AMENDMENT NO. 5 TO CREDIT AGREEMENT

Exhibit 10.1
AMENDMENT NO. 5 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO CREDIT AGREEMENT is entered into as of November 25, 2025 (this “Amendment”), by and among Talen Energy Supply, LLC, a Delaware limited liability company (the “Borrower”), the Subsidiary Guarantors party hereto, each Person identified on the signature pages hereof as a “2025-1 Incremental Term B Lender” (collectively, the “2025-1 Incremental Term B Lenders” and, each a “2025-1 Incremental Term B Lender”), each Person identified on the signature pages hereof as a “2025-1 Additional Revolving Lender” (collectively, the “2025-1 Additional Revolving Lenders” and, each a “2025-1 Additional Revolving Lender”), each other Revolving Lender party hereto, each Person identified on the signature pages hereof as a “2025-1 Additional Stand-Alone L/C Issuer” (collectively, the “2025-1 Additional Stand-Alone L/C Issuers” and, each a “2025-1 Additional Stand-Alone L/C Issuer”), each other Stand-Alone L/C Issuer party hereto, the Revolving L/C Issuers and Citibank, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not defined herein shall have the meanings provided in the Amended Credit Agreement (as defined below).
RECITALS:
WHEREAS, reference is hereby made to that certain Credit Agreement, dated as of May 17, 2023 (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of August 9, 2023, that certain Amendment No. 2 and Waiver to Credit Agreement, dated as of May 8, 2024, that certain Amendment No. 3 to Credit Agreement, dated as of December 13, 2024, that certain Amendment No. 4 to Credit Agreement, dated as of December 20, 2024 and as further amended, restated, amended and restated, supplemented, modified, refinanced and/or replaced from time to time prior to the date hereof, the “Credit Agreement” and, as amended by this Amendment, the “Amended Credit Agreement”), among the Borrower, the Lenders party thereto, the Administrative Agent, the Collateral Agent and the other parties named therein;
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower may (1) establish Incremental Term B Commitments by, among other things, entering into one or more Incremental Amendments with Incremental Term B Lenders, (2) establish Additional Revolving Commitments by, among other things, entering into one or more Incremental Amendments with Additional Revolving Lenders and (3) establish Additional Stand-Alone Letter of Credit Commitments by, among other things, entering into one or more Incremental Amendments with Additional Stand-Alone L/C Issuers;
WHEREAS, the parties hereto agree that: (1) the loans made pursuant to the 2025-1 Incremental Term B Commitments (as defined below) shall, in each case, constitute Incremental Term B Loans, (2) the 2025-1 Incremental Term B Lenders shall constitute Incremental Term B Lenders and (3) this Amendment shall constitute an Incremental Amendment for purposes of the 2025-1 Incremental Term B Loans;
WHEREAS, the proceeds of the 2025-1 Incremental Term B Loans will be used by the Borrower on the Amendment Effective Date (as defined below):
(i)    to fund a portion of the purchase price for the acquisition of the Project (as defined in the Freedom Acquisition Agreement (as defined below)) (such acquisition, the “Freedom Acquisition” and such Project, the “Freedom Acquired Business”) from the Seller Entities (as defined in the Freedom Acquisition Agreement), pursuant to that certain Purchase and Sale Agreement, dated as of July 17, 2025 (the “Freedom Acquisition Agreement”), by and among, Talen Generation, LLC, a subsidiary of the Borrower, as buyer, and Caithness Energy, L.L.C., as the seller,
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(ii)    to repay in full (or, if applicable, to terminate, discharge, or defease (or make arrangements reasonably satisfactory to the Administrative Agent for such termination, discharge, or defeasance)) the indebtedness under that certain Credit Agreement, dated as of April 4,
2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among Moxie Freedom LLC, a Delaware limited liability company, as borrower, the financial institutions from time to time party thereto, as lenders, Investec Bank PLC, as administrative agent, Deutsche Bank Trust Company Americas, as the depositary agent, collateral agent and paying agent, and Investec Bank PLC, as letter of credit issuing bank (the “Freedom Refinancing”);
(iii)    to fund a portion of the purchase price for the acquisition of the Project Holding Company Interests (as defined in the Guernsey Acquisition Agreement (as defined below)) (such acquisition, the “Guernsey Acquisition” and such Project Holding Company Interests, the “Guernsey Acquired Business”) from the Seller Entities (as defined in the Guernsey Acquisition Agreement), pursuant to that certain Purchase and Sale Agreement, dated as of July 17, 2025 (the “Guernsey Acquisition Agreement”), by and among, Talen Generation, LLC, a subsidiary of the Borrower, as buyer, Caithness Energy, L.L.C., as the seller, and Caithness Apex Guernsey, LLC, as the subsidiary seller;
(iv)    to repay in full (or, if applicable, to terminate, discharge, or defease (or make arrangements reasonably satisfactory to the Administrative Agent for such termination, discharge, or defeasance)) the indebtedness under that certain Credit Agreement, dated as of August 29, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among Guernsey Power Station LLC, a Delaware limited liability company, as borrower, the financial institutions from time to time party thereto, as lenders, Investec Bank plc, Nomura Securities International, Inc., Credit Agricole Corporate and Investment Bank, Industrial and Commercial Bank of China Limited, New York Branch, KEB Hana Bank, New York Agency, and NH Investment & Securities (H.K.) Limited, as coordinating lead arrangers, China Merchants Bank Co., Ltd., New York Branch, Kookmin Bank as Trustee of DBAM Private Special Asset Trust No. 28, Kookmin Bank Co., Ltd. and Société Générale, as joint lead arrangers, Investec Inc., as sole bookrunner, Investec Inc. and Nomura Securities International, Inc., as co-syndication agents, Credit Agricole Corporate and Investment Bank, Industrial and Commercial Bank of China Limited, New York Branch, KEB Hana Bank, New York Agency, and NH Investment & Securities (H.K.) Limited, as co-documentation agents, Investec Bank Plc, as administrative agent, Deutsche Bank Trust Company Americas, as paying agent, and Credit Agricole Corporate and Investment Bank, as LC Issuer (the “Guernsey Refinancing”); and
(v)    to pay all or a portion of the fees and expenses payable in respect of this Amendment, the Freedom Acquisition, the Freedom Refinancing, the Guernsey Acquisition, the Guernsey Refinancing and the related transactions.
WHEREAS, the parties hereto agree that: (1) the 2025-1 Additional Revolving Commitments (as defined below) shall constitute Additional Revolving Commitments, (2) the 2025-1 Additional Revolving Lenders shall constitute Additional Revolving Lenders, (3) each loan made under the 2025-1 Additional Revolving Commitments shall be an Additional Revolving Loan and (4) this Amendment shall constitute an Incremental Amendment for purposes of the 2025-1 Additional Revolving Commitments and the Additional Revolving Loans made with respect thereto;
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WHEREAS, the parties hereto agree that: (1) the 2025-1 Additional Stand-Alone Letter of Credit Commitments (as defined below) shall constitute Additional Stand-Alone Letter of Credit Commitments, (2) the 2025-1 Additional Stand-Alone L/C Issuers shall constitute New Stand-Alone L/C Issuers, (3) each letter of credit issued under the 2025-1 Additional Stand-Alone Letter of Credit Commitments shall be a New Stand-Alone Letter of Credit and (4) this Amendment shall constitute an Incremental Amendment for purposes of the 2025-1 Additional Stand-Alone Letter of Credit Commitments and the New Stand-Alone Letters of Credit issued with respect thereto;
WHEREAS, the Borrower wishes to (i) extend the Stand-Alone Letter of Credit Maturity Date (as defined in the Credit Agreement) and (ii) modify the Applicable ABR Margin and Applicable Term SOFR Margin in respect of Revolving Loans, in each case, subject to the terms and conditions hereof and the Amended Credit Agreement;
WHEREAS, the Borrower intends to appoint a new Revolving L/C Issuer upon providing notice to the Administrative Agent as provided in Section 3.6(a)(i) of the Credit Agreement, it being understood and agreed that this Amendment shall constitute such notice to the Administrative Agent;
WHEREAS, each of RBC Capital Markets1, Citibank, N.A., BNP Paribas Securities Corp., Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., The Bank of Nova Scotia, Sumitomo Mitsui Banking Corporation, MUFG Bank, Ltd. and Banco Santander, S.A., New York Branch has agreed to act as a joint lead arranger and bookrunner for this Amendment (the “Amendment Lead Arrangers”);
WHEREAS, the Borrower, the Administrative Agent and each of the Lenders, Revolving L/C Issuers and Stand-Alone L/C Issuers party hereto desire to further amend the Credit Agreement as set forth in Exhibit A hereto;
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
A.    Amendments to Credit Agreement. Effective as of the Amendment Effective Date, and subject to the terms and conditions set forth herein:
1.    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 Amended Credit Agreement attached hereto as Exhibit A, except that any Schedule, Exhibit or other attachment to the Credit Agreement not amended pursuant to the terms of this Amendment or otherwise included as part of said Exhibit A shall remain in effect without any amendment or other modification thereto; and
2.    Schedule 1.1(a) to the Credit Agreement is hereby amended and restated, other than with respect to the Initial Term B Commitments, in the form attached hereto as Exhibit B.
B.    Special Provisions Applicable to 2025-1 Incremental Term B Loans.
1.    Each 2025-1 Incremental Term B Lender hereby agrees to (x) provide its respective 2025-1 Incremental Term B Commitment as set forth on Schedule 1 to this Amendment under the heading “2025-1 Incremental Term B Commitment” (such commitment, the “2025-1 Incremental Term B Commitment”) and (y) make Incremental Term B Loans (such Incremental Term B Loans, the “2025-1 Incremental Term B Loans”) thereunder, on the terms and subject to the conditions set forth in this Amendment and the Amended Credit Agreement.
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2.    Each 2025-1 Incremental Term B Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the schedules and exhibits 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 Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other 2025-1 Incremental Term B Lender or 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 Amended Credit Agreement; (iii) appoints and authorizes each of the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent or the Collateral Agent, as applicable, 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 Amended Credit Agreement are required to be performed by it as a 2025-1 Incremental Term B Lender.
3.    It is understood and agreed that on the date of the making of the 2025-1 Incremental Term B Loans, and notwithstanding anything to the contrary set forth in the Credit Agreement, such 2025-1 Incremental Term B Loans shall constitute a separate Class of Term B Loans from the Initial Term B Loans and the 2024-1 Incremental Term B Loans and shall be subject to the terms applicable to the 2025-1 Incremental Term B Loans set forth in the Amended Credit Agreement.
4.    The 2025-1 Incremental Term B Loans made pursuant to the 2025-1 Incremental Term B Commitments shall constitute “Term B Loans”, “2025-1 Incremental Term B Loans” and “Incremental Term B Loans” for all purposes of the Amended Credit Agreement, and all provisions of the Amended Credit Agreement applicable to 2025-1 Incremental Term B Loans, Incremental Term B Loans and Term B Loans shall be applicable to the 2025-1 Incremental Term B Loans. The 2025-1 Incremental Term B Commitments of the 2025-1 Incremental Term B Lenders provided for hereunder shall be automatically and permanently reduced to $0 upon the making of such 2025-1 Incremental Term B Lender’s 2025-1 Incremental Term B Loans pursuant to this Amendment on the Amendment Effective Date immediately after the funding of the 2025-1 Incremental Term B Loans.
5.    This Amendment constitutes the notice required to be given to the Administrative Agent by the Borrower pursuant to Section 2.14 of the Credit Agreement with respect to the 2025-1 Incremental Term B Loans.
6.    Each 2025-1 Incremental Term B Lender acknowledges and agrees that upon its execution of this Amendment, the establishment of its 2025-1 Incremental Term B Commitment and the making of the 2025-1 Incremental Term B Loans thereunder, that such 2025-1 Incremental Term B Lender shall be (or become) a “2025-1 Incremental Term B Lender”, a “Term B Lender”, an “Incremental Term B Lender” and a “Lender” under, and for all purposes of, the Amended 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 2025-1 Incremental Term B Lender, a Term B Lender, an Incremental Term B Lender and a Lender thereunder.
1 RBC Capital Markets is a marketing name for the capital markets activities of Royal Bank of Canada and its affiliates.
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7.    Proposed Borrowing. This Amendment represents the Borrower’s request to borrow 2025-1 Incremental Term B Loans from the 2025-1 Incremental Term B Lenders as follows (the “Proposed Borrowing”):
(a)    Business Day of Proposed Borrowing: November 25, 2025;
(b)    Amount of Proposed Borrowing: $1,200,000,000; and
(c)    Interest Rate option: Term SOFR Loans with an initial Interest Period of three months with the initial Interest Period ending December 31, 2025.
C.    [Reserved].
D.    Special Provisions Applicable to 2025-1 Additional Stand-Alone L/C
Commitments.
1.    Each 2025-1 Additional Stand-Alone L/C Issuer hereby agrees to (a) provide a 2025-1 Additional Stand-Alone L/C Commitment on the Amendment Effective Date in the aggregate principal amount set forth opposite such 2025-1 Additional Stand-Alone L/C Issuer’s name on Schedule 2 to this Amendment under the heading “2025-1 Additional Stand-Alone L/C Commitment” (such 2025-1 Additional Stand-Alone L/C Commitments, the “2025-1 Additional Stand-Alone L/C Commitments”) and
(b) issue Stand-Alone Letters of Credit with respect thereto, in each case, on the terms and subject to the conditions set forth below and in the Amended Credit Agreement.
2.    The 2025-1 Additional Stand-Alone L/C Commitments shall (i) become a part of the existing Class of Stand-Alone L/C Commitments for all purposes of the Amended Credit Agreement and the other Credit Documents and (ii) together with all related Stand-Alone Letter of Credit Exposure, be subject to the same Stand-Alone Letter of Credit Maturity Date (as defined in the Amended Credit Agreement, and after giving effect to this Amendment) and other terms and conditions applicable to the existing Stand-Alone L/C Commitments and Stand-Alone Letters of Credit (and related Stand-Alone Letter of Credit Exposure) under the Amended Credit Agreement and the other Credit Documents.
3.    Immediately upon the occurrence of the Amendment Effective Date (i) there will be an automatic adjustment to the existing Stand-Alone L/C Commitments of each existing Stand-Alone L/C Issuer so that each such existing Stand-Alone L/C Commitment shall be reduced or terminated, as applicable, to reflect the commitments of the amended Schedule 1.1(a) attached as Exhibit B hereto and (ii) in connection with the foregoing, the Administrative Agent shall (and is hereby authorized to) take all necessary actions, which shall include all necessary updates to the Register and all other recordations and adjustments necessary or appropriate to implement such reductions or terminations.

