and that agrees to provide any portion of any (a) Incremental Facility in accordance with Section 2.15 or (b) Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.17; provided that each Additional Lender shall be subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld, delayed or conditioned), in each case to the extent any such consent would be required from the Administrative Agent under Section 13.04(c) for an assignment of Loans to such Additional Lender.

 

Additional Security Documents” shall have the meaning provided in Section 9.10.

 

Adjustable Applicable Margins” shall have the meaning set forth in the definition of “Applicable Margin”.

 

Administrative Agent” shall have the meaning assigned to such term in the introductory statement to this Agreement, and shall include any permitted successor to the Administrative Agent appointed pursuant to Section 12.09.

 

2



 

AER” shall mean Ameren Energy Resources Company, LLC, an Illinois limited liability company.

 

Affiliate” shall mean, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control; provided further however that none of the Administrative Agent, any Lender or any of their respective Affiliates shall be considered an Affiliate of the Borrower or any Subsidiary thereof as a result of this Agreement, the extension of credit hereunder, or its actions in connection herewith or any other Credit Document.  For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

Affiliate Transaction” shall have the meaning provided in Section 10.06(a).

 

Agent” shall mean the Administrative Agent, the Collateral Trustee and any other agent appointed hereunder and each of their respective successors and assigns.

 

Agreement” shall mean this Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended, refinanced or renewed from time to time.

 

Applicable Law” shall mean, as to any Person, any ordinance, law, treaty, rule or regulation or any determination, ruling or other directive by and from an arbitrator or a court or other Governmental Authority, 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 is subject.

 

Applicable Margin” shall mean a percentage per annum equal to (i) in the case of Initial Tranche B-1 Term Loans maintained as (A) Base Rate Loans, 2.00% and (B) LIBOR Loans, 3.00%; (ii) in the case of Initial Tranche B-2 Term Loans maintained as (A) Base Rate Loans, 2.00% and (B) LIBOR Loans, 3.00%; (iii) in the case of Incremental Tranche C-1 Term Loans maintained as (A) Base Rate Loans, 3.002.25% and (B) LIBOR Loans, 4.003.25%; (iv) initially, in the case of Initial Revolving Loans, Incremental Tranche A Revolving Loans, Incremental Tranche B Revolving Loans and Extended Initial Revolving Loans, in each case, maintained as (A) Base Rate Loans, 1.75% and (B) LIBOR Loans, 2.75%; (v) initially, in the case of Unutilized Revolving Loan Commitments attributable to Initial Revolving Loan Commitments, Incremental Tranche A Revolving Commitments, Incremental Tranche B Revolving Commitments and Extended Initial Revolving Loan Commitments, in each case, 0.50%; and (vi) in the case of Swingline Loans, 1.75%.  From and after each day of delivery of any certificate delivered in accordance with the first sentence of the following paragraph indicating an entitlement to a different margin for Revolving Loans, Swingline Loans, and/or Unutilized Revolving Loan Commitments, in each case, attributable to Initial Revolving Loan Commitments, Incremental Tranche A Revolving Loan Commitments, Incremental Tranche B Revolving Loan Commitments and Extended Initial Revolving Loan Commitments, than that described in the immediately preceding sentence (each, a “Start Date”) to and including the applicable End Date described below, the Applicable Margins for such Revolving Loans, Swingline Loans and/or Unutilized Revolving Loan Commitments attributable to Initial Revolving Loan Commitments, Incremental Tranche A Revolving Loan Commitments, Incremental Tranche B Revolving Loan Commitments and Extended Initial Revolving Loan Commitments (hereinafter, the “Adjustable Applicable Margins”) shall be those set forth below opposite the Senior Secured Leverage Ratio indicated to have been achieved in any certificate delivered in accordance with the following sentence:

 

3



 

Senior Secured
Leverage Ratio

 

Unutilized Revolving Loan
Commitment Margin

 

Revolving Loan
Base Rate Margin

 

Revolving Loan
LIBO Rate
Margin

 

Swingline Loan
Margin

 

Greater than or equal to 2.25:1.00

 

0.500

%

1.75

%

2.75

%

1.75

%

Greater than or equal to 1.75:1.00 but less than 2.25:1.00

 

0.375

%

1.50

%

2.50

%

1.50

%

Less than 1.75:1.00

 

0.375

%

1.25

%

2.25

%

1.25

%

 

The Senior Secured Leverage Ratio used in a determination of Adjustable Applicable Margins shall be determined based on the delivery of a certificate of the Borrower (each, a “Quarterly Pricing Certificate”) by an Authorized Officer of the Borrower to the Administrative Agent (with a copy to be sent by the Administrative Agent to each Lender), within 50 days of the last day of any Fiscal Quarter of the Borrower, which certificate shall set forth the calculation of the Senior Secured Leverage Ratio as at the last day of the Test Period ended immediately prior to the relevant Start Date (but determined on a Pro Forma Basis) and the Adjustable Applicable Margins which shall be thereafter applicable (until same are changed or cease to apply in accordance with the following sentences).  The Adjustable Applicable Margins so determined shall apply, except as set forth in the succeeding sentence, from the relevant Start Date to the earlier of (x) the date on which the next certificate is delivered to the Administrative Agent, and (y) the date which is 51 days (or 106 days in the case of the fourth Fiscal Quarter of the Borrower) following the last day of the Test Period in which the previous Start Date occurred (such earliest date, the “End Date”), at which time, if no certificate has been delivered to the Administrative Agent indicating an entitlement to new Adjustable Applicable Margins (and thus commencing a new Start Date), the Adjustable Applicable Margins shall be those set forth in the first sentence of this definition (such Adjustable Applicable Margins as so determined, the “Highest Adjustable Applicable Margins”).  Notwithstanding anything to the contrary contained above in this definition, the Adjustable Applicable Margins shall be the Highest Adjustable Applicable Margins (x) at all times during which there shall exist any Event of Default and (y) at all times prior to the date of delivery of the financial statements pursuant to Section 9.01(a) for the first full Fiscal Quarter of the Borrower following the Closing Date.

 

Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Senior Secured Leverage Ratio set forth in any Quarterly Pricing Certificate delivered for any period is inaccurate for any reason and the result thereof is that the Lenders received interest for any period based on an Applicable Margin that is less than that which would have been applicable had the Senior Secured Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the “Applicable Margin” for any day occurring within the period covered by such Quarterly Pricing Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Senior Secured Leverage Ratio for such period, and any shortfall in the interest theretofore paid by the Borrower for the relevant period pursuant to Section 2.08(a) and (b) as a result of the miscalculation of the Senior Secured Leverage Ratio shall be deemed to be (and shall be) due and payable under the relevant provisions of Section 2.08(a) or (b), as applicable, at the time the interest for such period was required to be paid pursuant to said Section on the same basis as if the Senior Secured Leverage Ratio had been accurately set forth in such Quarterly Pricing Certificate (and shall remain due and payable until paid in full, together with all amounts owing under Section 2.08(d), in accordance with the terms of this Agreement).  Such Applicable Margin shall be due and payable on the earlier of (i) the

 

4



 

occurrence of a Default or an Event of Default under Section 11.05 and (ii) promptly upon written demand to the Borrower (but in no event later than five (5) Business Days after such written demand); provided that in the case of preceding clause (ii), nonpayment of such Applicable Margin as a result of any inaccuracy shall not constitute a Default or Event of Default (whether retroactively or otherwise), and no such amounts shall be deemed overdue (and no amounts shall accrue interest at the applicable default rate), at any time prior to the date that is five (5) Business Days after such written demand to the Borrower.

 

The Applicable Margins with respect to any Term Loans other than Initial Term Loans, Revolving Loans other than Initial Revolving Loans, Incremental Tranche A Revolving Loans, Incremental Tranche B Revolving Loans and Extended Initial Revolving Loans and Unutilized Revolving Loan Commitments attributable to Revolving Loan Commitments other than the Initial Revolving Loan Commitments, Incremental Tranche A Revolving Loan Commitments, Incremental Tranche B Revolving Loan Commitments and Extended Initial Revolving Loan Commitments, shall in each case be determined in accordance with the relevant provisions of this Agreement, and shall utilize the rules provided above to the extent specified in the respective Incremental Amendment, Extension or Refinancing Amendment, as applicable.

 

Approved Fund” shall mean any Fund that is administered, advised or managed by a Lender or an Affiliate of the entity that administers, advises or manages any Fund that is a Lender.

 

Arrangers” shall mean, collectively, Credit Suisse Securities (USA) LLC, Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Deutsche Bank Securities Inc., Goldman Sachs Lending Partners LLC, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBC Capital Markets(1) and UBS Securities LLC.

 

Asset Sale” shall mean (a) the sale, lease (other than an operating lease), conveyance or other disposition of any assets or rights other than in the ordinary course of business; provided that the sale, conveyance or other disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole will be governed by Section 10.02 and not by Section 10.08 and (b)  the issuance of Equity Interests in any of the Borrower’s Restricted Subsidiaries or the sale of Equity Interests in any of its Subsidiaries.

 

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

 

(i)                                     any single transaction or series of related transactions for which the Borrower or its Restricted Subsidiaries receive aggregate consideration of less than $20,000,000;

 

(ii)                                  a transfer of assets or Equity Interests between or among the Borrower and its Restricted Subsidiaries and/or between Restricted Subsidiaries;

 

(iii)                               an issuance of Equity Interests by a Restricted Subsidiary of the Borrower to the Borrower or to a Restricted Subsidiary of the Borrower;

 

(iv)                              the sale, lease or other transfer of products or services (including power, capacity, energy, ancillary services, and other products or services, or the sale of any other inventory or contracts related to any of the foregoing (in each case, whether in physical, financial or any other form), or fuel or emission credits) and any sale or other disposition of damaged, worn-out or obsolete assets;

 


(1) RBC Capital Markets is a brand name for the capital markets business of Royal Bank of Canada and its affiliates.

 

5



 

(v)                                 the sale or discount, in each case without recourse, of accounts receivable, in connection with the compromise or collection thereof;

 

(vi)                              the licensing of intellectual property;

 

(vii)                           the sale, lease, conveyance or other disposition for value of power capacity, energy, fuel ancillary services or emission credits and other products or services or sale of any other inventory or contracts for any of the foregoing;

 

(viii)                        the sale or other disposition of cash or Cash Equivalents;

 

(ix)                              a Restricted Payment that does not violate Section 10.03 or a Permitted Investment;

 

(x)                                 to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, any exchange of like property (excluding any “boot” thereon) for use in a Permitted Business;

 

(xi)                              a disposition of assets in connection with a foreclosure, transfer or deed in lieu of foreclosure or other exercise of remedial action;

 

(xii)                           any sale and leaseback transaction that is a Permitted Tax Lease;

 

(xiii)                        the sale, transfer or other disposition of property or assets related to the decommissioning or demolition of the South Bay Facility, the Vermilion Facility, the Havana 1-5 Units, the Wood River 1-3 Units, the Oglesby Facility or the Stallings Facility;

 

(xiv)                       any disposition of property and assets to the extent it constitutes, or results from, a Recovery Event; or

 

(xv)                          any sale or disposition of Equity Interests of an Unrestricted Subsidiary.

 

Assignee” shall have the meaning provided in Section 13.04(c)(i).

 

Assignment and Assumption Agreement” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit H (appropriately completed).

 

Attributable Debt” shall mean, in respect of a sale and leaseback transaction, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended.  Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capital Lease Obligation.”

 

Auction” shall have the meaning provided in Section 2.18(a).

 

Auction Manager” shall have the meaning set forth in Section 2.18(a).

 

Auction Notice” shall have the meaning provided in Schedule 2.18.

 

6



 

Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing, Notices of Conversion/Continuation and similar notices, any Person or Persons that has or have been authorized by the board of directors of the Borrower to deliver such notices pursuant to this Agreement, (ii) delivering financial information (including, without limitation, calculations of “Fair Market Value”) and Officer’s Certificates pursuant to this Agreement, the chief executive officer, the president, the chief financial officer, the treasurer, the assistant treasurer, the principal accounting officer or any other person of the Borrower having substantially the same responsibilities as the aforementioned officers, and (iii) any other matter in connection with this Agreement or any other Credit Document, the chief executive officer, chief financial officer, treasurer, the assistant treasurer, general counsel or a responsible financial or accounting officer of the Borrower.

 

Baldwin” shall mean the 1800MW coal fired power generation facility owned by a Subsidiary of the Borrower located in Baldwin, Illinois and the property and assets necessary for the maintenance and operation of such facility.

 

Bankruptcy Law” shall mean Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq., as amended from time to time, or any similar federal or state or other law for the relief of debtors.

 

Base Rate” shall mean, at any time, the highest of (i) the Prime Lending Rate at such time, (ii) 1/2 of 1% per annum in excess of the overnight Federal Funds Rate at such time and (iii) the LIBO Rate for a LIBOR Loan denominated in dollars with a one-month interest period commencing on such day plus 1.00% per annum; provided that, notwithstanding the foregoing, in the case of Initial Term Loans or Incremental Tranche C-1 Term Loans which are incurred or maintained as Base Rate Loans, the “Base Rate” shall in no event be less than 2.00% per annum.  For purposes of this definition, the LIBO Rate shall be determined using the LIBO Rate as otherwise determined by the Administrative Agent in accordance with the definition of “LIBO Rate,” except that (x) if a given day is a Business Day, such determination shall be made on such day (rather than two (2) Business Days prior to the commencement of an Interest Period) or (y) if a given day is not a Business Day, the LIBO Rate for such day shall be the rate determined by the Administrative Agent pursuant to preceding clause (x) for the most recent Business Day preceding such day.  Any change in the Base Rate due to a change in the Prime Lending Rate, the Federal Funds Rate or such LIBO Rate shall be effective as of the opening of business on the day of such change in the Prime Lending Rate, the Federal Funds Rate or such LIBO Rate, respectively.

 

Base Rate Loan” shall mean (i) each Swingline Loan and (ii) each other Loan designated or deemed designated as such by the Borrower at the time of the incurrence thereof or conversion thereto.

 

Beneficial Owner” shall have the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act.  The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.

 

Board of Directors” shall mean:

 

(a)                                 with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

(b)                                 with respect to a partnership, the Board of Directors of the general partner of the partnership;

 

(c)                                  with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

 

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(d)                                 with respect to any other Person, the board or committee of such Person serving a similar function.

 

Borrower” shall have the meaning provided in the first paragraph of this Agreement.

 

Borrower Party” shall have the meaning set forth in Section 2.18(a).

 

Borrowing” shall mean the borrowing of one Type of Loan of a single Class from all the Lenders having Commitments with respect to such Class (or from the Swingline Lender in the case of Swingline Loans) on a given date (or resulting from a conversion or conversions on such date) having in the case of LIBOR Loans the same Interest Period; provided that Base Rate Loans incurred pursuant to Section 2.10(b) shall be considered part of the related Borrowing of LIBOR Loans.

 

Buffer Land” shall mean farm property neighboring a Credit Party’s power generation facility which is not related to or used for the generation of electric power.

 

Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York, New York, a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, LIBOR Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between banks in U.S. dollar deposits in the London interbank market.

 

Calculation Period” shall mean, with respect to any Specified Transaction or any other event expressly required to be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended prior to the date of such Specified Transaction or other event for which financial statements have been delivered to the Lenders pursuant to Section 9.01(a) or (b) as applicable; provided that, with respect to any event required to be calculated on a Pro Forma Basis that occurs prior to the date on which financial statements have been (or are required to be) delivered pursuant to Section 9.01(a) for the Fiscal Quarter ending nearest to June 30, 2013, the “Calculation Period” shall be the period of four consecutive Fiscal Quarters of the Borrower (including its predecessor entity) ended March 31, 2013 (taken as one accounting period), with Consolidated Adjusted EBITDA (prior to giving pro forma effect to the applicable event required to be calculated on a Pro Forma Basis) being as set forth in the definition of “Test Period”.

 

Capital Lease Obligations” shall mean, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

 

Capital Stock” shall mean:

 

(a)                                 in the case of a corporation, corporate stock;

 

(b)                                 in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(c)                                  in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

 

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(d)                                 any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

Cash Equivalents” shall mean:

 

(a)                                 United States dollars, Euros or, in the case of any Foreign Subsidiary, any local currencies held by it from time to time;

 

(b)                                 (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) and (ii) debt obligations issued by the Government National Mortgage Association, Farm Credit System, Federal Home Loan Banks, Federal Home Loan Mortgage Corporation, Financing Corporation and Resolution Funding Corporation, in each case under clauses (i) and (ii) above, having maturities of not more than 12 months from the date of acquisition;

 

(c)                                  certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 12 months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500,000,000 and a Thomson Bank Watch Rating of “B” or better;

 

(d)                                 repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;

 

(e)                                  commercial paper and auction rate securities having one of the two highest ratings obtainable from Moody’s or S&P and in each case maturing within 12 months after the date of acquisition;

 

(f)                                   readily marketable direct obligations issued by any state of the United States or any political subdivision thereof, in either case having one of the two highest rating categories obtainable from either Moody’s or S&P; and

 

(g)                                  (i) money market funds that invest primarily in securities described in clauses (a) through (f) of this definition or (ii) short duration liquidity funds with a total weighted average maturity of no more than ninety (90) days that invest primarily in securities having a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, including those described in clauses (a) through (f) of this definition.

 

Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority, requiring compliance by any Lender (or lending office of such Lender).

 

Change of Control” shall mean (i) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Borrower and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d) of the Exchange Act, but excluding any employee benefit

 

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plan of the Borrower or any of its Restricted Subsidiaries, any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan and one or more Permitted Holders), (ii) the adoption of a plan relating to the liquidation or dissolution of the Borrower, (iii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above), other than one or more Permitted Holders or a corporation owned directly or indirectly by the stockholders of the Borrower in substantially the same proportion as their ownership of stock of the Borrower prior to such transaction, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Borrower, measured by voting power rather than number of shares; or (iv) the first day on which a majority of the members of the Board of Directors of the Borrower are not Continuing Directors.

 

Claims” shall have the meaning provided in the definition of “Environmental Claims.”

 

Class” (a) when used with respect to Lenders, refers to whether such Lenders are Lenders of Revolving Loans or Term Loans (which shall not comprise the same Class) in each case having the same terms and Maturity Date (whether constituting a Class of Initial Revolving Loans, Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Incremental Tranche C-1 Term Loans, Incremental Tranche A Revolving Loans, Incremental Tranche B Revolving Loans, Extended Initial Revolving Loans, or any such Class of Revolving Loans or Term Loans resulting from extensions of credit or actions in accordance with the provisions of Section 2.15 through 2.17 of this Agreement), (b) when used with respect to Commitments, refers to the Commitments relating to a given Class of Loans as described in preceding clause (a), and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Swingline Loans or Loans of a given Class provided by Lenders of such Class as described in preceding clause (a).

 

Closing Date” shall mean the first date that all of the conditions precedent in Section 6 are satisfied or waived in accordance with Section 6, which date is April 23, 2013.

 

CoalCo” shall have the meaning provided in the preamble hereto.

 

CoalCo CS Letter of Credit Agreement” shall have the meaning provided in the preamble hereto.

 

CoalCo Term Loan Agreement” shall have the meaning provided in the preamble hereto.

 

Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder; provided, however, that for purposes of the definition of FATCA, “Code” shall mean the Code, as of the date of this Agreement (or any or amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.

 

Collateral” shall mean all property (whether real or personal) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document, including, without limitation, all Guarantee and Collateral Agreement Collateral, all Mortgaged Properties but, for the avoidance of doubt, excluding all Excluded Assets.

 

Collateral Trustee” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

Commitment” shall mean any of the commitments of any Lender, i.e., an Initial Tranche B-1 Term Loan Commitment, an Initial Tranche B-2 Term Loan Commitment, an Incrementala Tranche

 

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C-1 Term Loan Commitment, an Initial Revolving Loan Commitment, an Incremental Tranche A Revolving Loan Commitment, an Incremental Tranche B Revolving Loan Commitment, an Extended Initial Revolving Loan Commitment, or a Commitment with respect to any other Class of Loans hereunder (as same may be adjusted from time to time in accordance with the terms hereof).

 

Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

Commodity Hedging Agreements” shall mean any agreement (including each confirmation entered into pursuant to any master agreement) providing for swaps, caps, collars, puts, calls, floors, futures, options, spots, forwards, power purchase or sale agreements, fuel purchase or sale agreements, tolling agreements, emissions credit purchase or sales agreements, power transmission agreements, fuel transportation agreements, fuel storage agreements, netting agreements, commercial or trading agreements, weather derivatives agreements, each with respect to, or involving the purchase, transmission, distribution, sale, lease or hedge of, any energy, generation capacity or fuel, or any other energy or weather related commodity, service or risk, price or price indices for any such commodities, services or risks or any other similar derivative agreements, any renewable energy credits, carbon emission credits and any other “cap and trade” related credits, assets or attributes with an economic value and any other similar agreements, entered into by the Borrower or any Restricted Subsidiary, in each case under this definition, (i) in the ordinary course of business, or (ii) otherwise consistent with Prudent Industry Practice in order to manage fluctuations in the price or availability to the Borrower or any Restricted Subsidiary of any commodity and/or manage the risk of adverse or unexpected weather conditions.

 

Company” shall mean any corporation, limited liability company, partnership or other business entity (or the adjectival form thereof, where appropriate).

 

Compliance Date” shall mean any date on which the aggregate amount of outstanding Revolving Loans and Swingline Loans and Letter of Credit Outstandings (excluding any Letter of Credit Outstandings that are cash collateralized) of all Lenders exceed 25% of the Total Revolving Loan Commitment at such time.

 

Concurrent Cash Distributions” has the meaning assigned to it in the definition of “Investments.”

 

Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Consolidated Adjusted EBITDA” shall mean, for any period, Consolidated Net Income of the Borrower for such period, adjusted by:  (A) adding thereto (in each case to the extent deducted in determining Consolidated Net Income of the Borrower for such period (other than with respect to clauses (vii) and (xiii))), without duplication, the amount of:

 

(i)                                     total interest expense (inclusive of amortization of premiums, deferred financing fees and other original issue discount and banking fees, charges and commissions (e.g., letter of credit fees and commitment fees, non-cash interest payments, the interest component of Capital Lease Obligations, net payments, if any, pursuant to interest rate protection agreements with respect to Indebtedness, the interest component of any pension or other post-employment benefit expense)) of the Borrower and its Restricted Subsidiaries determined on a consolidated basis for such period;

 

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(ii)                                  provision for taxes based on income, profits or capital and foreign withholding taxes and franchise, state single business unitary and similar taxes for the Borrower and its Restricted Subsidiaries determined on a consolidated basis for such period;

 

(iii)                               all depreciation and amortization expense of the Borrower and its Restricted Subsidiaries determined on a consolidated basis for such period, including but not limited to amortization or impairment of intangibles (including, but not limited to goodwill), non-cash write offs of debt discounts and debt issuances, non-cash costs and commissions, non-cash discounts and other non-cash fees and charges with respect to Indebtedness, Interest Rate/Currency Hedging Agreements and Commodity Hedging Agreements;

 

(iv)                              other unusual or non-recurring cash charges, or expenses of the Borrower and its Restricted Subsidiaries during such period including, without limitation, costs of and payments of legal settlements, fines, judgments or orders;

 

(v)                                 the amount of all other non-cash charges, losses or expenses (including non-cash employee and officer equity compensation expense (including stock options), or asset write-offs, write-ups or write-downs) of the Borrower and its Restricted Subsidiaries determined on a consolidated basis for such period (but excluding any additions to bad debt reserves or bad debt expense and any non-cash charge to the extent it represents amortization of a prepaid cash item that was paid in a prior period);

 

(vi)                              cash restructuring charges or reserves, including any restructuring costs and integration costs incurred in connection with the Transaction, acquisitions permitted under this Agreement (including the acquisition of AER and its subsidiaries) or Significant Asset Sales or other Specified Transactions after the Closing Date, costs related to the closure and/or consolidation of facilities, retention charges, contract termination costs, recruiting, relocation, severance and signing bonuses and expenses, transaction fees and expenses (including professional and underwriting fees), and consulting fees and any one-time expense relating to enhanced accounting function, costs incurred in connection with any non-recurring strategic initiatives, costs incurred in connection with acquisitions and non-recurring intellectual property development after the Closing Date, other business optimization expenses (including costs and expenses relating to business optimization programs and new systems design and implementation costs), project start-up costs or any other costs incurred in connection with any of the foregoing; provided that amounts added back pursuant to this clause (vi) shall not, when taken together with any add-backs pursuant to clause (vii) below and Section 1.06(iv), account for more than 15% of Consolidated Adjusted EBITDA in any Test Period (calculated before giving effect to any such add-backs and adjustments);

 

(vii)                           the amount of cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to be realized in connection with the Transactions or any Specified Transaction (including the acquisition of AER and its subsidiaries) or the implementation of an operational initiative (including the termination, abandonment or discontinuance of operations and product lines) after the Closing Date (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) a duly completed certificate signed by an Authorized Officer of Borrower shall be delivered to the Administrative Agent together with the compliance certificate required to be delivered pursuant to Section 9.01(d), certifying that (x) such cost savings, operating expense reductions, other operating improvements and synergies are reasonably identifiable, reasonably anticipated to be realizable and factually supportable in the good faith judgment of Borrower, and (y) such actions are to be taken within, in the case of any such cost savings, operating expense reductions, other operating improvements and synergies in connection with (I) the Transactions, 18

 

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months after the Closing Date and (II) in all other cases, within 18 months after the consummation of the Specified Transaction or the implementation of an operational initiative, which is expected to result in such cost savings, expense reductions, other operating improvements or synergies, (B) projected amounts (and not yet realized) may no longer be added in calculating Consolidated Adjusted EBITDA pursuant to this clause (vii) to the extent occurring more than six Fiscal Quarters after the specified action taken in order to realize such projected cost savings, operating expense reduction, other operating improvements and synergies and (C) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (vii) to the extent duplicative of any expenses or charges otherwise added to Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, for such period; provided that amounts added back pursuant to this clause (vii) shall not, when taken together with any add-backs pursuant to clause (vi) above and Section 1.06(iv), account for more than 15% of Consolidated Adjusted EBITDA in any Test Period (calculated before giving effect to any such add-backs and adjustments);

 

(viii)                        pro forma adjustments set forth on Schedule 1.01(c);

 

(ix)                              other accruals, up-front fees, transaction costs, commissions, expenses, premiums or charges related to any equity offering, permitted investment, acquisition, disposition, recapitalization or incurrence, repayment, amendment or modification of Indebtedness permitted by this Agreement (whether or not successful, and including costs and expenses of the Administrative Agent and Lenders that are reimbursed) and up-front or financing fees, transaction costs, commissions, expenses, premiums or charges related to the Transaction and any non-recurring merger or business acquisition transaction costs incurred during such period (in each case whether or not successful);

 

(x)                                 fees, costs and expenses incurred in connection with the Transaction, including fees, costs and expenses of any counsel, consultants or other advisors;

 

(xi)                              expenses to the extent covered by contractual indemnification, insurance or refunding provisions in favor of the Borrower or any of its Restricted Subsidiaries and actually paid by such third parties, or, so long as Borrower has made a determination that a reasonable basis exists for payment and only to the extent that such amount is in fact paid within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so paid within such 365 days);

 

(xii)                           to the extent covered by business interruption insurance and actually reimbursed or otherwise paid, expenses or losses relating to business interruption or any expenses or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, acquisition, or any sale, conveyance, transfer or other disposition of assets, in each case, permitted under this Agreement, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days);

 

(xiii)                        solely for purposes of determining compliance with Section 10.07 in respect of any period which includes a Cure Quarter, the amount of proceeds from any sale or issuance of Qualified Equity Interests in connection with the exercise of a Cure Right in respect of such Cure Quarter;

 

(xiv)                       effects of adjustments in the consolidated financial statements of the Borrower pursuant to GAAP (including, without limitation, in the inventory, property and equipment, goodwill, software, intangible assets, in-process research and development, deferred revenue and debt line items thereof) resulting from the application of recapitalization accounting or purchase accounting, as the case

 

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may be, in relation to the Transaction or any acquisition permitted under this Agreement (including the acquisition of AER and its subsidiaries) or the amortization or write-off of any amounts thereof; and

 

(xv)                          adjustments on upfront premiums received or paid by the Borrower and its Restricted Subsidiaries for financial options in periods other than the strike periods;

 

and (B) subtracting therefrom (to the extent not otherwise deducted in determining Consolidated Net Income of the Borrower for such period and without duplication) the amount of (i) all cash payments or cash charges made (or incurred) by the Borrower or any of its Restricted Subsidiaries for such period on account of any non-cash charges added back to Consolidated Adjusted EBITDA in a previous period, (ii) income and gain items corresponding to those referred to in clauses (A)(iv) and (A)(v) above (other than the accrual of revenue in the ordinary course), (iii) gains related to pensions and other post-employment benefits and (iv) federal, state, local and foreign income tax credits;

 

provided that:

 

(A)                               to the extent included in Consolidated Net Income of the Borrower, there shall be excluded in determining Consolidated Adjusted EBITDA (x) currency translation gains and losses related to currency re-measurements of Indebtedness and (y) gains or losses on Interest Rate/Currency Hedging Agreements and Commodity Hedging Agreements;

 

(B)                               to the extent included in Consolidated Net Income of the Borrower, there shall be excluded in determining Consolidated Adjusted EBITDA for any period any adjustments resulting from the application of Statement of Financial Accounting Standards No. 133 and International Accounting Standard No. 39 and their respective related pronouncements and interpretations; and

 

(C)                               without duplication of amounts already deducted or excluded in determining the Consolidated Adjusted EBITDA (or the component defined terms), the Consolidated Adjusted EBITDA attributable to Excluded Project Subsidiaries shall be excluded from the definition of Consolidated Adjusted EBITDA for all purposes of the Credit Documents, except to the extent (and solely to the extent) actually distributed or repatriated in cash by any such Excluded Project Subsidiary to the Borrower or any Subsidiary Guarantor.