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4.    Each 2025-1 Additional Stand-Alone L/C Issuer (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the schedules and exhibits 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 Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Stand-Alone L/C Issuer or 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 Amended Credit Agreement; (iii) appoints and authorizes each of the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent or the Collateral Agent, as applicable, 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 Amended Credit Agreement are required to be performed by it as a 2025-1 Additional Stand-Alone L/C Issuer.
5.    This Amendment constitutes the notice required to be given to the Administrative Agent by the Borrower pursuant to Section 2.14 of the Credit Agreement with respect to the 2025-1 Additional Stand-Alone L/C Commitments.
6.    Each 2025-1 Additional Stand-Alone L/C Issuer acknowledges and agrees that upon its execution of this Amendment and the provision of its 2025-1 Additional Stand-Alone L/C Commitment that such 2025-1 Additional Stand-Alone L/C Issuer shall be (or become) a “2025-1 Additional Stand-Alone L/C Issuer”, an “Additional Stand-Alone L/C Issuer”, a “Stand-Alone L/C Issuer” and a “L/C Issuer” with respect to the Stand-Alone L/C Commitments under, and for all purposes of, the Amended 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 2025-1 Additional Stand-Alone L/C Issuer, an Additional Stand-Alone L/C Issuer, a Stand-Alone L/C Issuer and a L/C Issuer thereunder.
E.    Special Provisions Applicable to 2025-1 Additional Revolving Commitments.
1.    Each 2025-1 Additional Revolving Lender party hereto hereby agrees to provide a 2025-1 Additional Revolving Commitment and 2025-1 Additional Specified Revolving L/C Commitment on the Amendment Effective Date in the aggregate principal amount set forth opposite such 2025-1 Additional Revolving Lender's name on Schedule 2 to this Amendment under the heading “2025-1 Additional Revolving Commitment” and “Specified Revolving L/C Commitment”, respectively (such 2025-1 Additional Revolving Commitment, the “2025-1 Additional Revolving Commitment” and such 2025-1 Additional Specified Revolving L/C Commitment, the “2025-1 Additional Specified Revolving L/C Commitment”), and make Revolving Loans, issue Revolving Letters of Credit and participate in Revolving Letters of Credit with respect thereto, in each case, on the terms and subject to the conditions set forth below and in the Amended Credit Agreement.
2.    The 2025-1 Additional Revolving Commitments (and 2025-1 Additional Specified Revolving L/C Commitments) shall (i) become a part of the existing Class of Revolving Commitments (and existing Specified Revolving L/C Commitments) for all purposes of the Amended Credit Agreement and the other Credit Documents and (ii) together with all related Revolving Credit Exposure, be subject to the same Revolving Credit Maturity Date and other terms and conditions applicable to the existing Revolving Commitments and Revolving Loans (and related Revolving Credit Exposure) under the Amended Credit Agreement (after giving effect to this Amendment) and the other Credit Documents.
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3.    Immediately upon the occurrence of the Amendment Effective Date (i) there will be an automatic adjustment to the existing Revolving Commitments of each existing Revolving Lender so that each such existing Revolving Commitment shall be reduced or terminated, as applicable, to reflect the commitments of the amended Schedule 1.1(a) attached as Exhibit B hereto and (ii) in connection with the foregoing, the Administrative Agent shall (and is hereby authorized to) take all necessary actions, which shall include all necessary updates to the Register and all other recordations and adjustments necessary or appropriate to implement such reductions or terminations.
4.    Immediately upon the occurrence of the Amendment Effective Date (i) to the extent there are any Revolving Letters of Credit outstanding, there shall be an automatic adjustment to the participations in Revolving Letters of Credit held by each Revolving Lender so that each such Revolving Lender shares ratably in such participations in accordance with its respective Revolving Commitments, (ii) to the extent any Revolving Loans are outstanding, the Revolving Lenders shall purchase and assign at par such amounts of the Revolving Loans outstanding as the Administrative Agent may require such that each Revolving Lender holds Revolving Loans ratably in accordance with its respective Revolving Commitments (after giving effect to the establishment of the 2025-1 Additional Revolving Commitments), (iii) in connection with the foregoing, the Administrative Agent shall (and is hereby authorized to) take all necessary actions to ensure that all Revolving Lenders participate in each Borrowing of Revolving Loans on a pro rata basis (based upon the then principal amount of all Revolving Commitments held by the Revolving Lenders at such time), and (iv) in connection with the foregoing, the minimum borrowing, pro rata borrowing and pro rata payment requirements contained in the Amended Credit Agreement shall not apply.
5.    Each 2025-1 Additional Revolving Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the schedules and exhibits 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 Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other 2025-1 Additional Revolving Lender or 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 Amended Credit Agreement; (iii) appoints and authorizes each of the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent or the Collateral Agent, as applicable, 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 Amended Credit Agreement are required to be performed by it as a 2025-1 Additional Revolving Lender.
6.    This Amendment constitutes the notice required to be given to the Administrative Agent by the Borrower pursuant to Section 2.14 of the Credit Agreement with respect to the 2025-1 Additional Revolving Commitments.
7.    Each 2025-1 Additional Revolving Lender acknowledges and agrees that upon its execution of this Amendment, that such 2025-1 Additional Revolving Lender shall be (or become) a “2025-1 Additional Revolving Lender”, “Additional Revolving Lender”, “Revolving Lender” and a “Lender” with respect to its 2025-1 Additional Revolving Commitments under, and for all purposes of, the Amended 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 2025-1 Additional Revolving Lender, an Additional Revolving Lender, a Revolving Lender and a Lender thereunder.
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F.    Additional Revolving Letter of Credit Issuer. The Borrower hereby appoints (and the Administrative Agent hereby consents to such appointment) Banco Santander, S.A., as a Revolving L/C Issuer as contemplated by Section 3.6(a)(i) of the Credit Agreement. Each of the Borrower, the Administrative Agent and Banco Santander, S.A. agrees that, on and after the Amendment Effective Date, Banco Santander, S.A. will become a “Revolving L/C Issuer” for all purposes under the Amended Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations, and shall have all the rights and powers, of a “Revolving L/C Issuer” thereunder.
G.    Amendment Effective Date.
This Amendment shall become effective as of the first date on which each of the conditions set forth in this Section G shall have been satisfied (or waived) (such date, the “Amendment Effective Date”):
1.    the Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (i) each Credit Party, (ii) the Administrative Agent and the Collateral Agent, (iii) each 2025-1 Additional Stand-Alone L/C Issuer, (iv) each Stand-Alone L/C Issuer, (v) each 2025-1 Additional Revolving Lender, (vi) each Revolving Lender, (vii) each Revolving L/C Issuer and
(viii) each 2025-1 Incremental Term B Lender;
2.    the Borrower shall have paid (or shall pay substantially concurrently with the effectiveness of this Amendment on the Amendment Effective Date) (1) all accrued and unpaid interest on the Revolving Loans to, but not including, the Amendment Effective Date, (2) all accrued and unpaid Revolving Letter of Credit Fees with respect to any issued and outstanding Revolving Letters of Credit to, but not including, the Amendment Effective Date and (3) all accrued and unpaid Revolving Commitment Fees to, but not including, the Amendment Effective Date, in each case, irrespective of whether such accrued amounts are otherwise then due and payable by the terms of the Credit Agreement;
3.    the Administrative Agent shall have received a certificate of the Borrower, dated the Amendment Effective Date, substantially in the form of Exhibit I to the Credit Agreement (with appropriate modifications to reflect the nature of the transactions contemplated hereunder), certifying that the conditions in Section G.7, G.8, G.14 and G.15 hereof have been satisfied as of the Amendment Effective Date;
4.    the Administrative Agent shall have received a certificate of the Credit Parties, dated the Amendment Effective Date, certifying (a) a copy of the resolutions of the Authorizing Body (as defined therein) of each Credit Party (or a duly authorized committee thereof) authorizing (i) the execution, delivery and performance of this Amendment (and any agreements relating hereto) to which it is a party and (ii) in the case of the Borrower, the extension of credit contemplated hereunder, (b) true and complete copies of the Organizational Documents of each Credit Party as of the Amendment Effective Date and (c) good standing certificates (to the extent such concept exists in the relevant jurisdiction of organization) of each Credit Party (or, in the case of clause (b), in lieu of attaching such Organizational Documents, shall include a certification by an Authorized Officer of each Credit Party certifying that there have been no changes to the corresponding documents delivered to the Administrative Agent on the Closing Date or such later date on which such Organizational Documents were most recently delivered to the Administrative Agent);
5.    (i) all fees in the amounts previously agreed in writing to be received on the Amendment Effective Date and (ii) all expenses required to be paid in respect of this Amendment pursuant to Section 13.5 of the Credit Agreement, in each case, shall have been paid to the extent due and, with respect to expenses (including reimbursable fees and expenses of counsel), to the extent a reasonably detailed invoice
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therefor has been delivered to the Borrower at least three (3) Business Days prior to the Amendment Effective Date;
6.    the Administrative Agent shall have received all documentation and other information with respect to the Credit Parties that is requested by the Administrative Agent or a Lender and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, in each case, to the extent reasonably requested in writing at least ten (10) Business Days prior to the Amendment Effective Date by the Administrative Agent or such Lender;
7.    (A) the Freedom Acquisition Agreement Representations (as defined below) shall be true and accurate in all respects on and as of the Amendment Effective Date and (B) the Specified Representations (as defined in the Credit Agreement) shall be true and accurate in all material respects on and as of the Amendment Effective Date (unless such representations relate to an earlier date, in which case, such representations shall have been true and correct in all material respects as of such earlier date); provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect (as defined in the Freedom Acquisition Agreement)) in the text thereof; as used herein, the “Freedom Acquisition Agreement Representations” means the representations made by or with respect to the Freedom Acquired Business in the Freedom Acquisition Agreement as are material to the interests of the 2025-1 Incremental Term B Lenders (in their capacities as such), but only to the extent that the Borrower or any of its Affiliates have the right to terminate the obligations of the Borrower or its Affiliates under the Freedom Acquisition Agreement or decline to consummate the Freedom Acquisition pursuant to the Freedom Acquisition Agreement (in each case in accordance with the terms thereof) as a result of a breach of such representations in the Freedom Acquisition Agreement;
8.    since the date of the Freedom Acquisition Agreement, no event, change, fact, condition, circumstance or occurrence shall have occurred and is continuing that has had or would reasonably be expected to have a Material Adverse Effect (as defined in the Freedom Acquisition Agreement) on the Company Entities (as defined in the Freedom Acquisition Agreement), taken as a whole;
9.    the Administrative Agent shall have received the executed customary legal opinions of (a) White & Case LLP, New York counsel to the Credit Parties and (b) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, P.C., Pennsylvania counsel to the Credit Parties;
10.    on the Amendment Effective Date, the Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially in the form of Exhibit E to the Credit Agreement (with appropriate modifications to reflect the nature of the transactions contemplated hereunder);
11.    the Freedom Acquisition shall be consummated substantially concurrently with the funding of the 2025-1 Incremental Term B Loans in all material respects in accordance with the Freedom Acquisition Agreement, without any waiver, supplement, modification or amendment thereof or any consent to the Freedom Acquisition Agreement, in each case, that is materially adverse to the interests of the 2025-1 Incremental Term B Lenders unless consented to by such 2025-1 Incremental Term B Lenders (such consent not to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (i) any amendment, change to, or waiver, consent or approval by the Borrower (or its Affiliates, if applicable) in respect of, the definition of Material Adverse Effect (as defined in the Freedom Acquisition Agreement) shall be deemed to be materially adverse to the interests of the 2025-1 Incremental Term B Lenders, (ii) any alteration, amendment, change, modification, supplement or express waiver, consent or approval granted by the Borrower (or its Affiliates) under the Freedom Acquisition Agreement that results
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in a reduction in the purchase price of the Freedom Acquisition shall be deemed not to be materially adverse to the interests of the 2025-1 Incremental Term B Lenders so long as any such cash reduction is applied to reduce any amounts to be funded under the 2025-1 Incremental Term B Commitments on a dollar-for-dollar basis; provided that such reduction does not exceed 10% of the purchase price of the Freedom Acquisition, (iii) any alteration, amendment, change, modification, supplement or express waiver, consent or approval granted by the Borrower (or its Affiliates) under the Freedom Acquisition Agreement that results in an increase in the purchase price of the Freedom Acquisition shall be deemed not to be materially adverse to the interests of the 2025-1 Incremental Term B Lenders so long as such increase is not funded with the proceeds of indebtedness (other than borrowings under the Credit Agreement in an amount not to exceed 10% of the purchase price of the Freedom Acquisition) and (iv) any increase or decrease in the purchase price of the Freedom Acquisition pursuant to any purchase price or similar adjustment provisions set forth in the Freedom Acquisition Agreement shall not constitute an alteration, amendment, change, modification, supplement, waiver, consent or approval under the Freedom Acquisition Agreement;
12.    the Freedom Refinancing shall have been consummated, or shall be consummated substantially simultaneously with the funding of the 2025-1 Incremental Term B Loans;
13.    the Amendment Lead Arrangers shall have received (i) the audited consolidated balance sheet and the related audited consolidated statements of operations and cash flows of the Borrower and its subsidiaries for the three most recently completed fiscal years ended at least 75 days prior to the Amendment Effective Date and (ii) the unaudited interim consolidated balance sheet and related unaudited consolidated statements of operations and cash flows of the Borrower and its subsidiaries for the most recent fiscal quarter (other than the fourth fiscal quarter of the Borrower’s fiscal year) ended at least 45 days prior to the Amendment Effective Date that is after the most recent fiscal year for which audited financial statements have been provided pursuant to clause (i) above; provided that each Amendment Lead Arranger acknowledges that the filing of the required financial statements with the Securities and Exchange Commission by the Borrower will satisfy the foregoing requirements in clauses (i) and (ii) above, as applicable;
14.    (A) the Guernsey Acquisition Agreement Representations (as defined below) shall be true and accurate in all respects on and as of the Amendment Effective Date and (B) the Specified Representations (as defined in the Credit Agreement) shall be true and accurate in all material respects on and as of the Amendment Effective Date (unless such representations relate to an earlier date, in which case, such representations shall have been true and correct in all material respects as of such earlier date); provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect (as defined in the Guernsey Acquisition Agreement)) in the text thereof; as used herein, the “Guernsey Acquisition Agreement Representations” means the representations made by or with respect to the Guernsey Acquired Business in the Guernsey Acquisition Agreement as are material to the interests of the 2025-1 Incremental Term B Lenders (in their capacities as such), but only to the extent that the Borrower or any of its Affiliates have the right to terminate the obligations of the Borrower or its Affiliates under the Guernsey Acquisition Agreement or decline to consummate the Guernsey Acquisition pursuant to the Guernsey Acquisition Agreement (in each case in accordance with the terms thereof) as a result of a breach of such representations in the Guernsey Acquisition Agreement;
15.    since the date of the Guernsey Acquisition Agreement, no event, change, fact, condition, circumstance or occurrence shall have occurred and is continuing that has had or would reasonably be expected to have a Material Adverse Effect (as defined in the Guernsey Acquisition Agreement) on the Company Entities (as defined in the Guernsey Acquisition Agreement), taken as a whole;
10

16.    the Guernsey Acquisition shall be consummated substantially concurrently with the funding of the 2025-1 Incremental Term B Loans in all material respects in accordance with the Guernsey Acquisition Agreement, without any waiver, supplement, modification or amendment thereof or any consent to the Guernsey Acquisition Agreement, in each case, that is materially adverse to the interests of the 2025-1 Incremental Term B Lenders unless consented to by such 2025-1 Incremental Term B Lenders (such consent not to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (i) any amendment, change to, or waiver, consent or approval by the Borrower (or its Affiliates, if applicable) in respect of, the definition of Material Adverse Effect (as defined in the Guernsey Acquisition Agreement) shall be deemed to be materially adverse to the interests of the 2025-1 Incremental Term B Lenders, (ii) any alteration, amendment, change, modification, supplement or express waiver, consent or approval granted by the Borrower (or its Affiliates) under the Guernsey Acquisition Agreement that results in a reduction in the purchase price of the Guernsey Acquisition shall be deemed not to be materially adverse to the interests of the 2025-1 Incremental Term B Lenders so long as any such cash reduction is applied to reduce any amounts to be funded under the 2025-1 Incremental Term B Commitments on a dollar-for-dollar basis; provided that such reduction does not exceed 10% of the purchase price of the Guernsey Acquisition, (iii) any alteration, amendment, change, modification, supplement or express waiver, consent or approval granted by the Borrower (or its Affiliates) under the Guernsey Acquisition Agreement that results in an increase in the purchase price of the Guernsey Acquisition shall be deemed not to be materially adverse to the interests of the 2025-1 Incremental Term B Lenders so long as such increase is not funded with the proceeds of indebtedness (other than borrowings under the Credit Agreement in an amount not to exceed 10% of the purchase price of the Guernsey Acquisition) and (iv) any increase or decrease in the purchase price of the Guernsey Acquisition pursuant to any purchase price or similar adjustment provisions set forth in the Guernsey Acquisition Agreement shall not constitute an alteration, amendment, change, modification, supplement, waiver, consent or approval under the Guernsey Acquisition Agreement; and
17.    the Guernsey Refinancing shall have been consummated, or shall be consummated substantially simultaneously with the funding of the 2025-1 Incremental Term B Loans.
For purposes of determining compliance with the conditions specified in this Section G, by signing this Amendment, each Lender and L/C Issuer party hereto shall be deemed to have consented to, approved or accepted or to be satisfied with or waived (as applicable), each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender and L/C Issuer unless the Borrower and the Administrative Agent shall have received notice from such Lender and L/C Issuer prior to the Amendment Effective Date specifying its objection thereto.
H.    Other Terms.
1.    Amendment, Modification and Waiver. This Amendment may not be amended, restated, amended and restated, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto in accordance with the provisions of Section 13.1 of the Credit Agreement.
2.    Entire Agreement. This Amendment, the Amended Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
3.    No Novation. This Amendment shall not extinguish the obligations for the payment of money outstanding under the Credit Agreement or any other Credit Document or discharge or release any Lien or priority of or under any Security Document or any other security therefor. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Credit Agreement
11

or any other Credit Document or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith and except to the extent repaid as provided herein. Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Credit Parties under any Credit Document from any of its obligations and liabilities as a borrower, guarantor or pledgor under any of the Credit Documents.
4.    GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (WHETHER IN CONTRACT, TORT OR OTHERWISE AND IN LAW OR EQUITY) SHALL BE GOVERNED BY, CONSTRUED, AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5.    Severability. Any term or provision of this Amendment, which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction. If any provision of this Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
6.    Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. This Amendment may be executed using Electronic Signatures (as defined below). Each Lender and L/C Issuer party hereto, the Credit Parties, and the Administrative and Collateral Agent agree that any Electronic Signature shall be valid and binding on such Person to the same extent as a manual, original signature, and shall be enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed signature was delivered. For purposes hereof, “Electronic Signature” shall have the meaning assigned to it by 15 USC §7006, as it may be amended from time to time.
7.    Submission to Jurisdiction. Each party hereto irrevocably and unconditionally:
a.    submits for itself and its property in any legal action or proceeding relating to this Amendment and the other Credit Documents to which it is a party (whether in contract, tort or otherwise and in law or equity), or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York and appellate courts from any thereof;
b.    consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
c.    agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at such address of which the Administrative Agent shall have been notified pursuant to Section 13.2 of the Credit Agreement;
d.    agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
e.    subject to the last paragraph of Section 13.5 of the Credit Agreement, waives, to the maximum extent not prohibited by Applicable Law, any right it may have to claim or recover in any
12

legal action or proceeding referred to in this Section H.7 any special, exemplary, punitive or consequential damages; and
f.    agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law.
8.    Reaffirmation. Each Credit Party hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Credit Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby and (ii) its guarantee of the Obligations under the Guarantee and its grant of Liens on the Collateral to secure the Obligations pursuant to the Security Documents.
9.    Notice. For purposes of the Amended Credit Agreement, the initial notice address of each 2025-1 Additional Stand-Alone L/C Issuer which is not an existing L/C Issuer under the Credit Agreement as of the Amendment Effective Date, each 2025-1 Additional Revolving Lender which is not an existing Lender under the Credit Agreement as of the Amendment Effective Date and each 2025-1 Incremental Term B Lender which is not an existing Term B Lender under the Credit Agreement as of the Amendment Effective Date, shall be as set forth below its signature below.
10.    Tax Forms. For each relevant 2025-1 Incremental Term B Lender, 2025-1 Additional Stand-Alone L/C Issuer and 2025-1 Additional Revolving Lender, delivered herewith to the Borrower and the Administrative Agent is such documentation as such 2025-1 Incremental Term B Lender, 2025-1 Additional Stand-Alone L/C Issuer or 2025-1 Additional Revolving Lender may be required to deliver to the Borrower and the Administrative Agent pursuant to Sections 5.4(d), 5.4(e), 5.4(h) and 5.4(i) of the Credit Agreement.
11.    [Reserved].
12.    Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING (WHETHER IN CONTRACT, TORT OR OTHERWISE AND IN LAW OR EQUITY) RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.    Post-Closing Obligations. Within one hundred twenty (120) days after the Amendment Effective Date, unless waived or extended by the Administrative Agent, in its reasonable discretion, the Collateral Trustee shall have received either the item listed in paragraph (a) or the items listed in paragraph (b) as follows:
(a)    an opinion or email confirmation from local counsel in each jurisdiction where a Mortgaged Property is located, in form and substance reasonably satisfactory to the Administrative Agent, to the effect that no amendment to the existing Mortgage is necessary to maintain the continued enforceability, validity and priority of the Mortgage, and to give constructive notice to third parties of the lien created by such Mortgage, in each case, as security for the Obligations, including the Obligations evidenced by the Credit Agreement as amended by this Amendment and the other documents executed in connection therewith, for the benefit of the Secured Parties; or
(b)    with respect to the existing Mortgages, the following, in each case, in form and substance reasonably acceptable to the Administrative Agent:
13

(i)    with respect to each Mortgage encumbering a Mortgaged Property, an amendment thereof (each a “Mortgage Amendment”) duly executed and acknowledged by the applicable Credit Party, and in form for recording in the recording office where each Mortgage was recorded, in form and substance reasonably satisfactory to the Administrative Agent;
(ii)    with respect to each Mortgage Amendment, a title search, assuring the Administrative Agent that such Mortgage is a first priority lien on such Mortgaged Property in favor of the Collateral Trustee for the benefit of the Secured Parties free and clear of all defects, encumbrances and liens except for Permitted Liens, and such title search shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent;
(iii)    with respect to each Mortgage Amendment, opinions of local counsel to the Credit Parties in the states where each Mortgaged Property is located, which opinions (x) shall be addressed to the Collateral Trustee and the Secured Parties, (y) shall cover the enforceability of the respective Mortgage Amendment and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request and (z) shall be in form and substance reasonably satisfactory to the Administrative Agent; and
(iv)    evidence acceptable to the Administrative Agent of payment by the Borrower of all applicable title search and examination charges, and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgage Amendments and issuance of the title searches.
[Signature pages follow]















14

IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment as of the date first set forth above.

BORROWER:

TALEN ENERGY SUPPLY, LLC
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President and Treasurer
[Signature Page to Amendment No. 5 to Credit Agreement]

SUBSIDIARY GUARANTORS:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC
RAVEN POWER FINANCE LLC
▇▇▇▇▇▇▇ ISLAND, LLC COLSTRIP COMM SERV, LLC FORT ▇▇▇▇▇▇▇▇▇ ROAD – LOT 15 LANDFILL, LLC
▇.▇. ▇▇▇▇▇▇ LLC HOLTWOOD, LLC
LIBERTY VIEW POWER, L.L.C. LMBE PROJECT COMPANY LLC
LOWER MOUNT BETHEL ENERGY, LLC MC OPCO LLC
MC PROJECT COMPANY LLC MONTANA GROWTH HOLDINGS LLC MONTOUR, LLC
▇▇▇▇▇▇ ENERGY OPERATIONS COMPANY, LLC
NEWARK BAY COGENERATION PARTNERSHIP, L.P.
NEWARK BAY HOLDING COMPANY, L.L.C. NORTHEAST GAS GENERATION HOLDINGS, LLC
PENNSYLVANIA MINES, LLC RAVEN LOT 15 LLC
RAVEN POWER FORT ▇▇▇▇▇▇▇▇▇ LLC RAVEN POWER GENERATION HOLDINGS LLC
RAVEN POWER GROUP LLC RAVEN POWER PROPERTY LLC
RAVEN FS PROPERTY HOLDINGS LLC RMGL HOLDINGS LLC
SAPPHIRE POWER GENERATION HOLDINGS LLC
SUSQUEHANNA NUCLEAR, LLC TALEN CONEMAUGH LLC
TALEN ENERGY MARKETING, LLC TALEN ENERGY SERVICES GROUP, LLC
TALEN ENERGY SERVICES HOLDINGS, LLC TALEN GENERATION, LLC
TALEN KEYCON HOLDINGS LLC TALEN KEYSTONE LLC
TALEN MCR HOLDINGS LLC TALEN MONTANA, LLC
TALEN MONTANA HOLDINGS, LLC TALEN NE LLC
THE RIVERLANDS RECREATION AREA
LLC

By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President and Treasurer



[Signature Page to Amendment No. 5 to Credit Agreement]

CITIBANK, N.A.,
as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer and Stand-Alone L/C Issuer
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director / Vice President
[Signature Page to Amendment No. 5 to Credit Agreement]

CITIBANK, N.A., as Administrative Agent
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director / Vice President
[Signature Page to Amendment No. 5 to Credit Agreement]

CITIBANK, N.A., as Collateral Agent
By:/s/ ▇▇▇▇▇ De La ▇▇▇▇

Name:
▇▇▇▇▇ De La ▇▇▇▇
Title:
Senior Trust Officer
[Signature Page to Amendment No. 5 to Credit Agreement]

ROYAL BANK OF CANADA, as a 2025-1
Incremental Term B Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇

Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Authorized Signatory
ROYAL BANK OF CANADA, as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer, and Stand-Alone L/C Issuer
By:/s/ ▇▇▇ ▇▇▇▇▇▇▇▇

Name:
▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Authorized Signatory
Notice Address for Royal Bank of Canada
Three World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
New York, NY 10281-8098
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ – Analyst, Loan Servicing
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

MUFG BANK, LTD., as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer and Stand-Alone L/C Issuer
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Managing Director
Notice Address for MUFG Bank, Ltd.
MUFG Bank, Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
New York, New York 10020
Attention: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇@▇▇.▇▇▇▇.▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

BNP PARIBAS, as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer and Stand-Alone L/C Issuer
By:/s/ ▇▇▇▇▇▇▇ ▇’▇▇▇▇▇

Name:
▇▇▇▇▇▇▇ ▇’▇▇▇▇▇
Title:
Director
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇

Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice President
Notice Address for BNP Paribas
Street Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

DEUTSCHE BANK AG NEW YORK BRANCH, as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer
By:/s/ ▇▇▇▇▇ ▇▇▇▇

Name:
▇▇▇▇▇ ▇▇▇▇
Title:
Director
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice President
Notice Address for Deutsche Bank AG New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

DEUTSCHE BANK AG NEW YORK BRANCH, as a Stand-Alone L/C Issuer
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Director
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇

Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Director
Notice Address for Deutsche Bank AG New York Branch
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer, 2025-1 Additional Stand-Alone L/C Issuer and Stand-Alone L/C Issuer
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Authorized Signatory
Notice Address for ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Notices: ▇▇▇-▇▇▇-▇▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer, 2025-1 Additional Stand-Alone L/C Issuer and Stand-Alone L/C Issuer
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇

Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
[Signature Page to Amendment No. 5 to Credit Agreement]

THE BANK OF NOVA SCOTIA, as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer and Stand-Alone L/C Issuer
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇

Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Director
Notice Address for The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
25th Floor,
New York, NY ▇▇▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

SUMITOMO MITSUI BANKING CORPORATION, as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer and Stand-Alone L/C Issuer
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇

Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
Notice Address for Sumitomo Mitsui Banking Corporation
Primary Credit Contact:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Office Number: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Primary Operations Contact:
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Office Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number (Notices Only): ▇▇▇-▇▇▇-▇▇▇▇
Group Email (Inquiries Only): ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

BANCO SANTANDER, S.A., NEW YORK BRANCH, as a 2025-1 Additional Revolving Lender, Revolving Lender, Revolving L/C Issuer, 2025-1 Additional Stand-Alone L/C Issuer and Stand-Alone L/C Issuer
By:/s/ D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Name:
D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized Signatory
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇

Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Authorized Signatory
Notice Address for Banco Santander, S.A., New York Branch
Banco Santander, S.A., New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
New York, NY 10022
Attention: Loan Ops
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
[Signature Page to Amendment No. 5 to Credit Agreement]

SCHEDULE 1
TO AMENDMENT
Name of 2025-1 Incremental Term B Lender
2025-1 Incremental Term B Commitment
Royal Bank of Canada
$1,200,000,000
Total: $1,200,000,000


SCHEDULE 2

TO AMENDMENT

Name of 2025-1 Additional Stand-Alone L/C Issuer
2025-1 Additional Stand-Alone L/C Commitment
Banco Santander, S.A., New York Branch
$50,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
$100,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
$50,000,000
Total: $200,000,000