 

Notwithstanding anything to the contrary contained above, for purposes of determining Consolidated Adjusted EBITDA for any Test Period which includes any Fiscal Quarter ended on or prior to June 30, 2013, Consolidated Adjusted EBITDA for all portions of such period occurring prior to June 30, 2013 shall be calculated in accordance with the definition of “Test Period” contained herein.

 

Consolidated Interest Expense” shall mean, with respect to any Person for any period, the consolidated cash interest expense of such Person and its Restricted Subsidiaries (other than Excluded Project Subsidiaries) for such period, whether paid or accrued (including, without limitation, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net payments (if any) pursuant to interest rate Hedging Obligations, but not including amortization of original issue discount and other non-cash interest payments), net of cash interest income.  For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by the Borrower or any Restricted Subsidiary (other than an Excluded Project Subsidiary) with respect to any interest rate hedging agreements.

 

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Consolidated Net Income” shall mean, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

 

(a)                                 the Net Income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions (including pursuant to other intercompany payments but excluding Concurrent Cash Distributions) paid in cash to the specified Person or a Restricted Subsidiary of the Person;

 

(b)                                 for purposes of Sections 10.03(a)(C)(1) and 10.07 only, the Net Income of any Restricted Subsidiary that is not a Subsidiary Guarantor will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

 

(c)                                  the cumulative effect of a change in accounting principles will be excluded;

 

(d)                                 any net after-tax non-recurring or unusual gains, losses (less all fees and expenses relating thereto) or other charges or revenue or expenses (including, without limitation, relating to severance, relocation and one-time compensation charges) shall be excluded;

 

(e)                                  any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights to officers, directors or employees shall be excluded, whether under FASB 123R or otherwise;

 

(f)                                   any net after-tax income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations shall be excluded;

 

(g)                                  any gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions shall be excluded; and

 

(h)                                 any impairment charge or asset write-off pursuant to Financial Accounting Statement No. 142 and No. 144 or any successor pronouncement shall be excluded.

 

In addition, to the extent not already included in Consolidated Net Income of the Borrower and its Restricted Subsidiaries, Consolidated Net Income shall include (x) the amount of proceeds received from business interruption insurance in respect of expenses, charges or losses with respect to business interruption, (y) reimbursements of any expenses or charges that are actually received and covered by indemnification or other reimbursement provisions, in each case to the extent such expenses, charges or losses were deducted in the calculation of Consolidated Net Income and (z) the purchase accounting effects of adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) in component amounts required or permitted by GAAP (including in the inventory, property and equipment, software, goodwill, intangible assets, in-process research and development, deferred revenue and debt line items thereof) and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a result of any acquisition (including the acquisition of AER and its subsidiaries) or other similar investment permitted under this Agreement, or the amortization or write-off of any amounts thereof.

 

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Consolidated Senior Secured Net Debt” shall mean, as of any date of determination, (a) the aggregate amount of Indebtedness of the Borrower and its Restricted Subsidiaries, consisting only of Indebtedness for borrowed money, obligations in respect of Capital Lease Obligations, Attributable Debt and debt obligations evidenced by promissory notes or similar instruments, that is secured by a Lien on any asset or property of the Borrower or any Restricted Subsidiary (other than Liens that are contractually subordinated to the Liens of the Collateral Trustee in the Collateral pursuant to intercreditor and subordination arrangements that are reasonably satisfactory to the Administrative Agent) outstanding on such date, determined on a consolidated basis in accordance with GAAP, minus (b) the aggregate amount of Unrestricted cash and Cash Equivalents, together with the aggregate amount of Restricted cash and Cash Equivalents which secures the Obligations under this Agreement and the other Credit Documents, in an aggregate amount not to exceed $150,000,000; provided that Consolidated Senior Secured Net Debt shall not include Indebtedness (i) in respect of (x) any cash collateralized letter of credit, or (y) any other letter of credit, except to the extent of an Unpaid Drawing, (ii) of Unrestricted Subsidiaries, (iii) of Excluded Subsidiaries (but, for the avoidance of doubt, not secured Guarantees of such Indebtedness by the Credit Parties), (iv) of any Person other the Borrower and its Restricted Subsidiaries and (v) in respect of Hedging Obligations; provided, further, that, solely for purposes of determining compliance with Section 10.07, the Initial Tranche B-1 Term Loans shall be excluded from the definition of “Consolidated Senior Secured Net Debt”.

 

Consolidated Total Assets” shall mean, as of any date of determination, the total consolidated assets of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most recent publicly available balance sheet of the Borrower, and after giving pro forma effect to any acquisition or disposal of any property or assets consummated after the date of the applicable balance sheet and on or prior to the date of determination.

 

Consolidated Total Net Debt” shall mean, as of any date of determination, (a) the aggregate amount of Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP consisting only of Indebtedness for borrowed money, obligations in respect of Capital Lease Obligations and debt obligations evidenced by promissory notes or similar instruments, minus (b) the aggregate amount of Unrestricted cash and Cash Equivalents, together with the aggregate amount of Restricted cash and Cash Equivalents which secures the Obligations under this Agreement and the other Credit Documents, in an aggregate amount not to exceed $150,000,000; provided that Consolidated Total Net Debt shall not include Indebtedness (i) in respect of (x) any cash collateralized letter of credit, or (y) any other letter of credit, except to the extent of an Unpaid Drawing, (ii) of Unrestricted Subsidiaries, (iii) Excluded Subsidiaries (but, for the avoidance of doubt, not guarantees of such Indebtedness by the Credit Parties), (iv) of any Person other the Borrower and its Restricted Subsidiaries and (v) in respect of Hedging Obligations.

 

Contingent Obligation” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing or intended to guarantee any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of

 

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business or customary indemnity obligations in effect on the Closing Date or customary and reasonable indemnity obligations entered into in connection with any contractual arrangement, including, but not limited to, any acquisition, capital expenditure, investment or disposition of assets permitted under this Agreement (other than any such obligations with respect to Indebtedness).  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

 

Continuing Directors” shall mean, as of any date of determination, any member of the Board of Directors of the Borrower who:  (a) was a member of such Board of Directors on the Closing Date or (b) was nominated for election or elected to such Board of Directors with the approval of (x) one or more Permitted Holders or (y) a majority of the Continuing Directors who were members of such Board at the time of such nomination or election.

 

Contribution Indebtedness” shall mean Indebtedness of the Borrower in an aggregate principal amount not to exceed two times the aggregate amount of cash received by the Borrower after the Closing Date from the sale of its Equity Interests (other than Disqualified Stock) or as a contribution to its common equity capital (in each case, other than to or from a Subsidiary of the Borrower); provided that such Indebtedness (a) is incurred within 180 days after the sale of such Equity Interests or the making of such capital contribution and (b) is designated as “Contribution Indebtedness” pursuant to an Officer’s Certificate on the date of its incurrence.  Any sale of Equity Interests or capital contribution that forms the basis for an incurrence of Contribution Indebtedness will not be considered to be a sale of Qualified Equity Interests and will be disregarded for purposes of Section 10.03.

 

Controlled Foreign Corporation” shall mean any Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes and that is described under Section 957(a) of the Code.

 

Core Assets” shall mean all Equity Interests in, and property and assets of, Baldwin, Dynegy Kendall Energy, LLC, Ontelaunee Power Operating Company, LLC, Moss Landing and Independence, in each case whether now owned or hereafter acquired; provided, however, that (a) the Equity Interests in, and property and assets of, Independence shall only constitute Core Assets hereunder through (and including) October 31, 2014 and (b) only the Equity Interests in Moss Landing, and the Moss I Facility, the Moss II Facility, the Moss VI Facility and the Moss VII Facility owned thereby and the property and assets necessary for the maintenance and operation of such named facilities, shall constitute Core Assets hereunder; provided, further, however, that at any time, from time to time after the later of (i) the date on which all Tranche B-1 Term Loans have been repaid in full or refinanced in their entirety with the proceeds of a Tranche B-1 Debt Offering and (ii) the delivery of the consolidated financial statements of the Borrower for the fiscal quarter ending March 31, 2014 in accordance with Section 9.01(a), the Borrower may deliver to the Administrative Agent an Officers’ Certificate designating certain of such Equity Interests, property and/or assets otherwise comprising Core Assets to be excluded from the definition and requirements thereof, if, on and as of the date of any such designation, the Senior Secured Leverage Ratio for the most recently ended Calculation Period on or prior to such date, determined on a Pro Forma Basis after giving effect to each such designation, is not more than 0.75:1.00 below the applicable Senior Secured Leverage Ratio set forth in Section 10.07 for such Calculation Period (whether or not such date is otherwise a Compliance Date).

 

Credit Agreement Refinancing Indebtedness” shall mean (a) Permitted First Priority Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt (including any Tranche B-1 Debt Offering) or (d) other Indebtedness incurred pursuant to a Refinancing Amendment (including, without limitation, Other Term Loans and Other Revolving Loans), in

 

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each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Initial Tranche B-1 Term Loans, existing Initial Tranche B-2 Term Loans, existing Incremental Tranche C-1 Term Loans, existing Revolving Loans (and swingline loans and letters of credit and/or unused Revolving Loan Commitments), Indebtedness and/or letters of credit incurred under Section 10.04(b)(i)(B) under one or more Credit Facilities and/or any then existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that Credit Agreement Refinancing Indebtedness incurred in respect of theretofore outstanding Initial Tranche B-1 Term Loans may only be incurred in the form of Permitted Unsecured Refinancing Debt (including any Tranche B-1 Debt Offering); provided, further, that (i) such new Indebtedness does not mature prior to the maturity date of, or have a shorter Weighted Average Life to Maturity than, the Refinanced Debt (other than to the extent of nominal amortization for periods where amortization has been eliminated or reduced as a result of prepayments of such Refinanced Debt), (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees and premiums (if any) thereon and fees and expenses associated with the refinancing, extension, renewal or replacement, unless otherwise permitted under Section 10.04 (other than Section 10.04(b)(iii)), (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained and (iv) the aggregate unused revolving commitments under such Credit Agreement Refinancing Indebtedness shall not exceed the unused Revolving Loan Commitments being replaced, extended or renewed unless otherwise permitted hereby.

 

Credit Documents” shall mean this Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note (if any), the Guarantee and Collateral Agreement and each other Security Document.

 

Credit Event” shall mean the making of any Loan or the issuance, amendment, extension or renewal of any Letter of Credit (including, without limitation, any Existing Letter of Credit), other than any amendment, extension or renewal that does not increase the maximum Stated Amount of such Letter of Credit.

 

Credit Facilities” shall mean (i) one or more debt or credit facilities (including, without limitation, the credit facilities provided under this Agreement), letter of credit facilities or commercial paper facilities, in each case with banks or other institutional lenders providing for revolving credit loans, term loans, credit-linked deposits (or similar deposits) receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit and (ii) debt securities sold to institutional investors, in each case of (i) and (ii), as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.

 

Credit Party” shall mean the Borrower and each Subsidiary Guarantor.

 

Credit Suisse” shall have the meaning provided in the preamble hereto.

 

Cure Quarter” shall have the meaning assigned to such term in Section 11.10.

 

Cure Right” shall have the meaning assigned to such term in Section 11.10.

 

Cure Termination Date” shall have the meaning assigned to such term in Section 11.10.

 

Declined Proceeds” shall have the meaning provided in Section 5.02(k).

 

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Default” shall mean any event, act or condition which with notice or lapse of time, or both, would (without cure or waiver hereunder) constitute an Event of Default.

 

Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.

 

Designated Noncash Consideration” shall mean the Fair Market Value of non-cash consideration received by the Borrower or any person who is an Affiliate of the Borrower as a result of the Borrower’s ownership of Equity Interests in such Person in connection with an Asset Sale that is so designated as Designated Noncash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, executed by a senior financial officer of the Borrower, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Noncash Consideration.

 

Disqualified Institutions” shall mean those Persons that are competitors of the Borrower and its Subsidiaries (or reasonably known Affiliates of any such competitors) that are specified from time to time by the Borrower in writing to the Administrative Agent.

 

Disqualified Stock” shall mean any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date.  Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 10.03.  The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

 

DNE” shall mean Dynegy Northeast Generation, Inc., a Delaware corporation.

 

Dollars” and the sign “$” shall each mean freely transferable lawful money of the United States.

 

Domestic Subsidiary” shall mean any Restricted Subsidiary of the Borrower that was incorporated or organized in the United States or any state thereof or the District of Columbia.

 

Drawing” shall have the meaning provided in Section 3.05(b).

 

Dynegy Inc. CS Letter of Credit Agreement” shall have the meaning provided in the preamble hereto.

 

Effective Date” shall have the meaning provided in Section 13.19.

 

Effective Yield” shall mean, as to any Initial Tranche B-1 Term LoansInitial Tranche B-2 Term Loans or Incremental Term Loans of any tranche, the effective yield on such loans as reasonably determined by the Administrative Agent (consistent with generally accepted financial practices), taking into account the applicable interest rate margins (but not any fluctuations in the LIBO Rate), any interest

 

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rate floors by equating the excess amount of any such floor to interest margin, and all fees, including recurring, up-front or similar fees or original issue discount (amortized over the shorter of (x) the life of such loans and (y) the four years following the date of incurrence thereof) payable generally to Lenders making such loans, but excluding (i) any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the Lenders thereunder and (ii) any customary consent fees paid generally to consenting Lenders.

 

Eligible Transferee” shall mean and include a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in commercial loans in the ordinary course of business or any other “accredited investor” (as defined in Regulation D of the Securities Act) (other than a natural person) but in any event excluding (i) except to the extent provided in Section 2.18 and 13.04, the Borrower and its respective Subsidiaries, and (ii) Disqualified Institutions.

 

End Date” shall have the meaning provided in the definition of “Applicable Margin.”

 

Environmental CapEx Debt” shall mean Indebtedness of the Borrower or its Restricted Subsidiaries incurred for the purpose of financing Environmental Capital Expenditures.

 

Environmental Capital Expenditures” shall mean capital expenditures deemed necessary by the Borrower or its Restricted Subsidiaries to comply with Environmental Laws.

 

Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations and/or adjudicatory proceedings relating in any way to any noncompliance with, or liability arising under, Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “Claims”), including, without limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief arising out of or relating to an alleged injury or threat of injury to occupational health or safety or the environment, in both cases, due to the presence of Hazardous Materials.

 

Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the environment, human health or safety (as such relates to exposure to Hazardous Materials) or Hazardous Materials.

 

Equity Interests” shall mean Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

ERISA” shall mean the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

ERISA Affiliate” shall mean any person that for purposes of Title I or Title IV of ERISA or Section 412 of the Code would be deemed at any relevant time to be a single employer or otherwise aggregated with the Borrower or any of its Subsidiaries under Section 414(b) or (c) of the Code or Section 4001 of ERISA, or for purposes of Section 412 of the Code, under Section 414(m) or (o) of the Code.

 

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ERISA Event” shall mean any one or more of the following:

 

(a)                                 any Reportable Event;

 

(b)                                 the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan or the termination of any Plan under Section 4041(c) of ERISA;

 

(c)                                  the institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan;

 

(d)                                 the failure to make a required contribution to any Plan that would reasonably be expected to result in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance; the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; or the filing of any request for or receipt of a minimum funding waiver or an extension of any amortization period under Section 412 of the Code with respect to any Plan, or that such filing may be made;

 

(e)                                  the failure to make any required contribution to a Multiemployer Plan; the complete or partial withdrawal of the Borrower or any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan; or the reorganization or insolvency under Title IV of ERISA of any Multiemployer Plan;

 

(f)                                   the Borrower or any of its Subsidiaries or any ERISA Affiliate ceases operations at a facility so as to become subject to the provisions of Section 4062(e) of ERISA or withdraw as a substantial employer so as to become subject to the provisions of Section 4063(a) of ERISA or ceases making contributions to any Plan subject to Section 4064(a) of ERISA;

 

(g)                                  the Borrower or any of its Subsidiaries of any ERISA Affiliates incurs liability under Section 4069 or 4212(c) of ERISA;

 

(h)                                 the Borrower or any of its Subsidiaries have incurred with respect to a Plan or any Multiemployer Plan a material tax under Chapter 43 of the Code or a material civil penalty under Section 409, 502(i) or 502(l) of ERISA.

 

Event of Default” shall have the meaning provided in Section 11.

 

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

Excluded Assets” shall have the meaning provided in the Guarantee and Collateral Agreement.

 

Excluded Equity Interests” shall have the meaning provided in the Guarantee and Collateral Agreement.

 

Excluded Foreign Subsidiary” shall mean, at any time, any Foreign Subsidiary that is a Restricted Subsidiary that is (or is treated as) for United States federal income tax purposes either (a) a

 

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corporation or (b) a pass-through entity owned directly or indirectly by another Foreign Subsidiary that is (or is treated as) a corporation.  There are no Excluded Foreign Subsidiaries on the Closing Date.

 

Excluded Hedging Obligationshall mean, with respect to any Subsidiary Guarantor, any Hedging Obligation if, and to the extent that, all or a portion of the guarantee of such Subsidiary Guarantor of, or the grant by such Subsidiary Guarantor of a security interest to secure, such Hedging Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Subsidiary Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Subsidiary Guarantor or the grant of such security interest becomes effective with respect to such Hedging Obligation.  If a Hedging Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

 

Excluded Information” shall have the meaning provided in Section 2.18(d).

 

Excluded Proceeds” shall mean any Net Sale Proceeds of an Asset Sale in an amount of up to $15,000,000 per year, if and to the extent such Net Proceeds are designated by an Authorized Officer of the Borrower as Excluded Proceeds.

 

Excluded Project Subsidiary” shall mean, at any time, any Restricted Subsidiary that:

 

(a)                                 is an obligor (or, in the case of a Restricted Subsidiary of an Excluded Project Subsidiary that is such an obligor and is in a business that is related to the business of such Excluded Project Subsidiary that is such an obligor, is otherwise bound, or its property is subject to one or more covenants and other terms of any Non-Recourse Debt outstanding at such time, regardless of whether such Restricted Subsidiary is a party to the agreement evidencing the Non-Recourse Debt (unless otherwise expressly elected by the Borrower in its sole discretion with respect to any such Subsidiaries)) with respect to any Non-Recourse Debt outstanding at such time, in each case if and for so long as the grant of a security interest in the property or assets of such Subsidiary, or the guarantee by such Subsidiary of the Obligations, or the pledge of the Equity Interests of such Subsidiary, in each case in favor of the Collateral Trustee, for the benefit of the Secured Parties, shall constitute or result in a breach, termination or default under the agreement or instrument governing the applicable Non-Recourse Debt; provided that such Subsidiary shall be an Excluded Project Subsidiary only to the extent that and for so long as the requirements and consequences above shall exist; or

 

(b)                                 is not an obligor with respect to any such Non-Recourse Debt as described in clause (a), but is designated by the Borrower as an Excluded Project Subsidiary under and in accordance with this Agreement; and

 

provided that (i) none of the Subsidiaries constituting or owning Core Assets may at any time be an Excluded Project Subsidiary and (ii) the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Excluded Project Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Investments under the provisions of Section 10.05, as determined by the Borrower. There are no Excluded Project Subsidiaries on the Closing Date.  Notwithstanding anything herein to the contrary, following the consummation of the acquisition of AER, neither AER nor any of its Subsidiaries may be deemed an “Excluded Project Subsidiary” hereunder.

 

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Excluded Subsidiary” shall mean:

 

(a)                                 (i) any Domestic Subsidiary of a Controlled Foreign Corporation or (ii) any Domestic Subsidiary (x) substantially all of the assets of which consist of the Equity Interests of one or more Controlled Foreign Corporations or (y) that is treated as a disregarded entity for United States federal income tax purposes substantially all of the assets of which are Equity Interests of one or more Controlled Foreign Corporations (treating, for this purpose, any disregarded entity described in this clause (ii)(y) as a Controlled Foreign Corporation) and, if applicable, Indebtedness of such Controlled Foreign Corporation,

 

(b)                                 Unrestricted Subsidiaries,

 

(c)                                  any captive insurance Subsidiary,

 

(d)                                 not-for-profit Subsidiaries,

 

(e)                                  any special purpose vehicle,

 

(f)                                   any Immaterial Subsidiary,

 

(g)                                  any Subsidiary, to the extent a guarantee of which is prohibited or restricted by contracts existing on the Closing Date (or if acquired after the Closing Date, on the date of such acquisition) (provided that such contracts were not entered into in contemplation hereof) or applicable law (including any requirement to obtain governmental (including regulatory) authority or third party consent, approval, license or authorization) or would result in materially adverse tax consequences as reasonably determined by Borrower,

 

(h)                                 any Controlled Foreign Corporation,

 

(i)                                     any Subsidiary that is not directly or indirectly a Wholly-Owned Subsidiary of the Borrower,

 

(j)                                    any Excluded Project Subsidiary, and

 

(k)                                 any Subsidiary for which the Administrative Agent and Borrower determine the cost and/or burden of obtaining the guaranty outweigh the benefit to the Lenders.

 

Excluded Taxes” shall mean with respect to any Lender or Agent (a) Taxes imposed on or measured by its overall net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed on it, by a jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender or Agent, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) Taxes attributable to such Lender or Agent’s failure to comply with Section 5.04(f), (c) any U.S. federal withholding Taxes that are imposed by reason of FATCA, and (d) any U.S. federal withholding Tax that is imposed on amounts payable to a Lender or Agent at the time such Lender or Agent becomes a party to this Agreement (or designates a new lending office), except to the extent that (i) such Lender or Agent (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Credit Parties with respect to such withholding tax pursuant to Section 5.04(a) or (ii) such withholding Taxes are a result of a Change in Law after such Lender or Agent became a party to this Agreement (or changed its lending office).

 

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Existing Indebtedness” shall mean Indebtedness of the Borrower and its Subsidiaries in existence on the Closing Date after giving effect to the refinancing (other than the Indebtedness under this Agreement) and listed on Schedule 10.04, until such amounts are repaid.

 

Existing Letters of Credit” shall have the meaning provided in Section 3.09.

 

Extended Initial Letter of Credit Commitment” shall mean the Initial Letter of Credit Commitment of each Issuing Lender that is extended on the Fourth Amendment Effective Date pursuant to the terms of the Fourth Amendment (as the same may be reduced pursuant to Section 3.02(b) hereof).

 

Extended Initial Revolving Loan Commitment” shall mean, for each Lender party to Fourth Amendment, the amount set forth opposite such Lender’s name on Schedule 1.01(b) directly below the column entitled “Extended Initial Revolving Loan Commitment,” as the same may from time to time be (x) reduced or terminated pursuant hereto, (y) increased (but only with the consent of the respective Lender) in accordance with the terms hereof or (z) adjusted as a result of assignments to or from such Lender pursuant hereto.

 

Extended Initial Revolving Loan Maturity Date” shall mean April 23, 2021.

 

Extended Initial Revolving Loans” shall mean all Revolving Loans made from time to time pursuant to the Extended Initial Revolving Loan Commitments.

 

Extended Revolving Loan Commitment” shall have the meaning provided in Section 2.16(a).

 

Extended Revolving Loans” shall mean Revolving Loans incurred in respect of Extended Revolving Loan Commitments.

 

Extended Term Loans” shall have the meaning provided in Section 2.16(a).

 

Extending Revolving Credit Lender” shall have the meaning provided in Section 2.16(a).

 

Extending Term Lender” shall have the meaning provided in Section 2.16(a).

 

Extension” shall have the meaning provided in Section 2.16(a).

 

Extension Offer” shall have the meaning provided in Section 2.16(a).

 

Facing Fee” shall have the meaning provided in Section 4.01(c).

 

Fair Market Value” shall mean the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by an Authorized Officer of the Borrower.

 

FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

Federal Funds Rate” shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or,

 

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if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent (rounded upward, if necessary, to a whole multiple of 1/100 of 1.00%).

 

Fees” shall mean all amounts payable pursuant to or referred to in Section 4.01.

 

Financial Covenant Event of Default” shall have the meaning provided in Section 11.03.

 

“Fifth Amendment” shall mean that certain Fifth Amendment to Credit Agreement, dated as of February 7, 2017, among the Borrower, the Guarantors party thereto, the financial institutions party thereto as Lenders, and the Administrative Agent.

 

“Fifth Amendment Effective Date” shall mean the “Fifth Amendment Effective Date” under and as defined in the Fifth Amendment.

 

First Amendment” shall mean that certain First Amendment to Credit Agreement, dated as of April 1, 2015, among the Borrower, the Guarantors party thereto, the financial institutions party thereto as Additional Lenders and Lenders, and the Administrative Agent.

 

First Amendment Effective Date” shall mean the first date that all of the conditions precedent in Section 4 of the First Amendment are satisfied or waived in accordance with Section 4 of the First Amendment, which date is April 1, 2015.