SCHEDULE 2
TO AMENDMENT (CONT’D)
Name of 2025-1
Additional Revolving Lender
2025-1 Additional Revolving
Commitment
2025-1 Additional Specified
Revolving L/C Commitment
Citibank, N.A.
$14,523,000
$14,523,000
Deutsche Bank AG New
York Branch
$14,523,000
$14,523,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
$14,523,000
$14,523,000
The Bank of Nova Scotia
$14,523,000
$14,523,000
Sumitomo Mitsui Banking
Corporation
$14,523,000
$14,523,000
Royal Bank of Canada
$14,523,000
$14,523,000
BNP Paribas
$14,523,000
$14,523,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc.
$35,107,000
$35,107,000
MUFG Bank, Ltd.
$13,232,000
$13,232,000
Banco Santander, S.A.,
New York Branch
$50,000,000
$50,000,000
Total: $200,000,000
Total: $200,000,000


EXHIBIT A
TO AMENDMENT
[AMENDED CREDIT AGREEMENT]

[ATTACHED]


Exhibit A to Amendment No. 45
CREDIT AGREEMENT
Dated as of May 17, 2023
as amended by Amendment No. 1, dated as of August 9, 2023,
as further amended by Amendment No. 2, dated as of May 8, 2024,
as further amended by Amendment No. 3, dated as of December 13, 2024, and
as further amended by Amendment No. 4, dated as of December 20, 2024, and
as further amended by Amendment No. 5, dated as of November 25, 2025

among
TALEN ENERGY SUPPLY, LLC,
as the Borrower,
The Several Lenders and L/C Issuers from Time to Time Parties Hereto,
CITIBANK, N.A.,
as Administrative Agent and Collateral Agent and
CITIBANK, N.A.,
BMO CAPITAL MARKETS CORP., DEUTSCHE BANK SECURITIES INC., ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,
RBC CAPITAL MARKETS, LLC, MUFG BANK, LTD.,
CREDIT SUISSE LOAN FUNDING LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. AND
BARCLAYS BANK PLC
as Joint Lead Arrangers and Joint Bookrunners


Table of Contents
Page
SECTION 1.Definitions1-21-2
1.1.         
Defined Terms1-21-2
1.2.         
Other Interpretive Provisions1-911-94
1.3.         
Accounting Terms1-931-96
1.4.         
Rounding1-941-97
1.5.         
References to Agreements, Laws, Etc1-941-97
1.6.         
Times of Day1-941-97
1.7.         
Timing of Payment or Performance1-941-97
1.8.         
Currency Equivalents Generally1-941-97
1.9.         
Classification of Loans and Borrowings1-941-97
1.10.      
Hedging Agreements1-941-97
1.11.      
Limited Condition Transactions1-951-98
1.12.      
Cashless Settlement1-961-99
1.13.      
Interest Rates; Benchmark Notification1-961-99
1.14.      
Divisions1-961-99
1.15.      
Compliance with Certain Sections1-971-100
SECTION 2.Amount and Terms of Credit2-972-100
2.1.         
Commitments2-972-100
2.2.         
Minimum Amount of Each Borrowing; Maximum Number of Borrowings2-982-101
2.3.         
Notice of Borrowing; Determination of Class of Loans2-982-101
2.4.         
Disbursement of Funds2-992-102
2.5.         
Repayment of Loans; Evidence of Debt2-992-103
2.6.         
Conversions and Continuations2-1012-104
2.7.         
Pro Rata Borrowings2-1022-105
2.8.         
Interest2-1022-105
2.9.         
Interest Periods2-1032-106
2.10.      
Increased Costs, Illegality, Etc2-1032-107
2.11.      
Compensation2-1062-110
2.12.      
Change of Lending Office2-1072-110
2.13.      
Notice of Certain Costs2-1072-110
2.14.      
Incremental Facilities2-1072-111
2.15.      
Extensions of Term B Loans, Revolving Loans, Revolving Commitments and Stand-Alone Letter of Credit Commitments; Refinancing Facilities2-1122-116
2.16.      
Defaulting Lenders2-1252-129
2.17.      
Permitted Debt Exchanges2-1262-130
SECTION 3.Letters of Credit3-1283-132
3.1.         
Issuance of Letters of Credit3-1283-132
3.2.         
Letter of Credit Requests3-1303-133
3.3.         
Revolving Letter of Credit Participations3-1303-134
3.4.         
Agreement to Repay Letter of Credit Drawings3-1323-136
3.5.         
Increased Costs3-1333-137
3.6.         
New or Successor L/C Issuer3-1343-138


3.7.         
Role of L/C Issuer3-1353-139
3.8.         
Revolving Letter of Credit Cash Collateral3-1363-140
3.9.         
Stand-Alone Letter of Credit Cash Collateral3-1363-140
3.10.      
Certain Letters of Credit3-1363-140
3.11.      
Applicability of ISP and UCP3-1373-141
3.12.      
Conflict with Issuer Documents3-1373-141
3.13.      
Letters of Credit Issued for Others3-1373-141
3.14.      
Letter of Credit Conversion3-1373-141
SECTION 4.Fees; Commitments4-1374-142
4.1.         
Fees4-1374-142
4.2.         
Voluntary Reduction of Revolving Commitments, Revolving L/C Commitments and Stand-Alone L/C Commitments4-1394-144
4.3.         
Mandatory Termination or Reduction of Commitments4-1404-145
SECTION 5.Payments5-1405-145
5.1.         
Voluntary Prepayments5-1405-145
5.2.         
Mandatory Prepayments5-1415-146
5.3.         
Method and Place of Payment5-1445-149
5.4.         
Net Payments5-1455-150
5.5.         
Computations of Interest and Fees5-1485-153
5.6.         
Limit on Rate of Interest5-1485-153
SECTION 6.Conditions Precedent to Effectiveness6-1506-155
6.1.         
Credit Documents6-1506-155
6.2.         
Collateral6-1506-155
6.3.         
Legal Opinions6-1516-156
6.4.         
Closing Certificates6-1516-156
6.5.         
Authorization of Proceedings of Each Credit Party6-1516-156
6.6.         
Fees6-1516-156
6.7.         
Representations and Warranties6-1516-156
6.8.         
Notice of Borrowing6-1516-156
6.9.         
Solvency Certificate6-1516-156
6.10.      
Plan; Confirmation Order6-1516-156
6.11.      
Financial Statements6-1516-156
6.12.      
No Event of Default6-1516-156
6.13.      
Minimum Liquidity6-1526-157
6.14.      
Patriot Act6-1526-157
6.15.      
Certain Closing Date Transactions6-1526-157
SECTION 7.Conditions Precedent to All Credit Events under the Revolving Credit Facility and the Issuance of Letters of Credit After the Closing Date7-1527-157
7.1.         
No Default; Representations and Warranties7-1527-157
7.2.         
Notice of Borrowing7-1527-157
SECTION 8.Representations, Warranties and Agreements8-1538-158
8.1.         
Corporate Status; Compliance with Laws8-1538-158
8.2.         
Corporate Power and Authority8-1538-158
8.3.         
No Violation8-1538-158
8.4.         
Litigation8-1548-159


8.5.         
Margin Regulations8-1548-159
8.6.         
Governmental Approvals8-1548-159
8.7.         
Investment Company Act8-1548-159
8.8.         
True and Complete Disclosure8-1548-159
8.9.         
Financial Condition; Financial Statements8-1558-160
8.10.      
Tax Matters8-1558-160
8.11.      
Compliance with ERISA8-1558-160
8.12.      
Subsidiaries8-1568-161
8.13.      
Intellectual Property8-1568-161
8.14.      
Environmental Laws8-1568-161
8.15.      
Properties8-1568-161
8.16.      
Solvency8-1578-162
8.17.      
Security Interests8-1578-162
8.18.      
Labor Matters8-1578-162
8.19.      
Sanctioned Persons; Anti-Corruption Laws; Patriot Act8-1578-162
8.20.      
Use of Proceeds8-1588-163
8.21.      
Energy and Regulatory Matters8-1588-163
8.22.      
Beneficial Ownership Certification8-1588-163
SECTION 9.Affirmative Covenants9-1589-163
9.1.         
Information Covenants9-1589-163
9.2.         
Books, Records and Inspections9-1619-166
9.3.         
Maintenance of Insurance9-1629-167
9.4.         
Payment of Taxes9-1629-168
9.5.         
Consolidated Corporate Franchises9-1639-168
9.6.         
Compliance with Statutes, Regulations, Etc9-1639-168
9.7.         
Lender Calls9-1639-168
9.8.         
Maintenance of Properties9-1639-168
9.9.         
Transactions with Affiliates9-1639-168
9.10.      
End of Fiscal Years9-1669-171
9.11.      
Additional Guarantors and Grantors9-1669-171
9.12.      
Pledge of Additional Stock and Evidence of Indebtedness9-1669-171
9.13.      
Use of Proceeds9-1669-172
9.14.      
Further Assurances9-1679-172
9.15.      
Maintenance of Ratings9-1699-175
9.16.      
Changes in Business9-1709-175
SECTION 10.
 Negative Covenants
10-17010-175
10.1.      
Limitation on Indebtedness10-17010-175
10.2.      
Limitation on Liens10-17810-184
10.3.      
Limitation on Fundamental Changes10-18410-189
10.4.      
Limitation on Sale of Assets10-18610-191
10.5.      
Limitation on Investments10-18910-195
10.6.      
Limitation on Dividends10-19410-200
10.7.      
Limitations on Debt Payments and Amendments10-20010-205
10.8.      
Limitations on Sale Leasebacks10-20110-206
10.9.      
Consolidated First Lien Net Leverage Ratio10-20110-206


10.10.    
Limitation on Subsidiary Distributions10-20110-207
10.11.    
Amendment of Organizational Documents10-20310-209
SECTION 11.
 Events of Default
11-20311-209
11.1.      
Payments11-20311-209
11.2.      
Representations, Etc11-20311-209
11.3.      
Covenants11-20311-209
11.4.      
Default Under Other Agreements11-20411-210
11.5.      
Bankruptcy11-20411-210
11.6.      
ERISA11-20411-210
11.7.      
Guarantee11-20511-210
11.8.      
Pledge Agreement11-20511-210
11.9.      
Security Agreement11-20511-211
11.10.    
Judgments11-20511-211
11.11.    
Change of Control11-20511-211
11.12.    
Susquehanna Event of Default11-20511-211
11.13.    
Application of Proceeds11-20611-212
11.14.    
Right to Cure11-20711-213
SECTION 12.
 The Agents
12-20812-214
12.1.      
Appointment12-20812-214
12.2.      
Delegation of Duties12-20812-214
12.3.      
Exculpatory Provisions12-20912-215
12.4.      
Reliance by Agents12-21012-216
12.5.      
Notice of Default12-21112-217
12.6.      
Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders12-21112-217
12.7.      
Indemnification12-21212-218
12.8.      
Agents in their Individual Capacities12-21312-219
12.9.      
Successor Agents12-21312-219
12.10.    
Withholding Tax12-21312-219
12.11.    
Trust Indenture Act12-21412-220
12.12.    
Collateral Trust Agreement; Intercreditor Agreements12-21412-220
12.13.    
Security Documents and Guarantee; Agents under Security Documents and Guarantee12-21412-220
12.14.    
Erroneous Payments12-21612-222
12.15.    
Certain ERISA Matters12-21712-223
SECTION 13.
 Miscellaneous
13-21813-224
13.1.Amendments, Waivers and Releases13-21813-224
13.2.Notices13-22313-229
13.3.No Waiver; Cumulative Remedies13-22413-230
13.4.Survival of Representations and Warranties13-22413-230
13.5.Payment of Expenses; Indemnification13-22413-230
13.6.Successors and Assigns; Participations and Assignments13-22613-232
13.7.Replacements of Lenders under Certain Circumstances13-23213-238
13.8.Adjustments; Set-off13-23313-240
13.9.Counterparts13-23413-240


13.10.Severability13-23513-241
13.11.INTEGRATION13-23513-241
13.12.GOVERNING LAW13-23513-241
13.13.Submission to Jurisdiction; Waivers13-23513-241
13.14.Acknowledgments13-23613-242
13.15.WAIVERS OF JURY TRIAL13-23713-243
13.16.Confidentiality13-23713-243
13.17.Direct Website Communications13-23813-244
13.18.USA PATRIOT Act13-23913-246
13.19.Payments Set Aside13-23913-246
13.20.Interest Rate Limitation13-24013-246
13.21.Keepwell13-24013-246
13.22.Acknowledgement and Consent to Bail-In of Affected Financial Institutions13-24013-247
13.23.Acknowledgement Regarding Any Supported QFCs13-24113-247


SCHEDULES
Schedule 1.1(a)Commitments of Lenders
Schedule 1.1(b)Existing Letters of Credit
Schedule 1.1(c)Mortgaged Properties
Schedule 1.1(d)Excluded Subsidiaries
Schedule 1.1(g)Unrestricted Subsidiaries
Schedule 8.4Litigation
Schedule 8.12Subsidiaries
Schedule 8.14Environmental Matters
Schedule 8.15Property Matters
Schedule10.1Amendment No. 3 Effective Date Indebtedness
Schedule 10.2Amendment No. 3 Effective Date Liens
Schedule 10.4Scheduled Dispositions
Schedule 10.5Amendment No. 3 Effective Date Investments
Schedule 13.2Notice Addresses
EXHIBITS
Exhibit AForm of Notice of Borrowing
Exhibit BForm of Guarantee
Exhibit C[Reserved]
Exhibit DForm of Perfection Certificate
Exhibit EForm of Solvency Certificate
Exhibit F[Reserved]
Exhibit GForm of Letter of Credit Request
Exhibit IForm of Credit Party Closing Certificate
Exhibit JForm of Assignment and Acceptance
Exhibit K-1Form of Promissory Note (Revolving Loans)
Exhibit K-2Form of Promissory Note (Term B Loans)
Exhibit LForm of Incremental Amendment
Exhibit MForm of Junior Lien Intercreditor Agreement
Exhibit QForm of Non-U.S. Lender Certification



This CREDIT AGREEMENT, is entered into as of May 17, 2023, by and among TALEN ENERGY SUPPLY, LLC (the “Borrower”), the lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”), CITIBANK, N.A., as Administrative Agent and Collateral Agent, and CITIBANK, N.A., BMO CAPITAL MARKETS CORP., DEUTSCHE BANK SECURITIES INC., ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, RBC CAPITAL MARKETS, LLC, MUFG BANK, LTD., CREDIT SUISSE LOAN FUNDING LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as Joint Lead Arrangers and Joint Bookrunners (each as defined herein).
RECITALS:
WHEREAS, capitalized terms used and not defined in the preamble and these recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, on May 9 and May 10, 2022, the Borrower and certain of the Borrower’s Domestic Subsidiaries (the “Debtors”) began operating as debtors-in-possession pursuant to voluntary cases commenced under Chapter 11 of Title 11 of the United States Code (as amended, the “Bankruptcy Code”), in the United States Bankruptcy Court for the Southern District of Texas (Houston Division) (the “Bankruptcy Court”), which, together with the voluntary case of the Borrower’s parent, Talen Energy Corporation, filed on December 10, 2022, are jointly administered under Case No. 22-90054 (the “Case”);
WHEREAS, the Debtors will be reorganized pursuant to (i) the Joint Chapter 11 Plan of the Talen Energy Supply, LLC and Its Affiliated Debtors, filed in the Case on December 14, 2022 at Docket No. 1722 (together with all schedules, documents and exhibits contained therein, as amended, supplemented, modified or waived to the extent not otherwise prohibited hereunder, the “Plan”) and (ii) the order confirming the Plan, entered by the Bankruptcy Court on December 20, 2022 at Docket No. 1760 (together with all schedules, documents and exhibits contained therein, as amended, supplemented, modified or waived to the extent not otherwise prohibited hereunder, the “Confirmation Order”);
WHEREAS, the Borrower has requested that, upon the satisfaction (or waiver) of the conditions precedent set forth in Section 6 hereof, the applicable Lenders and/or L/C Issuers (a) make initial term b loans to the Borrower in an aggregate principal amount of $580,000,000 on the Closing Date, (b) make available to the Borrower a senior secured letter of credit facility in an aggregate principal amount of $900,000,000 and (c) make available to the Borrower a $700,000,000 revolving credit facility for the making, from time to time, of revolving loans and the issuance, from time to time, of letters of credit, in each case, on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, on or prior to the Closing Date, Talen Energy Corporation will consummate a rights offering to raise up to $1,400,000,000 of additional equity capital (the “Equity Rights Offering”), the proceeds of which (net of any amounts used by Talen Energy Corporation to consummate the Transactions and to pay the Transaction Expenses or retained by Talen Energy Corporation in connection with the maintenance of its existence and ownership of the Borrower) will be contributed to the Borrower and be applied by the Borrower in a manner consistent with the use of proceeds of the Initial Term B Loans as set forth in Section 9.13 hereof;



NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1. Definitions.
1.1.    Defined Terms.
As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires:
“2023 Notes Indenture” shall mean the Indenture for the 2023 Notes, dated as of May 12, 2023, among the Borrower, the guarantors thereto from time to time and Wilmington Savings Fund Society, FSB, as trustee (the “Senior Notes Trustee”), as the same may be amended, restated, amended and restated, modified, supplemented, replaced and/or refinanced to the extent not prohibited by this Agreement.
“2023 Notes” shall mean the $1,200,000,000 senior secured notes due 2030 issued by the Borrower pursuant to the 2023 Notes Indenture.
“2023-1 Incremental Term B Commitment” shall mean each 2023-1 Incremental Term B Lender’s commitment to provide its respective 2023-1 Incremental Term B Commitment as set forth on Schedule A to Amendment No. 1.
“2023-1 Incremental Term B Lender” shall mean each Person identified on the signature pages to Amendment No. 1 as a “2023-1 Incremental Term B Lender”.
“2023-1 Incremental Term B Loan” shall mean the Incremental Term B Loans made by the 2023-1 Incremental Term B Lenders on the Amendment No. 1 Effective Date.
“2024-1 Incremental Term B Commitment” shall mean each 2024-1 Incremental Term B Lender’s commitment to provide its respective 2024-1 Incremental Term B Commitment as set forth on Schedule 1 to Amendment No. 3.
“2024-1 Incremental Term B Lender” shall mean each Person identified on the signature pages to Amendment No. 3 as a “2024-1 Incremental Term B Lender”.
“2024-1 Incremental Term B Loan” shall mean the Incremental Term B Loans made by the 2024-1 Incremental Term B Lenders on the Amendment No. 3 Effective Date.
“2024-1 Incremental Term B Loan Maturity Date” shall mean December 13, 2031.
“2024-1 Incremental Term B Repayment Amount” shall have the meaning provided in Section 2.5(b)(ii).
“2025-1 Incremental Term B Commitment” shall mean each 2025-1 Incremental Term B Lender’s commitment to provide its respective 2025-1 Incremental Term B Commitment as set forth on Schedule 1 to Amendment No. 5.
“2025-1 Incremental Term B Lender” shall mean each Person identified on the signature pages to Amendment No. 5 as a “2025-1 Incremental Term B Lender”.
“2025-1 Incremental Term B Loan” shall mean the Incremental Term B Loans made by the 2025-1 Incremental Term B Lenders on the Amendment No. 5 Effective Date.
“2025-1 Incremental Term B Loan Maturity Date” shall mean November 25, 2032.
1-2

“2025-1 Incremental Term B Repayment Amount” shall have the meaning provided in Section 2.5(b)(iii).
“ABR” shall mean, for any day, a fluctuating rate per annum equal to the greatest of:
(a)    the Federal Funds Effective Rate plus 1/2 of 1.00%,
(b)    the rate of interest in effect for such day as publicly announced from time to time by the Wall Street Journal as the “U.S. prime rate”, and
(c)    the Adjusted Term SOFR Rate for a one-month tenor as published two U.S. Governmental Securities Business Days prior to such day (after giving effect to any Floor applicable to the Adjusted Term SOFR Rate) (or, if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%;
provided that, for the avoidance of doubt, for purposes of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 6:00 a.m. on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). If the Administrative Agent is unable to ascertain the Federal Funds Effective Rate due to its inability to obtain sufficient quotations in accordance with the definition thereof, after notice is provided to the Borrower, the ABR shall be determined without regard to clause (a) above until the circumstances giving rise to such inability no longer exist. Any change in the ABR due to a change in such rate announced by the Administrative Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the day specified in the public announcement of such change or on the effective date of such change in the Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as applicable. In no event shall the ABR be less than the Floor.
“ABR Loan” shall mean each Loan bearing interest based on the ABR.
“Acceptable Reinvestment Commitment” shall mean a binding commitment or letter of intent of the Borrower or any Restricted Subsidiary entered into at any time prior to the end of the Reinvestment Period to reinvest the proceeds of a Prepayment Event.
“Acquired EBITDA” shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated Adjusted EBITDA of such Pro Forma Entity (determined using such definitions as if references to the Borrower and the Restricted Subsidiaries therein were to such Pro Forma Entity and its Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in a manner not inconsistent with GAAP.
“Acquired Entity or Business” shall have the meaning provided in the definition of “Consolidated Adjusted EBITDA”.
“Additional Debt” shall have the meaning provided in Section 5.2(c).
“Additional Revolving Commitments” shall have the meaning provided in Section 2.14(a).
“Additional Revolving Lender” shall have the meaning provided in Section 2.14(b).
“Additional Revolving Loan” shall have the meaning provided in Section 2.14(b).
“Adjusted Daily Simple SOFR” shall mean, for each SOFR Rate Day in any Interest Period, an interest rate per annum equal to the Daily Simple SOFR; provided that, if the Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
1-3