 

First Amendment Letter of Credit Commitment” shall mean the increase or new Letter of Credit Commitment of each Issuing Lender extended to the Borrower on the First Amendment Effective Date in connection with the effectiveness of the First Amendment (as the same may be reduced pursuant to Section 3.02(b) hereof).

 

Fiscal Quarter” shall mean, for any Fiscal Year, (i) the fiscal period commencing on January 1 of such Fiscal Year and ending on March 31 of such Fiscal Year, (ii) the fiscal period commencing on April 1 of such Fiscal Year and ending on June 30 of such Fiscal Year, (iii) the fiscal period commencing on July 1 of such Fiscal Year and ending on September 30 of such Fiscal Year and (iv) the fiscal period commencing on October 1 of such Fiscal Year and ending on December 31 of such Fiscal Year.

 

Fiscal Year” shall mean the fiscal year of the Borrower and its Restricted Subsidiaries ending on December 31 of each calendar year.

 

Fixed Charge Coverage Ratio” shall mean with respect to any specified Person for any period, the ratio of the Consolidated Adjusted EBITDA of such Person for such period to the Fixed Charges of such Person for such period.  In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (for purposes of this definition, the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance,

 

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repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.

 

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

 

(a)                                 Investments and acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect (including all pro forma cost savings calculated in accordance with Section 1.06(iv)) as if they had occurred on the first day of the four-quarter reference period and Consolidated Adjusted EBITDA for such reference period will be calculated on the same pro forma basis;

 

(b)                                 the Consolidated Adjusted EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;

 

(c)                                  the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

 

(d)                                 any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

 

(e)  any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and

 

(f)  if any Indebtedness that is being incurred on the Calculation Date bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness).

 

If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any Restricted Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto (including any pro forma cost savings calculated in accordance with Section 1.06(iv)) for such period as if such Investment, acquisition or disposition, or classification of such operation as discontinued had occurred at the beginning of the applicable four-quarter period.

 

Fixed Charges” shall mean, with respect to any specified Person for any period, the sum, without duplication, of:

 

(a)                                 the Consolidated Interest Expense of such Person and its Restricted Subsidiaries (other than interest expense of any Person the Consolidated Adjusted EBITDA of which is excluded from the Consolidated Adjusted EBITDA of such Person) for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest

 

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payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus

 

(b)                                 the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

 

(c)                                  any interest accruing on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon; plus

 

(d)                                 the product of (i) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable in Equity Interests of the Borrower (other than Disqualified Stock) or to the Borrower or a Restricted Subsidiary of the Borrower, times (ii) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP; minus

 

(e)                                  interest income for such period.

 

Foreign Agent” shall mean an Agent that is not a U.S. Person.

 

Foreign Lender” shall mean a Lender that is not a U.S. Person.

 

Foreign Subsidiary” of any Person shall mean any Restricted Subsidiary of such Person that is not a Domestic Subsidiary.

 

Fourth Amendment” shall mean that certain Fourth Amendment to Credit Agreement, dated as of January 10, 2017, among the Borrower, the Guarantors party thereto, the financial institutions party thereto as Extending RL Lenders, Upsizing Extending RL Lenders, “Incremental RL Lenders” and/or “Issuing Lenders”, and the Administrative Agent.

 

Fourth Amendment Effective Date” shall mean the first date that all of the conditions precedent in Section 4 of the Fourth Amendment are satisfied or waived in accordance with Section 4 of the Fourth Amendment.

 

Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

 

GAAP” shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided, however, that if any operating lease would be recharacterized as a capital lease due to changes in the accounting treatment of such operating leases under GAAP since the Closing Date, then solely with respect to the accounting treatment of any such lease, GAAP shall be interpreted as it was in effect on the Closing Date.

 

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GasCo” shall have the meaning provided in the preamble hereto.

 

GasCo CS Letter of Credit Agreement” shall have the meaning provided in the preamble hereto.

 

GasCo Revolving Credit Agreement” shall have the meaning provided in the preamble hereto.

 

GasCo Term Loan Agreement” shall have the meaning provided in the preamble hereto.

 

Governmental Authority” shall mean any nation or government, or any state, province, territory or other political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, or any governmental or non-governmental authority regulating the generation and/or transmission of energy, including Electric Reliability Council of Texas.

 

Granting Lender” shall have the meaning provided in Section 13.04(g).

 

Guarantee and Collateral Agreement” shall have the meaning provided in Section 6.07(a).

 

Guarantee and Collateral Agreement Collateral” shall mean all “Collateral” as defined in the Guarantee and Collateral Agreement, but excluding any Excluded Assets.

 

Havana” shall mean the 441MW coal fired power generation facility owned by a Subsidiary of the Borrower located in Havana, Illinois.

 

Havana 1-5 Units” shall mean the decommissioned units 1 through 5 located at the power generation facility owned by a Subsidiary of the Borrower and located in Mason County, Illinois.

 

Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, which is prohibited, limited or regulated by any Environmental Law.

 

Hedging Obligations” shall mean, with respect to any specified Person, the obligations of such Person under:

 

(a)                                 currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; or

 

(b)                                 (i) agreements or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates, commodity prices or commodity transportation or transmission pricing or availability; (ii) any netting arrangements, power purchase and sale agreements, fuel purchase and sale agreements, swaps, options and other agreements, in each case, that fluctuate in value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements for commercial

 

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or trading activities with respect to the purchase, transmission, distribution, sale, lease or hedge of any energy related commodity or service.

 

Hennepin” shall mean the 293MW coal fired power generation facility owned by a Subsidiary of the Borrower located in Hennepin, Illinois.

 

Highest Adjustable Applicable Margins” shall have the meaning provided in the definition of “Applicable Margin.”

 

Holdings CS Letter of Credit Agreement” shall have the meaning provided in the preamble hereto.

 

Immaterial Subsidiary” shall mean, at any time, any Restricted Subsidiary of the Borrower that is designated by the Borrower as an “Immaterial Subsidiary” if and for so long as such Restricted Subsidiary, together with all other Immaterial Subsidiaries, has (i) total assets at such time not exceeding 5% of the Borrower’s Consolidated Total Assets as of the last day of the most recently completed Test Period and (ii) total revenues and operating income for the most recently completed Test Period not exceeding 5% of the Borrower’s consolidated revenues and operating income for such Test Period, respectively; provided that such Restricted Subsidiary shall be an Immaterial Subsidiary only to the extent that and for so long as all of the above requirements are satisfied.

 

Incremental Amendment” shall have the meaning provided in Section 2.15(d).

 

Incremental Facility” shall mean (i) each Incremental Term Loan, (ii) each Revolving Commitment Increase and (iii) each Incremental Revolving Commitment.

 

Incremental Facility Closing Date” shall have the meaning provided in Section 2.15(e).

 

Incremental Revolver” shall have the meaning provided in Section 2.15(a).

 

Incremental Revolving Commitment” shall have the meaning provided in Section 2.15(a).

 

Incremental Revolving Loans” shall have the meaning provided in Section 2.15(a).

 

Incremental Term Loans” shall have the meaning provided in Section 2.15(a).

 

Incremental Tranche A Revolving Loan Commitment” shall mean, for each Lender party to this Agreement on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.01(b) directly below the column entitled “Incremental Tranche A Revolving Loan Commitment,” as the same may from time to time be (x) reduced or terminated pursuant hereto, (y) increased (but only with the consent of the respective Lender) in accordance with the terms hereof or (z) adjusted as a result of assignments to or from such Lender pursuant hereto.

 

Incremental Tranche A Revolving Loan Maturity Date” shall mean April 1, 2020.

 

Incremental Tranche A Revolving Loans” shall mean all Revolving Loans made from time to time pursuant to the Incremental Tranche A Revolving Loan Commitments.

 

Incremental Tranche B Revolving Loan Commitment” shall mean, for each Lender party to this Agreement on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.01(b) directly below the column entitled “Incremental Tranche B Revolving Loan Commitment,” as the

 

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same may from time to time be (x) reduced or terminated pursuant hereto, (y) increased (but only with the consent of the respective Lender) in accordance with the terms hereof or (z) adjusted as a result of assignments to or from such Lender pursuant hereto.

 

Incremental Tranche B Revolving Loan Maturity Date” shall mean April 2, 2020.

 

Incremental Tranche B Revolving Loans” shall mean all Revolving Loans made from time to time pursuant to the Incremental Tranche B Revolving Loan Commitments.

 

Incremental Tranche C Term Loan Commitment” shall mean, for each Lender party to this Agreement on the Third Amendment Effective Date, the amount set forth opposite such Lender’s name on Schedule 1.01(b) directly below the column entitled “Incremental Tranche C Term Loan Commitment,” as the same may from time to time be (x) reduced or terminated pursuant hereto, (y) increased (but only with the consent of the respective Lender) in accordance with the terms hereof or (z) adjusted as a result of assignments to or from such Lender pursuant hereto.

 

Incremental Tranche C Term Loan Maturity Date” shall mean the date that is seven years after the Third Amendment Effective Date.

 

Incremental Tranche C Term Loans” shall have the meaning provided in Section 2.01(b)(y).

 

Indebtedness” shall mean, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables, except as provided in clause (e) below), whether or not contingent:

 

(a)                                 in respect of borrowed money;

 

(b)                                 evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(c)                                  in respect of banker’s acceptances;

 

(d)                                 representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;

 

(e)                                  representing the balance deferred and unpaid of the purchase price of any property (including trade payables) or services due more than six months after such property is acquired or such services are completed; or

 

(f)                                   representing the net amount owing under any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP.  In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person; provided, that the amount of such Indebtedness shall be deemed not to exceed the lesser of the amount secured by such Lien and the value of the Person’s property securing such Lien.

 

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Indebtedness to be Refinanced” shall mean the existing Indebtedness of the Borrower and its respective Subsidiaries outstanding on the Closing Date pursuant to the GasCo Term Loan Agreement, the GasCo Revolving Credit Agreement, the CoalCo Term Loan Agreement, the GasCo CS Letter of Credit Agreement, the CoalCo CS Letter of Credit Agreement, the Holdings CS Letter of Credit Agreement and the Dynegy Inc. CS Letter of Credit Agreement, but exclusive of any letters of credit thereunder that become Existing Letters of Credit pursuant hereto.

 

Indemnified Person” shall have the meaning provided in Section 13.01(a).

 

Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

Independence” shall mean Sithe/Independence Power Partners, L.P., a Delaware limited partnership.

 

Independent Financial Advisor” shall mean an accounting, appraisal, investment banking firm or consultant to Persons engaged in a Permitted Business of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged.

 

Individual RL Exposure” of any RL Lender shall mean, at any time, the sum of (x) the aggregate principal amount of all Revolving Loans made by such RL Lender and then outstanding, (y) such RL Lender’s RL Percentage in each then outstanding Letter of Credit multiplied by the sum of the Stated Amount of the respective Letter of Credit and any Unpaid Drawings relating thereto and (z) such RL Lender’s RL Percentage multiplied by the aggregate principal amount of then outstanding Swingline Loans.

 

Initial Letter of Credit Commitment” shall mean the Letter of Credit Commitment of each Issuing Lender as in effect on the First Amendment Effective Date immediately prior to the effectiveness of the First Amendment (as the same may be reduced pursuant to Section 3.02(b) hereof).

 

Initial Revolving Loan Commitment” shall mean, for each Lender party to this Agreement on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.01(b) directly below the column entitled “Initial Revolving Loan Commitment,” as the same may from time to time be (x) reduced or terminated pursuant hereto, (y) increased (but only with the consent of the respective Lender) in accordance with the terms hereof or (z) adjusted as a result of assignments to or from such Lender pursuant hereto.

 

Initial Revolving Loan Maturity Date” shall mean April 23, 2018.

 

Initial Revolving Loans” shall mean all Revolving Loans made from time to time pursuant to the Initial Revolving Loan Commitments.

 

Initial Term Loans” shall have the meaning provided in Section 2.01(b).

 

Initial Tranche B-1 Term Loan Commitment” shall mean, for each Lender party to this Agreement on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.01(b) directly below the column entitled “Initial Tranche B-1 Term Loan Commitment,” as the same may from time to time be (x) reduced or terminated pursuant to the terms herein or (y) adjusted as a result of assignments to or from such Lender pursuant hereto.

 

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Initial Tranche B-1 Term Loan Maturity Date” shall mean April 23, 2020.

 

Initial Tranche B-1 Term Loans” shall have the meaning provided in Section 2.01(a).

 

Initial Tranche B-2 Term Loan Commitment” shall mean, for each Lender party to this Agreement on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.01(b) directly below the column entitled “Initial Tranche B-2 Term Loan Commitment,” as the same may from time to time be (x) reduced or terminated pursuant to the terms herein or (y) adjusted as a result of assignments to or from such Lender pursuant hereto.

 

Initial Tranche B-2 Term Loan Maturity Date” shall mean April 23, 2020.

 

Initial Tranche B-2 Term Loans” shall have the meaning provided in Section 2.01(b).

 

Intercreditor Agreement” shall mean the Collateral Trust and Intercreditor Agreement, substantially in the form of Exhibit I, among the Borrower, the Subsidiary Guarantors, the Collateral Trustee, for the benefit of the Secured Parties, and each other Person from time to time party thereto, including one or more Secured Debt Representatives (as defined in the Intercreditor Agreement).

 

Interest Determination Date” shall mean, with respect to any LIBOR Loan, the second Business Day prior to the commencement of any Interest Period relating to such LIBOR Loan.

 

Interest Period” shall have the meaning provided in Section 2.09.

 

Interest Rate/Currency Hedging Agreement” shall mean any agreement of the type described in clauses (a), (b) or (c) of the definition of “Interest Rate/Currency Hedging Obligations”.

 

Interest Rate/Currency Hedging Obligations” shall mean, with respect to any specified Person, the obligations of such Person under (a) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements, (b) other agreements or arrangements designed to manage interest rates or interest rate risk and (c) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates, in each case under clauses (a), (b) and (c), entered into by such Person in the ordinary course of business and not for speculative purposes.

 

Investments” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.  Except as otherwise provided in this Agreement, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

 

Notwithstanding anything to the contrary herein, in the case of any Investment made by the Borrower or a Restricted Subsidiary of the Borrower in a Person substantially concurrently with a cash distribution by such Person to the Borrower or a Subsidiary Guarantor (a “Concurrent Cash Distribution”), then: (a)  the Concurrent Cash Distribution shall be deemed to be Net Sale Proceeds received in connection with an Asset Sale and applied as set forth in Section 5.02(f); and (c)  the amount of such Investment shall be deemed to be the Fair Market Value of the Investment, less the amount of the Concurrent Cash Distribution.

 

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IRS” shall mean the U.S. Internal Revenue Service.

 

Issuing Lender” shall mean each of Barclays PLC, Credit Suisse, Morgan Stanley Bank, N.A., Royal Bank of Canada and UBS AG Stamford Branch (except as otherwise provided in Section 12.09) and any other Lender reasonably acceptable to the Administrative Agent and the Borrower which agrees to issue Letters of Credit hereunder; provided, however, that, unless otherwise agreed by such Person, Morgan Stanley Bank, N.A., Barclays PLC, Credit Suisse, and/or their respective Affiliates shall only be Issuing Lenders hereunder with respect to standby Letters of Credit.  Any Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by one or more Affiliates of such Issuing Lender (and such Affiliate shall be deemed to be an “Issuing Lender” for all purposes of the Credit Documents).  The commitment of each Issuing Lender with respect to Letters of Credit shall be the amount set forth opposite such Issuing Lender’s name on Schedule 1.01(b) under the caption “Letter of Credit Commitment” (as may be adjusted by the Borrower and each applicable Issuing Lender from time to time, each a “Letter of Credit Commitment” or, if an Issuing Lender has entered into an Assignment and Assumption Agreement with respect to such Letter of Credit Commitment, set forth for such Issuing Lender in the Register maintained by the Administrative Agent pursuant to Section 13.12 as the Issuing Lender’s “Letter of Credit Commitment”); provided that any RL Lender may, from time to time, become an Issuing Lender under this Agreement with the protections and rights afforded to Issuing Lenders hereunder by executing a joinder, in form and substance reasonably satisfactory to (and acknowledged and accepted by) the Administrative Agent and the Borrower, indicating such RL Lender’s Letter of Credit Commitment (which commitment may exceed such RL Lender’s Revolving Loan Commitment) and upon the execution and delivery of any such joinder, such RL Lender shall be an Issuing Lender for all purposes hereof.

 

Latest Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Incremental Tranche C-1 Term Loans, Initial Revolving Loan Commitments, Incremental Tranche A Revolving Loan Commitments, Incremental Tranche B Revolving Loan Commitments, Extended Initial Revolving Loan Commitments, Incremental Term Loan, other Incremental Revolver, Other Term Loan, Other Revolving Loan, Extended Revolving Loan Commitment or any Extended Term Loan, in each case as extended in accordance with this Agreement from time to time.

 

Leaseholds” of any Person shall mean all the right, title and interest of such Person as lessee, sublessee or licensee in, to and under leases, subleases or licenses of land, improvements and/or fixtures.

 

Lender” shall mean each financial institution listed on Schedule 1.01(a), as well as any Person that becomes a “Lender” hereunder.

 

Lender Default” shall mean, as to any Lender, (i) the wrongful refusal (which has not been retracted) of such Lender or the failure of such Lender (which has not been cured within two (2) Business Days) to make available its portion of any Borrowing (including any Mandatory Borrowing) or to fund its portion of any unreimbursed payment with respect to a Letter of Credit pursuant to Section 3.04(c) or 3.05, (ii) such Lender having been deemed insolvent or having become the subject of a bankruptcy or insolvency proceeding or a takeover by a regulatory authority or (iii) such Lender having made a public statement or notified the Administrative Agent, the Swingline Lender, any Issuing Lender and/or any Credit Party in writing (x) that it does not intend to comply with its obligations under Section 2.01, Section 2.04 or Section 3, as the case may be, in circumstances where such non-compliance would constitute a breach of such Lender’s obligations under such respective Sections or (y) of the events described in preceding clause (ii); provided that, for purposes of (and only for purposes of) Section 2.14 and any documentation entered into pursuant to the Letter of Credit Back-Stop Arrangements (and the term “Defaulting Lender” as used

 

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therein), the term “Lender Default” shall also include, as to any Lender, (i) any Affiliate of such Lender that has “control” (within the meaning provided in the definition of “Affiliate”) of such Lender having been deemed insolvent or having become the subject of a bankruptcy or insolvency proceeding or a takeover by a regulatory authority, (ii) any previously cured “Lender Default” of such Lender under this Agreement, unless such Lender Default has ceased to exist for a period of at least sixty (60) consecutive days, (iii) such Lender has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon receipt of such written confirmation by the Administrative Agent and the Borrower), (iv) the failure of such Lender to make available its portion of any Borrowing (including any Mandatory Borrowing) or to fund its portion of any unreimbursed payment with respect to a Letter of Credit pursuant to Section 3.04(c) or 3.05 within one (1) Business Day of the date (x) the Administrative Agent (in its capacity as a Lender) or (y) Lenders constituting the Majority Lenders with Revolving Loan Commitments has or have, as applicable, funded its or their portion thereof and (v) has, or has a direct or indirect parent company that has, (A) become the subject of a proceeding under Bankruptcy Law or any other debtor relief law, or (B) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity.

 

Letter of Credit” shall have the meaning provided in Section 3.01(a) and shall include all Existing Letters of Credit.

 

Letter of Credit Back-Stop Arrangements” shall have the meaning provided in Section 2.14(a).

 

Letter of Credit Commitment” shall have the meaning provided in the definition of Issuing Lender (as may be reduced pursuant to Section 3.02(b) hereof).

 

Letter of Credit Exposure” shall mean, at any time, the aggregate amount of all Letter of Credit Outstandings at such time.  The Letter of Credit Exposure of any RL Lender at any time shall be its RL Percentage of the aggregate Letter of Credit Exposure at such time.

 

Letter of Credit Fee” shall have the meaning provided in Section 4.01(b).

 

Letter of Credit Outstandings” shall mean, at any time, the sum of (i) the Stated Amount of all outstanding Letters of Credit at such time and (ii) the aggregate amount of all Unpaid Drawings in respect of all Letters of Credit at such time.

 

Letter of Credit Request” shall have the meaning provided in Section 3.03(a).

 

LIBO Rate” shall mean, with respect to any Borrowing of LIBOR Loans for any Interest Period, (i) the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the commencement of such Interest Period by reference to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) for a period equal to such Interest Period; provided that to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum (rounded upwards to the next 1/100th of 1.00%) determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately

 

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11:00 a.m. (London time) on the date that is two (2) Business Days prior to the beginning of such Interest Period, divided by (ii) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D); provided that, notwithstanding the foregoing, in the case of Initial Term Loans or Incremental Tranche C-1 Term Loans which are incurred or maintained as LIBOR Loans, the “LIBO Rate” shall in no event be less than 1.00% per annum.

 

LIBOR Loan” shall mean each Loan (other than a Swingline Loan) designated as such by the Borrower at the time of the incurrence thereof or conversion thereto.

 

Lien” shall mean any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other) or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement) and any preference or priority having the effect of security, and any lease having substantially the same effect as any of the foregoing.

 

Loan” shall mean an extension of credit by a Lender to the Borrower under Section 2.

 

Loan Participant” shall mean any Person who participates in the Loans pursuant to Section 13.04; provided that only Eligible Transferees may be Loan Participants.

 

Majority Lenders” of any Class shall mean those Non-Defaulting Lenders which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of the other Class under this Agreement were repaid in full and all Commitments with respect thereto were terminated.

 

Mandatory Borrowing” shall have the meaning provided in Section 2.01(e).

 

Margin Stock” shall have the meaning provided in Regulation U.

 

Material Adverse Effect” shall mean any event or circumstance which has had a material adverse effect on (i) the business, assets, financial condition or results of operations, in each case, of the Borrower and its Restricted Subsidiaries, taken as a whole, (ii) the rights and remedies, taken as a whole, of the Administrative Agent, the Collateral Trustee and Lenders under the Credit Documents or (iii) the ability of the Borrower and the Subsidiary Guarantors, taken as a whole, to perform their payment obligations under the Credit Documents.

 

Material Indebtedness” shall have the meaning provided in Section 11.04(a).

 

Maturity Date” shall mean, with respect to the relevant Class of Loans, the Initial Tranche B-1 Term Loan Maturity Date, the Initial Tranche B-2 Term Loan Maturity Date, the Incremental Tranche C-1 Term Loan Maturity Date, the Initial Revolving Loan Maturity Date, the Incremental Tranche A Revolving Loan Maturity Date, the Incremental Tranche B Revolving Loan Maturity Date, or the Extended Initial Revolving Loan Maturity Date, as the case may be; provided, that the reference to Maturity Date with respect to (x) Other Term Loans and Other Revolving Loans shall be the final maturity date as specified in the applicable Refinancing Amendment, (y) Extended Term Loans and Extended Revolving Loans, shall be the final maturity date as specified in the applicable Extension Offer and (z) any Incremental Facility, shall be the final maturity date as specified in the applicable Incremental Amendment.

 

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Maximum Incremental Facilities Amount” shall mean, at any date of determination, the sum of (a) $100,000,000, plus (b) an additional $100,000,000 from time to time after all Tranche B-1 Term Loans have been repaid in full or refinanced in their entirety with the proceeds of a Tranche B-1 Debt Offering; provided that the “Maximum Incremental Facilities Amount” shall be an unlimited amount on any date if (and to the extent that), after giving effect to the incurrence of all Incremental Facilities made or entered into on and as of such date, the Senior Secured Leverage Ratio shall be less than or equal to 4.25:1.00, determined on a Pro Forma Basis as of the last day of the most recently ended Calculation Period (but excluding cash proceeds of all Incremental Facilities from any “netting” calculations in determining Consolidated Senior Secured Net Debt); provided that, for purposes of the preceding proviso, (i) each Incremental Facility shall be treated as if it is secured on a senior secured basis, whether or not so secured and (ii) and all Incremental Revolving Facilities shall be treated as fully drawn.

 

Maximum Rate” shall have the meaning provided in Section 13.17.

 

Maximum Swingline Amount” shall mean $50,000,000.

 

Minimum Borrowing Amount” shall mean, at any time, (i) for Revolving Loans, the lesser of $5,000,000 and the Total Revolving Loan Commitment at such time and (ii) for Swingline Loans, $1,000,000.

 

Minimum Extension Condition” shall have the meaning provided in Section 2.16(b).

 

Minority Investment” shall mean any Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary owns Capital Stock.

 

Moody’s” shall mean Moody’s Investors Service, Inc., together with its successors.

 

Mortgage” shall mean a mortgage, deed of trust, deed to secure debt, debenture or similar security instrument.

 

Mortgage Policy” shall mean an ALTA Lender’s title insurance policy (Form 2006).

 

Mortgaged Property” shall mean any Real Property owned in fee by the Borrower or any of its Restricted Subsidiaries with a Fair Market Value or book value in excess of $25,000,000, which is encumbered (or required to be encumbered) by a Mortgage pursuant to the terms hereof; provided, that Mortgaged Property shall not include the South Bay Facility, the Vermilion Facility, the Havana 1-5 Units, the Wood River 1-3 Units, the Oglesby Facility or the Stallings Facility or any Buffer Land to (a) any of the foregoing properties or (b) the Baldwin, Havana and Hennepin plants.

 

Moss Landing” shall mean Dynegy Moss Landing, LLC.

 

Multiemployer Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to contribute of) the Borrower or any of its Subsidiaries or with respect to which the Borrower or any of its Subsidiaries has had any liability (including on account of an ERISA Affiliate).

 

NAIC” shall mean the National Association of Insurance Commissioners.

 

Necessary CapEx Debt” shall mean Indebtedness of the Borrower or its Restricted Subsidiaries incurred for the purpose of financing Necessary Capital Expenditures.

 

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Necessary Capital Expenditures” shall mean capital expenditures that are required by Applicable Law (other than Environmental Laws) or undertaken for health and safety reasons or to prevent catastrophic failure of a unit. The term “Necessary Capital Expenditures” does not include any capital expenditure undertaken primarily to increase the efficiency of, expand or re-power any power generation facility.

 

Net Debt Proceeds” shall mean with respect to any incurrence of Indebtedness, the gross cash proceeds (net of underwriting discounts and commissions, fees and other costs associated therewith, including, without limitation, those of attorneys, accountants and other professionals) received by the respective Person from the respective incurrence of such Indebtedness.

 

Net Income” shall mean, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends or accretion, excluding, however:

 

(a)                                 any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with: (i) any Asset Sale (without giving effect to the threshold provided for in the definition thereof); or (ii) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

 

(b)                                 any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss.