“Adjusted Term SOFR Rate” shall mean, for any Interest Period, an interest rate per annum equal to the Term SOFR Rate; provided that, if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Total Additional Revolving Commitment” shall mean at any time, with respect to any tranche of Additional Revolving Commitments, the Total Additional Revolving Commitment for such tranche less the aggregate Additional Revolving Commitments of all Defaulting Lenders in such tranche.
“Adjusted Total Extended Revolving Commitment” shall mean, at any time, with respect to any Extension Series of Extended Revolving Commitments, the Total Extended Revolving Commitment for such Extension Series less the aggregate Extended Revolving Commitments of all Defaulting Lenders in such Extension Series.
“Adjusted Total Revolving Commitment” shall mean, at any time, the Total Revolving Commitment less the aggregate Revolving Commitments of all Defaulting Lenders.
“Administrative Agent” shall mean Citibank, N.A., as the administrative agent for the Lenders under this Agreement and the other Credit Documents, or any successor administrative agent pursuant to Section 12.9.
“Administrative Agent’s Office” shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.2, or such other address or account of which the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” shall have the meaning provided in Section 13.6(b)(ii)(D).
“Advisors” shall mean legal counsel, financial advisors and third-party appraisers and consultants advising the Agents, the Joint Lead Arrangers, the L/C Issuers, the Lenders and their Related Parties in connection with this Agreement, the other Credit Documents and the consummation of the Transactions, limited in the case of legal counsel to one primary counsel for the Agents and the Joint Lead Arrangers (as of the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇) and, if necessary, one firm of regulatory counsel and/or one firm of local counsel in each appropriate jurisdiction (and, in the case of an actual or perceived conflict of interest where the Person affected by such conflict informs the Borrower of such conflict and, after receipt of the consent of the Borrower (which consent shall not be unreasonably withheld or delayed), retains its own counsel, of another firm of counsel for all such affected Persons (taken as a whole)).
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to “control” another Person if such Person possesses, directly or indirectly, the power to direct the management and policies of such other Person, whether through the ownership of voting securities or by contract. The terms “controlling” and “controlled” shall have meanings correlative thereto.
“Affiliated Debt Fund” shall mean any Affiliate of the Parent (other than the Borrower or any Subsidiary of the Borrower) that is either a bona fide debt fund or that extends credit or buys loans in the ordinary course of business.
“Affiliated Lender” shall mean a Lender that is the Parent or any Affiliate thereof (other than the Borrower or any Subsidiary of the Borrower).
“Affiliated Parent Company” shall mean an entity that (i) owns, directly or indirectly, 100% of the Stock of the Borrower and (ii) operates as a “passive holding company”, subject to customary exceptions
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(it being understood, for the avoidance of doubt, that no Permitted Holder or affiliated investment fund shall be construed to be an “Affiliated Parent Company”).
“Agent Parties” shall have the meaning provided in Section 13.17(d).
“Agents” shall mean the Administrative Agent and the Collateral Agent.
“Aggregate Revolving Credit Outstandings” shall have the meaning provided in Section 5.2(b).
“Agreement” shall mean this Credit Agreement.
“AHYDO Catch-Up Payment” means any payment or redemption of Indebtedness, including subordinated debt obligations, in the minimum amount necessary to avoid the application of Section 163(e)(5) of the Code thereto.
“Amendment No. 1” shall mean that certain Amendment No. 1 to Credit Agreement, dated as of August 9, 2023, among the Borrower, the 2023-1 Incremental Term B Lenders party thereto, the Administrative Agent and the Collateral Agent.
“Amendment No. 1 Effective Date” shall have the meaning provided in Amendment No. 1, which date occurred on August 9, 2023.
“Amendment No. 2” shall mean that certain Amendment No. 2 and Waiver to Credit Agreement, dated as of May 8, 2024, among the Borrower, the Lenders party thereto, the Administrative Agent, the Collateral Agent and Citibank, N.A. as Replacement Lender.
“Amendment No. 2 Effective Date” shall have the meaning provided in Amendment No. 2, which date occurred on May 8, 2024.
“Amendment No. 3” shall mean that certain Amendment No. 3 to Credit Agreement, dated as of December 13, 2024, among the Borrower, the 2024-1 Incremental Term B Lenders party thereto, the Administrative Agent and the Collateral Agent.
“Amendment No. 3 Effective Date” shall have the meaning provided in Amendment No. 3, which date occurred on December 13, 2024.
“Amendment No. 3 Effective Date Distribution” shall mean one or more distributions made on, or within 30 days of, the Amendment No. 3 Effective Date to the direct or indirect equityholders of the Borrower as set forth in the funds flow memorandum detailing the proposed flow, and use of the proceeds of the 2024-1 Incremental Term B Loans on the Amendment No. 3 Effective Date.
“Amendment No. 3 Transaction Expenses” shall mean any fees, costs, liabilities or expenses incurred or paid by any Affiliated Parent Company, the Borrower or any of its Subsidiaries in connection with the transactions contemplated by Amendment No. 3.
“Amendment No. 4” means that certain Amendment No. 4 to Credit Agreement, dated as of December 20, 2024, among the Borrower, the Lenders and L/C Issuers party thereto, the Required First Lien Debt Holders (as defined in the Collateral Trust Agreement) and Citibank, N.A. as the Administrative Agent, the Collateral Agent, the Replacement Term Lender and the Collateral Trustee.
“Amendment No. 4 Effective Date” shall have the meaning provided in Amendment No. 4, which date occurred on December 20, 2024.
“Amendment No. 5” shall mean that certain Amendment No. 5 to Credit Agreement, dated as of November 25, 2025, among the Borrower, the Subsidiary Guarantors party thereto, the 2025-1 Additional
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Revolving Lenders party thereto, the 2025-1 Additional Stand-Alone L/C Issuers party thereto, the other Revolving Lenders party thereto, the other Stand-Alone L/C Issuers party thereto, the 2025-1 Incremental Term B Lenders party thereto, the Revolving L/C Issuers party thereto and Citibank, N.A. as the Administrative Agent and the Collateral Agent.
“Amendment No. 5 Effective Date” shall have the meaning provided to the term “Amendment Effective Date” in Amendment No. 5, which date occurred on November 25, 2025.
“Amendment No. 5 Transactions” shall mean, collectively, (i) the transactions contemplated by Amendment No. 5 to occur on or around the Amendment No. 5 Effective Date (including the Freedom Refinancing, the consummation of the Freedom Acquisition, the Guernsey Refinancing and the consummation of the Guernsey Acquisition) and (ii) and the payment of fees and expenses in connection with the foregoing.
“Anti-Corruption Laws” shall have the meaning provided in Section 8.19.
“Applicable ABR Margin” shall mean at any date,
(i)    prior to the Amendment No. 2 Effective Date, in the case of each ABR Loan that is an Initial Term B Loan, 3.50% per annum,
(ii)    on and after the Amendment No. 2 Effective Date, but prior to the Amendment No. 4 Effective Date, in the case of each ABR Loan that is an Initial Term B Loan, 2.50% per annum,
(iii)    prior to the Amendment No. 4 Effective Date, in the case of each ABR Loan that is a Revolving Loan, (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Closing Date pursuant to Section 9.1, 2.50% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials:
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Pricing Level
Consolidated First Lien Net Leverage Ratio Level
ABR    Rate:    Revolving Credit Loan
I
Less than or equal to (x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.00:1.00 and
(y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.00:1.00.
2.00%
II
Greater than (i)(x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.00:1.00 and (y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.00:1.00, but (ii) less than or equal to (x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.50:1.00 and (y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.50:1.00.
2.25%
III
Greater than (x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.50:1.00 and (y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.50:1.00
2.50%
(iv)    on and after the Amendment No. 4 Effective Date, in the case of each ABR Loan that is a Revolving Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Amendment No. 4 Effective Date pursuant to Section 9.1, 1.00% per annum, and (y) thereafter, the percentages per annum set forth in the table below under the heading “ABR Revolving Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials;
(v)    on and after the Amendment No. 3 Effective Date, in the case of each ABR Loan that is a 2024-1 Incremental Term B Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Amendment No. 3 Effective Date pursuant to Section 9.1, 1.50% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below under the heading “ABR 2024-1 Incremental Term B Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials; and
(vi)    on and after the Amendment No. 4 Effective Date, in the case of each ABR Loan that is an Initial Term B Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Amendment No. 4 Effective Date pursuant to Section 9.1, 1.50% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below under the heading “ABR Initial Term B Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials:; provided, that, notwithstanding the above, following the Amendment No. 5 Effective Date, on any date when the Applicable ABR Margin in respect of the Initial Term B Loans, 2024-1 Incremental Term B Loans, 2025-1 Incremental Term B Loans or any other Class of Term B Loans is less than the Applicable ABR Margin in respect of the Initial Term B Loans, the 2024-1 Incremental Term B Loans or the 2025-1 Incremental Term B Loans as of the Amendment No. 5 Effective Date, then the Applicable ABR Margin “Pricing Levels” in respect of the Revolving Loans shall
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be deemed to be fifty (50) basis points less than the corresponding Applicable ABR Margin “Pricing Levels” in respect of the Initial Term B Loans, the 2024-1 Incremental Term B Loans, the 2025-1 Incremental Term B Loans or such other Class of Term B Loans on such date (but in any event the highest Applicable ABR Margin “Pricing Level” in respect of Revolving Loans shall be no less than 0.50% per annum), with such reduction in the Applicable ABR Margin “Pricing Levels” in respect of the Revolving Loans becoming effective automatically without any further action and without the consent of the Lenders or any other Person, notwithstanding anything to the contrary in Section 13.1:
ABR REVOLVING LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
ABR Rate: Revolving Loan
I
Less than or equal to 1.50:1.00.
0.50%
II
Greater than (i) 1.50:1.00, but (ii) less than or equal to 2.00:1.00.
0.75%
III
Greater than 2.00:1.00.
1.00%
ABR 2024-1 INCREMENTAL TERM B LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
ABR Rate: 2024-1 Incremental Term B Loans
I
Less than or equal to 1.40:1.00.
1.00%
II
Greater than (i) 1.40:1.00, but (ii) less than or equal to 1.65:1.00.
1.25%
III
Greater than 1.65:1.00.
1.50%
ABR INITIAL TERM B LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
ABR Rate: Initial Term B Loans
I
Less than or equal to 1.40:1.00.
1.00%
II
Greater than (i) 1.40:1.00, but (ii) less than or equal to 1.65:1.00.
1.25%
III
Greater than 1.65:1.00.
1.50%
and
(vii)     on and after the Amendment No. 5 Effective Date, in the case of each ABR Loan that is a 2025-1 Incremental Term B Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Amendment No. 5 Effective Date pursuant to Section 9.1, 1.00% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below under the heading “ABR 2025-1 Incremental Term B Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials:
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ABR 2025-1 INCREMENTAL TERM B LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
ABR Rate: 2025-1 Incremental Term B Loans
I
Less than or equal to 1.40:1.00.
0.50%
II
Greater than (i) 1.40:1.00, but (ii) less than or equal to 1.65:1.00.
0.75%
III
Greater than 1.65:1.00.
1.00%
Any increase or decrease in the Applicable ABR Margin for any Revolving Loans, 2024-1 Incremental Term B Loans, the 2025-1 Incremental Term B Loans or Initial Term B Loans resulting from a change in the Consolidated First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date the applicable Officer’s Certificate is delivered in connection with the Section 9.1 Financials.
Notwithstanding the foregoing, (a) the Applicable ABR Margin in respect of any Class of Extended Revolving Commitments or Extended Revolving Loans or any Extended Term B Loans shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (b) the Applicable ABR Margin in respect of any New Refinancing Revolving Commitments, Additional Revolving Commitments, Additional Revolving Loans, Incremental Loans or Class of Replacement Term B Loans shall be the applicable percentages per annum set forth in the relevant Refinancing Facility, Replacement Facility or other applicable agreement and (c) in the case of the Initial Term B Loans and, the 2024-1 Incremental Term B Loans and the 2025-1 Incremental Term B Loans, the Applicable ABR Margin shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.14(d)(iv).
In addition, upon written notice from the Required Revolving Lenders (in the case of Revolving Loans), the Required 2024-1 Incremental Term B Lenders (in the case of 2024-1 Incremental Term B Loans), the Required 2025-1 Incremental Term B Lenders (in the case of 2025-1 Incremental Term B Loans) or the Required Initial Term B Lenders (in the case of Initial Term B Loans), the highest pricing level applicable to the Revolving Loans, the 2024-1 Incremental Term B Loans, 2025-1 Incremental Term B Loans or Initial Term B Loans, as applicable, shall apply at any time during which the Borrower shall have failed to deliver the Section 9.1 Financials by the applicable date required under Section 9.1 (but only for so long as such failure continues, after which such ratio shall be determined based on the then existing Consolidated First Lien Net Leverage Ratio) as set forth in the applicable Officer’s Certificate. Notwithstanding anything to the contrary contained above in this definition, the Applicable ABR Margin shall be the highest Applicable ABR Margin set forth in the table above at all times during which there shall exist any Event of Default pursuant to Section 11.1 or 11.5.
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Consolidated First Lien Net Leverage Ratio set forth in any applicable Officer’s Certificate delivered in connection with the Section 9.1 Financials delivered for any period is inaccurate for any reason and the result thereof is that the Revolving Lenders, the Initial Term B Lenders or, the 2024-1 Incremental Term B Lenders or the 2025-1 Incremental Term B Lenders, as applicable, received interest for any period based on an Applicable ABR Margin that is less than that which would have been applicable had the Consolidated First Lien Net Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the “Applicable ABR Margin” for any day occurring within the period covered by such applicable Officer’s Certificate delivered in connection with the
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Section 9.1 Financials shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Consolidated First Lien Net Leverage Ratio for such period, and any shortfall in the interest theretofore paid by the Borrower for the relevant period pursuant to Section 2.8(a) as a result of the miscalculation of the Consolidated First Lien Net Leverage Ratio shall be deemed to be (and shall be) due and payable under the relevant provisions of Section 2.8(a) at the time the interest for such period was required to be paid pursuant to said Section on the same basis as if the Consolidated First Lien Net Leverage Ratio had been accurately set forth in such Officer’s Certificate delivered in connection with Section 9.1 Financials (and shall remain due and payable until paid in full, together with all amounts owing under Section 2.8(c) (subject to the proviso in the following sentence), in accordance with the terms of this Agreement). Such Applicable ABR Margin shall be due and payable on the earlier of (i) the occurrence of a Default or an Event of Default under Section 11.5 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 ABR 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.
“Applicable Amount” shall mean, at any time (the “Applicable Amount Reference Time”), an amount equal to (a) the sum, without duplication, of:
(i)    the greater of (x) $525,000,000 and (y) 50% of Consolidated Adjusted EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(ii)    Consolidated Adjusted EBITDA, minus 140% of Consolidated Interest Expense of the Borrower and its Restricted Subsidiaries, in each case, for the period (taken as one accounting period) from June 1, 2023 until the last day of the then-most recent fiscal quarter or Fiscal Year, as applicable, for which Section 9.1 Financials have been delivered or were required to be delivered (or, at the option of the Borrower, are internally available) (which amount, if less than zero, shall not be taken into account for any such period);
(iii)    all cash repayments of principal received by the Borrower or any Restricted Subsidiary from any Minority Investments or Unrestricted Subsidiaries on account of loans made by the Borrower or any Restricted Subsidiary to such Minority Investments or Unrestricted Subsidiaries during the period from and including the Business Day immediately following the Closing Date through and including the Applicable Amount Reference Time;
(iv)    100% of the aggregate amount received in cash and the fair market value of marketable securities or other property received by means of (A) the sale or other disposition (other than to the Borrower or a Restricted Subsidiary) of Investments made pursuant to Section 10.5(v)(y) by the Borrower or any Restricted Subsidiary and repurchases and redemptions of such Investments from the Borrower or any Restricted Subsidiary and repayments of loans or advances, and releases of guarantees constituting such Investments made by the Borrower or any Restricted Subsidiary, in each case, after the Closing Date; and (B) the sale (other than to the Borrower or a Restricted Subsidiary) of the stock or other ownership interest of Minority Investments, any Unrestricted Subsidiary or Excluded Project Subsidiary or a dividend or distribution from a Minority Investment, Unrestricted Subsidiary or Excluded Project Subsidiary (other than in each case to the extent the Investment in such Minority Investment, Unrestricted Subsidiary or Excluded Project Subsidiary was made by the Borrower or a Restricted Subsidiary pursuant to the proviso in Section 10.5(i) and other than to the extent such dividend or distribution from an Unrestricted Subsidiary or Excluded Project Subsidiary is applied to make a distribution pursuant to Section 10.6 to fund Tax or other liabilities of such Unrestricted Subsidiary or Excluded
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Project Subsidiary that are payable by a direct or indirect parent of the Borrower on behalf of such Unrestricted Subsidiary or Excluded Project Subsidiary), in each case, after the Closing Date;
(v)    in the case of the redesignation of an Unrestricted Subsidiary or an Excluded Project Subsidiary (including any Unrestricted Subsidiary or Excluded Project Subsidiary in existence on the Closing Date) as, or merger, consolidation or amalgamation of an Unrestricted Subsidiary or Excluded Project Subsidiary with or into, a Restricted Subsidiary after the Closing Date, the fair market value of the Investment in such Unrestricted Subsidiary or Excluded Project Subsidiary at the time of the redesignation of such Unrestricted Subsidiary or Excluded Project Subsidiary as, or merger, consolidation or amalgamation of such Unrestricted Subsidiary or Excluded Project Subsidiary with or into, a Restricted Subsidiary, other than to the extent the Investment in such Unrestricted Subsidiary or Excluded Project Subsidiary was made by the Borrower or a Restricted Subsidiary pursuant to the proviso in Section 10.5(i);
(vi)    100% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Borrower since immediately after the Closing Date (other than net cash proceeds from Cure Amounts) from the issue or sale of Indebtedness or Disqualified Stock of the Borrower or a Restricted Subsidiary that has been converted into or exchanged for Stock of the Borrower or any direct or indirect parent of the Borrower; provided that this clause (vi) shall not include the proceeds from (a) Stock or Stock Equivalents or Indebtedness that has been converted or exchanged for Stock or Stock Equivalents of the Borrower sold to a Restricted Subsidiary, (b) Disqualified Stock or Indebtedness that has been converted or exchanged into Disqualified Stock or (c) any contribution or issuance that increases the Applicable Equity Amount;
(vii)    without duplication of any amounts above, any returns, profits, distributions and similar amounts received on account of Investments made pursuant to Section 10.5(v)(y); and
(viii)    the aggregate amount of Retained Declined Proceeds retained by the Borrower during the period from and including the Business Day immediately following the Closing Date through and including the Applicable Amount Reference Time;
minus (b) the sum, without duplication, of:
(i)    the aggregate amount of Investments made pursuant to Section 10.5(v)(y) following the Closing Date and prior to the Applicable Amount Reference Time;
(ii)    the aggregate amount of dividends pursuant to Section 10.6(c)(y) following the Closing Date and prior to the Applicable Amount Reference Time; and
(iii)    the aggregate amount of prepayments, repurchases, redemptions and defeasances made pursuant to Section 10.7(a)(i)(3) following the Closing Date and prior to the Applicable Amount Reference Time.
Notwithstanding the foregoing, in making any calculation or other determination under this Agreement involving the Applicable Amount, if the Applicable Amount at such time is less than zero, then the Applicable Amount shall be deemed to be zero for purposes of such calculation or determination.
“Applicable Amount Reference Time” shall have the meaning provided in the definition of “Applicable Amount”.
“Applicable Equity Amount” shall mean, at any time (the “Applicable Equity Amount Reference Time”), an amount equal to, without duplication:
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(a) the amount of any capital contributions (other than any Cure Amount) made in cash, marketable securities or other property to, or any proceeds of an equity issuance received by the Borrower during the period from and including the Business Day immediately following the Closing Date through and including the Applicable Equity Amount Reference Time (taking the fair market value of any marketable securities or property other than cash), including proceeds from the issuance of Stock or Stock Equivalents of any direct or indirect parent of the Borrower (to the extent the proceeds of any such issuance are contributed to the Borrower), but excluding all proceeds from the issuance of Disqualified Stock and any Cure Amount,
minus (b) the sum, without duplication, of:
(i)    the aggregate amount of Investments made pursuant to Section 10.5(v)(x) following the Closing Date and prior to the Applicable Equity Amount Reference Time;
(ii)    the aggregate amount of dividends pursuant to Section 10.6(c)(x) following the Closing Date and prior to the Applicable Equity Amount Reference Time;
(iii)    the aggregate amount of prepayments, repurchases, redemptions and defeasances pursuant to Section 10.7(a)(i)(2) following the Closing Date and prior to the Applicable Equity Amount Reference Time; and
(iv)    the aggregate amount of Indebtedness incurred pursuant to Section 10.1(aa) and outstanding at the Applicable Equity Amount Reference Time;
provided that issuances and contributions pursuant to Sections 10.5(f)(ii), 10.6(a) and 10.6(b)(i) shall not increase the Applicable Equity Amount.
“Applicable Equity Amount Reference Time” shall have the meaning provided in the definition of “Applicable Equity Amount”.
“Applicable Laws” shall mean, as to any Person, any law (including common law), statute, regulation, ordinance, rule, order, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in each case, applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property or assets is subject.
“Applicable Prepayment Event Percentage” shall mean:
(I) with respect to any Debt Incurrence Prepayment Event or New Debt Incurrence Prepayment Event, 100.0%; and
(II) with respect to any Asset Sale Prepayment Event or Recovery Prepayment Event:
(a)    100.0%, if at the time of receipt of Net Cash Proceeds from such Prepayment Event, the Consolidated First Lien Net Leverage Ratio is greater than 2.00:1.00,
(b)    50.0%, if at the time of receipt of Net Cash Proceeds from such Prepayment Event, the Consolidated First Lien Net Leverage Ratio is greater than 1.50:1.00, but equal to or less than 2.00:1.00, and
(c)    0.0%, if at the time of receipt of Net Cash Proceeds from such Prepayment Event, the Consolidated First Lien Net Leverage Ratio is equal to or less than 1.50:1.00,
in each case, calculated on a Pro Forma Basis after giving effect to the applicable Prepayment Event and the use of proceeds therefrom; provided, that:
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(i)    if the applicable Consolidated First Lien Net Leverage Ratio used in calculating the foregoing prepayment percentages (after taking into account any such prepayment) would result in such percentage being reduced to 50% or 0%, then such reduced prepayment percentage shall apply after giving effect to the required prepayment amount to achieve such reduced prepayment percentage, and
(ii)    if at any time prior to the end of the Reinvestment Period (or if later, then 180 days after the Borrower or any of its Restricted Subsidiaries has entered into an Acceptable Reinvestment Commitment or, with respect to any Recovery Prepayment Event, provided an Acceptable Reinvestment Commitment or a Restoration Certification), the Applicable Prepayment Event Percentage would be lower based on the Consolidated First Lien Net Leverage Ratio at such time, such lower Applicable Prepayment Event Percentage shall be applicable.
“Applicable Term SOFR Margin” shall mean at any date,
(i)    prior to the Amendment No. 2 Effective Date, in the case of each Term SOFR Loan that is an Initial Term B Loan, 4.50% per annum,
(ii)    on and after the Amendment No. 2 Effective Date, but prior to the Amendment No. 4 Effective Date, in the case of each Term SOFR Loan that is an Initial Term B Loan, 3.50% per annum,
(iii)    prior to the Amendment No. 4 Effective Date, in the case of each Term SOFR Loan that is a Revolving Loan, (x) prior to the delivery of the Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Closing Date pursuant to Section 9.1, 3.50% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate received by the Administrative Agent in connection with the Section 9.1 Financials:
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
Term    SOFR: Revolving Credit Loan
I
Less than or equal to (x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.00:1.00 and (y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.00:1.00.
3.00%
II
Greater than (i)(x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.00:1.00 and
(y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.00:1.00, but (ii) less than or equal to (x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.50:1.00 and
(y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.50:1.00.
3.25%
III
Greater than (x) as of any date of determination that is prior to the Q2 2024 Financials Date, 1.50:1.00 and (y) as of any date of determination that is on or after the Q2 2024 Financials Date, 2.50:1.00.
3.50%
(iv)    on and after the Amendment No. 4 Effective Date, in the case of each Term SOFR Loan that is a Revolving Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate
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for the first full fiscal quarter commencing on or after the Amendment No. 4 Effective Date pursuant to Section 9.1, 2.00% per annum, and (y) thereafter, the percentages per annum set forth in the table below under the heading “Term SOFR Revolving Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate received by the Administrative Agent in connection with the Section 9.1 Financials,
(v)    on and after the Amendment No. 3 Effective Date, in the case of each Term SOFR Loan that is a 2024-1 Incremental Term B Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Amendment No. 3 Effective Date pursuant to Section 9.1, 2.50% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below under the heading “Term SOFR 2024-1 Incremental Term B Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials; and
(vi)    on and after the Amendment No. 4 Effective Date, in the case of each Term SOFR Loan that is an Initial Term B Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Amendment No. 4 Effective Date pursuant to Section 9.1, 2.50% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below under the heading “Term SOFR Initial Term B Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials:; provided, that, notwithstanding the above, following the Amendment No. 5 Effective Date, on any date when the Applicable Term SOFR Margin in respect of the Initial Term B Loans, 2024-1 Incremental Term B Loans, 2025-1 Incremental Term B Loans or any other Class of Term B Loans is less than the Applicable Term SOFR Margin in respect of the Initial Term B Loans, the 2024-1 Incremental Term B Loans or the 2025-1 Incremental Term B Loans as of the Amendment No. 5 Effective Date, then the Applicable Term SOFR Margin “Pricing Levels” in respect of the Revolving Loans shall be deemed to be fifty (50) basis points less than the corresponding Applicable Term SOFR Margin “Pricing Levels” in respect of the Initial Term B Loans, the 2024-1 Incremental Term B Loans, the 2025-1 Incremental Term B Loans or such other Class of Term B Loans on such date (but in any event the highest Applicable Term SOFR Margin “Pricing Level” in respect of Revolving Loans shall be no less than 1.50% per annum), with such reduction in the Applicable Term SOFR Margin “Pricing Levels” in respect of the Revolving Loans becoming effective automatically without any further action and without the consent of the Lenders or any other Person, notwithstanding anything to the contrary in Section 13.1:
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TERM SOFR REVOLVING LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
Term SOFR: Revolving Loans
I
Less than or equal to 1.50:1.00.
1.50%
II
Greater than 1.50:1.00, but less than or equal to 2.00:1.00.
1.75%
III
Greater than 2.00:1.00.
2.00%
TERM SOFR 2024-1 INCREMENTAL TERM B LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
Term SOFR: 2024-1
Incremental Term B Loans