 

Net Recovery Event Proceeds” shall mean, with respect to any Recovery Event, the gross cash proceeds received by the respective Person in connection with such Recovery Event, net of (i) costs, expenses and taxes incurred in connection with such Recovery Event, (ii) in the case of any Recovery Event regarding a Non-Wholly Owned Subsidiary, the pro rata portion of such proceeds that is contractually required (including pursuant to the organizational documents of such Subsidiary) to be paid to third Persons holding minority interests of such Subsidiary at the time of such Recovery Event (with such portion not to exceed such third Person’s proportionate share of such proceeds based on its relative holding of Equity Interests in such Subsidiary), (iii) any funded escrow established in connection with any such Recovery Event (provided, that to the extent that any amounts are released from such escrow to the Borrower or a Restricted Subsidiary thereof, such amounts, net of any related expenses, shall constitute Net Recovery Event Proceeds), (iv) any taxes paid or reasonably estimated to be payable in connection therewith, (v) the amount of such gross cash proceeds required to be used to permanently repay any Indebtedness (other than Indebtedness pursuant to this Agreement and Credit Agreement Refinancing Indebtedness) which is secured by a Lien (other than a Lien that ranks pari passu with, or subordinated to, the Lien securing the Obligations) on the respective assets which were the subject of such Recovery Event and (vi) without duplication of clause (iii) above, the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (iv) above) arising from Plan and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (provided, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) or any estimated taxes referred to under clause (iii) above that are not required to be paid to any taxation or other Governmental Authority shall be deemed to be Net Recovery Event Proceeds of such sale or disposition of assets occurring on the date of such reduction).

 

Net Sale Proceeds” shall mean, with respect to any Asset Sale, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received) received from such Asset Sale, net of (i) transaction fees,

 

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expenses and costs (including, without limitation, any underwriting, brokerage or other customary selling commissions, legal, advisory and other fees and expenses (including title and recording expenses), associated therewith and sales, VAT and transfer taxes arising therefrom), (ii) payments of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within sixty (60) days after, the date of such sale or other disposition, (iii) the amount of gross proceeds required to be used to permanently repay any Indebtedness (other than Indebtedness pursuant to this Agreement and Credit Agreement Refinancing Indebtedness) which is secured by a Lien (other than a Lien that ranks pari passu with, or subordinated to, the Lien securing the Obligations) on the respective assets which were the subject of such Asset Sale, (iv) taxes paid or reasonably estimated to be payable in connection therewith, (v) any funded escrow established pursuant to the documents evidencing any such Asset Sale to secure any indemnification obligations or adjustments to the purchase price associated with any such Asset Sale (provided, that to the extent that any amounts are released from such escrow to the Borrower or a Subsidiary thereof, such amounts, net of any related expenses, shall constitute Net Sale Proceeds) and (vi) without duplication of clause (v) above, the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (iv) above) arising from Plan and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (provided, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) or any estimated taxes referred to under clause (iv) above that are not required to be paid to any taxation or other Governmental Authority shall be deemed to be Net Sale proceeds of such sale or disposition of assets occurring on the date of such reduction).

 

Non-Defaulting Lender” and “Non-Defaulting RL Lender” shall mean and include each Lender or RL Lender, respectively, other than any Defaulting Lender.

 

Non-Recourse Debt” shall mean Indebtedness:

 

(a)                                 as to which neither the Borrower nor any of its Restricted Subsidiaries (other than an Excluded Project Subsidiary) (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) other than pursuant to a Non-Recourse Guarantee or any arrangement to provide or guarantee to provide goods and services on an arm’s length basis, (ii) is directly or indirectly liable as a guarantor or otherwise, other than pursuant to a Non-Recourse Guarantee, or (iii) constitutes the lender;

 

(b)                                 no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (except Non-Recourse Indebtedness (x) of one or more Excluded Project Subsidiaries and its Subsidiaries and/or direct or indirect parents and their subsidiaries, that, in each case, is an Excluded Project Subsidiary or (y) pursuant to one or more Non-Recourse Guarantees) of the Borrower or any of its Restricted Subsidiaries (excluding, for the avoidance of doubt, any such Indebtedness resulting from a Non-Recourse Guarantee that is otherwise permitted hereunder)  to declare a default on such other Indebtedness or cause the payment of such other Indebtedness to be accelerated or payable prior to its Stated Maturity; and

 

(c)                                  in the case of Non-Recourse Debt incurred after the Closing Date, as to which the lenders have been notified in writing, or have otherwise agreed, that they will not have any recourse to the stock or assets of the Borrower or any of its Restricted Subsidiaries except as otherwise permitted by clauses (a) or (b) above;

 

provided, however, that the following shall be deemed to be Non-Recourse Debt: (i) guarantees with respect to debt service reserves established with respect to a Subsidiary to the extent that

 

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such guarantee shall result in the immediate payment of funds, pursuant to dividends or otherwise, in the amount of such guarantee; (ii) contingent obligations of the Borrower or any Subsidiary to make capital contributions to a Subsidiary; (iii) any credit support or liability consisting of reimbursement obligations in respect of Letters of Credit issued under and subject to the terms of this Agreement to support obligations of a Subsidiary; (iv) agreements of the Borrower or any Subsidiary to provide, or guarantees or other credit support (including letters of credit) by the Borrower or any Subsidiary of any agreement of another Subsidiary to provide, corporate, management, marketing, administrative, technical, energy management or marketing, engineering, procurement, construction, operation and/or maintenance services to such Subsidiary, including in respect of the sale or acquisition of power, emissions, fuel, oil, gas or other supply of energy, (v) any agreements containing Hedging Obligations, and any power purchase or sale agreements, fuel purchase or sale agreements, emissions credit purchase or sales agreements, power transmission agreements, fuel transportation agreements, fuel storage agreements, commercial or trading agreements and any other similar agreements entered into between the Borrower or any Subsidiary with or otherwise involving any other Subsidiary, including any guarantees or other credit support (including letters of credit) in connection therewith, (vi) any Investments in a Subsidiary and, for the avoidance of doubt, pledges by the Borrower or any Subsidiary of the Equity Interests of any Excluded Subsidiary that are directly owned by the Borrower or any Subsidiary in favor of the agent or lenders in respect of such Excluded Subsidiary’s Non-Recourse Debt and (vii) any Non-Recourse Guarantees, to the extent in the case of (i) through (vii)  otherwise permitted by this Agreement.

 

Non-Recourse Guarantee” shall mean any guarantee by the Borrower or a Subsidiary Guarantor of Non-Recourse Debt incurred by an Excluded Project Subsidiary as to which the lenders of such Non-Recourse Debt have acknowledged that they will not have any recourse to the stock or assets of the Borrower or any Subsidiary Guarantor, except to the limited extent set forth in such guarantee.

 

Non-Wholly Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.

 

Note” shall mean any Term Note, any Revolving Note and the Swingline Note.

 

Notice of Borrowing” shall have the meaning provided in Section 2.03(a).

 

Notice of Conversion/Continuation” shall have the meaning provided in Section 2.06.

 

Notice of Intent to Cure” shall have the meaning provided in Section 11.10.

 

Notice Office” shall mean (i) for credit notices, the office of the Administrative Agent located at Eleven Madison Avenue, 23rd Floor, New York, New York 10010, or such other office or person as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

 

Obligations” shall mean all amounts owing by the Borrower or any Subsidiary Guarantor to the Administrative Agent, the Collateral Agent, any Issuing Lender, the Swingline Lender or any Lender pursuant to the terms of this Agreement or any other Credit Document (including all interest which accrues after the commencement of any case or proceeding in bankruptcy after the insolvency of, or for the reorganization of the Borrower or any of its Restricted Subsidiaries, whether or not allowed in such case or proceeding but excluding all Excluded Hedging Obligations).

 

Officer’s Certificate” shall mean a certificate signed on behalf of the Borrower by an Authorized Officer of the Borrower, which certificate shall include: (a) a statement that each of the Officers making such certificate has read the applicable covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such

 

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certificate are based, (c) a statement that, in the opinion of each such Officer, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not the applicable covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of each such Officer, the applicable condition or covenant has been complied with.

 

Oglesby Facility” shall mean the retired peaking generation facility owned by a Subsidiary of Borrower and located in Oglesby, Illinois.

 

Other Applicable Indebtedness” shall have the meaning provided in Section 5.02(f).

 

Other Connection Taxes” shall mean with respect to any Lender or Agent, Taxes imposed as a result of a present or former connection between such Lender or Agent and the jurisdiction imposing such Tax (other than connections arising solely from such Lender or Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).

 

Other Revolving Commitments” shall mean one or more Classes of revolving credit commitments hereunder that result from a Refinancing Amendment.

 

Other Revolving Loans” shall mean one or more Classes of Revolving Loans that result from a Refinancing Amendment.

 

Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.13).

 

Other Term Loan Commitments” shall mean one or more Classes of term loan commitments hereunder that result from a Refinancing Amendment.

 

Other Term Loans” shall mean one or more Classes of Term Loans that result from a Refinancing Amendment.

 

Participant” shall have the meaning provided in Section 3.04(a).

 

Participant Register” shall have the meaning provided in Section 13.04(h).

 

Payment Office” shall mean the office of the Administrative Agent that is provided in writing to the other parties hereto by the Administrative Agent at times that payments are due.

 

PBGC” shall mean the U.S. Pension Benefit Guaranty Corporation.

 

Permitted Business” shall mean the business of acquiring, constructing, managing, developing, improving, maintaining, leasing, owning and operating a power or energy related facility, together with any related assets or facilities, or engaging in wholesale or retail sale of power, as well as any other activities reasonably related to, ancillary to, or incidental to, any of the foregoing activities (including acquiring and holding reserves), including investing in a power or energy related facility.

 

Permitted Debt” shall have the meaning provided in Section 10.04(b).

 

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Permitted First Priority Refinancing Debt” shall mean any secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations (other than those secured on a junior priority basis) and is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (iii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Subsidiary Guarantors and (iv) the holders of such Indebtedness (or their representative) and the Administrative Agent shall have acceded to the Intercreditor Agreement in accordance with the terms thereof; provided that, notwithstanding anything herein to the contrary, such Permitted First Priority Refinancing Debt may not be used to repay, refund, refinance or otherwise replace any or all of the Initial Tranche B-1 Term Loans.

 

Permitted Holder” shall mean Franklin Advisers, Inc. and/or one or more of its Affiliates.

 

Permitted Investments” shall mean:

 

(a)                                 any Investment in the Borrower or in a Restricted Subsidiary of the Borrower that is a Subsidiary Guarantor;

 

(b)                                 any Investment in an Immaterial Subsidiary;

 

(c)                                  any Investment in an Excluded Foreign Subsidiary for so long as the Excluded Foreign Subsidiaries do not collectively own more than 5% of the Consolidated Total Assets of the Borrower as of the most recent Fiscal Quarter end for which financial statements are publicly available;

 

(d)                                 any issuance of letters of credit by, or for the account of, the Borrower and/or any of its Restricted Subsidiaries to support the obligations of any of the Excluded Subsidiaries;

 

(e)                                  any Investment in Cash Equivalents (and, in the case of Excluded Subsidiaries only, Cash Equivalents or other liquid investments permitted under any Credit Facility to which it is a party);

 

(f)                                   any Investment by the Borrower or any Restricted Subsidiary of the Borrower in a Person, if as a result of such Investment:

 

(i)                                     such Person becomes a Restricted Subsidiary of the Borrower and a Subsidiary Guarantor or an Immaterial Subsidiary; or

 

(ii)                                  such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary of the Borrower that is a Subsidiary Guarantor;

 

(g)                                  any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 10.08;

 

(h)                                 Investments made as a result of the sale of Equity Interests of any Person that is a Subsidiary of the Borrower such that, after giving effect to any such sale, such Person is no longer a Subsidiary of the Borrower, if the sale of such Equity Interests constitutes an Asset Sale and the Net Sale Proceeds received from such Asset Sale are applied as set forth in Section 5.02(f);

 

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(i)                                     Investments to the extent made in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Borrower;

 

(j)                                    any Investments received in compromise or resolution of (i) obligations of trade creditors or customers of the Borrower or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (ii) litigation, arbitration or other disputes with Persons who are not Affiliates;

 

(k)                                 Investments represented by Hedging Obligations;

 

(l)                                     loans or advances to employees;

 

(m)                             repayments or prepayments of the Loans or pari passu Indebtedness;

 

(n)                                 any Investment in securities of trade creditors, trade counter-parties or customers received in compromise of obligations of those Persons, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;

 

(o)                                 negotiable instruments held for deposit or collection;

 

(p)                                 receivables owing to the Borrower or any Restricted Subsidiary of the Borrower and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Borrower or any such Restricted Subsidiary of the Borrower deems reasonable under the circumstances;

 

(q)                                 payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes;

 

(r)                                    Investments resulting from the acquisition of a Person that at the time of such acquisition held instruments constituting Investments that were not acquired in contemplation of, or to finance, the acquisition of such Person;

 

(s)                                   (i) any Investment in (A) any joint ventures in which the Borrower and/or one or more Restricted Subsidiaries (other than Excluded Subsidiaries) owns 50% of the ordinary voting interests therein and (B) any Excluded Project Subsidiary, in each case, engaged primarily in one or more Permitted Businesses, in either case that is made in property and assets (including cash) that are not Core Assets, (ii) any Investments required by the Limited Guaranty given by the Borrower in favor of Ameren Corporation, dated as of March 14, 2013 and (iii) Investments in one or more Unrestricted Subsidiaries in an aggregate amount not to exceed, in the case of this clause (iii), $100,000,000;

 

(t)                                    Investments made pursuant to a commitment that, when entered into, would have complied with the provisions of this Agreement;

 

(u)                                 Investments in any Excluded Subsidiary made by another Excluded Subsidiary;

 

(v)                                 Investments (including letters of credit issued) to support trading or other obligations of Independence in the ordinary course of business, in an aggregate amount not to exceed $75,000,000 at any time outstanding; provided that if Independence does not become a Subsidiary Guarantor on or prior the date that is 180 days after the Closing Date, any and all such Investments shall be deemed to be Investments made pursuant to clause (w) of this definition of Permitted Investments;

 

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(w)                               other Investments made since the Closing Date in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) that are at any time outstanding not to exceed the greater of (i) $125,000,000 and (ii) 2.5% of Consolidated Total Assets; provided, however, that if any Investment pursuant to this clause (w) is made in any Person that is not a Restricted Subsidiary of the Borrower and a Subsidiary Guarantor at the date of the making of the Investment and such Person becomes a Restricted Subsidiary and a Subsidiary Guarantor after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) above, and shall cease to have been made pursuant to this clause (w).

 

Permitted Liens” shall have the meaning provided in Section 10.01.

 

Permitted Refinancing Indebtedness” shall mean any Indebtedness of the Borrower or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge other Indebtedness (and, without duplication, unused commitments) of the Borrower or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that Indebtedness comprised of all or any portion of the Initial Tranche B-1 Term Loans, which may only be refinanced or replaced with a Tranche B-1 Debt Offering; and provided further that:

 

(i)                                     the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness (which for this purpose shall include unused commitments) extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on the Indebtedness and the amount of all expenses and premiums incurred in connection therewith);

 

(ii)                                  such Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

(iii)                               if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

(iv)                              such Indebtedness is incurred either by the Borrower (and may be guaranteed by any Subsidiary Guarantor) or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and

 

(v)                                 (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Latest Maturity Date of all Classes of Loans or Commitments, the Permitted Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Latest Maturity Date of all Classes of Loans or Commitments, the Permitted Refinancing Indebtedness has a Stated Maturity at least 91 days later than the Latest Maturity Date of all Classes of Loans or Commitments.

 

Permitted Second Priority Refinancing Debt” shall mean secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt and is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness (provided, that such Indebtedness may be secured by a Lien on the Collateral that is junior to the Liens securing the

 

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Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt, notwithstanding any provision to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness”) and (iii) the holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to an intercreditor agreement on terms and conditions reasonably satisfactory to the Administrative Agent; provided that, notwithstanding anything herein to the contrary, such Permitted Second Priority Refinancing Debt may not be used to repay, refund, refinance or otherwise replace any or all of the Initial Tranche B-1 Term Loans

 

Permitted Tax Lease” shall mean a sale and leaseback transaction consisting of a “payment in lieu of taxes” program or any similar structure (including leases, sale-leasebacks, etc.) primarily intended to provide tax benefits (and not primarily intended to create Indebtedness).

 

Permitted Unsecured Refinancing Debt” shall mean unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower in the form of one or more series of senior unsecured notes or loans; provided that such Indebtedness constitutes Credit Agreement Refinancing Indebtedness.

 

Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

Plan” shall mean an “employee benefit plan” as defined in Section 3 of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA maintained or contributed to by the Borrower or any of its Subsidiaries or with respect to which the Borrower or any of its Subsidiaries has had any liability (including on account of an ERISA affiliate).

 

Prime Lending Rate” shall mean the rate which the Administrative Agent announces from time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime lending rate changes.  The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by the Administrative Agent, which may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.

 

Pro Forma Basis” shall mean, with respect to compliance with any test, covenant or calculation of any ratio hereunder, the determination or calculations of such test, covenant or ratio (including in connection with any Specified Transaction) in accordance with Section 1.06.

 

Pro Forma Compliance” shall mean, with respect to the covenant in Section 10.07, compliance on a Pro Forma Basis with such covenant in accordance with Section 1.06.

 

Projections” shall mean the projections that are contained in the Confidential Information Memorandum dated April 2, 2013 and that were prepared by or on behalf of the Borrower in connection with the Transaction and made available to the Administrative Agent and the Lenders prior to the Closing Date.

 

Prudent Industry Practice” shall mean those practices and methods as are commonly used or adopted by Persons in the independent power generation industry in the United States in connection with the conduct of the business of such industry, in each case as such practices or methods may evolve from time to time, consistent in all material respects with all applicable legal requirements.

 

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Public Disclosure” shall mean the Borrower’s most recent annual report, Form 10-K for the most recently completed fiscal year, each quarterly report on Form 10-Q or any current reports on Form 8-K (or similar reports filed on successor forms) filed since the initial filing date of such Form 10-K, in each case, filed at least five (5) Business Days prior to the Closing Date.

 

Qualified Equity Interests” shall mean any Equity Interest of the Borrower other than (a) Disqualified Stock and (b) Equity Interests that were used to support an incurrence of Contribution Indebtedness.

 

Quarterly Payment Date” shall mean the last Business Day of each March, June, September and December occurring after the Closing Date.

 

Quarterly Pricing Certificate” shall have the meaning provided in the definition of “Applicable Margin.”

 

Real Property” of any Person shall mean all the right, title and interest of such Person in and to land, improvements and fixtures, which constitute real property, including Leaseholds, to the extent constituting an interest in real property.

 

Recovery Event” shall mean any event that gives rise to the receipt by the Borrower or any of its Restricted Subsidiaries of (a) any cash insurance proceeds or condemnation awards payable (i) by reason of theft, loss, casualty, physical destruction, damage, taking or any other similar event with respect to any property or assets of the Borrower or any of its Restricted Subsidiaries and (ii) under any policy of insurance required to be maintained under Section 9.03, in each case except to the extent such proceeds or awards constitute (x) reimbursement or compensation for amounts previously paid by the Borrower or any of its Restricted Subsidiaries in respect of any such event (as certified to the Administrative Agent by the Borrower pursuant to an Officer’s Certificate delivered by an Authorized Officer not later than the fifth Business Day following the date of the receipt of such proceeds or awards) or (y) amounts payable by reason of any loss of revenues or interruption of business or operations or (b) any compensation or remuneration paid to the Borrower or any of its Restricted Subsidiaries arising from the exercise of any Governmental Authority of its claimed or actual power of eminent domain over the property or assets of the Borrower or any such Restricted Subsidiary.

 

Refinanced Debt” shall have the meaning provided in the definition of “Credit Agreement Refinancing Indebtedness.”

 

Refinanced Revolving Loan Commitments” shall have the meaning provided in Section 13.10(c).

 

Refinanced Term Loans” shall have the meaning provided in Section 13.10(c).

 

Refinancing” shall have the meaning provided in Sections 6.04(a).

 

Refinancing Amendment” shall mean an amendment to this Agreement reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.17.

 

Register” shall have the meaning provided in Section 13.12.

 

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Registered Equivalent Notes” shall mean, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefore pursuant to an exchange offer registered with the SEC.

 

Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

 

Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

 

Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

 

Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

 

Rejection Notice” shall have the meaning provided in Section 5.02(k).

 

Release” shall mean disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, or migrating, into, through or upon any land or water or air, or otherwise entering into the environment.

 

Replaced Lender” shall have the meaning provided in Section 2.13.

 

Replacement Lender” shall have the meaning provided in Section 2.13.

 

Replacement Revolving Loan Commitments” shall have the meaning provided in Section 13.10(c).

 

Replacement Term Loans” shall have the meaning provided in Section 13.10(c).

 

Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period is waived under applicable regulations.

 

Repricing Event” shall mean (a) the incurrence by the Borrower of any Indebtedness (including, without limitation, any new or additional term loans under this Agreement, whether incurred directly or by way of the conversion of the Initial Tranche B-1 Term Loans, the Initial Tranche B-2 Term Loans or the Incremental Tranche C-1 Term Loans into a new tranche of replacement term loans under this Agreement) that is marketed or syndicated to banks and other institutional lenders in financings similar to the facilities provided for in this Agreement, (i) having an Effective Yield that is less than the applicable Effective Yield for the Initial Tranche B-1 Term Loans, the Initial Tranche B-2 Term Loans or the Incremental Tranche C-1 Term Loans, as the case may be, of the respective Type and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole, the outstanding principal of the Initial Tranche B-1 Term Loans, the Initial Tranche B-2 Term Loans or the Incremental Tranche C-1 Term Loans; provided that in no event shall any prepayment or repayment of the Initial Tranche B-1 Term Loans, the Initial Tranche B-2 Term Loans or the Incremental Tranche C-1 Term Loans in connection with a material acquisition or similar material investment permitted pursuant to Section 10.03 hereof, a Change of Control or from the proceeds of a Tranche B-1 Debt Offering constitute

 

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a Repricing Event or (b) any effective reduction in the Effective Yield of the Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans or Incremental Tranche C-1 Term Loans (e.g., by way of amendment or waiver).

 

Required Lenders” shall mean, at any time, Non-Defaulting Lenders the sum of whose outstanding Term Loans and Revolving Loan Commitments at such time (or, after the termination thereof, outstanding Revolving Loans and RL Percentages of (x) outstanding Swingline Loans at such time and (y) Letter of Credit Outstandings at such time) represents at least a majority of the sum of (i) all outstanding Term Loans of Non-Defaulting Lenders and (ii) the Total Revolving Loan Commitment in effect at such time less the Revolving Loan Commitments of all Defaulting Lenders at such time (or, after the termination thereof, the sum of the then total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of Credit Outstandings at such time).

 

Required Revolving Lenders” shall mean, at any time, Non-Defaulting Lenders the sum of whose outstanding Revolving Loan Commitments at such time (or, after the termination thereof, outstanding Revolving Loans and RL Percentages of (x) outstanding Swingline Loans at such time and (y) Letter of Credit Outstandings at such time) represents at least a majority of the Total Revolving Loan Commitment in effect at such time less the Revolving Loan Commitments of all Defaulting Lenders at such time (or, after the termination thereof, the sum of then total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of Credit Outstandings at such time).

 

Restricted” shall mean, when referring to cash or Cash Equivalents of the Borrower or any of its Restricted Subsidiaries, that such cash or Cash Equivalents appears (or would be required to appear) as “restricted” on a consolidated balance sheet of the Borrower or of any such Restricted Subsidiary (unless such appearance is related to the Credit Documents or Liens created thereunder).

 

Restricted Investment” shall mean an Investment other than a Permitted Investment.

 

Restricted Payment” shall have the meaning provided in Section 10.03(a).

 

Restricted Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

 

Returns” shall have the meaning provided in Section 8.09.

 

Revolving Commitment Increase” has the meaning set forth in Section 2.15(a).

 

Revolving Commitment Increase Lender” has the meaning set forth in Section 2.15(h).

 

Revolving Loan” shall have the meaning provided in Section 2.01(c), and shall include all revolving loans made from time to time pursuant to the Revolving Loan Commitments.

 

Revolving Loan Commitments” shall mean, for each Lender, at any time the sum of (without duplication) the Initial Revolving Loan Commitment, Incremental Tranche A Revolving Loan Commitment, Incremental Tranche B Revolving Loan Commitment, Extended Initial Revolving Loan Commitment, and each other Incremental Revolving Commitment of such Lender, as the same may from time to time be (x) reduced or terminated pursuant hereto, (y) increased (but only with the consent of the respective Lender) in accordance with the terms hereof (including, without limitation, as a result of one or

 

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more Revolving Commitment Increases of such Lender) or (z) adjusted as a result of the assignments to or from such Lender pursuant hereto.

 

Revolving Note” shall have the meaning provided in Section 2.05(a).

 

RL Commitment Commission” shall have the meaning provided in Section 4.01(a).

 

RL Lender” shall mean each Lender with a Revolving Loan Commitment or with outstanding Revolving Loans.

 

RL Percentage” of any RL Lender at any time shall mean a fraction (expressed as a percentage) the numerator of which is the Revolving Loan Commitment of such RL Lender at such time and the denominator of which is the Total Revolving Loan Commitment at such time; provided, that if the RL Percentage of any RL Lender is to be determined after the Total Revolving Loan Commitment has been terminated, then the RL Percentage of such RL Lender shall be determined immediately prior (and without giving effect) to such termination (but giving effect to assignments made thereafter in accordance with the terms hereof); provided, further, that, in the case of Section 2.14 when a Lender Default with respect to an RL Lender shall exist, “RL Percentage” of a Non-Defaulting RL Lender at such time shall mean the percentage of the Total Revolving Loan Commitments (disregarding any such Defaulting Lender’s Revolving Loan Commitment) represented by such Non-Defaulting RL Lender’s Revolving Loan Commitment.

 

S&P” shall mean Standard & Poor’s Ratings Services, a Standard and Poor’s Financial Services LLC business and its successors and assigns.

 

Scheduled Initial Tranche B-1 Term Loan Repayment” shall have the meaning provided in Section 5.02(c).

 

Scheduled Initial Tranche B-1 Term Loan Repayment Date” shall have the meaning provided in Section 5.02(c).

 

Scheduled Initial Tranche B-2 Term Loan Repayment” shall have the meaning provided in Section 5.02(d)(x).

 

Scheduled Initial Tranche B-2 Term Loan Repayment Date” shall have the meaning provided in Section 5.02(d)(x).

 

Scheduled Incremental Tranche C-1 Term Loan Repayment” shall have the meaning provided in Section 5.02(d)(y).

 

Scheduled Incremental Tranche C-1 Term Loan Repayment Date” shall have the meaning provided in Section 5.02(d)(y).

 

SEC” shall mean the Securities Exchange Commission or any successor thereto.

 

Second Amendment” shall mean that certain Second Amendment to Credit Agreement, dated as of April 2, 2015, among the Borrower, the Guarantors party thereto, the financial institutions party thereto as Additional Lenders and Lenders, and the Administrative Agent.

 

Second Amendment Effective Date” shall mean the first date that all of the conditions precedent in Section 4 of the Second Amendment are satisfied or waived in accordance with Section 4 of

 

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the Second Amendment, which date is April 2, 2015.

 

Second Amendment Letter of Credit Commitment” shall mean the increase or new Letter of Credit Commitment of each Issuing Lender extended to the Borrower on the Second Amendment Effective Date in connection with the effectiveness of the Second Amendment (as the same may be reduced pursuant to Section 3.02(b) hereof).

 

Secured Parties” shall have the meaning assigned that term in the respective Security Documents.