I
Less than or equal to 1.40:1.00.
2.00%
II
Greater than (i) 1.40:1.00, but (ii) less than or equal to 1.65:1.00.
2.25%
III
Greater than 1.65:1.00.
2.50%
TERM SOFR INITIAL TERM B LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
Term SOFR: Initial Term B Loans
I
Less than or equal to 1.40:1.00.
2.00%
II
Greater than (i) 1.40:1.00, but (ii) less than or equal to 1.65:1.00.
2.25%
III
Greater than 1.65:1.00.
2.50%
and
(vii)     on and after the Amendment No. 5 Effective Date, in the case of each Term SOFR Loan that is a 2025-1 Incremental Term B Loan (x) prior to the delivery of Section 9.1 Financials and the related Officer’s Certificate for the first full fiscal quarter commencing on or after the Amendment No. 5 Effective Date pursuant to Section 9.1, 2.00% per annum, and (y) thereafter, the percentages per annum set forth in the applicable table below under the heading “Term SOFR 2025-1 Incremental Term B Loans”, based upon the Consolidated First Lien Net Leverage Ratio as set forth in the most recent Officer’s Certificate delivered to the Administrative Agent in connection with the Section 9.1 Financials:

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TERM SOFR 2025-1 INCREMENTAL TERM B LOANS
Pricing Level
Consolidated First Lien Net Leverage Ratio Level
Term SOFR: 2025-1
Incremental Term B Loans
I
Less than or equal to 1.40:1.00.
1.50%
II
Greater than (i) 1.40:1.00, but (ii) less than or equal to 1.65:1.00.
1.75%
III
Greater than 1.65:1.00.
2.00%
Any increase or decrease in the Applicable Term SOFR Margin for any Revolving Loans, any 2024-1 Incremental Term B Loans, 2025-1 Incremental Term B Loans or Initial Term B Loans, as applicable, resulting from a change in the Consolidated First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date the applicable Officer’s Certificate is delivered pursuant to Section 9.1(c).
Notwithstanding the foregoing, (a) the Applicable Term SOFR Margin in respect of any Class of Extended Revolving Commitments or Extended Revolving Loans or any Extended Term B Loans shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (b) the Applicable Term SOFR Margin in respect of any New Refinancing Revolving Commitments, Additional Revolving Commitments, Additional Revolving Loans, Incremental Loans or Class of Replacement Term B Loans shall be the applicable percentages per annum set forth in the relevant Refinancing Facility or other applicable agreement and (c) in the case of the Initial Term B Loans and, 2024-1 Incremental Term B Loans and 2025-1 Incremental Term B Loans, the Applicable Term SOFR Margin shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.14(d)(iv).
In addition, upon written notice from the Required Revolving Lenders (in the case of Revolving Loans), the Required Initial Term B Lenders (in the case of Initial Term B Loans) or, the Required 2024-1 Incremental Term B Lenders (in the case of 2024-1 Incremental Term B Loans), or the Required 2025-1 Incremental Term B Lenders (in the case of 2025-1 Incremental Term B Loans) the highest pricing level applicable to the Revolving Loans, the 2024-1 Incremental Term B Loans, 2025-1 Incremental Term B Loans or Initial Term B Loans, as applicable, shall apply at any time during which the Borrower shall have failed to deliver the Section 9.1 Financials by the applicable date required under Section 9.1 (but only for so long as such failure continues, after which such ratio shall be determined based on the then existing Consolidated First Lien Net Leverage Ratio) as set forth in the applicable Officer’s Certificate. Notwithstanding anything to the contrary contained above in this definition, the Applicable Term SOFR Margin shall be the highest Applicable Term SOFR Margin set forth in the table above at all times during which there shall exist any Event of Default pursuant to Section 11.1 or 11.5.
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Consolidated First Lien Net Leverage Ratio set forth in any applicable Officer’s Certificate delivered in connection with the Section 9.1 Financials delivered for any period is inaccurate for any reason and the result thereof is that the Revolving Lenders, the Initial Term B Lenders or, the 2024-1 Incremental Term B Lenders or the 2025-1 Incremental Term B Lenders, as applicable, received interest for any period based on an Applicable Term SOFR Margin that is less than that which would have been applicable had the Consolidated First Lien Net Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the “Applicable Term SOFR Margin” for any day occurring within the period covered by such applicable Officer’s Certificate delivered in connection with the Section 9.1 Financials shall retroactively be deemed to be the relevant percentage as based upon the
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accurately determined Consolidated First Lien Net Leverage Ratio for such period, and any shortfall in the interest theretofore paid by the Borrower for the relevant period pursuant to Section 2.8(b) as a result of the miscalculation of the Consolidated First Lien Net Leverage Ratio shall be deemed to be (and shall be) due and payable under the relevant provisions of Section 2.8(b) at the time the interest for such period was required to be paid pursuant to said Section on the same basis as if the Consolidated First Lien Net Leverage Ratio had been accurately set forth in such Officer’s Certificate delivered in connection with Section 9.1 Financials (and shall remain due and payable until paid in full, together with all amounts owing under Section 2.8(c) (subject to the proviso in the following sentence), in accordance with the terms of this Agreement). Such Applicable Term SOFR Margin shall be due and payable on the earlier of (i) the occurrence of a Default or an Event of Default under Section 11.5 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 Term SOFR 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.
“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.
“Asset Sale Prepayment Event” shall mean any Disposition of any business units, assets or other property of the Borrower and the Restricted Subsidiaries not in the ordinary course of business (including any Disposition of any Stock or Stock Equivalents of any Subsidiary of the Borrower owned by the Borrower or any Restricted Subsidiary). Notwithstanding the foregoing, the term “Asset Sale Prepayment Event” shall not include any transaction permitted by Section 10.4 (other than transactions permitted by Section 10.4(b) which shall constitute Asset Sale Prepayment Events).
“Assignment and Acceptance” shall mean (a) an assignment and acceptance substantially in the form of Exhibit J, or such other form as may be approved by the Administrative Agent and (b) in the case of any assignment of Term B Loans in connection with a Permitted Debt Exchange conducted in accordance with Section 2.17, such form of assignment (if any) as may have been requested by the Administrative Agent in accordance with Section 2.17(a).
“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 Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligation.”
“Auction Agent” shall mean (i) the Administrative Agent or (ii) any other financial institution or advisor employed by the Borrower or any Subsidiary thereof (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Permitted Debt Exchange pursuant to Section 2.17 or Dutch auction pursuant to Section 13.6(h); provided, that, the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).
“Authorized Officer” shall mean the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Treasurer, any Assistant Treasurer, the General Counsel, the
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Secretary, any Assistant Secretary, the Controller, any Senior Vice President, with respect to certain limited liability companies or partnerships that do not have officers, any manager, managing member or general partner thereof, any other senior officer of the Borrower or any other Credit Party designated as such in writing to the Administrative Agent by the Borrower or any other Credit Party, as applicable. Any document (other than a solvency certificate) delivered hereunder that is signed by an Authorized Officer shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of the Borrower or any other Credit Party, as applicable, and such Authorized Officer shall be conclusively presumed to have acted on behalf of such Person.
“Auto-Extension Letter of Credit” shall have the meaning provided in Section 3.2(b).
“Available Stand-Alone Letter of Credit Commitment” shall mean, as of any date, an amount equal to the excess, if any, of (a) the amount of the Total Stand-Alone Letter of Credit Commitment over (b) the sum of the aggregate Stand-Alone Letters of Credit Outstanding at such time.
“Available Revolving Commitment” shall mean, as of any date, an amount equal to the excess, if any, of (a) the amount of the Total Revolving Commitment over (b) the sum of (i) the aggregate principal amount of all Revolving Loans then outstanding and (ii) the aggregate Revolving Letters of Credit Outstanding at such time.
“Available RP/Investment Capacity Amount” shall mean, at any time, (x) the amount of payments that may be made at such time pursuant to Section 10.6(b), (c), (j), (o) or (r) of this Agreement and (y) the amount of Investments that may be made at such time pursuant to Section 10.5(i), (m), (v), (w), (ff), (mm) or (nn).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.10(f)(v).
“Backstopped” shall mean, with respect to any Letter of Credit, that such Letter of Credit is backstopped by another letter of credit on terms reasonably satisfactory to the L/C Issuer of such first Letter of Credit.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” shall have the meaning provided in the recitals to this Agreement.
“Bankruptcy Court” shall have the meaning provided in the recitals to this Agreement.
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“Benchmark” shall initially mean the Term SOFR Rate; provided, that, if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.10(f)(ii).
“Benchmark Replacement” shall mean, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1)    Adjusted Daily Simple SOFR;
(2)    the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in Dollars at such time in the United States plus (b) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in Dollars at such time in the United States.
“Benchmark Replacement Conforming Changes” shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes relating to the definitions of “ABR,” “Business Day,” “U.S. Government Securities Business Day,” and “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent, in consultation with the Borrower, decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent, in consultation with the Borrower, decides is
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reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).
“Benchmark Replacement Date” shall mean, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2)    in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) of the definition of “Benchmark Transition Event” with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof)
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announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” shall mean, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.10(f) and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.10(f).
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act as of the Closing Date. The terms “Beneficially Owns”, “Beneficially Owned” and “Beneficial Ownership” have a corresponding meaning.
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
“Benefit Plan” shall mean an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code or Section 302 of ERISA and is maintained or contributed to by a Credit Party or ERISA Affiliate or with respect to which a Credit Party would reasonably be expected to incur liability pursuant to Title IV of ERISA.
“Benefit Plan Investor” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Benefited Lender” shall have the meaning provided in Section 13.8(a).
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower” shall have the meaning provided in the preamble to this Agreement.
“Borrowing” shall mean the incurrence of one Class and Type of Loan on a given date (or resulting from conversions on a given date) having a single Maturity Date and in the case of Term SOFR Loans the same Interest Period (provided, that ABR Loans incurred pursuant to Section 2.10 shall be considered part of any related Borrowing of Term SOFR Loans).
“Broker-Dealer Subsidiary” shall mean any Subsidiary that is registered as a broker-dealer under the Exchange Act or any other applicable law requiring similar registration.
“Business Day” shall mean any day excluding Saturday, Sunday and any other day on which banking institutions in New York City are authorized or required by law or other governmental actions to close.
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“Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on a consolidated statement of cash flows of the Borrower.
“Capital Lease” shall mean, as applied to the Borrower and the Restricted Subsidiaries, any lease of any property (whether real, personal or mixed) by the Borrower or any Restricted Subsidiary as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of the Borrower.
“Capitalized Lease Obligations” shall mean, as applied to the Borrower and the Restricted Subsidiaries at the time any determination is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be capitalized and reflected as a liability on the balance sheet (excluding the footnotes thereto) of the Borrower in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such Capital Lease prior to the first date upon which such Capital Lease may be prepaid by the lessee without payment of a penalty.
“Captive Insurance Subsidiary” shall mean a Subsidiary of the Borrower established for the purpose of, and to be engaged solely in the business of, insuring the businesses or facilities owned or operated by the Borrower or any of its Subsidiaries or joint ventures or to insure related or unrelated businesses.
“Case” shall have the meaning provided in the recitals to this Agreement.
“Cash Collateral” shall have the meaning given to such term in the definition of “Cash Collateralize”.
“Cash Collateralize” shall mean to (i) in all cases, to the extent reasonably acceptable to the applicable L/C Issuer(s), to issue “back-stop” Letters of Credit naming the relevant L/C Issuer(s) as beneficiary for each outstanding Letter of Credit issued by the relevant L/C Issuer(s), which new Letters of Credit shall have an amount equal to the Letters of Credit being back-stopped and/or (ii) pledge and deposit with or deliver to the Administrative Agent, for the benefit of the relevant L/C Issuer(s) as collateral for the relevant L/C Obligations, cash or deposit account balances (such items in clauses (i) and (ii), “Cash Collateral”) in an amount equal to 100% of the amount of the applicable Letters of Credit Outstanding required to be Cash Collateralized pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, the Borrower and the applicable L/C Issuer(s) (which documents are hereby consented to by the Revolving Lenders in the case of Revolving Letters of Credit). Derivatives of such terms have corresponding meanings.
“Cash Management Agreement” shall mean any agreement or arrangement to provide Cash Management Services.
“Cash Management Bank” shall mean any Person (other than the Borrower or any other Subsidiary of the Borrower) that is a party to a Cash Management Agreement and at the time it enters into a Cash Management Agreement or on the Closing Date, is a Lender, an Agent, a Joint Lead Arranger or an Affiliate of a Lender, an Agent or a Joint Lead Arranger.
“Cash Management Obligations” shall mean, with respect to any Person, the obligations of such Person under Cash Management Agreements.
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“Cash Management Services” shall mean treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer (including automated clearing house fund transfer services), merchant services (other than those constituting a line of credit) and other cash management services.
“Certificated Securities” shall have the meaning provided in Section 8.17.
“CFC” shall mean a Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holding Company” shall mean a Subsidiary of the Borrower that has no material assets other than (i) the Stock (including, for this purpose, any debt or other instrument treated as equity for U.S. federal income tax purposes) in (x) one or more Foreign Subsidiaries that are CFCs or (y) one or more other CFC Holding Companies and (ii) cash and cash equivalents and other assets being held on a temporary basis incidental to the holding of assets described in clause (i) of this definition.
“Change in Law” shall mean (a) the adoption of any Applicable Law after the Closing Date, (b) any change in any Applicable Law or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any party with any guideline, request, directive or order issued or made after the Closing Date by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law); provided, that, notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) 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 U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” shall mean and shall be deemed to have occurred if any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date), but excluding (v) any employee benefit plan of such Person and its subsidiaries and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (w) any Permitted Holders, (x) any one or more Parent Entities in which no Person or “group” (other than any persons described in the preceding clause (w)), directly or indirectly, holds Beneficial Ownership of Voting Stock representing more than 50.0% of the aggregate voting power represented by the issued and outstanding Voting Stock of such Parent Entity, (y) an entity owned directly or indirectly by the direct or indirect stockholders of the Borrower in substantially the same proportion as their direct or indirect ownership of stock of the Borrower prior to such transaction and (z) an entity formed by the Borrower or its Affiliates, shall have, directly or indirectly, acquired Beneficial Ownership of Voting Stock representing more than 50.0% of the aggregate voting power represented by the issued and outstanding Voting Stock of the Borrower.
Notwithstanding the preceding or any provision of Rule 13d-3 or 13d-5 under the Exchange Act,(i) a Person or “group” shall not be deemed to Beneficially Own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting, option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) a Person or “group” will not be deemed to Beneficially Own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s Parent Entity (or related contractual rights) unless it owns more than 50.0% of the total voting power of the Voting Stock of such Parent Entity, (iii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Borrower owned, directly or indirectly, by any Permitted Holders that are part of such group shall be treated as being Beneficially Owned by such Permitted Holders and shall not be treated as being Beneficially Owned by such group or any other member of such group for purposes of determining whether a Change
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of Control has occurred and (iv) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in connection with the acquisition or disposition of Voting Stock will not cause a party to be a “Beneficial Owner”.
Notwithstanding the foregoing, a Change of Control shall not occur as a result of the IPOCo Transactions, a Qualifying IPO and any transactions relating thereto, including, without limitation, (i) the contribution of the Stock of the Borrower to IPO Listco or (ii) any transaction in which the Borrower remains a Subsidiary of IPO Listco but one or more intermediate holding companies between the Borrower and IPO Listco are added, liquidated, merged or consolidated out of existence.
“Claim” shall have the meaning provided in the definition of “Environmental Claim”.
“Class”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan or the Loans comprising such Borrowing, are Revolving Loans, Initial Term B Loans, Incremental Term B Loans of a given Series, Extended Term B Loans of a given Extension Series, Extended Revolving Loans of a given Extension Series, Refinancing Term B Loans of a given designated tranche, Refinancing Revolving Loans of a given designated tranche or Replacement Term B Loans of a given designated tranche and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, a Stand-Alone Letter of Credit Commitment, an Extended Term B Commitment of a given Extension Series, an Incremental Term B Commitment of a given Series, an Incremental Revolving Commitment of a given Series, an Incremental Letter of Credit Commitment of a given Series, a Refinancing Term B Commitment of a given designated tranche, a Refinancing Revolving Commitment of a given designated tranche, a Replacement Term B Commitment of a given designated tranche or Refinancing Letter of Credit Commitment of a given designated tranche.
“Closing Date” shall mean May 17, 2023.