 

Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

Security Document” shall mean and include each of the Guarantee and Collateral Agreement, each Mortgage and, after the execution and delivery thereof, any intercreditor agreement entered into by the Administrative Agent or Collateral Trustee as contemplated herein with respect to any Collateral (including the Intercreditor Agreement); provided that any cash collateral or other agreements entered into pursuant to the Letter of Credit Back-Stop Arrangements shall constitute “Security Documents” solely for purposes of (x) Sections 8.03 and 10.01(a) and (y) the term “Credit Documents” as used in Sections 10.04(b)(i)(A) and 13.01.

 

Senior Secured Leverage Ratio” shall mean, on any date of determination, the ratio of (a) Consolidated Senior Secured Net Debt on such date to (b) Consolidated Adjusted EBITDA for the Test Period most recently ended on or prior to such date; provided that (i) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter reference period and (ii) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter reference period.

 

Significant Asset Sale” shall mean each Asset Sale which generates Net Sale Proceeds of at least $10,000,000.

 

Significant Subsidiary” shall mean any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, as such Regulation is in effect on the Closing Date.

 

South Bay Facility” shall mean the decommissioned power generation facility owned by a Subsidiary of the Borrower and located in Chula Vista, California.

 

SPC” shall have the meaning provided in Section 13.04(g).

 

Specified Default” shall mean a Default or an Event of Default arising under Section 11.01 or 11.05.

 

Specified Transaction” shall mean any incurrence or repayment of Indebtedness (other than for working capital purposes) or any Investment that results in a Person becoming a Restricted Subsidiary or an Unrestricted Subsidiary (including pursuant to Section 9.11), any acquisition permitted under this Agreement, any Significant Asset Sale or other asset sale that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person, or any asset sale of a business unit, line of

 

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business or division of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise.

 

Stallings Facility” shall mean the retired peaking generation facility owned by a Subsidiary of Borrower and located in Granite City, Illinois.

 

Start Date” shall have the meaning provided in the definition of “Applicable Margin.”

 

Stated Amount” of each Letter of Credit shall mean, at any time, the maximum amount available to be drawn thereunder, in each case determined without regard to whether any conditions to drawing could then be met but after giving effect to all previous drawings made thereunder.

 

Stated Maturity” shall mean, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Closing Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

 

Stock Certificates” shall mean Collateral consisting of certificates representing Equity Interests held by the Borrower or any Subsidiary Guarantor (provided that the Borrower and the Subsidiary Guarantors shall not be required to deliver Stock Certificates constituting Excluded Assets, including Stock Certificates issued by any Controlled Foreign Corporation representing in excess of 65% of the voting Capital Stock of such Controlled Foreign Corporation) for which a security interest can be perfected by delivering such Stock Certificates, together with undated stock powers or other appropriate instruments of transfer executed in blank for each such certificate.

 

Subordinated Indebtedness” shall mean, with respect to any Person, any Indebtedness of such Person if the instrument creating or evidencing such Indebtedness or pursuant to which such Indebtedness is outstanding expressly provides that such Indebtedness is (i) if incurred by the Borrower, subordinated in right of payment to the Obligations in form and substance reasonably satisfactory to the Administrative Agent or (ii) if incurred by the Borrower or a Restricted Subsidiary, subordinated in right of payment to the guarantee and other obligations made by such Person pursuant to the Guarantee and Collateral Agreement and the Obligations, as the same relate to such Person in form and substance reasonably satisfactory to the Administrative Agent.

 

Subsidiary” shall mean, with respect to any specified Person:  (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (ii) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof). Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.

 

Subsidiary Guarantor” shall mean each direct and indirect Wholly-Owned Domestic Subsidiary of the Borrower (other than any Excluded Subsidiary), in each case, whether existing on the Closing Date or established, created or acquired after the Closing Date, unless and until such time as the

 

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respective Subsidiary is released from all of its obligations under the Guarantee and Collateral Agreement in accordance with the terms and provisions thereof.

 

Swingline Facility” shall mean the portion of the revolving credit facility made available by the Swingline Lender as provided in Section 2.01(d).

 

Swingline Lender” shall mean the Administrative Agent, in its capacity as Swingline Lender hereunder.

 

Swingline Loan” shall have the meaning provided in Section 2.01(d).

 

Swingline Loan Exposure” shall mean, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Loan Exposure of any RL Lender at any time shall be its RL Percentage of the aggregate Swingline Loan Exposure at such time.

 

Swingline Note” shall have the meaning provided in Section 2.05(a).

 

Tax Benefit” shall have the meaning provided in Section 5.04(g).

 

Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Term Lender” shall mean, at any time, any Lender that has a Term Loan Commitment or a Term Loan at such time.

 

Term Loan Commitment” shall mean, as to each Term Lender, its Initial Tranche B-1 Term Loan Commitment or its Initial Tranche B-2 Term Loan Commitment, or any other commitment of such Lender as then in effect to make Term Loans pursuant to the terms of this Agreement.

 

Term Loans” shall mean Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Incremental Tranche C-1 Term Loans, other Incremental Term Loans, Other Term Loans and Extended Term Loans.

 

Term Note” shall have the meaning provided in Section 2.05(a).

 

Test Period” shall mean each period of four consecutive Fiscal Quarters of the Borrower (including its predecessor entity) then last ended for which financial statements have been delivered or were required to be delivered pursuant to Section 9.01(a) or (b), as applicable, in each case taken as one accounting period; provided that in the case of any Test Period which includes any Fiscal Quarter ended on or prior to June 30, 2013, the rules set forth in the immediately succeeding sentence shall apply; provided further, that in the case of determinations of the Total Leverage Ratio and the Senior Secured Leverage Ratio pursuant to this Agreement, such further adjustments (if any) as described in the proviso to the definition of “Total Leverage Ratio” and “Senior Secured Leverage Ratio”, contained herein shall be made to the extent applicable.  If the respective Test Period (i) includes the Fiscal Quarter of the Borrower ended March 31, 2012, Consolidated Adjusted EBITDA for such Fiscal Quarter shall be deemed to be $44,000,000, (ii) includes the Fiscal Quarter of the Borrower ended June 30, 2012, Consolidated Adjusted EBITDA for such Fiscal Quarter shall be deemed to be $33,000,000, (iii) includes the Fiscal Quarter of the Borrower ended September 31, 2012, Consolidated Adjusted EBITDA for such Fiscal Quarter shall be deemed to be $76,000,000, (iv) includes the Fiscal Quarter of the Borrower ended December 31, 2012, Consolidated Adjusted EBITDA for such Fiscal Quarter shall be deemed to be negative $8,000,000;

 

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provided that further adjustments may be made on Pro Forma Basis to the amounts specified above to the extent provided herein.

 

Third Amendment” shall mean that certain Third Amendment to Credit Agreement, dated as of June 27, 2016, among the Borrower, the Guarantors party thereto, the financial institutions party thereto as Additional Lenders and Lenders, and the Administrative Agent.

 

Third Amendment Effective Date” shall mean the first date that all of the conditions precedent in Section 4 of the Third Amendment are satisfied or waived in accordance with Section 4 of the Third Amendment.

 

Threshold Amount” shall mean $50,000,000.

 

Total Commitment” shall mean, at any time, the sum of the Commitments of each of the Lenders at such time.

 

Total Leverage Ratio” shall mean, on any date of determination, the ratio of (x) Consolidated Total Net Debt on such date to (y) Consolidated Adjusted EBITDA for the Test Period most recently ended on or prior to such date; provided that (i) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter reference period; (ii) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter reference period; and (iii) for purposes of any calculation of the Total Leverage Ratio pursuant to this Agreement, Consolidated Adjusted EBITDA shall be determined on a Pro Forma Basis in accordance with Section 1.06.

 

Total Revolving Loan Commitment” shall mean, at any time, the sum of the Revolving Loan Commitments of each of the Lenders at such time.

 

Trading with the Enemy Act” shall have the meaning provided in Section 8.19.

 

Tranche B-1 Debt Offering” shall mean any Permitted Refinancing Indebtedness in respect of all or any portion of the Initial Tranche B-1 Term Loans then outstanding under this Agreement and/or Indebtedness incurred under Section 10.04(a) at any time when the Initial Tranche B-1 Loans have not been repaid in full or refinanced in their entirety with the proceeds on any such Permitted Refinancing Indebtedness, in the form of one or more debt incurrences or offerings, the aggregate Net Debt Proceeds from all of which shall not exceed $500,000,000; provided that any such debt offering may exceed $500,000,000 to the extent such excess is independently supported by one or more provisions of Section 10.04 (other than Section 10.04(a) solely to the extent provided above), although any such excess shall not itself constitute a Tranche B-1 Debt Offering; provided further that any such Tranche B-1 Debt Offering (i) will rank pari passu (or, at the Borrower’s option, junior) in right of payment to the Obligations, (ii) shall be unsecured, (iii) will have such pricing, fees and premiums as may be agreed by the Borrower and the lenders thereof and (iv) will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Initial Tranche B-2 Term Loans.

 

Tranche B-1 Term Lender” shall mean, at any time, any Lender that has a Tranche B-1 Term Loan Commitment or an Initial Tranche B-1 Term Loan at such time.

 

Tranche B-1 Term Loan Commitment” shall mean, as to each Term Lender, its Initial Tranche B-1 Term Loan Commitment.

 

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Tranche B-2 Term Lender” shall mean, at any time, any Lender that has a Tranche B-2 Term Loan Commitment or an Initial Tranche B-2 Term Loan at such time.

 

Tranche B-2 Term Loan Commitment” shall mean, as to each Term Lender, its Initial Tranche B-2 Term Loan Commitment.

 

Tranche C Term Lender” shall mean, at any time, any Lender that has a Tranche C Term Loan Commitment or an Incremental Tranche C Term Loan at such time.-1 Term Loan Commitments” shall have the meaning specified in the Fifth Amendment.

 

Tranche C Term Loan Commitment” shall mean, as to each Term Lender, its Incremental Tranche C Term Loan Commitment. -1 Term Loan Maturity Date” shall mean the date that is seven years after the Third Amendment Effective Date.

 

“Tranche C-1 Term Loans” shall have the meaning specified in the Fifth Amendment.

 

Transaction” shall mean, collectively, (i) the consummation of the Refinancing, (ii) the execution, delivery and performance by each Credit Party of the Credit Documents to which it is a party, the incurrence of Loans on the Closing Date and the use of proceeds thereof and (iii) the payment of all fees and expenses in connection with the foregoing (the “Transaction Expenses”).

 

Transaction Expenses” shall have the meaning provided in the definition of “Transaction.”

 

Treasury Services Agreement” shall mean any agreement between the Borrower or any Restricted Subsidiary and any Acceptable Financial Counterparty relating to treasury, depository, credit card, debit card, stored value cards, purchasing or procurement cards and cash management services or automated clearinghouse transfer of funds or any similar services.

 

Type” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan or a LIBOR Loan.

 

UCC” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.

 

UCC Filing Collateral” shall mean Collateral, including Collateral constituting investment property, for which a security interest can be perfected by filing a UCC-1 financing statement.

 

United States” and “U.S.” shall each mean the United States of America.

 

Unpaid Drawing” shall have the meaning provided in Section 3.05(a).

 

Unrestricted” shall mean, when referring to cash or Cash Equivalents of the Borrower or any of its Restricted Subsidiaries, that such cash or Cash Equivalents are not Restricted.

 

Unrestricted Subsidiary” shall mean any Subsidiary of the Borrower that is designated by the Borrower as an Unrestricted Subsidiary pursuant to an Officer’s Certificate delivered in accordance with Section 9.11, but only to the extent that such Subsidiary:

 

(i)  has no Indebtedness other than Non-Recourse Debt;

 

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(ii)  except as permitted by Section 10.06, is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the Borrower unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower;

 

(iii)  is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results except as otherwise permitted by this Agreement; and

 

(iv)  has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries except as otherwise permitted by this Agreement.

 

Notwithstanding anything to the contrary contained herein, on the Closing Date, each of DNE and its Subsidiaries and Illinois Power Holdings II, LLC and its Subsidiaries shall constitute Unrestricted Subsidiaries, effective without any further action being required and no Investment being made as a result of any such designation shall be included in the calculation of any Restricted Payment under Section 10.03 or any Permitted Investment unless and until any such Person is designated as a Restricted Subsidiary in accordance with the provisions hereof.

 

Unutilized Revolving Loan Commitment” shall mean, with respect to any Lender at any time, such Lender’s Revolving Loan Commitment at such time less the sum of (i) the aggregate outstanding principal amount of all Revolving Loans made by such Lender at such time and (ii) such Lender’s RL Percentage of (A) the Letter of Credit Outstandings at such time and (B) except for purposes of Section 4.01(a), the aggregate principal amount of all Swingline Loans outstanding at such time.

 

U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Tax Compliance Certificate” shall have the meaning provided in Section 5.04(f).

 

Vermilion Facility” shall mean the decommissioned power generation facility owned by a Subsidiary of the Borrower and located in Vermilion County, Illinois.

 

Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.

 

Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.

 

Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of whose Capital Stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity

 

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interest at such time (other than, in the case of a Foreign Subsidiary of the Borrower with respect to the preceding clauses (i) and (ii), director’s qualifying shares and/or other nominal amount of shares required to be held by Persons other than the Borrower and its Subsidiaries under applicable law).

 

Withholding Agent” shall mean the Borrower and the Administrative Agent.

 

Wood River 1-3 Units” shall mean the decommissioned units 1 through 3 located at the power generation facility owned by the Borrower and located in Madison County, Illinois.

 

1.01.                     Other Definitional Provisions, etc.  (a)  Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Credit Documents or any certificate or other document made or delivered pursuant hereto or thereto.

 

(b)                                 As used herein and in the other Credit Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (ii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iii) unless the context otherwise requires, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Equity Interests, securities, revenues, accounts, leasehold interests and contract rights, (iv) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (v) unless the context otherwise requires, any reference herein (A) to any Person shall be construed to include such Person’s permitted successors and assigns and (B) to the Borrower or any other Credit Party shall be construed to include the Borrower or such Credit Party as debtor and debtor-in-possession and any receiver or trustee for the Borrower or any other Credit Party, as the case may be, in any insolvency or liquidation proceeding, (vi) all references to “knowledge” of any Credit Party or a Subsidiary of the Borrower means the actual knowledge of an Authorized Officer responsible for monitoring compliance with the Credit Documents, (vii)  references to “the best of an officer’s knowledge” or similar phrases referring to “best knowledge” of an officer shall be interpreted to mean that such officer has made such diligent investigation or inquiry as would be customary and prudent for such officer to make in the reasonable judgment of such officer in the context of the applicable circumstances and (viii) all references to any Governmental Authority, shall include any other Governmental Authority that shall have succeeded to any or all of the functions thereof.

 

(c)                                  The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(d)                                 The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

(e)                                  Unless otherwise expressly provided herein, (a) all references to documents, instruments and other agreements (including the Credit Documents) and all other contractual instruments shall be deemed to include all subsequent amendments, restatements, amendments and restatements, extensions, supplements, modifications, refinancings, renewals, replacements and restructurings thereto, but only to the extent that such amendments, restatements, amendments and restatements, extensions, supplements, modifications, refinancings, renewals, replacements and restructurings are permitted by the Credit Documents; and (b) references to any law (including by succession of comparable successor laws) shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law.

 

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(f)                                   All certifications to be made hereunder by an officer or representative of a Credit Party shall be made by such Person in his or her capacity solely as an officer or a representative of such Credit Party, on such Credit Party’s behalf and not in such Person’s individual capacity

 

1.02.                     Accounting Terms.   All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein.  Notwithstanding any other provision contained herein, any lease that is treated as an operating lease for purposes of GAAP as of the date hereof shall not be treated as Indebtedness or as a Capital Lease Obligation and shall continue to be treated as an operating lease (and any future lease, if it were in effect on the date hereof, that would be treated as an operating lease for purposes of GAAP as of the date hereof shall be treated as an operating lease), in each case for purposes of this Agreement, notwithstanding any actual or proposed change in or application of GAAP after the date hereof.

 

1.03.                     Rounding.   Any financial ratios required to be maintained pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

 

1.04.                     Times of Day.   Unless specified, all references herein to times of day shall be references to Eastern Time (daylight or standard, as applicable).

 

1.05.                     Timing of Payment of Performance.   When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance (including delivery of any documents or notices) required on a day which is not a Business Day, the date of such payment (other than as specified otherwise herein) or performance shall extend to the immediately succeeding Business Day and such extension shall be reflected in the computation of interest or fees, as the case may be.

 

1.06.                     Pro Forma Calculations.  (i) Notwithstanding anything to the contrary herein, the Fixed Charge Coverage Ratio, Total Leverage Ratio and Senior Secured Leverage Ratio shall be calculated in the manner prescribed by this Section 1.06; provided that notwithstanding anything to the contrary in this Section 1.06, when calculating the Senior Secured Leverage Ratio for purposes of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Senior Secured Leverage Ratio set forth in Section 10.07(a), the events described in this Section 1.06 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

 

(ii)                                  For purposes of calculating the Fixed Charge Coverage Ratio, Total Leverage Ratio and Senior Secured Leverage Ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (i) during the applicable Test Period or Calculation Period and (ii) subsequent to such Test Period (or Calculation Period) and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated Adjusted EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period or Calculation Period, as applicable.  If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.06, then the Fixed Charge Coverage Ratio,

 

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Total Leverage Ratio and Senior Secured Leverage Ratio shall be calculated to give pro forma effect thereto in accordance with this Section 1.06.

 

(iii)                               In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Fixed Charge Coverage Ratio, Total Leverage Ratio and Senior Secured Leverage Ratio (in each case except for determinations pursuant to Section 10.07(b), other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (x) during the applicable Test Period (or Calculation Period) or (y) subsequent to the end of the applicable Test Period (or Calculation Period) and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Fixed Charge Coverage Ratio, Total Leverage Ratio and Senior Secured Leverage Ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period (or Calculation Period) in the case of the Fixed Charge Coverage Ratio, the Total Leverage Ratio or the Senior Secured Leverage Ratio.

 

(iv)                              Whenever pro forma effect is to be given to a Specified Transaction or implementation of an operating initiative, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of cost savings, operating expense reductions, other operating improvements and synergies are reasonably identifiable, factually supportable and projected by the Borrower in good faith to be reasonably anticipated to be realizable within 18 months after the closing date of such Specified Transaction or implementation of an operating initiative (provided, that to the extent any such operational changes are not associated with a transaction, such changes shall be limited to those for which all steps have been taken for realizing such savings and are factually supportable, reasonably identifiable and supported by an Officer’s Certificate delivered to the Administrative Agent) (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions; provided that any increase in Consolidated Adjusted EBITDA as a result of cost savings, operating expense reductions, other operating improvements and synergies shall be subject to the limitations set forth in the definition of Consolidated Adjusted EBITDA; provided that amounts added back pursuant to this Section 1.06(iv) shall not, when taken together with any add-backs pursuant clauses (vi) and (vii) of the definition of “Consolidated Adjusted EBITDA”, account for more than 15% of Consolidated Adjusted EBITDA in any Test Period (calculated before giving effect to any such add-backs and adjustments).

 

1.07.                     Calculations, Computations.  The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed in writing by the Borrower to the Lenders); provided that (i) if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document (including, without limitation, as a result of the effect of such change on any definition including accounting terms) used in calculating such ratio or determining compliance with such requirement (the “Accounting Change”) and the Borrower shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders) (provided, however, that, until so amended, such ratio or requirement shall continue to be computed in conformity with those accounting principles and policies in effect immediately prior to such Accounting Change); (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations based on the operations of the Borrower and its Restricted Subsidiaries on a consolidated basis shall be made

 

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without giving effect to the operations of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all financial covenants contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof and to the extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change set forth in Section 1.02 shall contain a schedule showing the adjustments, if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references contained in this Agreement to a four-quarter period of the Borrower referring to a period prior to October 1, 2012 shall refer to the applicable period prior to October 1, 2012 of the predecessor entity and not the Borrower and in any event shall include the Consolidated Adjusted EBITDA and Fixed Charges as set forth in the definition of “Test Period”.

 

1.08.                     Interest Rate Calculations.  All computations of interest, RL Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Lending Rate, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring the period for which such interest, RL Commitment Commission or Fees are payable.

 

SECTION 2.                            Amount and Terms of Credit.

 

2.01.                     The Commitments.  (a)  Subject to and upon the terms and conditions set forth herein, each Lender with an Initial Tranche B-1 Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Initial Tranche B-1 Term Loan” and, collectively, the “Initial Tranche B-1 Term Loans”) to the Borrower, which Initial Tranche B-1 Term Loans (i) shall be incurred pursuant to a single drawing on the Closing Date, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided, shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans; provided that except as otherwise specifically provided in Section 2.10(b), all Initial Tranche B-1 Term Loans comprising the same Borrowing shall at all times be of the same Type and (iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Initial Tranche B-1 Term Loan Commitment of such Lender on the Closing Date.  Once repaid, Initial Tranche B-1 Term Loans incurred hereunder may not be reborrowed.

 

(b)                                 (x) Subject to and upon the terms and conditions set forth herein, each Lender with an Initial Tranche B-2 Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Initial Tranche B-2 Term Loan” and, collectively, the “Initial Tranche B-2 Term Loans” and, together with the Initial Tranche B-1 Term Loans, the “Initial Term Loans”) to the Borrower, which Initial Tranche B-2 Term Loans (i) shall be incurred pursuant to a single drawing on the Closing Date, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided, shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans; provided that except as otherwise specifically provided in Section 2.10(b), all Initial Tranche B-2 Term Loans comprising the same Borrowing shall at all times be of the same Type and (iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Initial Tranche B-2 Term Loan Commitment of such Lender on the Closing Date and, (y) subject to and upon the terms and conditions set forth herein, each Lender with an Incremental Tranche C Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Tranche C Term Loan” and, collectively, the “Incremental Tranche C Term Loans”) to the Borrower, which Incremental Tranche C Term Loans (i) shall be incurred pursuant to a single drawing on the Third Amendment Effective Date, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided, shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans; provided that except as otherwise specifically provided in Section 2.10(b), all Incremental Tranche C Term Loans comprising the same Borrowing shall at all times

 

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be of the same Type and (iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Incremental Tranche C Term Loan Commitment of such Lender on the Third Amendment Effective Date and (z) subject to and upon the terms and conditions set forth herein and in the Fifth Amendment, each Lender with a Tranche C-1 Term Loan Commitment severally agrees to make (or otherwise provide by means of exchange or conversion) a Tranche C-1 Term Loan, which Tranche C-1 Term Loans (i) shall be incurred pursuant to a single drawing and/or conversion or exchange of Incremental Tranche C Term Loans, as applicable, on the Fifth Amendment Effective Date, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided, shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans; provided that except as otherwise specifically provided in Section 2.10(b), all Tranche C-1 Term Loans comprising the same Borrowing shall at all times be of the same Type and (iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Tranche C-1 Term Loan Commitment of such Lender on the Fifth Amendment Effective Date.  Once repaid, Initial Tranche B-2 Term Loans and, Incremental Tranche C Term Loans and Tranche C-1 Term Loans incurred hereunder may not be reborrowed.

 

(c)                                  Subject to and upon the terms and conditions set forth herein, each RL Lender severally agrees to make, at any time and from time to time on or after the Closing Date and prior to the applicable Maturity Date, a revolving loan or revolving loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans; provided that except as otherwise specifically provided in Section 2.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iii) may be repaid and reborrowed in accordance with the provisions hereof (without premium or penalty) and (iv) shall not exceed for any such RL Lender at any time outstanding that aggregate principal amount which, when added to the product of (x) such RL Lender’s RL Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans or Swingline Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time.

 

(d)                                 Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time on or after the Closing Date and prior to the applicable Maturity Date, a revolving loan or revolving loans (each, a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be incurred and maintained as Base Rate Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof (except as otherwise provided in Section 4.01(f), without premium or penalty), (iv) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount.  Notwithstanding anything to the contrary contained in this Section 2.01(d), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower, any other Credit Party or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice (A) of rescission of all such notices from the party or parties originally delivering such notice or notices, (B) of the cure of such Default or Event of Default or (C) of the waiver of such Default or Event of Default by the Required Lenders.

 

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(e)                                  On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Specified Default or upon the exercise of any of the remedies provided in Section 11), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all RL Lenders pro rata based on each such RL Lender’s RL Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to Section 11) and the proceeds thereof shall be applied directly by the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans.  Each RL Lender hereby irrevocably agrees to make Revolving Loans upon one (1) Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 7 are then satisfied (or waived), (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing, and (v) the amount of the Total Revolving Loan Commitment at such time.  In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under Bankruptcy Law with respect to the Borrower), then each RL Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to Section 11); provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing RL Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.

 

(f)                                   If the Maturity Date shall have occurred in respect of any tranche of Revolving Loan Commitments at a time when another tranche or tranches of Revolving Loan Commitments is or are in effect with a longer Maturity Date, then on the earliest occurring Maturity Date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Maturity Date); provided, however, that if on the occurrence of such earliest Maturity Date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 3.07), no Specified Default or Event of Default then exists or would result therefrom and there shall exist sufficient Unutilized Revolving Loan Commitments with a later Maturity Date or Maturity Dates so that the respective outstanding Swingline Loans could be incurred pursuant the Revolving Loan Commitments which will remain in effect after the occurrence of such Maturity Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the relevant Revolving Loan Commitments with a later Maturity Date or Maturity Dates, and such Swingline Loans shall not be so required to be repaid in full on such earliest Maturity Date.

 

2.02.                     Minimum Amount of Each Borrowing.  The aggregate principal amount of each Borrowing of Loans under a respective Class shall not be less than the Minimum Borrowing Amount

 

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applicable to such Class.  More than one Borrowing may occur on the same date, but at no time shall there be outstanding more than eight (8) Borrowings of LIBOR Loans in the aggregate for all Classes of Loans.

 

2.03.                     Notice of Borrowing.  (a)  Whenever the Borrower desires to incur (x) LIBOR Loans hereunder, the Borrower shall give the Administrative Agent at the Notice Office at least three (3) Business Days’ prior notice of each LIBOR Loan to be incurred hereunder or (y) Base Rate Loans hereunder (excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory Borrowing), the Borrower shall give the Administrative Agent at the Notice Office at least one (1) Business Day’s prior notice of each Base Rate Loan to be incurred hereunder; provided that (in each case) any such notice shall be deemed to have been given on a certain day only if given before 11:00 a.m. on such day.  Each such notice (each, a “Notice of Borrowing”), except as otherwise expressly provided in Section 2.10, shall be irrevocable and shall be in writing, or by telephone promptly confirmed in writing, substantially in the form of Exhibit A-1, appropriately completed to specify:  (i) the aggregate principal amount of the Loans to be incurred pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) whether the Loans being incurred pursuant to such Borrowing shall constitute Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Incremental Tranche C Term Loans, Tranche C-1 Term Loans or Revolving Loans and (iv) whether the Loans being incurred pursuant to such Borrowing are to be initially maintained as Base Rate Loans or, to the extent permitted hereunder, LIBOR Loans and, if LIBOR Loans, the initial Interest Period to be applicable thereto.  The Administrative Agent shall promptly give each Lender which is required to make Loans of the Class specified in the respective Notice of Borrowing, notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing ; provided, further, that (x) the Notice of Borrowing in respect of the Incremental Tranche C Term Loans and any Revolving Loans to be borrowed on the Third Amendment Effective Date may be delivered on the Third Amendment Effective Date and (y) the Notice of Borrowing in respect of the Tranche C-1 Term Loans to be borrowed on the Fifth Amendment Effective Date may be delivered pursuant to, and in the form of, the Fifth Amendment on the Fifth Amendment Effective Date.

 

(b)                                 (i)  Whenever the Borrower desires to incur Swingline Loans hereunder, the Borrower shall give the Swingline Lender no later than 1:00 p.m. on the date that a Swingline Loan is to be incurred, written notice or telephonic notice promptly confirmed in writing of each Swingline Loan to be incurred hereunder.  Each such notice shall be irrevocable and specify in each case (A) the date of Borrowing (which shall be a Business Day), and (B) the aggregate principal amount of the Swingline Loans to be incurred pursuant to such Borrowing.

 

(ii)                                  Mandatory Borrowings shall be made upon the notice specified in Section 2.01(e), with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as set forth in Section 2.01(e).

 

(c)                                  Without in any way limiting the obligation of the Borrower to confirm in writing any telephonic notice of any Borrowing or prepayment of Loans, the Administrative Agent or the Swingline Lender, as the case may be, may act without liability upon the basis of telephonic notice of such Borrowing or prepayment, as the case may be, believed by the Administrative Agent or the Swingline Lender, as the case may be, in good faith to be from an Authorized Officer of the Borrower, prior to receipt of written confirmation.  In each such case, the Borrower hereby waives the right to dispute the Administrative Agent’s or the Swingline Lender’s record of the terms of such telephonic notice of such Borrowing or prepayment of Loans, as the case may be, absent manifest error, gross negligence, bad faith or willful misconduct.

 

2.04.                     Disbursement of Funds.  No later than 1:00 p.m. on the date specified in each Notice of Borrowing (or (x) in the case of Swingline Loans, no later than 3:00 p.m. on the date specified

 

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pursuant to Section 2.03(b)(i) or (y) in the case of Mandatory Borrowings, no later than 2:00 p.m. on the date specified in Section 2.01(e)), each Lender with a Commitment of the respective Class will make available its pro rata portion (determined in accordance with Section 2.07) of each such Borrowing requested to be made on such date (or in the case of Swingline Loans, the Swingline Lender will make available the full amount thereof).  All such amounts will be made available in Dollars and in immediately available funds at the Payment Office, and the Administrative Agent will, except in the case of Revolving Loans made pursuant to a Mandatory Borrowing, make available to the Borrower at the Payment Office, or to such other account as the Borrower may specify in writing to the Administrative Agent, the aggregate of the amounts so made available by the Lenders; provided that, if, on the date of a Borrowing of Revolving Loans (other than a Mandatory Borrowing), there are Unpaid Drawings or Swingline Loans then outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such Unpaid Drawings with respect to Letters of Credit, second, to the payment in full of any Swingline Loans and third, to the Borrower as otherwise provided above.  Unless the Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender’s portion of any Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on written demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower in writing and the Borrower shall immediately pay such corresponding amount to the Administrative Agent.  The Administrative Agent also shall be entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to such Loans for each day thereafter and (ii) if recovered from the Borrower, the rate of interest applicable to the respective Borrowing, as determined pursuant to Section 2.08. Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder.

 

2.05.                     Notes.  (a)  The Borrower’s obligation to pay the principal of, and interest on, the Loans made by each Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to Section 13.12 and shall, if requested by such Lender, also be evidenced if requested by any applicable Lender (i) in the case of Term Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-1, with blanks appropriately completed in conformity herewith (each, a “Term Note” and, collectively, the “Term Notes”), (ii) in the case of  Revolving Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-2, with blanks appropriately completed in conformity herewith (each, a “Revolving Note” and, collectively, the “Revolving Notes”), and (iii) in the case of Swingline Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-3, with blanks appropriately completed in conformity herewith (the “Swingline Note”).

 

(b)                                 Each Lender will note on its internal records the amount of each Loan made by it and each payment in respect thereof and prior to any transfer of any of its Notes will endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby.  Failure to make any such notation or any error in such notation shall not affect the Borrower’s obligations in respect of such Loans.

 

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(c)                                  Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere in this Agreement, the Borrower shall only be required to deliver Notes to Lenders promptly following request for the delivery of such Notes.  No failure of any Lender to request or obtain a Note evidencing its Loans to the Borrower shall affect or in any manner impair the obligations of the Borrower to pay the Loans (and all related Obligations) incurred by the Borrower which would otherwise be evidenced thereby in accordance with the requirements of this Agreement, and shall not in any way affect the security or guaranties therefor provided pursuant to the various Credit Documents.  Any Lender which does not have a Note evidencing its outstanding Loans shall in any event be required to make the notations otherwise described in preceding clause (b).

 

2.06.                     Conversions.  The Borrower shall have the option to convert, on any Business Day, all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of Loans (other than Swingline Loans which may not be converted pursuant to this Section 2.06) made pursuant to one or more Borrowings (so long as of the same Class) of one or more Types of Loans into a Borrowing (of the same Class) of another Type of Loan; provided that, (i) except as otherwise provided in Section 2.10(b), LIBOR Loans may be converted into Base Rate Loans only on the last day of an Interest Period applicable to the Loans being converted unless the Borrower pays any amounts due under Section 2.11 and no such partial conversion of LIBOR Loans shall reduce the outstanding principal amount of such LIBOR Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted into LIBOR Loans if any Event of Default exists pursuant to Section 11.05 on the date of conversion, (iii) if any Event of Default (other than as referred to in preceding clause (ii)) is in existence on the date of the proposed conversion of a LIBOR Loan, (x) Base Rate Loans may not be converted into LIBOR Loans if the Administrative Agent or the Required Lenders have notified the Borrower that conversions will not be permitted during the existence of such Event of Default and (y) in the absence of the notification referred to in preceding clause (x), Base Rate Loans may only be converted into LIBOR Loans with an Interest Period of one (1) month and (iv) no conversion pursuant to this Section 2.06 shall result in a greater number of Borrowings of LIBOR Loans than is permitted under Section 2.02.  Each such conversion shall be effected by the Borrower by giving the Administrative Agent at the Notice Office prior to 11:00 a.m. at least (x) in the case of conversions of Base Rate Loans into LIBOR Loans, three (3) Business Days’ prior notice and (y) in the case of conversions of LIBOR Loans into Base Rate Loans, one (1) Business Day’s prior notice (each, a “Notice of Conversion/Continuation”), in each case substantially in the form of Exhibit A-2, appropriately completed to specify the Loans to be so converted, the Borrowing or Borrowings pursuant to which such Loans were incurred and, if to be converted into LIBOR Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Loans.

 

2.07.                     Pro Rata Borrowings.  All Borrowings of Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Incremental Tranche C-1 Term Loans, and Revolving Loans under this Agreement shall be incurred from the Lenders pro rata on the basis of their Initial Tranche B-1 Term Loan Commitments, Initial Tranche B-2 Term Loan Commitments, Incremental Tranche C-1 Term Loan Commitments, or aggregate Revolving Loan Commitments, as the case may be; provided that all Mandatory Borrowings shall be incurred from the RL Lenders pro rata on the basis of their RL Percentages.  It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.

 

2.08.                     Interest.  (a)  The Borrower agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such Base Rate Loan to a LIBOR

 

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Loan pursuant to Section 2.06 or 2.09, as applicable, at a rate per annum which shall be equal to the sum of the relevant Applicable Margin plus the Base Rate, each as in effect from time to time.

 

(b)                                 The Borrower agrees to pay interest in respect of the unpaid principal amount of each LIBOR Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such LIBOR Loan to a Base Rate Loan pursuant to Section 2.06, 2.09 or 2.10, as applicable, at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as in effect from time to time during such Interest Period plus the LIBO Rate for such Interest Period.

 

(c)                                  Upon the occurrence and during the continuance of any Event of Default under Sections 11.01 or 11.05, overdue principal and, to the extent permitted by law, overdue interest in respect of each Loan (other than Loans owed to a Defaulting Lender) shall, in each case, bear interest at a rate per annum equal to the rate which is 2.00% in excess of the rate then borne by such Loans, and all other overdue amounts payable hereunder and under any other Credit Document (other than to a Defaulting Lender) shall bear interest at a rate per annum equal to the rate which is 2.00% in excess of the rate applicable to Initial Revolving Loans that are maintained as Base Rate Loans from time to time.

 

(d)                                 Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base Rate Loan, (x) quarterly in arrears on each Quarterly Payment Date, and (y) at maturity (whether by acceleration or otherwise) and, after such maturity, on written demand, and (ii) in respect of each LIBOR Loan, (x) on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three month intervals after the first day of such Interest Period, and (y) on the date of any repayment or prepayment (on the amount repaid or prepaid) at maturity (whether by acceleration or otherwise) and, after such maturity, on written demand.

 

(e)                                  Upon each Interest Determination Date, the Administrative Agent shall determine the LIBO Rate for each Interest Period applicable to the respective LIBOR Loans and shall promptly notify the Borrower and the Lenders thereof.  Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.

 

(f)                                   The provisions of this Section 2.08 (and the interest rates applicable to the various extensions of credit hereunder) shall be subject to modification as expressly provided in Sections 2.15, 2.16 and 2.17.

 

2.09.                     Interest Periods. At the time the Borrower gives any Notice of Borrowing or Notice of Conversion/Continuation in respect of the making of, or conversion into, any LIBOR Loan (in the case of the initial Interest Period applicable thereto) or prior to 11:00 a.m. on the third Business Day prior to the expiration of an Interest Period applicable to such LIBOR Loan (in the case of any subsequent Interest Period), the Borrower shall have the right to elect the interest period (each, an “Interest Period”) applicable to such LIBOR Loan, which Interest Period shall, at the option of the Borrower, be (x) a one, two, three, six or, if approved by each Lender with Loans and/or Commitments under the relevant Class, nine or twelve month period or (y) if agreed by the Administrative Agent in its sole discretion, such other period not to exceed one-month; provided that (in each case):

 

(i)                                     all LIBOR Loans comprising a Borrowing shall at all times have the same Interest Period;

 

(ii)                                  the initial Interest Period for any LIBOR Loan shall commence on the date of Borrowing of such LIBOR Loan (including the date of any conversion thereto from a Base Rate

 

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Loan) and each Interest Period occurring thereafter in respect of such LIBOR Loan shall commence on the day on which the next preceding Interest Period applicable thereto expires;

 

(iii)                               if any Interest Period for a LIBOR Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;

 

(iv)                              if any Interest Period for a LIBOR Loan would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period for a LIBOR Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; and

 

(v)                                 no Interest Period in respect of any Borrowing of any Class of Loans shall be selected which extends beyond the Maturity Date for such Class of Loans.

 

If by 11:00 a.m. on the third Business Day prior to the expiration of any Interest Period applicable to a Borrowing of LIBOR Loans, the Borrower has failed to elect, or is not permitted to elect, a new Interest Period to be applicable to such LIBOR Loans as provided above, the Borrower shall be deemed to have elected to continue such LIBOR Loans as LIBOR Loans with an Interest Period of one (1) month effective as of the expiration date of such current Interest Period; provided that if the Borrower is not permitted to elect a new Interest Period to be applicable to such LIBOR Loans as provided above, the Borrower shall be deemed to have elected to convert such LIBOR Loans into Base Rate Loans effective as of the expiration date of such current Interest Period.

 

2.10.                     Increased Costs, Illegality, etc.  (a)  In the event that any Lender (or with respect to clause (iv), any Lender or Agent) shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent) after the Closing Date:

 

(i)                                     on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of “LIBO Rate”; or

 

(ii)                                  at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any LIBOR Loan (other than with respect to Taxes) because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, to a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBO Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the London interbank market or the position of such Lender in such market (including that the LIBO Rate with respect to such LIBOR Loan does not adequately and fairly reflect the cost to such Lender of funding such LIBOR Loan); or

 

(iii)                               at any time, that the making or continuance of any LIBOR Loan has been made (x) unlawful by any law or governmental rule, regulation or order, or (y) impossible by compliance by any Lender in good faith with any governmental request (whether or not having force of law); or

 

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(iv)                              at any time, that any Change in Law shall subject any Lender or Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on any LIBOR Loan;

 

then, and in any such event, such Lender or Agent, as applicable (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the Borrower and, except in the case of clause (i) and clause (ii) above, as applicable, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders).  Thereafter (x) in the case of clause (i) above, LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower (or if requested by Borrower, deemed a request for Base Rate Loans), (y) in the case of clause (ii) and clause (iv) above, the Borrower agrees, subject to the provisions of Section 2.11(b) (to the extent applicable), to pay to such Lender or Agent, as applicable, promptly following such Lender’s or Agent’s written request (including documentation reasonably supporting such request) therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Agent in its reasonable discretion (in accordance with generally accepted financial practices) shall determine) as shall be required to compensate such Lender or Agent for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender or Agent, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender or Agent shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time period required by law.

 

(b)                                 At any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii), the Borrower may, and in the case of a LIBOR Loan affected by the circumstances described in Section 2.10(a)(iii), the Borrower shall, either (x) if the affected LIBOR Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) (or convert such request to a Base Rate Loan) or (iii) or (y) if the affected LIBOR Loan is then outstanding, upon at least three (3) Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such LIBOR Loan into a Base Rate Loan; provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.10(b).

 

(c)                                  If at any time after the Closing Date, the introduction of or any change in any applicable law, rule, regulation, order, guideline or request or in the interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender with any request or directive by the NAIC or by any such Governmental Authority (whether or not having the force of law), shall (i) impose, modify or make applicable any reserve, deposit, capital adequacy or liquidity or similar requirement against such Lender’s Commitments hereunder or its obligations hereunder, or against any corporation controlling such Lender based on the existence of such Lender’s Commitments or other obligations hereunder, (ii) impose on any Lender any other conditions relating, directly or indirectly, to this Agreement or any Loan, Commitment or other obligation hereunder, or (iii) subject any Lender or Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on any Loan, Commitment or other obligation hereunder, and the result of any of the foregoing is to increase the cost to any Lender or such other corporation or any Agent of making, maintaining or participating in any Loan, Commitment or other obligation hereunder, or reduce the

 

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amount of any sum received or receivable by any Lender or such other corporation hereunder or reduce the rate of return on its capital or liquidity with respect to Loans, Commitments or other obligations, then within fifteen (15) Business Days after receipt of the certificate referred to below by Borrower from any Lender or any Agent (a copy of which certificate shall be sent by any such Lender to the Administrative Agent), the Borrower, subject to the provisions of Section 2.11(b) (to the extent applicable), agrees to pay to such Lender or such Agent such additional amount or amounts as will compensate such Lender or such other corporation or such Agent for such increased cost or reduction in the amount receivable or reduction on the rate of return on its capital or liquidity.  In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable and customary; provided that such Lender’s or Agent’s determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.  Each Lender or Agent, upon determining that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower, which notice shall include a certificate submitted to the Borrower by such Lender or such Agent (a copy of which certificate shall be sent by such Lender to the Administrative Agent), setting forth in reasonable detail the basis for calculation of such additional amounts.

 

(d)                                 Notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall in each case be deemed to be a change after the Closing Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10 and Section 3.06).

 

2.11.                     Compensation.  (a) The Borrower agrees to compensate each Lender, promptly following its written request (which request shall set forth in reasonable detail the basis for requesting such compensation), for all losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its LIBOR Loans but excluding loss of anticipated profits) which such Lender may sustain:  (i) if for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of, or conversion from or into, LIBOR Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 2.10(a)); (ii) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 5.01, Section 5.02 or as a result of an acceleration of the Loans pursuant to Section 11) or conversion of any of its LIBOR Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (iii) if any prepayment of any of its LIBOR Loans is not made on any date specified in a notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any other default by the Borrower to repay LIBOR Loans when required by the terms of this Agreement or any Note held by such Lender or (y) any election made pursuant to Section 2.10(b).

 

(b)                                 Notwithstanding anything to the contrary contained herein, with respect to any Lender’s or any Participant’s claim for compensation under Section 2.10, 3.06 or 5.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

2.12.                     Change of Lending Office.  Each Lender agrees that upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c) or (d), Section 3.06 or

 

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Section 5.04 with respect to such Lender, it will, if requested by the Borrower, will use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans or Letters of Credit affected by such event; provided that such designation is made on such terms that such Lender and its lending office suffer no material economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section.  Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Sections 2.10, 2.11, 3.06 and 5.04.

 

2.13.                     Replacement of Lenders.  If any Lender becomes a Defaulting Lender, (a) upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii), (iii) or (iv), Section 2.10(c) or (d), Section 3.06 or Section 5.04 with respect to any Lender which results in such Lender charging to the Borrower increased costs in excess of those being generally charged by the other Lenders, (b) in the case of a refusal by a Lender to consent to a proposed change, waiver, discharge or termination with respect to this Agreement as contemplated by clauses (i) through (iii) of the first proviso to Section 13.10(a) or clauses (i) through (vii) of the second proviso to Section 13.10(a), in each case, which has been approved by the Required Lenders or Majority Lenders, as applicable, or (c) if a Lender rejects (or is deemed to reject) the Extension under Section 2.16(a) which Extension has been accepted under Section 2.16(a) by the Majority Lenders of the respective Class, the Borrower shall have the right, in accordance with Section 13.04(c), if no Event of Default then exists or would exist after giving effect to such replacement, to (i) replace such Lender (the “Replaced Lender”) with one or more other Eligible Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “Replacement Lender”) in the case of a replacement where the consent of the respective Lender is required with respect to less than all Classes of its Loans or Commitments, to replace the Commitments and/or outstanding Loans of such Lender in respect of each Class where the consent of such Lender would otherwise be individually required, with identical Commitments and/or Loans of the respective Class provided by the Replacement Lender or (ii) terminate the Commitment of such Lender or Issuing Lender, as the case may be, and (x) in the case of a Lender (other than an Issuing Lender), repay all Obligations (other than contingent obligations not then due and payable) of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date and/or, in the case of a RL Lender, cash collateralize such Lender’s RL Percentage of the Letter of Credit Outstandings in a manner reasonably satisfactory to the applicable Issuing Lender and (y) in the case of an Issuing Lender, repay all Obligations (other than contingent obligations not then due and payable and, except in the case of a Defaulting Lender, the payment of amounts in respect of Loans of any Class maintained by such Issuing Lender, if such Loans are not being repaid pursuant to this Section 2.13) of the Borrower owing to such Lender relating to the Loans and participations held by the Issuing Lender as of such termination date and cancel or backstop on terms reasonably satisfactory to such Issuing Lender any Letters of Credit issued by it; provided that in the case of any such termination of Commitments pursuant to this clause (ii), such termination shall be sufficient (together with all other consenting Lenders or other Commitments being terminated in connection with the adoption of the applicable proposed change, waiver, discharge or termination) to cause the adoption of the applicable proposed change, waiver, discharge or termination and such termination shall be in respect of any applicable facility only in the case of clause (x) or, with respect to a Class vote, clause (y); provided that:

 

(a)                                 at the time of any replacement pursuant to this Section 2.13, the Replacement Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section 13.04(c) (and with all fees payable pursuant to said Section 13.04(c) to be paid by the Replacement Lender and/or the Replaced Lender (as may be agreed to at such time by and among the Borrower, the Replacement Lender and the Replaced Lender)) pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans (or, in the case of the replacement of only (a) the Revolving Loan Commitment, the Revolving Loan Commitment and outstanding Revolving Loans and participations in Letter of Credit Outstandings and/or (b) the outstanding Term Loans of a given Class, the outstanding Term Loans of such Class of the respective Lender) of, (except for the replacement of only outstanding Term

 

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Loans) all participations in Letters of Credit by, the Replaced Lender and, in connection therewith, shall pay to (x) the Replaced Lender in respect thereof an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the respective Replaced Lender under each Class with respect to which such Replaced Lender is being replaced, (B) an amount equal to all Unpaid Drawings (unless there are no Unpaid Drawings with respect to the Class being replaced) that have been funded by (and not reimbursed to) such Replaced Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender (but only with respect to the relevant Class, in the case of the replacement of less than all Classes of Loans then held by the respective Replaced Lender) pursuant to Section 4.01, (y) except in the case of the replacement of only the outstanding Term Loans of one or more Classes of a Replaced Lender, each Issuing Lender an amount equal to such Replaced Lender’s RL Percentage of any Unpaid Drawing relating to Letters of Credit issued by such Issuing Lender (which at such time remains an Unpaid Drawing) to the extent such amount was not theretofore funded by such Replaced Lender and (z) in the case of any replacement of Revolving Loan Commitments, the Swingline Lender an amount equal to such Replaced Lender’s RL Percentage of any Mandatory Borrowing to the extent such amount was not theretofore funded by such Replaced Lender to the Swingline Lender; and

 

(b)                                 all obligations of the Borrower then owing to the Replaced Lender (other than those (i) specifically described in clause (a) above in respect of which the assignment purchase price has been, or is concurrently being, paid, but including all amounts, if any, owing under Section 2.11(a) or (ii) relating to any Class of Loans and/or Commitments of the respective Replaced Lender which will remain outstanding after giving effect to the respective replacement) shall be paid in full to such Replaced Lender concurrently with such replacement.

 

Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to this Section 2.13, the Administrative Agent shall be entitled (but not obligated) and is authorized (which authorization is coupled with an interest) to execute an Assignment and Assumption Agreement on behalf of such Replaced Lender, and any such Assignment and Assumption Agreement so executed by the Administrative Agent and the Replacement Lender shall be effective for purposes of this Section 2.13 and Section 13.04.  Upon the execution of the respective Assignment and Assumption Agreement, the payment of amounts referred to in clauses (a) and (b) above, recordation of the assignment on the Register by the Administrative Agent pursuant to Section 13.12 and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the Borrower, (x) the Replacement Lender shall become a Lender hereunder and, unless the respective Replaced Lender continues to have outstanding Term Loans and/or a Revolving Loan Commitment hereunder, the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such Replaced Lender to the extent contemplated herein and (y) except in the case of the replacement of only outstanding Term Loans pursuant to this Section 2.13, the RL Percentages of the Lenders shall be automatically adjusted at such time to give effect to such replacement.  In the case of the substitution of a Lender pursuant to this Section 2.13, if the Lender being replaced does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption Agreement and/or any other documentation necessary to reflect such replacement by the later of (x) the date on which the Replacement Lender executed and delivers such Assignment and Assumption Agreement and/or such other documentation and (y) the date as of which all obligations of the Borrower required to be paid to the Replaced Lender pursuant to this Section 2.13, then the Replaced Lender shall be deemed to have executed and delivered such Assignment and Assumption Agreement and/or such other documentation as of such date and the Administrative Agent and the Borrower shall each be entitled (but not obligated) to execute and deliver such Assignment and Assumption Agreement and/or such other documentation on behalf of such Replaced Lender.

 

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2.14.                     Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any RL Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such RL Lender is a Defaulting Lender:

 

(a)                                 if any Swingline Loan Exposure or Letter of Credit Exposure exists at the time a RL Lender becomes a Defaulting Lender then:

 

(i)                                                     all or any part of such Swingline Loan Exposure and Letter of Credit Exposure shall be reallocated among the RL Lenders that are Non-Defaulting RL Lenders in accordance with their respective RL Percentages but only to the extent (x) the sum of all Non-Defaulting RL Lenders’ Individual RL Exposures plus such Defaulting Lender’s Swingline Loan Exposure and Letter of Credit Exposure does not exceed the aggregate amount of all Non-Defaulting RL Lenders’ Revolving Loan Commitments, (y) immediately following the reallocation to a Non-Defaulting RL Lender, the Individual RL Exposure of such Non-Defaulting RL Lender does not exceed its Revolving Loan Commitment at such time and (z) the conditions set forth in Section 7 are satisfied at such time;

 

(ii)                                                  if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within five (5) Business Days following written notice by the Administrative Agent (x) first, prepay the unreallocated portion of such Defaulting Lender’s Swingline Loan Exposure (without a permanent commitment reduction) and (y) second, cash collateralize in a manner reasonably satisfactory to the applicable Issuing Lender the unreallocated portion such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in aggregate amount equal to 100% of such Defaulting Lender’s Letter of Credit Exposure for so long as such Letter of Credit Exposure is outstanding (the “Letter of Credit Back-Stop Arrangements”);

 

(iii)                                               the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.01(b) with respect to such Defaulting Lender’s Letter of Credit Exposure;

 

(iv)                                              if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.14(a), then the fees payable to the RL Lenders pursuant to Section 4.01(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ RL Percentages; and

 

(v)                                                 if any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(a), then, without prejudice to any rights or remedies of any Issuing Lender or any RL Lender hereunder, all letter of credit fees payable under Section 4.01(b) with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to each Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated; and

 

(b)                                 notwithstanding anything to the contrary contained in Section 2.01(d) or Section 3, so long as any RL Lender is a Defaulting Lender (i) the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Loan Commitments of the Non-Defaulting RL Lenders and/or cash collateral has been provided by the Borrower in accordance with Section 2.14(a), and (ii) participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting RL Lenders in a manner consistent with Section 2.14(a)(i) (and Defaulting Lenders shall not participate therein).

 

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In the event that the Administrative Agent, the Borrower, each Issuing Lender and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such RL Lender to be a Defaulting Lender, then (i) the Swingline Loan Exposure and Letter of Credit Exposure of the RL Lenders shall be readjusted to reflect the inclusion of such RL Lender’s Revolving Loan Commitments and on such date such RL Lender shall purchase at par such of the Revolving Loans of the other RL Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such RL Lender to hold such Revolving Loans in accordance with its RL Percentage and (ii) so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Borrower. If the Revolving Loan Commitments have been terminated, all other Obligations (other than contingent obligations not due and owing) with respect to the Revolving Loans and Swingline Loans have been paid in full and no Letters of Credit are outstanding (other than cash collateralized or backstopped Letters of Credit in a manner reasonably satisfactory to each applicable Issuing Lender), then, so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Borrower.