“Closing Refinancing” shall mean the repayment in full (or, if applicable, the termination, discharge or defeasance (or arrangements reasonably satisfactory to the Administrative Agent for the termination, discharge or defeasance)) of (A) the Superiority Secured Debtor-in-possession Credit Agreement, dated as of May 11, 2022, among the Borrower as debtor-in-possession under the Bankruptcy Code, Citibank, N.A., as administrative agent and as collateral trustee under the Credit Documents (as defined therein), and each lender and each issuing lender from time to time party thereto (as amended, restated, supplemented or otherwise modified), (B) the Superpriority Secured Debtor-in-Possession Letter of Credit Facility Agreement, dated as of May 11, 2022 among the Borrower as debtor-in-possession under the Bankruptcy Code, Citibank, N.A., as administrative agent and as collateral trustee under the Credit Documents (as defined therein), and each lender from time to time party thereto (as amended, restated, supplemented or otherwise modified), (C) the Credit Agreement, entered into as of December 14, 2021, among Talen Energy Supply, LLC, a Delaware limited liability company, Talen Energy Marketing, LLC, a Pennsylvania limited liability company, Susquehanna Nuclear, LLC, a Delaware limited liability company, Alter Domus (US) LLC, as administrative agent under the Credit Documents (as defined therein) and each lender from time to time party thereto (as amended, restated, supplemented or otherwise modified), (D) the Term Loan Credit Agreement, entered into as of July 8, 2019, among Talen Energy Supply, LLC, a Delaware limited liability company, Wilmington Trust, National Association (as successor to JPMorgan Chase bank, N.A.), as administrative agent under the Credit Documents (as defined therein), and each lender from time to time party thereto (as amended, restated, supplemented or otherwise modified prior to the Closing Date), (E) the Credit Agreement, entered into as of June 1, 2015, among Talen Energy Supply, LLC, a Delaware limited liability company, Citibank, N.A., as administrative agent and as collateral trustee under the Credit Documents (as defined therein), and each lender and each issuing lender from time to time party thereto (as amended, restated, supplemented or otherwise modified), (F) the Indenture, dated as of May 21, 2019 (as amended, restated, supplemented or otherwise modified), among
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the Company, the guarantors party thereto and The Bank of New York Mellon, as Trustee, governing the Company’s 7.25% Senior Secured Notes due 2027, (G) the Indenture, dated as of July 8, 2019 (as amended, restated, supplemented or otherwise modified), among the Company, the guarantors party thereto and The Bank of New York Mellon, as Trustee governing the Company’s 6.625% Senior Secured Notes due 2028, and (H) the Indenture, dated as of May 22, 2020 (as amended, restated, supplemented or otherwise modified), among Company, the guarantors party thereto and The Bank of New York Mellon, as Trustee governing the Company’s 7.625% Senior Secured Notes due 2028.
“CME Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited, as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time. Section references to the Code are to the Code as in effect on the Closing Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefore.
“Collateral” shall mean all property pledged, mortgaged or purported to be pledged or mortgaged pursuant to the Security Documents (excluding, for the avoidance of doubt, all Excluded Collateral).
“Collateral Agent” shall mean Citibank, N.A., in its capacity as collateral agent for the Secured Bank Parties under this Agreement and the Security Documents, or any successor collateral agent appointed pursuant hereto.
“Collateral Representative” shall mean the Collateral Trustee.
“Collateral Trust Agreement” shall mean that certain Collateral Trust Agreement, dated as of the Closing Date (as the same may be amended, restated, amended and restated, supplemented or otherwise modified and/or replaced from time to time), by and among the Borrower, the Collateral Agent, the Collateral Trustee, the Senior Notes Trustee and certain other First Lien Secured Parties from time to time party thereto.
“Collateral Trustee” shall mean Citibank, N.A., and any permitted successors and assigns.
“Commitment Parties” shall mean the “Commitment Parties” as defined in the Engagement and Commitment Letter.
“Commitments” shall mean, with respect to each Lender or L/C Issuer (in either case, to the extent applicable), such Lender’s or L/C Issuer’s, Revolving Commitment, Stand-Alone Letter of Credit Commitment, Incremental Term B Commitment, Incremental Revolving Commitment, Incremental Letter of Credit Commitment, Refinancing Term B Commitment, Refinancing Revolving Commitment, Refinancing Letter of Credit Commitment and/or Replacement Term B Commitment.
“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 Agreement” shall mean any agreement, whether financial or physical, (including each transaction or confirmation entered into pursuant to any Master Agreement) providing for one or more swaps, caps, collars, puts, calls, floors, futures, options, spots, forwards, energy, capacity or generation agreements, agreements involving ancillary services or other attributes with an economic value, agreements involving auction revenue rights, tolling or sale agreements (including, without limitation, power purchase agreements and heat rate call options), fuel or other feedstock purchase, storage or sale agreements, energy management agreements, emissions or other environmental credit purchase or sales agreements, power transmission agreements, fuel or other feedstock transportation agreements, fuel or other
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feedstock storage agreements, netting agreements (including Netting Agreements), commercial or trading agreements or similar transactions, in each case, with respect to, or involving, the purchase, processing, transmission, distribution, sale, exchange, lease, finance, or hedge of any Covered Commodity, price or price indices for any such Covered Commodity, or any other similar agreements (including, without limitation, derivative agreements or arrangements and transactions that offset existing transactions or result in a reset of existing transaction prices) entered into with respect to the purchase, sale or exchange of (or the option to purchase, sell or exchange) transmission, transportation, storage, distribution, processing, lease, or financing of, or to manage fluctuations in the price or availability of any Covered Commodity or otherwise to hedge or mitigate commercial risk or exposure in connection with any Covered Commodity, and any agreement (including any guarantee, credit sleeve, or similar arrangement) providing for credit support for the foregoing; and, in each case, whether bilateral, over-the-counter, on or through an exchange or other execution facility, on or through a system, platform or portal operated by an ISO or RTO, cleared through a clearing house, clearing organization or clearing agency, or otherwise.
“Communications” shall have the meaning provided in Section 13.17(a).
“Company Model” shall mean the Lender Presentation delivered to the Joint Lead Arrangers on November 19, 2024.
“Compliance Period” shall mean a four fiscal quarter period if on the last day of such four fiscal quarter period the sum of the aggregate principal amount of all Revolving Loans then outstanding exceeds 50% of the amount of the Total Revolving Commitment.
“Confidential Information” shall have the meaning provided in Section 13.16.
“Confirmation Order” shall have the meaning provided in the recitals to this Agreement.
“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 (7), (11), (17), (18) and (20))), without duplication, the amount of:
(1)    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 Capitalized 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;
(2)    (x) provision for taxes based on income, profits or capital and such federal, foreign, state, local, withholding taxes and franchise, state single business unitary and similar taxes and excise taxes paid or accrued during such period (including, in each case, in respect of repatriated funds and any penalties and interest related to such taxes) for the Borrower and its Restricted Subsidiaries determined on a consolidated basis for such period and (y) the dollar amount of production tax credits generated by or otherwise available to the Borrower and its Restricted Subsidiaries for such period;
(3)    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 and Hedging Agreements;
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(4)    extraordinary, unusual or non-recurring charges, or expenses or losses (including unusual or non-recurring 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;
(5)    the amount of all other non-cash charges, losses or expenses (including non-cash employee and officer equity compensation expense (including stock and stock options), and expenses related to employee retention plans, employee benefit or management compensation plans, 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);
(6)    cash restructuring costs, charges or reserves, including any restructuring costs and integration costs incurred in connection with the Transactions, any Permitted Reorganization Transaction, any Permitted Spin-Out Transaction, acquisitions permitted under this Agreement or Dispositions or other Specified Transactions and such costs related to the closure and/or consolidation of facilities or plants, 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 expenses 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), Public Company Costs, costs related to the implementation of operational and reporting systems and technology initiatives, project start-up costs or any other costs incurred in connection with any of the foregoing;
(7)    the amount of expected cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be realizable in connection with specified actions (including, to the extent applicable, resulting from the Transactions), operating improvements, restructurings, cost saving initiatives and any other initiatives (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, synergies, operating improvements, restructurings, cost savings or other initiatives had been realized on the first day of such period and as if such cost savings, operating expense reductions, synergies, operating improvements, restructurings, cost savings initiatives and other initiatives 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 Officer’s Certificate of the Borrower shall be delivered to the Administrative Agent together with the Officer’s Certificate required to be delivered pursuant to Section 9.1(c), certifying that such cost savings, operating expense reductions, synergies, operating improvements, restructurings, cost savings initiatives and other initiatives (x) are reasonably identifiable and factually supportable in the good faith judgment of the Borrower and (y) result from actions which have been taken or with respect to which substantial steps have been taken or are expected to be taken no later than twenty-four (24) months following the date of such calculation and (B) no cost savings, operating expense reductions or synergies shall be added pursuant to this clause (7) 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, further, that amounts added back pursuant to this clause (7) shall not account for more than 35% of Consolidated Adjusted EBITDA in any period (calculated after giving effect to any add-backs and adjustments) (other than any cost savings, operating expense reductions,
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operating enhancements, other operating improvements and synergies in connection with the Transactions or that are in compliance with Regulation S-X, in each case, as to which such cap shall not apply);
(8)    costs, charges, accruals, reserves or expenses, including retention charges, contract termination costs, recruiting, relocation, severance and signing bonuses and expenses, transaction fees and expenses (including professional and underwriting fees), consulting fees, modifications to pension and post-retirement employee benefit plans and any one-time expenses 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 software development costs, transition costs and costs related to the closure or consolidation of facilities or plants and curtailments, costs related to entry into new markets, new systems design and implementation costs and project start-up costs) or any other costs incurred in connection with any of the foregoing;
(9)    other accruals, up-front fees, transaction costs, commissions, expenses, premiums or charges related to the Transactions, including fees, costs and expenses of any counsel, consultants or other advisors; 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 Transactions and any non- recurring merger or business acquisition transaction costs incurred during such period (in each case whether or not successful);
(10)    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 the 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);
(11)    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);
(12)    losses on sales or dispositions of assets outside the ordinary course of business (including, with-out limitation, asset retirement costs);
(13)    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 may be, in relation to the Transactions, any Permitted Reorganization
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Transaction, any Permitted Spin-Out Transaction or any acquisition permitted under this Agreement or the amortization or write-off of any amounts thereof;
(14)    adjustments on upfront premiums received or paid by the Borrower and its Restricted Subsidiaries for financial options in periods other than the strike periods;
(15)    losses (reduced by any gains) attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815 — Derivatives and Hedging;
(16)    Expenses Relating to a Unit Outage (if positive); provided, that, the only Expenses Relating to a Unit Outage that may be included as Consolidated Adjusted EBITDA shall be, without duplication, (A) up to an amount equal to the greater of (x) $210,000,000 or (y) 20% of Consolidated Adjusted EBITDA for the most recently ended Test Period (calculated after giving effect to any add-back) per Fiscal Year of Expenses Relating to a Unit Outage incurred within the first twelve (12) months of any planned or unplanned outage or Operations Failure of any Unit by reason of any action by any regulatory body or other Governmental Authority or to comply with any Applicable Law, (B) up to an amount equal to the greater of (x) $105,000,000 or (y) 10% of Consolidated Adjusted EBITDA for the most recently ended Test Period (calculated after giving effect to any add-back) per Fiscal Year of Expenses Relating to a Unit Outage incurred within the first twelve (12) months of any planned outage of any Unit for purposes of expanding or upgrading such Unit and (C) solely for the purposes of calculating “Consolidated Adjusted EBITDA” for purposes of Section 10.9, all Expenses Relating to a Unit Outage incurred within the first twelve (12) months of any unplanned outage or Operations Failure of any Unit;
(17)    the proceeds of any business interruption insurance (to the extent not included in Consolidated Net Income for such period) and, without duplication of such amounts, all EBITDA Lost as a Result of a Unit Outage and all EBITDA Lost as a Result of a Grid Outage less, in all such cases, the absolute value of Expenses Relating to a Unit Outage (if negative); provided, that, the amount calculated pursuant to this clause (17) shall not be less than zero;
(18)    for the first 36 months after the date of the execution of the applicable amendment, contract, increased pricing or initiatives, the amount of incremental contract value of the Borrower and its Restricted Subsidiaries that the Borrower in good faith reasonably believes would have been realized or achieved as a Consolidated Adjusted EBITDA contribution for the period for which Consolidated Adjusted EBITDA is being calculated from (i) increased pricing or volume initiatives and/or (ii) the entry into (and performance under) binding and effective new agreements with new customers or, if generating incremental contract value, new agreements (or amendments to existing agreements) with existing customers (collectively, “New Contracts”) during such period had such New Contracts been effective and had performance thereunder commenced as of the beginning of such period (including, without limitation, such incremental contract value attributable to New Contracts that are in excess of (but without duplication of) contract value attributable to New Contracts that has been actually realized as Consolidated Adjusted EBITDA contribution during such period) as long as such incremental contract value is reasonably identifiable and factually supportable (which contract value shall be added to Consolidated Adjusted EBITDA until fully realized, shall be subject to certification by management of the Borrower and shall be calculated on a Pro Forma Basis as though such “run-rate” contract value had been realized on the first day of such period);
(19)    adjustments of the type contained in the Company Model;
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(20)    adjustments evidenced by or contained in a due diligence quality of earnings or other financial diligence report made available to the Administrative Agent (who may share with the Lenders) (subject, in each case, to customary access letters) prepared with respect to the target of a Permitted Acquisition or other Investment permitted hereunder by (x) a “big-four” nationally recognized accounting firm or (y) any other accounting firm that shall be reasonably acceptable to the Administrative Agent;
(21)    earn-out, deferred payment or other contingent obligation expense and adjustments thereof incurred in connection with any acquisition or other Investment which is paid or accrued during the applicable period, and any other cash charges resulting from the application of ASC 805; and
(22)    any non-cash increase in expenses resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods, including changes in capitalization of variances) or other inventory adjustments (including any non-cash increase in expenses as a result of last-in first-out and/or first-in first-out methods of accounting);
and (B) subtracting therefrom (in each case, to the extent included in determining Consolidated Net Income of the Borrower for such period (other than with respect to clause (i))) 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)(4), (A)(5) and (A)(12) 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 (except as provided in clause (A)(2)(y) above);
provided that:
(A)    to the extent included in Consolidated Net Income of the Borrower for such period, there shall be excluded in determining Consolidated Adjusted EBITDA (x) currency translation gains and losses related to currency re-measurements of Indebtedness or intercompany balances and (y) gains or losses on Hedging Agreements;
(B)    to the extent included in Consolidated Net Income of the Borrower for such period, 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;
(C)    there shall be included in determining Consolidated Adjusted EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person or business, or attributable to any property, assets, division or line of business acquired by the Borrower or any Restricted Subsidiary during such period (or any property, assets, division or line of business subject to a letter of intent or purchase agreement at such time) (but not the Acquired EBITDA of any related Person or business or any Acquired EBITDA attributable to any property, assets, division or line of business, in each case, to the extent not so acquired) to the extent not subsequently sold, transferred, abandoned or otherwise disposed by the Borrower or such Restricted Subsidiary (each such Person, property, assets, division or line of business acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary or Excluded Project Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case, based on the actual Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof
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occurring prior to such acquisition or conversion) and (B) an adjustment in respect of each Pro Forma Entity equal to the amount of the Pro Forma Adjustment with respect to such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition), in each case, other than with respect to calculations for purposes of determining Revolving Commitment Fee Rate, Applicable ABR Margin and Applicable SOFR Margin or relating to compliance with Section 10.9 to the extent such acquisition occurred after the end of such period);
(D)    to the extent included in Consolidated Adjusted EBITDA, there shall be excluded in determining Consolidated Adjusted EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary or Excluded Project Subsidiary) sold, transferred, abandoned or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold, transferred, abandoned or otherwise disposed of, or closed or so classified, a “Disposed Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”) and any Restricted Subsidiary that is converted into an Excluded Project Subsidiary during such period (each, a “Converted Excluded Project Subsidiary”), in each case, based on the actual Disposed EBITDA of such Disposed Entity or Business, Converted Unrestricted Subsidiary or Converted Excluded Project Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition, closure, classification or conversion), in each case, other than with respect to calculations for purposes of determining Applicable ABR Margin and Applicable SOFR Margin or relating to compliance with Section 10.9 to the extent such sale, transfer, disposition, closure, classification or other conversion occurred after the end of such period.
Notwithstanding the above, the Consolidated Adjusted EBITDA of the Borrower for the fiscal quarter ended (in each case, subject to pro forma adjustments for transactions occurring after the Closing Date in accordance with Section 1.3(c)):