 

2.15.                     Incremental Term Loans; Incremental Revolving Loans.  (a) The Borrower shall have the right to request (by written notice to the Administrative Agent) at any time and from time to time after the Closing Date, (x) additional term loans to be made pursuant to (and to constitute a part of) the Tranche B-2 Term Loans, any then existing Class of Term Loans (excluding the Initial Tranche B-1 Term Loans) previously created pursuant to this Section 2.15 and/or one or more additional tranches of term loans under this Agreement (the “Incremental Term Loans”) and/or (y) one or more increases in the amount of an existing Class of Revolving Loan Commitments (each such increase, a “Revolving Commitment Increase”) and/or, subject to clause (h) below, one or more additional tranches of incremental revolving commitments be established (each an “Incremental Revolving Commitment” and, together with any Revolving Commitment Increase, an “Incremental Revolver” and, any Loan made under an Incremental Revolving Commitment, an “Incremental Revolving Loan”); provided that;

 

(i)                                     at the time of each such request and upon the effectiveness of any Incremental Amendment, no Default or Event of Default shall have occurred and be continuing or shall occur as a result thereof; provided that in the case of any Incremental Facilities the proceeds of which are to be used to finance an acquisition permitted under this Agreement, (A) at the time of any such request, no Default or Event of Default shall have occurred and be continuing or shall occur as a result thereof and (B) upon the effectiveness of any Incremental Amendment and the making of such Incremental Term Loan and/or Incremental Revolving Loan, no Specified Default shall have occurred and be continuing or shall occur as a result thereof;

 

(ii)                                  the Borrower shall be in Pro Forma Compliance with the covenant contained in Section 10.07 (whether or not such covenant is applicable at such time in accordance with its terms) determined (x) as of the last day of the most recently ended Calculation Period prior to the date of effectiveness of the related Incremental Amendment, after giving effect to the incurrence of the Incremental Term Loans and/or establishment of the Incremental Revolver, as the case may be, as if such Incremental Term Loans had been incurred, or Incremental Revolver established (and, if incurred to finance an acquisition permitted under this Agreement, as if such acquisition had been consummated), on the first day of such Calculation Period and (y) (1) without giving effect to any deductions in the calculation of Consolidated Senior Secured Net Debt by the amount of cash proceeds received from the incurrence of all such Incremental Facilities and (2) in the case of any Incremental Revolver, assuming the full utilization thereof, whether or not actually utilized;

 

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(iii)                               each tranche of Incremental Term Loans (or addition of Incremental Term Loans to an existing Class of Term Loans) and each Incremental Revolver shall be in an aggregate principal amount that is not less than $15,000,000 and an integral multiple of $5,000,000 in excess thereof (provided that such amount may be less than $15,000,000 if such amount represents all remaining availability under the limit set forth in clause (iv) below);

 

(iv)                              the aggregate amount of all Incremental Facilities shall not exceed the Maximum Incremental Facilities Amount as in effect at such time; and

 

(v)                                 the Borrower shall have delivered to the Administrative Agent a certificate executed by an Authorized Officer of the Borrower (A) certifying compliance with the requirements of preceding clauses (i) through (iv), inclusive, and (B) containing the calculations (in reasonable detail) required by the preceding clauses (ii) and (iv) and, if applicable, the definition of “Maximum Incremental Facilities Amount”.

 

(b)                                 (1) All Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall (x) be Obligations under this Agreement and the other applicable Credit Documents, (y) be secured by the relevant Security Documents, and guaranteed under the Guarantee and Collateral Agreement, on a pari passu basis with all Initial Term Loans and Initial Revolving Loans (and other Obligations secured equally and ratably therewith) secured by each such Security Document and guaranteed under the Guarantee and Collateral Agreement (or, at the Borrower’s option, and as may be agreed by the respective Lenders, may be junior in right of payment and/or security to the Initial Term Loans, Initial Revolving Loans and other Obligations secured equally and ratably therewith (and to the extent (x) pari passu, shall be subject to the Intercreditor Agreement, and (y) subordinated in right of payment or security, shall be subject to an intercreditor agreement on terms and conditions reasonably acceptable to the Administrative Agent)) and (z) except as otherwise required below, all other terms of such Incremental Term Loans and Incremental Revolving Commitment, if not substantially identical to the terms of the Initial Tranche B-2 Term Loans or Initial Revolving Loans, as applicable, will be as agreed between the Borrower and the lenders providing such Incremental Term Loans and/or Incremental Revolving Commitment (and to the extent not substantially identical to the Initial Tranche B-2 Term Loans and/or Initial Revolving Loans, as applicable, reasonably satisfactory to the Administrative Agent); provided, however, that (i) in the case of a new tranche of Incremental Term Loans, (I) the maturity and amortization of such tranche of Incremental Term Loans may differ, so long as such tranche of Incremental Term Loans shall have (a) a final stated maturity date of no earlier than the Initial Tranche B-2 Term Loan Maturity Date and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Initial Tranche B-2 Term Loans (other than to the extent of nominal amortization for periods where amortization has been eliminated or reduced as a result of prepayment of such Initial Tranche B-2 Term Loans) and (II) the Effective Yield for such new tranche of Incremental Term Loans may exceed the Effective Yield then applicable to the Initial Tranche B-2 Term Loans and the Incremental Tranche C-1 Term Loans, provided that, (1) in the case of any Incremental Amendment providing for such new tranche of Incremental Term Loans to become effective prior to the date that is 18 months after the Closing Date, and which new tranche of Incremental Term Loans is pari passu in right of payment and security to the Initial Tranche B-2 Term Loans, the Effective Yield for the Initial Tranche B-2 Term Loans shall be increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such new tranche of Incremental Term Loans minus 0.50% and (2) in the case of any Incremental Amendment providing for such new tranche of Incremental Term Loans following the date of ThirdFifth Amendment Effective Date, and which new tranche of Incremental Term Loans is pari passu in right of payment and security to the Incremental Tranche C-1 Term Loans, the Effective Yield for the Incremental Tranche C-1 Term Loans shall be increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such new tranche of Incremental Term Loans minus 0.50%, (ii)  any prepayment of Incremental Term Loans that are pari passu in right of payment and pari passu with respect

 

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to security shall be made on a pro rata basis with all then existing Term Loans (including all other then-existing Incremental Term Loans, Other Term Loans, Extended Term Loans and Replacement Term Loans requiring ratable prepayment), except that the Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis) and (iii) in the case of Incremental Term Loans to be made pursuant to (and to constitute a part of) an existing Class of Term Loans, (I) such new Incremental Term Loans shall have the same scheduled repayment dates as then remain with respect to the respective existing Class of Term Loans (with the amount of each scheduled repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the respective existing Class of Term Loans, thereby increasing the amount of each then remaining scheduled repayment proportionately, and (II) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective existing Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of such Class of Term Loans; and

 

(2)                                 (x) Any Incremental Revolver will mature no earlier than, and will require no scheduled amortization or mandatory commitment reduction prior to, the Maturity Date applicable to the Initial Revolving Lender and all other terms (other than pricing, maturity and fees) shall be substantially identical to the Initial Revolving Loans (including, without limitation, by being secured by the relevant Security Documents, and guaranteed under the Guarantee and Collateral Agreement, on a pari passu basis with all Initial Term Loans and Initial Revolving Loans (and other Obligations secured equally and ratably therewith) secured by each such Security Document and guaranteed under the Guarantee and Collateral Agreement) and (y) any Revolving Commitment Increase shall be subject to the terms and conditions applicable to Revolving Loans of the applicable Class being increased in this Agreement and the other Credit Documents; provided that, notwithstanding anything to the contrary in this Section 2.15 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Incremental Revolvers (and related outstandings), (B) repayments required upon the maturity date of the applicable Revolving Loan Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to Incremental Revolvers after the associated Incremental Facility Closing Date shall be made on a pro rata basis with all other Revolving Loan Commitments, (2) subject to the provisions of Section 2.01(f) and Section 3.07 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exist Revolving Loan Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Loan Commitments (and except as provided in Section 2.01(f) and Section 3.07, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Loans with respect to, and termination of, Incremental Revolvers after the associated Incremental Facility Closing Date shall be made on a pro rata basis with all other Revolving Loan Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (4) assignments and participations of Incremental Revolvers and Incremental Revolving Loans shall be governed by the same assignment and participation provisions applicable to Initial Revolving Loan Commitments and Initial Revolving Loans.  Any Incremental Revolver may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the Revolving Loan Commitments prior to the Incremental Facility Closing Date and (5) the Effective Yield for any new tranche of Incremental Revolving Commitments may exceed the Effective Yield then applicable to the Initial Revolving Commitments, provided that, in the case of any Incremental Amendment providing for such new tranche of Incremental Revolving Commitments to become effective prior to the

 

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date that is 18 months after the Closing Date, and which new tranche of Incremental Revolving Commitments is pari passu in right of payment and security to the Initial Revolving Commitments, the Effective Yield for the Initial Revolving Commitments shall be increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such new tranche of Incremental Revolving Commitments minus 0.50%.

 

(c)                                  Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolver.

 

(d)                                 Incremental Term Loans may be made, and Incremental Revolvers may be provided, by any existing Lender or by any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolvers if such consent would be required under Section 13.04(c) for an assignment of Loans or Revolving Loan Commitments, as applicable, to such Lender or Additional Lender.  Commitments in respect of Incremental Term Loans and Incremental Revolver shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing RL Lender, an increase in such Lender’s applicable Revolving Loan Commitment) under this Agreement pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and, to the extent required hereunder, the Administrative Agent.  The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15 (including, in the case of Incremental Term Loans or Incremental Revolving Commitment structured as a separate Class, the incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by a majority or supermajority of the Lenders holding the Loans or Incremental Term Loans or Incremental Revolving Commitments whose payment rights are being modified).

 

(e)                                  The effectiveness of any Incremental Amendment shall be subject to the satisfaction (or waiver) on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in such Incremental Amendment.

 

(f)                                   The Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolvers for any purpose not prohibited by this Agreement and as agreed to by the Borrower and the lenders providing such Incremental Facility.

 

(g)                                  No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolvers, unless it so agrees in its sole discretion.

 

(h)                                 Upon each increase in the Revolving Loan Commitments or incurrence of any Incremental Revolving Commitment pursuant to this Section 2.15, (x) each RL Lender immediately prior to such increase or incurrence will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase or the Incremental Revolving Commitment (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such RL Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each RL Lender (including each such

 

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Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Loan Commitments of all RL Lenders represented by such RL Lender’s Revolving Loan Commitment and (y) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase or the Incremental Revolving Commitment be prepaid from the proceeds of Revolving Loans made hereunder (reflecting such increase in Revolving Loan Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

 

This Section 2.15 shall supersede any provisions in Section 2.07, 13.06 or 13.10 to the contrary.

 

2.16.                     Extensions of Term Loans and Revolving Loan Commitments.  (a)  Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Term Loans (other than Initial Tranche B-1 Term Loans) with a like maturity date or Revolving Loan Commitments with a like maturity date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans (other than Initial Tranche B-1 Term Loans) or Revolving Loan Commitments with a like maturity date, as the case may be) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term Loans (other than Initial Tranche B-1 Term Loans) and/or Revolving Loan Commitments and otherwise modify the terms of such Term Loans (other than Initial Tranche B-1 Term Loans) and/or Revolving Loan Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Term Loans (other than Initial Tranche B-1 Term Loans) and/or Revolving Loan Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans (other than Initial Tranche B-1 Term Loans)) (each, an “Extension,” and each group of Term Loans or Revolving Loan Commitments, as applicable, in each case as so extended, as well as the original Term Loans and the original Revolving Loan Commitments (in each case not so extended), being a “tranche”; any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were converted, and any Extended Revolving Loan Commitments shall constitute a separate tranche of Revolving Loan Commitments from the tranche of Revolving Loan Commitments from which they were converted), so long as the following terms are satisfied:  (i) no Specified Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders and immediately prior to or after giving effect to any such Extension, (ii) except as to interest rates, fees, optional redemption or optional prepayment terms, and final maturity, and after the final maturity date of the Initial Revolving Loan Commitment, any other covenants and provisions (which shall be determined by the Borrower and the relevant RL Lenders and set forth in the relevant Extension Offer), the Revolving Loan Commitment of any RL Lender (an “Extending Revolving Credit Lender”) extended pursuant to an Extension (an “Extended Revolving Loan Commitment”), and the related outstandings, shall be a Revolving Loan Commitment (or related outstandings, as the case may be) with such other terms substantially identical to, or taken as a whole, no more favorable (as reasonably determined by the Borrower) to the Extending Revolving Credit Lender, as the applicable original Revolving Loan Commitments (and related outstandings); provided that (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Extended Revolving Loan Commitments (and related outstandings), (B) repayments required upon the maturity date of the non-extending Revolving Loan Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments) of Loans with respect to Extended Revolving Loan Commitments after the applicable Extension date shall be made on a pro rata basis with all

 

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other Revolving Loan Commitments of such tranche, (2) subject to the provisions of Section 3.07 and 2.01(f) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Loan Commitments or Incremental Revolving Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Loan Commitments (and except as provided in Section 3.07 and 2.01(f), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Loans with respect to, and termination of, Extended Revolving Loan Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Loan Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Extended Revolving Loan Commitments and extended Revolving Loans shall be governed by the same assignment and participation provisions applicable to Initial Revolving Loan Commitments and Initial Revolving Loans, (iii) except as to interest rates, fees, amortization, final maturity date, optional redemptions or optional prepayments, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iv), (v) and (vi), be determined by the Borrower and the Extending Term Lenders and set forth in the relevant Extension Offer), the Term Loans of any Term Lender that agrees to an Extension with respect to such Term Loans (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall be substantially identical to, or (taken as a whole) no more favorable to the Extending Term Lenders, than those applicable to the Term Loans subject to such Extension Offer (except for covenants or other provisions applicable only to periods after the then Latest Maturity Date of theretofore outstanding Term Loans), (iv) the final maturity date of any Extended Term Loans shall be no earlier than the Maturity Date applicable to the Term Loans subject to the Extension Offer, (v) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) or Revolving Loan Commitments, as the case may be, in respect of which Term Lenders or RL Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Loan Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Loans, as the case may be, of such Term Lenders or RL Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders or RL Lenders, as the case may be, have accepted such Extension Offer, (viii) all documentation in respect of such Extension shall be consistent with the foregoing, (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower and (x) at no time shall there be no more than four (4) separate Classes of Revolving Loans Commitments outstanding hereunder (including Extended Revolving Loan Commitments and Incremental Revolving Commitments).  No Lender shall be obligated to provide any Extension, unless it so agrees in its sole discretion.

 

(b)                                 With respect to all Extensions consummated by the Borrower pursuant to this Section 2.16, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 5 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment; provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Loan Commitments (as applicable) of any or all applicable tranches be tendered.  The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions

 

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contemplated by this Section 2.16 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans, Extended Revolving Loans and/or Extended Revolving Loan Commitments on the such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 5 and 13.06) or any other Credit Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.16.

 

(c)                                  No consent of any Lender or the Administrative Agent shall be required to effectuate any Extensions, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Loan Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Loan Commitments, the consent of the Issuing Lender and Swingline Lender (to the extent the Swingline Facility is to be extended), which consent shall not be unreasonably withheld, delayed or conditioned.  All Extended Term Loans, Extended Revolving Loans, Extended Revolving Loan Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Credit Documents that are secured by the Collateral on a pari passu basis (or, if different, on the same basis as applied to the Obligations being extended) with all other applicable Obligations under this Agreement and the other Credit Documents. The Lenders hereby irrevocably authorize the Administrative Agent and Collateral Trustee to enter into amendments to this Agreement and the other Credit Documents with the Borrower as may be necessary or appropriate in order to establish new tranches or sub-tranches in respect of Revolving Loan Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.16.  All such amendments entered into with the Borrower by the Administrative Agent or the Collateral Trustee hereunder shall be binding and conclusive on the Lenders.  In addition, if so provided in such amendment and with the consent of each Issuing Lender, participations in Letters of Credit expiring on or after the Maturity Date in respect of the Revolving Loans shall be re-allocated from Lenders holding Revolving Loan Commitments to Lenders holding Extended Revolving Loan Commitments in accordance with the terms of such amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Loan Commitments, be deemed to be participation interests in respect of such Revolving Loan Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly.  Without limiting the foregoing, in connection with any Extensions the respective Credit Parties shall (at their expense) amend (and the Collateral Trustee is hereby directed to amend) any Mortgage that has a maturity date prior to the Latest Maturity Date so that such maturity date is extended to the Latest Maturity Date (or such later date as may be advised by local counsel to the Collateral Trustee).

 

(d)                                 In connection with any Extension, the Borrower shall provide the Administrative Agent at least ten (10) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including, without limitation, regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.16.

 

2.17.                     Refinancing Amendments.  (a)  At any time after the Closing Date, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness under this Agreement in respect of (i) all or any portion of the Term Loans then outstanding under this Agreement or (ii) all or any portion of the Revolving Loans and related extensions of credit (or unused Revolving Loan Commitments) under this Agreement, in the form of (x) Other Term Loans or Other Term Loan Commitments or (y) Other Revolving Loans or Other Revolving Commitments, as the case may be, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing

 

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Indebtedness (i) will rank pari passu (or, at the Borrower’s option, in the case of Other Term Loans and Other Loan Term Commitments, junior in right of payment or security) in right of payment and of security with the other Loans and Commitments hereunder, (ii) shall not be secured by any assets not constituting Collateral and shall not be guaranteed by any entity that is not a Subsidiary Guarantor, (iii) will have such pricing, fees, optional prepayments or redemption terms and premiums as may be agreed by the Borrower and the lenders thereof, (iv) (x) with respect to any Other Revolving Loans or Other Revolving Commitments, will have a maturity date that is not prior to the maturity date of Revolving Loans (or unused Revolving Loan Commitments) being refinanced and (y) with respect to any Other Term Loans or Other Term Loan Commitments, will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Term Loans being refinanced (other than to the extent of nominal amortization for periods where amortization has been eliminated or reduced as a result of prepayments of such Term Loans), (v) will, in the case of any Credit Agreement Refinancing Indebtedness in the form of Other Term Loans or Other Term Loan Commitments, share ratably in (or if junior in right of payment or as to security, on a junior basis in respect of) any prepayments of Term Loans (unless the Other Term Loans agree to participate on a less than pro rata basis in any voluntary or mandatory prepayments or repayments), (vi) will, in the case of any Credit Agreement Refinancing Indebtedness in the form of Other Revolving Loans or Other Revolving Commitments, provide that (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Other Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Other Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Loan Commitments, (2) subject to the provisions of Section 2.01(f) and Section 3.07 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Revolving Loan Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Loan Commitments in accordance with their percentage of the Revolving Loan Commitments (and except as provided in Section 2.01(f) and Section 3.07, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Loans with respect to, and termination of, other Revolving Loan Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Loan Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Other Revolving Commitments and Other Revolving Loans shall be governed by the same assignment and participation provisions applicable to Initial Revolving Loan Commitments and Initial Revolving Loans, (vii) in the case of any Credit Agreement Refinancing Indebtedness that is (x) pari passu, shall be subject to the Intercreditor Agreement and (y) junior to the Obligations under this Agreement with respect to security, shall be subject to a customary intercreditor arrangements reasonably satisfactory to the Administrative Agent and (viii) will have terms and conditions that are substantially identical to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the investors providing such Credit Agreement Refinancing Indebtedness than, the Refinanced Debt; provided, further, that the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.  Each Class of Credit Agreement Refinancing Indebtedness incurred under this Section 2.17 shall be in an aggregate principal amount that is (x) not less than $25,000,000 and (y) an integral multiple of $5,000,000 in excess thereof.

 

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(b)                                 The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment.  Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Loan Commitments).  Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17.  In addition, in the case of the provision of any Other Revolving Commitments, participations in Letters of Credit shall be reallocated from Lenders holding existing Revolving Loan Commitments to Lenders holding Other Revolving Commitments as needed to reflect the revised RL Percentages of the various RL Lenders.  For the avoidance of doubt, no existing Lender shall be obligated to provide any Credit Agreement Refinancing Indebtedness.

 

(c)                                  Credit Agreement Refinancing Indebtedness may also be incurred outside of this Agreement, subject to the relevant requirements of Section 10.04, the definition of Credit Agreement Refinancing Indebtedness, the satisfaction of Section 2.17(a)(vii), if applicable, and, except with respect to Permitted Unsecured Refinancing Debt, Section 2.17(a)(viii), and the various component defined terms as used therein.

 

(d)                                 This Section 2.17 shall supersede any provisions in Section 2.07, 13.06 or 13.10 to the contrary.

 

2.18.                     Reverse Dutch Auction Repurchases.  (a)  Notwithstanding anything to the contrary contained in this Agreement or any other Credit Document, the Borrower and its Subsidiaries (the “Borrower Parties,” and any one of them, a “Borrower Party”) may, at any time and from time to time after the Closing Date, conduct reverse Dutch auctions in order to purchase Term Loans (each, an “Auction”) (each such Auction to be managed exclusively by an investment bank of recognized standing selected by the Borrower in consultation with the Administrative Agent (in such capacity, the “Auction Manager”)), so long as the following conditions (or, in the case of clause (iv), requirements) are satisfied or waived:

 

(i)                                     each Auction shall be conducted in accordance with the procedures, terms and conditions set forth in this Section 2.18, Schedule 2.18 or such other procedures, terms and conditions or otherwise established by the Borrower and the Auction Manager and consented to by the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned);

 

(ii)                                  no Default or Event of Default shall have occurred and be continuing on the date of the delivery of each Auction Notice or at the time of purchase of any Term Loans in connection with any Auction;

 

(iii)                               the principal amount (calculated on the face amount thereof) of all Term Loans that any Borrower Party offers to purchase in any such Auction shall be no less than $10,000,000 or an integral of $1,000,000 in excess thereof (unless another amount is agreed to by the Administrative Agent);

 

(iv)                              immediately after giving effect to any such purchase of Term Loans, the aggregate principal amount (calculated on the face amount thereof) of all Term Loans so purchased by a Borrower Party shall automatically and permanently be cancelled and retired by

 

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the Borrower on the settlement date of the relevant purchase (and may not be resold), and in no event shall such Borrower Party be entitled to vote hereunder or under any other Credit Document in connection with such Term Loans;

 

(v)                                 no more than one Auction may be ongoing at any one time;

 

(vi)                              at the time of each purchase of Term Loans through an Auction, the Borrower shall have delivered to the Auction Manager an Officer’s Certificate, signed by an Authorized Officer, certifying as to the compliance with preceding clauses (ii), (v) and (vii);

 

(vii)                           no proceeds of Revolving Loans or Swingline Loans may be utilized to purchase any Term Loans pursuant to this Section 2.18; and

 

(viii)                        each Auction shall be open and offered to all Lenders of the relevant Class of Term Loans on a pro rata basis.

 

(b)                                 The Borrower must terminate an Auction if it fails to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of purchase of Term Loans pursuant to the respective Auction.  The Borrower shall have no liability to any Lender for any termination of the respective Auction as a result of its failure to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of purchase of Term Loans pursuant to the respective Auction, and any such failure shall not result in any Default or Event of Default hereunder.  With respect to all purchases of Term Loans made by a Borrower Party pursuant to this Section 2.18, (x) the Borrower shall pay on the settlement date of each such purchase all accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering documents), if any, on the purchased Term Loans up to the settlement date of such purchase and (y) such purchases (and the payments made by the Borrower and the cancellation of the purchased Term Loans, in each case in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Sections 5.01, 5.02 or 13.06 (although the par principal amount of Term Loans of the respective Class so purchased pursuant to this Section 2.18 shall be applied to reduce the remaining scheduled repayments of such tranche of Term Loans of the applicable Lenders being repaid in direct order of maturity).

 

(c)                                  The Administrative Agent and the Lenders hereby consent to the Auctions and the other transactions contemplated by this Section 2.18 (provided that no Lender shall have an obligation to participate in any such Auctions) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 5.01, 5.02 and 13.06 (it being understood and acknowledged that purchases of the Term Loans by any Borrower Party contemplated by this Section 2.18 shall not constitute Investments by the Borrower or any of its Restricted Subsidiaries)) or any other Credit Document that may otherwise prohibit any Auction or any other transaction contemplated by this Section 2.18.  The Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the provisions of Section 12 generally and Section 13.01 mutatis mutandis as if each reference therein to the “Administrative Agent” were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the Auction Manager in order to enable the Auction Manager to perform its responsibilities and duties in connection with each Auction.  Upon written notice to the Administrative Agent, the Borrower may withdraw its offer for any Auction under this Section 2.18 prior to the completion thereof.

 

(d)                                 Each Lender participating in any Auction hereby acknowledges and agrees that in connection with such Auction, (1) the Borrower Party may have, and later may come into possession of, information regarding the Loans or the Credit Parties hereunder that is not known to such Lender and that

 

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may be material to a decision by such Lender to participate in such Auction (such information, the “Excluded Information”), (2) such Lender has independently, without reliance on the Borrower, any of its Subsidiaries, the Auction Manager, the Administrative Agent, the Collateral Trustee, any Arrangers or any of their respective Affiliates, made its own analysis and determination to participate in such Auction notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Auction Manager, the Administrative Agent, the Collateral Trustee, any Arranger or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Borrower, its Subsidiaries, the Auction Manager, the Administrative Agent, the Collateral Trustee, any Arrangers and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Auction further acknowledges that the Excluded Information may not be available to the Auction Manager, the Administrative Agent, the Collateral Trustee, the Arrangers or the other Lenders.

 

SECTION 3.                            Letters of Credit.

 

3.01.                     Letters of Credit.  (a)  Subject to and upon the terms and conditions set forth herein, the Borrower may request that an Issuing Lender issue, at any time and from time to time on and after the Closing Date and prior to the fifth Business Day prior to the then Latest Maturity Date applicable to Revolving Loan Commitments hereunder, for the account of the Borrower, (x) an irrevocable standby letter of credit, in a form customarily used by such Issuing Lender or in such other form as is reasonably acceptable to such Issuing Lender and the Borrower, and (y) an irrevocable trade letter of credit, in a form customarily used by such Issuing Lender or in such other form as has been approved by such Issuing Lender and acceptable to the Borrower (each such letter of credit, a “Letter of Credit” and, collectively, the “Letters of Credit”).  Each Issuing Lender agrees, subject to the terms of this Agreement, to issue Letters of Credit in an aggregate face amount (i) not to exceed its Letter of Credit Commitment outstanding at any time or (ii) when aggregated with the face amount of all outstanding Letters of Credit and the aggregate principal amount of all Revolving Loans and all Swingline Loans then outstanding, not to exceed the Revolving Loan Commitments.  All Letters of Credit shall be denominated in Dollars.

 

(b)                                 Subject to and upon the terms and conditions set forth herein, each Issuing Lender agrees that it will, at any time and from time to time on and after the Closing Date and prior to the fifth Business Day prior to the then Latest Maturity Date applicable to Revolving Loan Commitments hereunder, following its receipt of the respective Letter of Credit Request, issue for account of the Borrower, one or more Letters of Credit as are permitted to remain outstanding hereunder without giving rise to a Default or an Event of Default; provided that no Issuing Lender shall be under any obligation to issue any Letter of Credit of the types described above if at the time of such issuance:

 

(i)                                     any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuing Lender from issuing such Letter of Credit or any requirement of law applicable to such Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Lender with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuing Lender is not otherwise compensated hereunder) not in effect with respect to such Issuing Lender on the date hereof, or any unreimbursed loss, cost or expense which was not applicable or in effect with respect to such Issuing Lender as of the date hereof and which such Issuing Lender reasonably and in good faith deems material to it; or

 

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(ii)                                  such Issuing Lender shall have received from the Borrower, any other Credit Party or the Required Lenders prior to the issuance of such Letter of Credit notice of the type described in the second sentence of Section 3.03(b) (which has not been rescinded).

 

3.02.                     Maximum Letter of Credit Outstandings; Final Maturities.  (a)  Notwithstanding anything to the contrary contained in this Agreement, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of Credit) at such time would exceed, when added to the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the aggregate principal amount of all Swingline Loans then outstanding, an amount equal to the Total Revolving Loan Commitment at such time, and (ii) unless consented to by the Issuing Lender, each Letter of Credit shall by its terms terminate (x) in the case of standby Letters of Credit, on or before the earlier of (A) the date which occurs 12 months after the date of the issuance thereof (although any such standby Letter of Credit may be automatically extendible for successive periods of up to 12 months, but, in each case, not beyond the fifth Business Day prior to the then Latest Maturity Date applicable to Revolving Loan Commitments hereunder, on terms reasonably acceptable to the Issuing Lender) and (B) five (5) Business Days prior to the then Latest Maturity Date applicable to Revolving Loan Commitments hereunder, and (y) in the case of trade Letters of Credit, on or before the earlier of (A) the date which occurs 180 days after the date of issuance thereof and (B) five (5) Business Days prior to the then latest Maturity Date applicable to Revolving Loan Commitments hereunder; provided that if any Letter of Credit with a stated termination date occurring after the Initial Revolving Loan Maturity Date is issued or extended by an Issuing Lender in accordance with the preceding paragraph and the Initial Revolving Loan Maturity Date would, at the time of such issuance or extension, occur within 12 months after the date of such issuance or extension, the Stated Amount of such Letter of Credit shall not exceed, when added to the sum of the aggregate Stated Amount of all Letters of Credit issued by such Issuing Lender that (x) have a stated termination date occurring after the Initial Revolving Loan Maturity Date and (y) are then outstanding, the Letter of Credit Commitment of such Issuing Lender that will be in effect on the Initial Revolving Loan Maturity Date (calculated after giving effect to any reduction on such date pursuant to Section 3.02(b)) unless the excess amount shall have been cash collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Lender; provided, further, that if any Letter of Credit with a stated termination date occurring after the Incremental Tranche A Revolving Loan Maturity Date is issued or extended by an Issuing Lender in accordance with the preceding paragraph and the Incremental Tranche A Revolving Loan Maturity Date would, at the time of such issuance or extension, occur within 12 months after the date of such issuance or extension, the Stated Amount of such Letter of Credit shall not exceed, when added to the sum of the aggregate Stated Amount of all Letters of Credit issued by such Issuing Lender that (x) have a stated termination date occurring after the Incremental Tranche A Revolving Loan Maturity Date and (y) are then outstanding, the Letter of Credit Commitment of such Issuing Lender that will be in effect on the Incremental Tranche A Revolving Loan Maturity Date (calculated after giving effect to any reduction on such date pursuant to Section 3.02(b)) unless the excess amount shall have been cash collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Lender; provided, further, that if any Letter of Credit with a stated termination date occurring after the Extended Initial Revolving Loan Maturity Date is issued or extended by an Issuing Lender in accordance with the preceding paragraph and the Extended Initial Revolving Loan Maturity Date would, at the time of such issuance or extension, occur within 12 months after the date of such issuance or extension, the Stated Amount of such Letter of Credit shall not exceed, when added to the sum of the aggregate Stated Amount of all Letters of Credit issued by such Issuing Lender that (x) have a stated termination date occurring after the Extended Initial Revolving Loan Maturity Date and (y) are then outstanding, the Letter of Credit Commitment of such Issuing Lender that will be in effect on the Extended Initial Revolving Loan Maturity Date (calculated after giving effect to any reduction on such date pursuant to Section 3.02(b)) unless the excess amount shall have been cash collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Lender.

 

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(b) Notwithstanding anything to the contrary contained in this Agreement, (i) in the event all or a portion of the Extended Initial Revolving Loan Commitments are terminated (but not by way of an extension hereunder) and the aggregate Extended Initial Letter of Credit Commitments would exceed the aggregate Extended Initial Revolving Loan Commitments in effect immediately after such termination, the aggregate Extended Initial Letter of Credit Commitments shall be reduced by an amount equal to the dollar amount by which the aggregate Extended Initial Letter of Credit Commitments would exceed the aggregate Extended Initial Revolving Loan Commitments as in effect immediately after such termination, (ii) in the event all or a portion of the Incremental Tranche A Revolving Loan Commitments are terminated (but not by way of an extension hereunder) and the aggregate First Amendment Letter of Credit Commitments would exceed the aggregate Incremental Tranche A Revolving Loan Commitments in effect immediately after such termination, the aggregate First Amendment Letter of Credit Commitments shall be reduced by an amount equal to the dollar amount by which the aggregate First Amendment Letter of Credit Commitments would exceed the aggregate Incremental Tranche A Revolving Loan Commitments as in effect immediately after such termination and (iii) in the event all or a portion of the Incremental Tranche B Revolving Loan Commitments are terminated (but not by way of an extension hereunder) and the aggregate Second Amendment Letter of Credit Commitments would exceed the aggregate Incremental Tranche B Revolving Loan Commitments in effect immediately after such termination, the aggregate Second Amendment Letter of Credit Commitments shall be reduced by an amount equal to the dollar amount by which the aggregate Second Amendment Letter of Credit Commitments would exceed the aggregate Incremental Tranche B Revolving Loan Commitments as in effect immediately after such termination; provided that, in connection with any such reduction of any Letter of Credit Commitment set forth above, to the extent any Letters of Credit are then outstanding, such reduction shall be allocated among the applicable Issuing Lenders on a pro rata basis to the applicable Letter of Credit Commitment based on the relative sizes of such Letter of Credit Commitments of such Issuing Lenders; provided, further, that, to the extent such pro rata allocation would necessitate the replacement or cash collateralization of then outstanding Letters of Credit, the parties hereto agree that such reduction may be allocated on a non-pro rata basis as mutually agreed by the Administrative Agent and the Borrower in order to minimize the need to replace or cash collateralize any such then outstanding letters of Letters Credit; provided, further, that, at the time of any reduction to the Letter of Credit Commitments pursuant to this clause (b), any Issuing Lender may in its sole discretion agree that its applicable Letter of Credit Commitments not be reduced (a “Declined Reduction”) and such Declined Reduction shall not be reallocated among the other Issuing Lenders.

 

3.03.                     Letter of Credit Requests; Minimum Stated Amount.  (a)  Whenever the Borrower desires that a Letter of Credit be issued for its account, the Borrower shall give the Administrative Agent and the respective Issuing Lender at least three (3) Business Days’ (or such shorter period as is reasonably acceptable to such Issuing Lender) written notice thereof (including by way of facsimile).  Each notice shall be substantially in the form of Exhibit C, appropriately completed (each, a “Letter of Credit Request”).

 

(b)                                 The making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower to the Lenders that such Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.02.  Unless the respective Issuing Lender has received notice from the Borrower, any other Credit Party or the Required Lenders before it issues a Letter of Credit that one or more of the conditions specified in Section 6 or 7 are not then satisfied (or waived) in writing by the Required Lenders prior to the issuance of such Letter of Credit, or that the issuance of such Letter of Credit would violate Section 3.02, then such Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested Letter of Credit for the account of the Borrower in accordance with such Issuing Lender’s usual and customary practices.  Upon the issuance of or modification or amendment to any Letter of Credit, each Issuing Lender shall promptly notify the Borrower and the Administrative Agent, in writing of such issuance, modification or amendment and such notice shall be accompanied by a copy of such Letter of Credit or the respective modification or amendment

 

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thereto, as the case may be.  Promptly after receipt of such notice the Administrative Agent shall notify the Participants, in writing, of such issuance, modification or amendment.

 

(c)                                  The initial Stated Amount of each Letter of Credit (other than any Existing Letter of Credit) shall not be less than $10,000 or such lesser amount as is acceptable to the respective Issuing Lender.

 

3.04.                     Letter of Credit Participations.  (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.  Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 or 13.04(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.

 

(b)                                 In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit.  Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).

 

(c)                                  In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds.  If the Administrative Agent so notifies, prior to 11:00 a.m. on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds.  If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter.  The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as

 

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specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.

 

(d)                                 Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.

 

(e)                                  Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant.

 

(f)                                   The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:

 

(i)                                     any lack of validity or enforceability of this Agreement or any of the other Credit Documents;

 

(ii)                                  the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);

 

(iii)                               any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(iv)                              the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or

 

(v)                                 the occurrence of any Default or Event of Default.

 

3.05.                     Agreement to Repay Letter of Credit Drawings.  (a)  The Borrower agrees to reimburse each Issuing Lender, by making payment to the Administrative Agent in immediately available funds at the Payment Office, for any payment or disbursement made by such Issuing Lender under any Letter of Credit issued by it (each such amount, so paid until reimbursed by the Borrower, an “Unpaid Drawing”), prior to 11:00 a.m., not later than one (1) Business Day following receipt by the Borrower of written notice of such payment or disbursement; provided that in the absence of such reimbursement by the Borrower within the period provided above, the amount of the Drawing shall immediately and automatically be deemed to be a Revolving Loan hereunder (with each Participant in the respective Letter of Credit being required to fund its RL Percentage of the respective Unpaid Drawing in accordance with the provisions of Section 3.04(c), which amounts shall immediately and automatically be deemed a part of such Revolving Loan hereunder) and, initially, shall bear interest at the rate then applicable to Revolving Loans

 

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that are Base Rate Loans.  If a Drawing is deemed to be a Revolving Loan hereunder, the Borrower’s obligation to pay the amount of such Drawing shall be discharged and replaced by the resulting Revolving Loan.  Each Issuing Lender shall give the Borrower prompt written notice of each Drawing under any Letter of Credit issued by it; provided that the failure to give any such notice shall in no way affect, impair or diminish the Borrower’s obligations hereunder.

 

(b)                                 The obligations of the Borrower under this Section 3.05 to reimburse each Issuing Lender with respect to drafts, demands and other presentations for payment under Letters of Credit issued by it (each, a “Drawing”) (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower or any Subsidiary of the Borrower may have or have had against any Lender (including in its capacity as an Issuing Lender or as a Participant), including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided, however, that the Borrower shall not be obligated to reimburse any Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct, bad faith or gross negligence or material breach of this Agreement on the part of such Issuing Lender (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).

 

3.06.                     Increased Costs.  If at any time after the Closing Date, the introduction of or any change in any applicable law, rule, regulation, order, guideline or request or in the interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Issuing Lender or any Participant with any request or directive by the NAIC or by any such Governmental Authority, central bank or comparable agency (whether or not having the force of law), shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against letters of credit issued by any Issuing Lender or participated in by any Participant, (ii) impose on any Issuing Lender or any Participant any other conditions relating, directly or indirectly, to this Agreement or any Letter of Credit, or (iii) subject any Issuing Bank or Participant to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on any Letter of Credit, and the result of any of the foregoing is to increase the cost to any Issuing Lender, any Agent, or any Participant of issuing, maintaining or participating in any Letter of Credit, or reduce the amount of any sum received or receivable by any Issuing Lender or any Participant hereunder or reduce the rate of return on its capital with respect to Letters of Credit, then within fifteen (15) Business Days after receipt of the certificate referred to below by Borrower from any Issuing Lender, any Agent, or any Participant (a copy of which certificate shall be sent by such Issuing Lender or such Participant to the Administrative Agent), the Borrower, subject to the provisions of Section 2.11(b) (to the extent applicable), agrees to pay to such Issuing Lender, such Agent, or such Participant such additional amount or amounts as will compensate such Issuing Lender, such Agent, or such Participant for such increased cost or reduction in the amount receivable or reduction on the rate of return on its capital.  In determining such additional amounts, each Issuing Lender, Agent or Participant, as the case may be, will act reasonably and in good faith and will use averaging and attribution methods which are reasonable and customary; provided that such Issuing Lender’s, Agent’s or Participant’s determination of compensation owing under this Section 3.06 shall, absent manifest error, be final and conclusive and binding on all the parties hereto.  Each Issuing Lender, Agent or Participant, upon determining that any additional amounts will be payable pursuant to this Section 3.06, will give prompt written notice thereof to the Borrower, which notice shall include a certificate submitted to the Borrower by such Issuing Lender, Agent or Participant (a copy of which certificate shall be sent by such Issuing Lender or such Participant to the Administrative Agent), setting forth in reasonable detail the basis for calculation of such additional amounts.

 

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3.07.                     Provisions Related to Extended Revolving Loan Commitments.  If the Maturity Date in respect of any tranche of Revolving Loan Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Revolving Loan Commitments in respect of which the Maturity Date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the RL Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to Section 3.04) under (and ratably participated in by Lenders pursuant to) the Revolving Loan Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the Unutilized Revolving Loan Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower shall cash collateralize any such Letter of Credit in a manner reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders but only up to the amount of 103% of such Letter of Credit not so reallocated.  Except to the extent of reallocations of participations pursuant to clause (i) of the immediately preceding sentence, the occurrence of a Maturity Date with respect to a given tranche of Revolving Loan Commitments shall have no effect upon (and shall not diminish) the percentage participations of the RL Lenders in any Letter of Credit issued before such Maturity Date.

 

3.08.                     Conflict with Letter of Credit Request.  Notwithstanding anything else to the contrary in this Agreement, any Letter of Credit Request or any other document related to issuing a Letter of Credit, (i) in the event of any conflict between the terms hereof and the terms of any Letter of Credit Request or such other document, the terms hereof shall control in all respects and (ii) any grant of a security interest pursuant to any Letter of Credit Request shall be null and void (other than, in the case of trade Letters of Credit, the goods subject to such Letters of Credit and the documents relating to such goods).

 

3.09.                     Existing Letters of Credit.  Schedule 3.09 contains a description of certain letters of credit that were previously issued by an Issuing Lender for the account of the Borrower, GasCo or CoalCo, as applicable, pursuant to the GasCo CS Letter of Credit Agreement, the CoalCo CS Letter of Credit Agreement, the Holdings CS Letter of Credit Agreement and the Dynegy Inc. CS Letter of Credit Agreement, as applicable, and which will be deemed issued under this Agreement.  Each such letter of credit, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, an “Existing Letter of Credit”), shall constitute a “Letter of Credit” for all purposes of this Agreement and shall be deemed issued on the Closing Date.

 

SECTION 4.                            RL Commitment Commission; Fees; Reductions of Commitment.

 

4.01.                     Fees.  (a)  The Borrower agrees to pay to the Administrative Agent for distribution to each Non-Defaulting RL Lender a commitment commission (the “RL Commitment Commission”) for the period from and including the Closing Date to and including the applicable Maturity Date (or such earlier date on which the Total Revolving Loan Commitment has been terminated) computed at a rate per annum equal to the Applicable Margin(s) applicable to the Unutilized Revolving Loan Commitment of such Non-Defaulting RL Lender as in effect from time to time.  Accrued RL Commitment Commission shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the date upon which the Total Revolving Loan Commitment is terminated.

 

(b)                                 The Borrower agrees to pay to the Administrative Agent for distribution to each RL Lender (based on each such RL Lender’s respective RL Percentage) a fee in respect of each Letter of Credit (the “Letter of Credit Fee”) for the period from and including the date of issuance of such Letter of Credit to and including the date of termination or expiration of such Letter of Credit, computed at a rate per annum equal to the relevant Applicable Margin as in effect from time to time during such period with

 

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respect to Revolving Loans (of the respective Class or Classes) that are maintained as LIBOR Loans on the daily Stated Amount of each such Letter of Credit.  Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the first day on or after the termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain outstanding.

 

(c)                                  The Borrower agrees to pay to each Issuing Lender, for its own account, a facing fee in respect of each Letter of Credit issued by it (the “Facing Fee”) for the period from and including the date of issuance of such Letter of Credit to and including the date of termination or expiration of such Letter of Credit, computed at a rate per annum equal to 0.125% on the daily Stated Amount of such Letter of Credit (or such other rate as shall be separately agreed upon between the Borrower and the Issuing Lender). Accrued Facing Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and upon the first day on or after the termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain outstanding.

 

(d)                                 The Borrower shall pay directly to each Issuing Lender for its own account with respect to each Letter of Credit issued to the Borrower the customary and reasonable issuance, presentation, amendment and other fees, and other standard costs and charges, of such Issuing Lender relating to Letters of Credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable within fifteen (15) Business Days of written demand (including documentation reasonably supporting such request) and are nonrefundable.

 

(e)                                  The Borrower agrees to pay to the Administrative Agent such fees as may be agreed to in writing from time to time by the Borrower or any of its Subsidiaries and the Administrative Agent.

 

(f)                                   If any Repricing Event occurs prior to the twelve month anniversary of the Closing Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with Initial Tranche B-1 Term Loans and Initial Tranche B-2 Term Loans that are subject to such Repricing Event (including any Lender which is replaced pursuant to Section 2.13 as a result of its refusal to consent to an amendment giving rise to such Repricing Event), a fee in an amount equal to 1.00% of the aggregate principal amount of the Initial Tranche B-1 Term Loans and Initial Tranche B-2 Term Loans subject to such Repricing Event.  If any Repricing Event in respect of the Incremental Tranche C-1 Term Loans occurs after the ThirdFifth Amendment Effective Date but prior to the six month anniversary of the ThirdFifth Amendment Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with Incremental Tranche C-1 Term Loans that are subject to such Repricing Event (including any Lender which is replaced pursuant to Section 2.13 as a result of its refusal to consent to an amendment giving rise to such Repricing Event), a fee in an amount equal to 1.00% of the aggregate principal amount of the Incremental Tranche C-1 Term Loans subject to such Repricing Event.  All such fees payable hereunder shall be earned, due and payable upon the date of the occurrence of the respective Repricing Event.

 

4.02.                     Voluntary Termination of Unutilized Revolving Loan Commitments.  On three (3) Business Days’ written notice to the Administrative Agent at the Notice Office on or prior to 11:00 a.m. (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, at any time or from time to time, without premium or penalty, to terminate the Total Revolving Loan Commitment in whole, or reduce in part, pursuant to this Section 4.02, in an integral multiple of $5,000,000 in the case of partial reductions to the Total Revolving Loan Commitment; provided that a notice of termination under this Section 4.02 may state that such notice is conditional upon the effectiveness of the receipt of proceeds from the issuance of other Indebtedness or Capital Stock or consummation of an asset sale or the occurrence of other events in which case such notice of termination may be rescinded by the Borrower (by notice to the Administrative Agent on or prior to the specified date of

 

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termination) if such condition is not satisfied; provided further that (i) in the event there is more than one Class of Revolving Loan Commitments then outstanding, such reductions shall be applied to such Class or Classes of Revolving Loan Commitments as shall be designated by the Borrower, (ii) in the circumstances contemplated by preceding clause (i), at the time of any such reduction to the Total Revolving Loan Commitments which is not applied on a proportionate basis to each outstanding Class, the Borrower shall on the date of such reduction (and notwithstanding anything to the contrary contained in this Agreement) effect such borrowings and repayments pursuant to the Revolving Loan Commitments as same will exist after giving effect to the reductions contemplated pursuant to this Section 4.02 so that the outstandings pursuant to the remaining Revolving Loan Commitments shall be based on the revised RL Percentages of the various Lenders after giving effect thereto, and (iii) each reduction to any Class of Revolving Loan Commitments shall be applied proportionately to permanently reduce the Revolving Loan Commitment of the respective Class of each Lender with such a Commitment.

 

4.03.                     Mandatory Reduction of Commitments.  (a) The total Initial Tranche B-1 Term Loan Commitment (and the Initial Tranche B-1 Term Loan Commitment of each Lender) shall terminate in its entirety on the Closing Date (after giving effect to the incurrence of Initial Tranche B-1 Term Loans on such date).

 

(b)                                 The total Initial Tranche B-2 Term Loan Commitment (and the Initial Tranche B-2 Term Loan Commitment of each Lender) shall terminate in its entirety on the Closing Date (after giving effect to the incurrence of Initial Tranche B-2 Term Loans on such date).

 

(c)                                  The Revolving Loan Commitments of (i) each Class shall terminate in their entirety on the applicable Maturity Date and (ii) shall automatically and without further action be reduced on the day any letter of credit facility is entered into by the Borrower or any of its Restricted Subsidiaries pursuant to Section 10.04(b)(xiv) on a dollar-for-dollar basis by the aggregate amount of any such letter of credit facility (in each case except to the extent such letter of credit facility is replacing one or more letter of credit facilities previously outstanding pursuant to said Section 10.04(b)(xiv)).

 

(d)                                 The total Incremental Tranche C Term Loan Commitment (and the Incremental Tranche C Term Loan Commitment of each Lender) shall terminate in its entirety on the Third Amendment Effective Date (after giving effect to the incurrence of Incremental Tranche C Term Loans on such date).

 

(e)                                  The total Tranche C-1 Term Loan Commitment (and the Tranche C-1 Term Loan Commitment of each Lender) shall terminate in its entirety on the Fifth Amendment Effective Date (after giving effect to the incurrence of Tranche C-1 Term Loans on such date).

 

SECTION 5.                            Prepayments; Payments; Taxes.

 

5.01.                     Voluntary Prepayments.  The Borrower shall have the right to prepay the Loans, without premium or penalty (except as set forth in Section 4.01(f)), in whole or in part at any time and from time to time on the following terms and conditions:  (i) the Borrower shall give the Administrative Agent prior to 11:00 a.m. at the Notice Office prior written notice (x) on the same Business Day (or telephonic notice promptly confirmed in writing) in the case of Base Rate Loans and (y) three (3) Business Days prior in the case of LIBOR Loans, of its intent to prepay any Loans, which notice (in each case) shall specify whether Term Loans (including which Class of Term Loans), Revolving Loans or Swingline Loans shall be prepaid, the amount of such prepayment and the Types of Loans to be prepaid and, in the case of LIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans were made, and which notice the Administrative Agent shall, except in the case of a prepayment of Swingline Loans, promptly transmit to each of the Lenders; provided that a notice of prepayment under this Section 5.01 (i) may state that such notice is conditional upon the effectiveness of the receipt of proceeds from the issuance of other

 

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Indebtedness or Capital Stock or consummation of an asset sale or the occurrence of other events in which case such notice of prepayment may be rescinded by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied; (ii) (x) each partial prepayment of Term Loans pursuant to this Section 5.01 shall be in an aggregate principal amount of at least $5,000,000 (or such lesser amount as is reasonably acceptable to the Administrative Agent in any given case), (y) each partial prepayment of Revolving Loans pursuant to this Section 5.01 shall be in an aggregate principal amount of at least $5,000,000 (or such lesser amount as is reasonably acceptable to the Administrative Agent) and (z) each partial prepayment of Swingline Loans pursuant to this Section 5.01 shall be in an aggregate principal amount of at least $1,000,000 (or such lesser amount as is reasonably acceptable to the Administrative Agent in any given case); provided that if any partial prepayment of LIBOR Loans made pursuant to any Borrowing shall reduce the outstanding principal amount of LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing may not be continued as a Borrowing of LIBOR Loans after the end of the Interest Period then applicable thereto (and the same shall automatically be converted into a Borrowing of Base Rate Loans at the end of such Interest Period) and any election of an Interest Period with respect thereto given by the Borrower shall have no force or effect; (iii) except as otherwise provided in Section 4.02 and except for prepayments made with proceeds of Other Revolving Loans or loans made pursuant to Replacement Revolving Loan Commitments at the time of the establishment of Other Revolving Commitments or Replacement Revolving Loan Commitments, as the case may be, pursuant to Section 2.17 or 13.10(c), which Loans shall be used first to refinance the outstanding Revolving Loans being refinanced on a basis so that, after giving effect thereto, the outstandings of each RL Lender are in accordance with its RL Percentages, each prepayment of Revolving Loans pursuant to this Section 5.01 shall be made in proportion to the outstanding principal of Revolving Loans of the various RL Lenders, so that each RL Lender’s outstandings pursuant to its Revolving Loan Commitments reflect their respective RL Percentages as from time to time in effect; (iv) except for repayments with proceeds of Other Term Loans or Replacement Term Loans, which shall be applied to repay the Term Loans being refinanced, each prepayment of Term Loans pursuant to this Section 5.01 shall be applied to such Class or Classes of outstanding Term Loans as shall be directed by the Borrower (with each such prepayment applied to a given Class to be applied on a pro rata basis to the Term Loans comprising such Class); (v) each prepayment pursuant to this Section 5.01 in respect of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; (vi) each voluntary prepayment of the Term Loans of any Class pursuant to this Section 5.01 shall reduce the then remaining scheduled amortization payments thereto in such manner as directed by the Borrower; and (vii) each voluntary prepayment of Initial Tranche B-1 Term Loans and Initial Tranche B-2 Term Loans pursuant to this Section 5.01 in connection with a Repricing Event made prior to the twelve month anniversary of the Closing Date and each voluntary prepayment of Incremental Tranche C-1 Term Loans pursuant to this Section 5.01 in connection with a Repricing Event made after the ThirdFifth Amendment Effective Date but prior to the six month anniversary of the ThirdFifth Amendment Effective Date shall, in each case, be subject to the payment of a fee as, and to the extent required by, Section 4.01(f).

 

5.02.                     Mandatory Repayments.  (a) In addition to any other mandatory repayments pursuant to this Section 5.02, all then (i) outstanding Loans of a respective Class (other than Swingline Loans) shall be repaid in full on the respective Maturity Date for such Class of Loans and (ii) outstanding Swingline Loans shall be repaid in full on the earlier of (x) the tenth Business Day following the date of the incurrence of such Swingline Loans and (y) the applicable Maturity Date.

 

(b)                                 If on any date the sum of (I) the aggregate outstanding principal amount of all Revolving Loans (after giving effect to all other repayments thereof on such date), (II) the aggregate outstanding principal amount of all Swingline Loans (after giving effect to all other repayments thereof on such date) and (III) the aggregate amount of all Letter of Credit Outstandings, exceeds the Total Revolving Loan Commitment at such time, then the Borrower shall prepay on such date the principal of outstanding

 

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Swingline Loans (without a reduction to the Total Revolving Loan Commitment) and, after all Swingline Loans have been repaid in full or if no Swingline Loans are outstanding, Revolving Loans (without a reduction to the Total Revolving Loan Commitment), in an amount equal to such excess.  If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such time, the Borrower shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash Equivalents to be held as security for all Obligations of the Borrower to the Issuing Lenders and the Lenders hereunder in a cash collateral account to be established by the Administrative Agent.

 

(c)                                  In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Initial Tranche B-1 Term Loan Repayment Date”), the Borrower shall be required to repay that principal amount of Initial Tranche B-1 Term Loans, to the extent then outstanding, as is set forth opposite each such date below (each such repayment, as the same may be reduced as provided herein, a “Scheduled Initial Tranche B-1 Term Loan Repayment”):

 

Scheduled Initial Tranche B-1 Term Loan Repayment Date

 

Amount

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2013

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2013

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2014

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2014

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2014

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2014

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2015

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2015

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2015

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2015

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2016

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2016

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2016

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2016

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2017

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2017

 

$

1,250,000.00

 

 

91



 

Scheduled Initial Tranche B-1 Term Loan Repayment Date

 

Amount

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2017

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2017

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2018

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2018

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2018

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2018

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2019

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2019

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2019

 

$

1,250,000.00

 

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2019

 

$

1,250,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2020

 

$

1,250,000.00

 

 

 

 

 

Initial Tranche B-1 Term Loan Maturity Date

 

$

466,250,000.00

 

 

(d)                                 (x) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Initial Tranche B-2 Term Loan Repayment Date”), the Borrower shall be required to repay that principal amount of Initial Tranche B-2 Term Loans, to the extent then outstanding, as is set forth opposite each such date below (each such repayment, as the same may be reduced as provided herein, a “Scheduled Initial Tranche B-2 Term Loan Repayment”):

 

Scheduled Initial Tranche B-2 Term Loan Repayment Date

 

Amount

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2013

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2013

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2014

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2014

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2014

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2014

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2015

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2015

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2015

 

$

2,000,000.00

 

 

92



 

Scheduled Initial Tranche B-2 Term Loan Repayment Date

 

Amount

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2015

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2016

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2016

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2016

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2016

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2017

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending June 30, 2017

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending September 30, 2017

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending December 31, 2017

 

$

2,000,000.00

 

 

 

 

 

The last day of the Borrower’s Fiscal Quarter ending March 31, 2018

 

$

2,000,000.00