June 30, 2022 will be deemed to be:
$80,200,000
September 30, 2022 will be deemed to be:
$257,500,000
December 31, 2022 will be deemed to be:
$151,200,000
March 31, 2023 will be deemed to be:
$328,600,000
“Consolidated First Lien Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) the sum, without duplication, of (i) Consolidated Secured Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Obligations and (ii) Consolidated Secured Debt of the type described in clause (ii) of the definition thereof, in each case, as of such date of determination to (b) Consolidated Adjusted EBITDA for the most recent four fiscal quarter period for which financial statements described in Section 9.1(a) or (b) have been delivered (or, at the option of the Borrower, are internally available).
“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 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 Capitalized 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 or receipts (if any) pursuant to interest rate
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Hedging Obligations, but not including amortization of original issue discount, deferred financing costs 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 with respect to any interest rate hedging agreements.
“Consolidated Net Income” shall mean, with respect to any specified Person for any period, the aggregate of the Net Income (loss) of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:
(1)    for any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting, the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person shall be included;
(2)    solely for the purpose of determining the Applicable Amount, 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;
(3)    the cumulative effect of a change in accounting principles will be excluded;
(4)    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;
(5)    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;
(6)    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;
(7)    any gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions shall be excluded;
(8)    any impairment charge or asset write-off pursuant to Financial Accounting Statement No. 142 and No. 144 or any successor pronouncement shall be excluded;
(9)    the effects of all adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) in the Borrower’s consolidated financial statements pursuant to GAAP, net of taxes, resulting from the application of fresh start accounting principles as a result of the Case or the Debtors’ consummation of the Plan shall be excluded; and
(10)    restructuring-related or other similar charges, fees, costs, commissions and expenses or other charges incurred during such period in connection with this Agreement, the other Credit Documents, the Credit Facilities, the 2023 Notes, the Sidecar L/C Facility, the Case, any reorganization plan in connection with the Case, and any and all transactions contemplated by the foregoing, including the write-off of any receivables, the termination or settlement of executory contracts, professional and accounting costs fees and expenses, management incentive, employee retention or similar plans (in each case to the extent such plan is approved by the Bankruptcy Court to the extent required), litigation costs and settlements, asset write-downs, income and gains
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recorded in connection with the corporate reorganization of the Debtors shall, in each case, 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, at the option of the Borrower, 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 its Restricted Subsidiaries) as a result of any acquisition or other similar investment permitted under this Agreement, or the amortization or write-off of any amounts thereof.
“Consolidated Secured Debt” shall mean, as of any date of determination, Consolidated Total Debt at such date which either (i) is secured by a Lien on the Collateral (and other assets of the Borrower or any Restricted Subsidiary pledged to secure the Obligations pursuant to Section 10.2(cc)) or (ii) constitutes Capitalized Lease Obligations or purchase money Indebtedness of the Borrower or any Restricted Subsidiary that is secured by a Lien on any assets of Borrower or Restricted Subsidiary.
“Consolidated Secured Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Secured Debt as of such date of determination to (b) Consolidated Adjusted EBITDA for the most recent four fiscal quarter period for which financial statements described in Section 9.1(a) or (b) have been delivered (or, at the option of the Borrower, are internally available).
“Consolidated Total Assets” shall mean, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption), after intercompany eliminations, on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries for the most recent Fiscal Year or fiscal quarter, as applicable, for which financial statements described in Section 9.1(a) or (b) have been delivered (or, if such date of determination is a date prior to the first date on which such consolidated balance sheet has been (or is required to have been) delivered pursuant to Section 9.1, on the pro forma financial statements delivered pursuant to Section 6.11 (and, in the case of any determination relating to any Specified Transaction, on a Pro Forma Basis including any property or assets being acquired in connection therewith)).
“Consolidated Total Debt” shall mean, as of any date of determination, (a) (x) (i) the aggregate outstanding principal amount of all Indebtedness of the types described in clause (a) (solely to the extent such Indebtedness matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the sole option of the Borrower or any Restricted Subsidiary, to a date more than one year from the date of its creation), clause (d) (but, in the case of clause (d), only to the extent of any unreimbursed drawings under any letter of credit which are not cash collateralized or backstopped) and clause (f) of the definition thereof, in each case, actually owing by the Borrower and the Restricted Subsidiaries on such date and to the extent appearing on the balance sheet of the Borrower determined on a consolidated basis in accordance with GAAP and (ii) purchase money Indebtedness (and excluding, for the avoidance of doubt, Hedging Obligations and Cash Management Obligations) of the Borrower and its Restricted Subsidiaries and (y) Guarantee Obligations of the Borrower and its Restricted Subsidiaries for the benefit of any Person (other than of the Borrower or any Restricted Subsidiary) of the type described in clause (x) above minus (b) the aggregate amount of all Unrestricted Cash minus (c) cash
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and cash equivalents of the Borrower and its Restricted Subsidiaries that are restricted in favor of the Credit Facilities or the Sidecar L/C Facility whether or not held in a pledged account.
“Consolidated Total Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date of determination to (b) Consolidated Adjusted EBITDA for the most recent four fiscal quarter period for which financial statements described in Section 9.1(a) or (b) have been delivered (or, at the option of the Borrower, are internally available).
“Contingent Obligation” shall mean indemnification Obligations and other similar contingent Obligations for which no claim has been made in writing (but excluding, for the avoidance of doubt, amounts available to be drawn under Letters of Credit).
“Contractual Requirement” shall have the meaning provided in Section 8.3.
“Converted Excluded Project Subsidiary” shall have the meaning provided in the definition of “Consolidated Adjusted EBITDA”.
“Converted Restricted Subsidiary” shall have the meaning provided in the definition of “Consolidated Adjusted EBITDA”.
“Converted Unrestricted Subsidiary” shall have the meaning provided in the definition of “Consolidated Adjusted EBITDA”.
“Corrective Extension Amendment” shall have the meaning provided in Section 2.15(c).
“Corresponding Loan Amount” shall have the meaning provided in Section 12.14(c).
“Corresponding Tenor” with respect to any Available Tenor shall mean, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Commodity” shall mean any energy, electricity, generation, capacity, power, heat rate, congestion, natural gas, natural gas liquids, nuclear fuel (including enrichment, conversion and fabrication rights), diesel fuel, fuel oil, other petroleum-based liquids, coal, lignite, feedstock, weather, emissions, carbon, renewable energy and other environmental credits, waste by-products, “cap and trade” related credits, or any other energy related commodity or service (including ancillary services, attributes with an economic value, and related risks (such as location basis)).
“Credit Documents” shall mean this Agreement, Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, the Guarantee, the Security Documents, the Collateral Trust Agreement, each Letter of Credit and any promissory notes issued by the Borrower hereunder, provided, that, for the avoidance of doubt, Cash Management Agreements, Secured Cash Management Agreements, Hedging Agreements and Secured Hedging Agreements shall not be Credit Documents.
“Credit Event” shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance of a Letter of Credit.
“Credit Facility” shall mean any category of Commitments and extensions of credit thereunder. “Credit Party” shall mean each of the Borrower, each of the Subsidiary Guarantors and each other Restricted Subsidiary of the Borrower that is a guarantor under the Guarantee.
“Creditors’ Committee” shall mean the “Creditors’ Committee” as defined in the Plan.
“Cure Amount” shall have the meaning provided in Section 11.14(a).
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“Cure Period” shall have the meaning provided in Section 11.14(a). “Cure Right” shall have the meaning provided in Section 11.14(a).
“Daily Simple SOFR” shall mean, for any day (such day, a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, a “SOFR Determination Date”) that is two (2) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness (other than as permitted to be issued or incurred under Section 10.1).
“Debtors” shall have the meaning provided in the recitals to this Agreement.
“Declined Proceeds” shall have the meaning provided in Section 5.2(h).
“Default” shall mean any event, act or condition that, with notice or lapse of time or both, would constitute an Event of Default.
“Default Rate” shall have the meaning provided in Section 2.8(c).
“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.
“Deferred Net Cash Proceeds” shall have the meaning provided such term in the definition of “Net Cash Proceeds”.
“Deferred Net Cash Proceeds Payment Date” shall have the meaning provided such term in the definition of “Net Cash Proceeds”.
“Designated Non-Cash Consideration” shall mean the fair market value of non-cash consideration received by the Borrower or any Restricted Subsidiary in connection with a Disposition pursuant to Section 10.4(b) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition). A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 10.4.
“Disposed EBITDA” shall mean, with respect to any Disposed Entity or Business, any Converted Unrestricted Subsidiary or any Converted Excluded Project Subsidiary for any period, the amount for such period of Consolidated Adjusted EBITDA of such Disposed Entity or Business, Converted Unrestricted Subsidiary or Converted Excluded Project Subsidiary (determined as if references to the Borrower and the Restricted Subsidiaries in the definition of Consolidated Adjusted EBITDA were references to such Disposed Entity or Business, Converted Unrestricted Subsidiary or Converted Excluded Project Subsidiary, as applicable, and its respective Restricted Subsidiaries), all as determined on a consolidated basis for such Disposed Entity or Business, Converted Unrestricted Subsidiary or Converted Excluded Project Subsidiary, as the case may be.
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“Disposed Entity or Business” shall have the meaning provided in the definition of “Consolidated Adjusted EBITDA”.
“Disposition” shall have the meaning provided in Section 10.4.
“Disqualified Institutions” shall mean (a) competitors of the Borrower or any of its Subsidiaries that are identified by the Borrower in writing (including by email) to the Joint Lead Arrangers on or prior to the Closing Date or to the Administrative Agent after the Closing Date, (b) certain banks, financial institutions, other institutional lenders and investors and other entities that are identified by the Borrower in writing (including by email) to the Administrative Agent on or prior to the Amendment No. 3 Effective Date, (c) any affiliate of any person identified in clause (a) or (b) that is reasonably identifiable as such on the basis of such affiliate’s name or otherwise identified in writing (including by email) by the Borrower to the Administrative Agent from time to time (other than any bona fide debt fund affiliate); provided, that, no such identification after the date of a relevant assignment shall apply retroactively to disqualify any person that has previously, and properly, acquired (and continues to hold) an assignment or participation of an interest in any of the Credit Facilities with respect to amounts previously acquired and (d) any Defaulting Lender. The list of all Disqualified Institutions set forth in clauses (a), (b) and (c) shall be made available to any Lender upon its written request.
“Disqualified Stock” shall mean, with respect to any Person, any Stock or Stock Equivalents of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Stock or Stock Equivalents that is not Disqualified Stock), other than as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of such change of control, asset sale or similar event shall be subject to the prior repayment in full of the Loans and all other Obligations (other than Hedging Obligations under Secured CA Hedging Agreements, Cash Management Obligations under Secured CA Cash Management Agreements or Contingent Obligations and the termination of the Commitments), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of such change of control, asset sale or similar event shall be subject to the prior repayment in full of the Loans and all other Obligations (other than Hedging Obligations under Secured CA Hedging Agreements, Cash Management Obligations under Secured CA Cash Management Agreements or Contingent Obligations and the termination of the Commitments), in whole or in part, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date; provided, that, if such Stock or Stock Equivalents are issued to any plan for the benefit of employees of the Borrower or any of its Subsidiaries or by any such plan to such employees, such Stock or Stock Equivalents shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower (or any direct or indirect parent company thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations; provided, further, that any Stock or Stock Equivalents held by any present or former employee, officer, director, manager or consultant, of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies or any other entity in which the Borrower or any Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of Directors of the Borrower, in each case, pursuant to any stockholders’ agreement, management equity plan or stock incentive plan or any other management or employee benefit plan or agreement or otherwise in order to satisfy applicable statutory or regulatory obligations or as a result of the termination, death or disability of such employee, officer, director, manager or consultant shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or any of its Subsidiaries.
“Dividends” or “dividends” shall have the meaning provided in Section 10.6.
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“Dollars” and “$” shall mean dollars in lawful currency of the United States of America.
“Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States or any state thereof, or the District of Columbia.
“Drawing” shall have the meaning provided in Section 3.4(b).
“EBITDA Lost as a Result of a Grid Outage” shall mean, to the extent that any transmission or distribution lines go out of service (in connection with weather related events or otherwise), the sum of (x) the revenue not actually earned by the Borrower and its Restricted Subsidiaries that would otherwise have been earned (based on the good faith determination of the Borrower) with respect to any Unit within the first twelve (12) month period that such transmission or distribution lines were out of service had such transmission or distribution lines not been out of service during such period and (y) the amount of any penalties or bonuses that are paid by the Borrower and its Restricted Subsidiaries as a result of such outage.
“EBITDA Lost as a Result of a Unit Outage” shall mean, to the extent that any Unit (i) is out of service as a result of any unplanned outage or shut down (in connection with weather related events or otherwise) or (ii) is prevented from operating at normal capacity due to extraordinary weather or other unplanned and extraordinary conditions that cause the Unit not to be able to operate at normal capacity (such failure described in this clause (ii), an “Operations Failure”), the sum of (x) the revenue not actually earned by the Borrower and its Restricted Subsidiaries that would otherwise have been earned (based on the good faith determination of the Borrower) with respect to any Unit during the first twelve (12) month period of any outage, shut down or Operations Failure had such Unit not been out of service or in Operations Failure during such period and (y) the amount of any penalties or bonuses that are paid by the Borrower and its Restricted Subsidiaries as a result of such outage or Operations Failure.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Employee Benefit Plan” shall mean an “employee benefit plan” (as defined in Section 3(3) of ERISA), other than a Foreign Plan, that is maintained or contributed to by a Credit Party (or, with respect to an employee benefit plan subject to Title IV of ERISA, any ERISA Affiliate).
“Engagement and Commitment Letter” shall mean that certain amended and restated engagement and commitment letter, dated April 28, 2023, among the Borrower and the Commitment Parties.
“Environmental CapEx” shall mean Capital Expenditures and other costs deemed reasonably necessary by the Borrower or any Restricted Subsidiary, or otherwise undertaken voluntarily by the Borrower or any Restricted Subsidiary, to comply with, or in anticipation of having to comply with, applicable Environmental Laws, or Capital Expenditures otherwise undertaken voluntarily by the Borrower or any Restricted Subsidiary in connection with environmental matters.
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“Environmental CapEx Debt” shall mean Indebtedness of the Borrower or its Restricted Subsidiaries incurred for the purpose of financing Environmental CapEx.
“Environmental Claims” shall mean any and all written actions, suits, proceedings, orders, decrees, demands, demand letters, claims, liens, notices of noncompliance, violation or potential responsibility or investigation (other than reports prepared by or on behalf of the Borrower or any other Subsidiary of the Borrower (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of Real Estate), in each case, materially relating to any applicable Environmental Law or any permit issued, or any approval given, under any applicable Environmental Law (hereinafter, “Claims”), including (i) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release into the environment of Hazardous Materials or arising from alleged injury or threat of injury to human health or safety (in each case, to the extent relating to human exposure to Hazardous Materials), or to the environment, including ambient air, indoor air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands.
“Environmental Law” shall mean any applicable federal, state, foreign or local statute, law, rule, regulation, ordinance, code or rule of common law now (or, with respect to any post-Closing Date requirements of the Credit Documents, hereafter in effect), in each case, as amended, and any legally binding judicial or administrative interpretation thereof, including any legally binding judicial or administrative order, consent decree or judgment, relating to the protection of the environment, including ambient air, indoor air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, or to human health or safety (in each case, to the extent relating to human exposure to Hazardous Materials), or Hazardous Materials.
“Equity Offering” shall mean any public or private sale of common stock or Preferred Stock of the Borrower or any of its direct or indirect parent companies (excluding Disqualified Stock), other than: (a) public offerings with respect to the Borrower’s or any direct or indirect parent company’s common stock registered on Form S-8; (b) issuances to any Subsidiary of the Borrower or any such parent; and (c) any Cure Amount.
“Equity Rights Offering” shall have the meaning provided in the recitals to this Agreement.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to ERISA as in effect on the Closing Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean each “person” (as defined in Section 3(9) of ERISA) that together with the Borrower or any Restricted Subsidiary of the Borrower would be deemed to be a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” shall mean (i) any Reportable Event; (ii) the existence with respect to any Employee Benefit Plan of a non-exempt Prohibited Transaction; (iii) any failure by any Benefit Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Benefit Plan, whether or not waived; (iv) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Benefit Plan; (v) the occurrence of any event or condition which would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan or the incurrence by any Credit Party or any of its ERISA Affiliates
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of any liability under Title IV of ERISA with respect to the termination of any Benefit Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Benefit Plan; (vi) the receipt by any Credit Party or any of its ERISA Affiliates from the PBGC or a plan administrator of any written notice to terminate any Benefit Plan under Section 4042(a) of ERISA or to appoint a trustee to administer any Benefit Plan under Section 4042(b)(1) of ERISA; (vii) the incurrence by any Credit Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Benefit Plan (or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA) or Multiemployer Plan; or (viii) the receipt by any Credit Party or any of its ERISA Affiliates of any notice concerning the imposition on it of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, or terminated (within the meaning of Section 4041A of ERISA).
“Erroneous Payment” shall have the meaning provided in Section 12.14(a).
“Erroneous Payment Return Deficiency” shall have the meaning provided in Section 12.14(c).
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“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.
“Exchange Rate” shall mean on any day with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth at approximately 11:00 a.m. (London time) on such day on the Reuters World Currency Page for such currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of the relevant currency for delivery two (2) Business Days later.
“Excluded Affiliates” shall mean members of any Joint Lead Arranger or any of its affiliates that are engaged as principals primarily in private equity, mezzanine financing or venture capital or are known by the Joint Lead Arrangers to be engaged in advising creditors receiving distributions in connection with the Plan or any other Person involved in the negotiation of the Plan (other than the Borrower any direct or indirect parent of the Borrower and its Subsidiaries), including through the provision of advisory services other than a limited number of senior employees who are required, in accordance with industry regulations or such Joint Lead Arranger’s internal policies and procedures to act in a supervisory capacity and the Joint Lead Arrangers’ internal legal, compliance, risk management, credit or investment committee members.
“Excluded Collateral” shall mean (a) Excluded Stock and Stock Equivalents and (b) Excluded Property.
“Excluded Information” shall have the meaning provided in Section 13.6.
“Excluded Project Subsidiary” shall mean (a) any Non-Recourse Subsidiary of the Borrower that is formed or acquired after the Closing Date; provided, that, at such time (or promptly thereafter) the Borrower designates such Subsidiary an “Excluded Project Subsidiary” in a written notice to the Administrative Agent, (b) any Restricted Subsidiary subsequently designated as an “Excluded Project Subsidiary” by the Borrower in a written notice to the Administrative Agent and (c) each Restricted Subsidiary of an Excluded Project Subsidiary; provided, that, in the case of clauses (a) and (b), (x) such
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designation shall be deemed to be an Investment (or reduction in an outstanding Investment, in the case of a designation of an Excluded Project Subsidiary as a Restricted Subsidiary, to the extent not resulting in an increase to the Applicable Amount) on the date of such designation in an amount equal to the net book value of the investment therein and such designation shall be permitted only to the extent permitted under Section 10.5 on the date of such designation, (y) no Event of Default exists or would result from such designation after giving Pro Forma Effect thereto and (z) in the case of (b), the Restricted Subsidiary to be so designated as an Excluded Project Subsidiary, does not (directly or indirectly through its Subsidiaries) at such time own any Stock of, or own or hold any Lien on any property of, the Borrower or any of its Restricted Subsidiaries. No Restricted Subsidiary may be designated as an Excluded Project Subsidiary if, after such designation, it would be a “Restricted Subsidiary” for the purpose of (or otherwise subject to the covenants governing) any Material Indebtedness for borrowed money that is secured on a pari passu basis with the Credit Facilities. The Borrower may, by written notice to the Administrative Agent, re-designate any Excluded Project Subsidiary as a Restricted Subsidiary, and thereafter, such Subsidiary shall no longer constitute an Excluded Project Subsidiary, but only if (x) to the extent such Subsidiary has outstanding Indebtedness on the date of such designation, immediately after giving effect to such designation, the Borrower shall be in compliance, on a Pro Forma Basis, after giving effect to the incurrence of such Indebtedness, with the covenant set forth in Section 10.9 (to the extent such covenant is then required to be tested) and (y) no Event of Default exists or would result from such re-designation. If, at any time, any Excluded Project Subsidiary remains a Restricted Subsidiary of the Borrower, but fails to meet the requirements set forth in the definition of “Non-Recourse Subsidiary”, it will thereafter cease to be an Excluded Project Subsidiary for the purposes of this Agreement and, unless it is, or has been, designated as an Unrestricted Subsidiary at or prior to the time of such failure, such Subsidiary shall be deemed to be a Restricted Subsidiary for all purposes of this Agreement and the other Credit Documents and any then outstanding Indebtedness of such Subsidiary that would otherwise only have been permitted to have been incurred by an Excluded Project Subsidiary will be deemed to be incurred by a Restricted Subsidiary that is not an Excluded Project Subsidiary as of such date.
“Excluded Property” shall mean (i) a security interest or Lien pursuant to this Agreement or any other Credit Document in the applicable Credit Party’s right, title or interest in any property that could reasonably be expected to result in an adverse accounting or regulatory consequence that is not de minimis, as reasonably determined by the Borrower in consultation with the Administrative Agent, (ii) any vehicles, airplanes and other assets subject to certificates of title; (iii) letter-of-credit rights (other than supporting obligations); (iv) any property subject to a Permitted Lien securing a purchase money agreement, Capital Lease or similar arrangement permitted under this Agreement to the extent, and for so long as, the creation of a security interest therein is prohibited thereby (or otherwise requires consent, provided that there shall be no obligation to seek such consent) or creates a right of termination or favor of a third party, in each case, excluding the proceeds and receivables thereof to the extent not otherwise constituting Excluded Property; (v) (x) all leasehold interests in real property (including, for the avoidance of doubt, any requirement to obtain any landlord or other third party waivers, estoppels, consents or collateral access letters in respect of such leasehold interests) and (y) any parcel of Real Estate and the improvements thereto owned in fee by a Credit Party with a fair market value of less than $20,000,000 (determined by the Borrower in good faith as of the Closing Date (or, if later, at the time of acquisition or contribution thereof)) (but not any Collateral located thereon) or any parcel of Real Estate and the improvements thereto owned in fee by a Credit Party outside the United States; (vi) any “intent to use” trademark application filed and accepted in the United States Patent and Trademark Office unless and until an amendment to allege use or a statement of use has been filed and accepted by the United States Patent and Trademark Office to the extent, if any, that, and solely during the period, if any, in which the grant of security interest therein could impair the validity or enforceability of such “intent to use” trademark application under federal law; (vii) any charter, permit, franchise, authorization, lease, license or agreement, in each case, only to the extent
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and for so long as the grant of a security interest therein (or the assets subject thereto) by the applicable Credit Party (w) would result in the creation of a security interest thereunder or create a right of termination in favor of any party thereto, (x) would violate, or would invalidate, such charter, permit, franchise, authorization, lease, license, or agreement, (y) would give any party (other than a Credit Party) to any such charter, permit, franchise, authorization, lease, license or agreement the right to terminate its obligations thereunder or (z) is permitted under such charter, permit, franchise, lease, license or agreement only with consent of the parties thereto (other than consent of a Credit Party) and such necessary consents to such grant of a security interest have not been obtained (it being understood and agreed that no Credit Party or Restricted Subsidiary has any obligation to obtain such consents) other than, in each case, referred to in clauses (w), (x), (y) and (z), as would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction, in each case excluding the proceeds and receivables thereof which are not otherwise Excluded Property; (viii) any Commercial Tort Claim (as defined in the Security Agreement) for which no claim has been made or with a value of less than $25,000,000 for which a claim has been made; (ix) any Excluded Stock and Stock Equivalents; (x) assets of Unrestricted Subsidiaries, Excluded Project Subsidiaries, Immaterial Subsidiaries (other than, in the case of Immaterial Subsidiaries, to the extent a perfected security interest therein can be obtained by filing a UCC-1 financing statement), Captive Insurance Subsidiaries and special purposes entities, including any Receivables Entity or any Securitization Subsidiary; (xi) any assets with respect to which, the Borrower and the Administrative Agent reasonably determine, the cost or other consequences of granting a security interest or obtaining title insurance in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom; (xii) any assets with respect to which granting a security interest in such assets in favor of the Secured Parties under the Security Documents could reasonably be expected to result in an adverse tax, regulatory or accounting consequence that is not de minimis (or in the case of recording Taxes related to real property mortgages, material adverse tax consequence (as determined by the Borrower in good faith)), as reasonably determined by the Borrower in consultation with the Administrative Agent; (xiii) any margin stock; (xiv) Receivables Facility Assets in connection with a Permitted Receivables Financing or Securitization Assets in connection with a Qualified Securitization Financing; (xv) amounts payable to any Credit Party that such Credit Party is collecting on behalf of Persons that are not Credit Parties; (xvi) any assets with respect to which granting a security interest in such assets is prohibited by or would violate law, treaty, rule, or regulation (including regulations adopted by FERC and/or the Nuclear Regulatory Commission) or determination of an arbitrator or a court or other Governmental Authority or which would require obtaining the consent, approval, license or authorization of any Governmental Authority (unless such consent, approval, license or authorization has been received; provided, that, there shall be no obligation to obtain such consent) or create a right of termination in favor of any governmental or regulatory third party, in each case, after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or other Applicable Law, excluding the proceeds and receivables thereof (to the extent not otherwise constituting Excluded Collateral); (xvii) cash and cash equivalents that are posted, pledged or otherwise transferred in support of Hedging Obligations or in respect of hedging transactions permitted hereunder; (xviii) sales tax, payroll or other trust accounts holding funds solely for the benefit of third parties that are not Credit Parties; (xix) any assets, including any stock or equity interests in another entity, owned by a CFC Holding Company or a Foreign Subsidiary that is a CFC and (xx) Trust Funds and any accounts or trusts used solely to hold such Trust Fund.
“Excluded Stock and Stock Equivalents” shall mean (i) any Stock or Stock Equivalents with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the burden or cost of pledging such Stock or Stock Equivalents in favor of the Collateral Representative under the Security Documents shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Voting Stock of any CFC Holding Company or Foreign Subsidiary that is a CFC,
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any Voting Stock in excess of 65% of each outstanding class of Voting Stock of such CFC Holding Company or Foreign Subsidiary that is a CFC, (iii) any Stock or Stock Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law or, any Contractual Requirement (including any legally effective requirement to obtain the consent or approval of, or a license from, any Governmental Authority or any other regulatory third party unless such consent, approval or license has been obtained (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary of the Borrower to obtain any such consent, approval or license)) in each case, after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or other Applicable Law, (iv) any Stock or Stock Equivalents of each Subsidiary to the extent that a pledge thereof to secure the Obligations is prohibited by any applicable Organizational Document of such Subsidiary or requires third party consent (other than the consent of a Credit Party), unless consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent) in each case, after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or other Applicable Law, (v) Stock or Stock Equivalents of any non-Wholly Owned Subsidiary, (vi) any Stock or Stock Equivalents of any Subsidiary to the extent that the pledge of such Stock or Stock Equivalents could reasonably be expected to result in an adverse tax, regulatory or accounting consequence to the Borrower or any Subsidiary that is not de minimis (or, in the case of recording taxes, that is material), as reasonably determined in good faith by the Borrower in consultation with the Administrative Agent, (vii) any Stock or Stock Equivalents that are margin stock, (viii) any Stock and Stock Equivalents owned by a CFC Holding Company or a Foreign Subsidiary that is a CFC, (ix) any Stock and Stock Equivalents of any Unrestricted Subsidiary, any Excluded Project Subsidiary, any Immaterial Subsidiary (other than, in the case of Immaterial Subsidiaries, to the extent a perfected security interest therein can be obtained by filing a UCC-1 financing statement), any Captive Insurance Subsidiary, any Broker-Dealer Subsidiary, any not-for-profit Subsidiary and any special purpose entity (including any Receivables Entity and any Securitization Subsidiary) and (x) nominee or qualifying shares (but solely to the extent the issuance with respect to which is required pursuant to Applicable Law); provided, that, Excluded Stock and Stock Equivalents shall not include proceeds of the foregoing property to the extent otherwise constituting Collateral.
“Excluded Subsidiary” shall mean (a) each Domestic Subsidiary listed on Schedule 1.1(d) hereto and each future Domestic Subsidiary, in each case, for so long as any such Subsidiary does not constitute a Material Subsidiary as of the most recently ended fiscal quarter or Fiscal Year, as applicable, for which financial statements described in Section 9.1(a) or (b) have been or are required to be delivered or (at the option of the Borrower) are internally available, (b) subject to the proviso to clause (b) of Section 12.13, each Domestic Subsidiary that is not a Wholly Owned Subsidiary or otherwise constitutes a joint venture (for so long as such Subsidiary remains a non-Wholly Owned Restricted Subsidiary or joint venture), (c) any CFC Holding Company or Foreign Subsidiary that is a CFC, (d) each Domestic Subsidiary that is (i) prohibited by any applicable (x) Contractual Requirement, (y) Applicable Law (including without limitation as a result of applicable financial assistance, directors’ duties or corporate benefit requirements) or (z) Organizational Document (in the case of clauses (x) and (z), in effect on the Closing Date or any date of acquisition of such Subsidiary (to the extent such prohibition was not entered into in contemplation of such acquisition)) from guaranteeing or granting Liens to secure the Obligations at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), or (ii) required to obtain consent, approval, license or authorization of a Governmental Authority for such guarantee or grant (unless such consent, approval, license or authorization has already been received); provided, that, there shall be no obligation to obtain such consent, (e) each Domestic Subsidiary of a CFC Holding Company or a Foreign Subsidiary that is a CFC, (f) any other Domestic Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the cost or other consequences (including any adverse tax, regulatory or accounting consequences) of
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guaranteeing the Obligations shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom, (g) each Unrestricted Subsidiary, (h) any Foreign Subsidiary, (i) any special purpose “bankruptcy remote” entity, including any Receivables Entity and any Securitization Subsidiary, (j) any other Domestic Subsidiary to the extent that the guarantee of the Obligations by such Subsidiary could reasonably be expected to result in an adverse tax, accounting or regulatory consequence to the Borrower or any of its Restricted Subsidiaries (or, in the case of tax consequences, any direct or indirect Parent Entity of the Borrower) that is not de minimis (as reasonably determined by the Borrower in consultation with the Administrative Agent), (k) any Captive Insurance Subsidiary, (l) any non-profit Subsidiary, (m) any Broker-Dealer Subsidiary, or (n) any Excluded Project Subsidiary.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap 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 Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving pro forma effect to any applicable keepwell, support, or other agreement for the benefit of such Guarantor and any and all applicable guarantees of such Guarantor’s Swap Obligations by other Credit Parties) at the time the guarantee of such Guarantor or the grant of such security interest becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Credit Parties and any counterparty to a Hedging Agreement applicable to such Swap Obligations. If a Swap Obligation arises under a Master Agreement governing more than one Swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to the Swap for which such guarantee or security interest is or becomes illegal.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to any recipient, or required to be withheld or deducted from a payment to any such recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office, located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any U.S. federal withholding Tax that is imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which such Lender becomes a party to this Agreement (or designates a new lending office other than a new lending office designated at the request of the Borrower); provided, that, this subclause (b) shall not apply to the extent that (x) the indemnity payments or additional amounts such Lender would be entitled to receive (without regard to this subclause (b)) do not exceed the indemnity payment or additional amounts that the Person making the assignment, participation or transfer to such Lender would have been entitled to receive pursuant to Section 5.4 in the absence of such assignment (or such Lender would have been entitled to receive pursuant to Section 5.4 in the absence of such designation of a new lending office by such Lender) or (y) any such Tax is imposed on such Lender in connection with an interest in any Loan or other obligation that such Lender acquired pursuant to Section 13.7 (it being understood and agreed, for the avoidance of doubt, that any withholding Tax imposed on a Lender solely as a result of a Change in Law occurring after the time such Lender became a party to this Agreement (or such Lender designates a new lending office) shall not be an Excluded Tax under this subclause (b)), (c) any Tax to the extent attributable to such recipient’s failure to comply with Sections 5.4(d), 5.4(e) and 5.4(i) in the case of any Non-U.S. Lender or Section 5.4(h) in the case of a U.S. Lender and (d) any Taxes imposed by ▇▇▇▇▇.
“Existing Class” shall mean Existing Term B Classes and Existing Revolving Classes.
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“Existing Letters of Credit” shall mean the Letters of Credit listed on Schedule 1.1(b).
“Existing Revolving Class” shall have the meaning provided in Section 2.15(a)(ii).
“Existing Revolving Loans” shall have the meaning provided in Section 2.15(a)(ii).
“Existing Revolving Commitments” shall have the meaning provided in Section 2.15(a)(ii).
“Existing Stand-Alone Letter of Credit Commitments” shall have the meaning provided in Section 2.15(a)(ii).
“Existing Term B Class” shall have the meaning provided in Section 2.15(a)(i).
“Expenses Relating to a Unit Outage” shall mean an amount (which may be negative) equal to
(x) the sum of any expenses or other charges as a result of any (i) outage or shut-down (in connection with weather related events or otherwise) or (ii) Operations Failure of any Unit, including any expenses or charges relating to (a) restarting any Unit so that it may be placed back in service after such outage, shut-down or Operations Failure, (b) purchases of power, natural gas or heat rate to meet commitments to sell, or offset a short position in, power, natural gas or heat rate that would otherwise have been met or offset from production generated by such Unit during the period of such outage, shut-down or Operations Failure, (c)    starting up, operating, maintaining and shutting down any other Unit that would not otherwise have been operating absent such outage, shut-down or Operations Failure, including the fuel and other operating expenses, incurred to start-up, operate, maintain and shut-down such Unit and that are required during the period of time that such Unit suffering an outage, shut-down or Operations Failure is out of service or in Operations Failure in order to meet the commitments of such Unit suffering an outage, shut down or Operations Failure to sell, or offset a short position in, power, natural gas or heat rate and (d) penalties that are paid by the Borrower and its Restricted Subsidiaries as a result of such outage, shut-down or Operations Failure less (y) any expenses or charges not in fact incurred (including fuel and other operating expenses) that would have been incurred absent such outage, shut-down or Operations Failure.
“Extended Revolving Commitments” shall have the meaning provided in Section 2.15(a)(ii).
“Extended Revolving Loans” shall have the meaning provided in Section 2.15(a)(ii).
“Extended Stand-Alone Letter of Credit Commitment” shall have the meaning provided in Section 2.15(a)(ii).
“Extended Term B Loans” shall have the meaning provided in Section 2.15(a)(i).
“Extended Term B Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Extending Lender” shall have the meaning provided in Section 2.15(a)(iv).
“Extension Amendment” shall have the meaning provided in Section 2.15(a)(v).
“Extension Date” shall have the meaning provided in Section 2.15(a)(vi).
“Extension Election” shall have the meaning provided in Section 2.15(a)(iv).
“Extension Minimum Condition” shall mean a condition to consummating any Extension Series that a minimum amount (to be determined and specified in the relevant Extension Request, in the Borrower’s sole discretion) of any or all applicable Classes be submitted for extension.
“Extension Request” shall mean Term B Extension Requests, Revolving Extension Requests and Stand-Alone Letter of Credit Extension Requests.
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“Extension Series” shall mean all Extended Term B Loans, Extended Revolving Commitments and Extended Stand-Alone Letter of Credit Commitments that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term B Loans, Extended Revolving Commitments or Extended Stand-Alone Letter of Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series) and that provide for the same interest margins, extension fees and amortization schedule.
“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 Treasury regulations promulgated thereunder or official administrative interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreement (or related laws, rules or official administrative guidance) implementing the foregoing.
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with members of the U.S. Federal Reserve System arranged by federal funds brokers on such day, as published on the next succeeding Business Day by the NYFRB; provided, that, (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1.00%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.
“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.
“FERC” shall mean the U.S. Federal Energy Regulatory Commission or any successor agency thereto.
“First Lien Intercreditor Agreement” shall mean an Intercreditor Agreement among the
representative of such holders of First Lien Obligations, the Collateral Representative, the Credit Parties and any First Lien Secured Parties from time to time party thereto, at any time after the Closing Date, in a form that is reasonably satisfactory in form and substance to the Borrower and the Collateral Agent.
“First Lien Obligations” shall mean, collectively, (i) the Obligations, (ii) the Indebtedness and related obligations with respect to the 2023 Notes and the Sidecar L/C Facility and (iii) the Indebtedness and related obligations which are permitted hereunder to be secured by Liens on the Collateral that rank pari passu (but without regard to the control of remedies) with the Liens securing the Obligations; provided, that, such Indebtedness and related obligations have been added to the Collateral Trust Agreement in accordance with its terms.
“First Lien Secured Parties” shall mean, collectively, (i) the Secured Bank Parties and (ii) each other First Lien Secured Party (as defined in the Collateral Trust Agreement).
“Fiscal Year” shall have the meaning provided in Section 9.10.
“Fitch” shall mean Fitch Ratings Ltd. and any successor to its rating agency business.
“Fixed Amounts” shall have the meaning provided in Section 1.15.
“Fixed Charge Coverage Ratio” means on any date of determination, the ratio of (i) the Consolidated Adjusted EBITDA for the most recent four fiscal quarter period for which financial statements
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described in Section 9.1(a) or (b) have been delivered (or, at the option of the Borrower, are internally available) to (ii) the Fixed Charges of the Borrower for such period (calculated on a Pro Forma Basis).
“Fixed Charges” means, 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;
plus
(b) 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
(c)    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 Stock payable in Stock 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;
provided, that, “Fixed Charges” as defined in this definition, of any Person, the Consolidated Adjusted EBITDA of which is excluded from the Consolidated Adjusted EBITDA of such Person, shall be excluded for all purposes of this definition.
“Flood Laws” shall mean collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Reform Act of 2004 as now or hereafter in effect or any successor statute thereto, and (iii) the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Floor” shall mean (x) with respect to the Revolving Credit Facility, (i) for determining the Adjusted Term SOFR Rate, 0.00% or (ii) for determining the ABR, 1.00%, (y) with respect to the Term B Facility, (i) for determining the Adjusted Term SOFR Rate, 0.00% or (ii) for determining the ABR, 1.00% and (z) with respect to the Stand-Alone Letter of Credit Facility, (i) for determining the Adjusted Term SOFR Rate, 0.00% or (ii) for determining the ABR, 1.00%.
“Foreign Asset Sale” shall have the meaning provided in Section 5.2(i).
“Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by the Borrower or any of its Subsidiaries with respect to employees employed outside the United States.
“Foreign Recovery Event” shall have the meaning provided in Section 5.2(i).
“Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.
“FPA” shall mean the Federal Power Act, as amended, and all rules and regulations adopted by FERC thereunder.
“Freedom Acquisition” shall have the meaning provided in Amendment No. 5.
“Freedom Refinancing” shall have the meaning provided in Amendment No. 5.
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“Fronting Fee” shall have the meaning provided in Section 4.1(d).
“Fund” shall mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business.
“GAAP” shall mean generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“Governmental Authority” shall mean any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government or any governmental or non-governmental authority regulating the generation and/or transmission of energy, including FERC, the Nuclear Regulatory Commission, PJM, a central bank, stock exchange or any other ISO or RTO.
“Granting Lender” shall have the meaning provided in Section 13.6(g).
“Guarantee” shall mean the Guarantee made by each Guarantor in favor of the Administrative Agent for the benefit of the Secured Bank Parties, substantially in the form of Exhibit B.
“Guarantee Obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guarantors” shall mean (a) each Domestic Subsidiary (other than an Excluded Subsidiary) on the Closing Date and (b) each Domestic Subsidiary that becomes a party to the Guarantee on or after the Closing Date pursuant to Section 9.11 or otherwise.
“Guernsey Acquisition” shall have the meaning provided in Amendment No. 5.
“Guernsey Refinancing” shall have the meaning provided in Amendment No. 5.
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“Hazardous Materials” shall mean (a) any petroleum or petroleum products spilled or released into the environment, radioactive materials, friable asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, for which a release into the environment is prohibited, limited or regulated by any Environmental Law.
“Hedge Bank” shall mean any Person (other than the Borrower or any other Subsidiary of the Borrower) that is a party to a Hedging Agreement and at the time it enters into a Hedging Agreement or on the Closing Date, is a Lender, an Agent, a Joint Lead Arranger or an Affiliate of a Lender, an Agent or a Joint Lead Arranger.
“Hedging Agreements” shall mean (a) any transaction (whether financial or physical) (including an agreement with respect to any such transaction) (i) which is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (whether financial or physical) (including any option with respect to any of these transactions), (ii) which is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets (including terms and conditions incorporated by reference in such agreement) and which is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made or (iii) any other similar transactions or any combination of any of the foregoing (whether financial or physical) (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, annexes, supplements, definitional sets, and other documents, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement and (c) any Commodity Hedging Agreement; and, in the case of clauses (a), (b) and (c), whether bilateral, over-the-counter, financial or physical, on or through an exchange or other execution facility, on or through a system, platform or portal operated by an ISO or RTO, cleared through a clearing house, clearing organization or clearing agency, or otherwise.
“Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.
“Historical Financials” shall mean (i) the audited consolidated balance sheet and the related audited consolidated statements of income, cash flows and shareholders’ equity of the Borrower and its Subsidiaries as of and for the Fiscal Years ended December 31, 2021 and December 31, 2022 and (ii) the unaudited consolidated balance sheet and the related consolidated statements of income and cash flows of
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the Borrower and its Subsidiaries as of and for each subsequent fiscal quarter (other than the fourth fiscal quarter of the Borrower’s Fiscal Year) ended at least 50 days before the Closing Date.
“Immaterial Subsidiary” shall mean each Subsidiary of the Borrower that is not a Material Subsidiary.
“Increased Amount Date” shall have the meaning provided in Section 2.14(a).
“Incremental Amendment” shall mean an agreement substantially in the form of Exhibit L.
“Incremental Commitments” shall have the meaning provided in Section 2.14(a).
“Incremental Facilities” shall mean the facilities represented by the Incremental Commitments and the related Incremental Loans.
“Incremental Letter of Credit Commitment” shall have the meaning provided in Section 2.14(a).
“Incremental Loans” shall have the meaning provided in Section 2.14(c).
“Incremental Revolving Commitments” shall have the meaning provided in Section 2.14(a).
“Incremental Revolving Lenders” shall have the meaning provided in Section 2.14(b).
“Incremental Revolving Loan” shall have the meaning provided in Section 2.14(b).
“Incremental Term B Commitment” shall have the meaning provided in Section 2.14(a).
“Incremental Term B Lender” shall have the meaning provided in Section 2.14(c).
“Incremental Term B Loan” shall have the meaning provided in Section 2.14(c).
“Incremental Term B Maturity Date” shall mean, with respect to any tranche of Incremental Term B Loans made pursuant to Section 2.14, the final maturity date thereof.
“Incremental Term B Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Incremental Term C Commitment” shall have the meaning provided in Section 2.14(a).
“Incurrence-Based Amounts” shall have the meaning provided in Section 1.15.
“Indebtedness” of any Person shall mean (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (c) the deferred purchase price of assets or services that in accordance with GAAP would be included as a liability on the balance sheet of such Person, (d) the available balance of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (e) all Indebtedness of any other Person secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (f) the principal component of all Capitalized Lease Obligations of such Person, (g) the Swap Termination Value of Hedging Obligations of such Person, (h) without duplication, all Guarantee Obligations of such Person, (i) Disqualified Stock of such Person and (j) Receivables Indebtedness of such Person; provided, that, Indebtedness shall not include (i) trade and other ordinary course payables and accrued expenses arising in the ordinary course of business, (ii) deferred or prepaid revenue, (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (iv) amounts payable by and between the Borrower and any of its Subsidiaries in connection with retail clawback or other regulatory transition issues, (v) any Indebtedness defeased by such Person or by any Subsidiary of such Person, (vi) contingent obligations incurred in the ordinary course of business, (vii) [reserved], (viii) Performance
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Guaranties, and (ix) earnouts until earned, due and payable and not paid for a period of thirty (30) days (solely to the extent reflected as a liability on the balance sheet of such Person in accordance with GAAP). The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid principal amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
For all purposes hereof, the Indebtedness of the Borrower and the Restricted Subsidiaries shall (i) exclude all intercompany Indebtedness among the Borrower and its Subsidiaries having a term not exceeding 365 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business, and (ii) obligations constituting Non-Recourse Debt shall only constitute “Indebtedness” for purposes of Section 10.1, Section 10.2 and Section 10.10 and not for any other purpose hereunder.
“Indemnified Liabilities” shall have the meaning provided in Section 13.5.
“Indemnified Taxes” shall mean all Taxes imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document (including Other Taxes) other than (i) Excluded Taxes and (ii) any interest, penalties or expenses caused by the applicable Agent’s or ▇▇▇▇▇▇’s gross negligence or willful misconduct (as determined in a final non-appealable judgement of a court of competent jurisdiction).
“Independent Financial Advisor” shall mean an accounting firm, appraisal firm, investment banking firm or consultant 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 and that is disinterested with respect to the applicable transaction.
“Initial Credit Facilities” shall mean the Initial Term B Loans and the Initial Revolving Loans (and the related Revolving Credit Exposure with respect to the Revolving Commitments).
“Initial Revolving Loans” shall have the meaning provided in Section 2.1(c).
“Initial Term B Commitment” shall mean the commitment of a Lender to make or otherwise fund an Initial Term B Loan, and “Initial Term B Commitments” shall mean such commitments of all of such Lenders in the aggregate. The amount of each Lender’s Initial Term B Commitment, if any, is set forth on Schedule 1.1(a) or in the applicable Assignment and Acceptance, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Initial Term B Commitments as of the Closing Date is $580,000,000.
“Initial Term B Lender” shall mean each Lender holding an Initial Term B Loan.
“Initial Term B Loan” shall mean, collectively, (i) the Term B Loans made to the Borrower on the Closing Date pursuant to Section 2.1(a) and (ii) the 2023-1 Incremental Term B Loans made to the Borrower on the Amendment No. 1 Effective Date pursuant to Amendment No. 1.
“Initial Term B Repayment Amount” shall have the meaning provided in Section 2.5(b).
“Inside Maturity Basket” means, with respect to Indebtedness or Disqualified Stock, an aggregate principal amount and/or liquidation preference not to exceed, when taken together with the aggregate outstanding principal amount of all other Indebtedness incurred and the aggregate liquidation preference of all Disqualified Stock issued and outstanding in reliance on this definition on or prior to the date of incurrence of any such Indebtedness or issuance of any such Disqualified Stock, as applicable, the greater of (a) $525,000,000 and (b) 50% of Consolidated Adjusted EBITDA for the most recently completed Test Period.
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“Insolvent” shall mean, with respect to any Multiemployer Plan, the condition that such Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA.
“Intercompany Subordinated Note” shall mean the Intercompany Note, dated as of the Closing Date, executed by the Borrower and each Restricted Subsidiary of the Borrower party thereto.
“Interest Period” shall mean, with respect to any Term B Loan, Revolving Loan or Extended Revolving Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.
“Investment” shall mean, for any Person: (a) the acquisition (whether for cash, property, services or securities or otherwise) of Stock, Stock Equivalents, bonds, notes, debentures, partnership, limited liability company membership or other ownership interests or other securities of any other Person (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such other Person) (including any partnership or joint venture); (c) the entering into of any Guarantee Obligation with respect to Indebtedness; or (d) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person; provided, that, in the event that any Investment is made by the Borrower or any Restricted Subsidiary in any Person through substantially concurrent interim transfers of any amount through one or more other Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be disregarded for purposes of Section 10.5. The amount of any Investment outstanding at any time shall be the original cost of such Investment reduced (except in the case of (x) Investments made using the Applicable Amount pursuant to Section 10.5(v)(y) and (y) Returns which increase the Applicable Amount pursuant to clauses (a)(iii), (iv), (v) and (vii) of the definition thereof) by any Returns of the Borrower or a Restricted Subsidiary in respect of such Investment (provided that, with respect to amounts received other than in the form of cash or Permitted Investments, such amount shall be equal to the fair market value of such consideration).
“Investment Grade” in respect of any Term B Loans (or, if applicable, the Borrower’s corporate family or corporate credit rating) means a rating of: (a) Baa3 or better by ▇▇▇▇▇’▇; (b) BBB- or better by Fitch; or (c) BBB- or better from S&P (or the equivalent of such rating by such rating organization or, if no rating of ▇▇▇▇▇’▇, ▇▇▇▇▇ or S&P exists, the equivalent of such rating by any other Nationally Recognized Statistical Rating Organization selected by the Borrower as a replacement agency).
“IPO Listco” shall mean a wholly owned Subsidiary of the Borrower or any Parent Entity of the Borrower formed in contemplation of any Qualifying IPO.
“IPO Reorganization Transaction” shall mean transactions taken in connection with and reasonably related to consummating a Qualifying IPO, so long as, after giving effect thereto, the security interest of the Collateral Representative, for the benefit of the Lenders, in the Collateral, taken as a whole, is not materially impaired.
“IPOCo Transactions” shall mean the transactions in connection with the formation and capitalization of IPO Listco prior to and in connection with and reasonably related to a Qualifying IPO, including, without limitation, (1) the legal formation of IPO Listco and one or more Subsidiaries of the Permitted Holders to own interests therein, (2) the contribution, directly or indirectly, of the Stock of the Borrower and other Subsidiaries of the Borrower to IPO Listco, or the other acquisition by IPO Listco thereof, (3) the conversion of the outstanding Stock in the Borrower into a new class of Stock in the Borrower, (4) the distribution by the Borrower to the Permitted Holders of any proceeds from the 2023 Notes and cash generated from operations, (5) the issuance of Stock of IPO Listco or the Borrower to the
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public and the use of proceeds therefrom to pay transaction expenses, distribute funds as a reimbursement for capital expenditures, and other purposes approved by a Permitted Holder, (6) the execution, delivery and performance of customary documentation (and amendments to existing documentation) governing the relations between and among the Borrower, IPO Listco, the Permitted Holders and their respective Subsidiaries and (7) any other transactions and documentation reasonably related to the foregoing or necessary or appropriate in the view of the Permitted Holders or the board of directors of the Borrower or any direct or indirect Parent Entity in connection with a Qualifying IPO.
“IRS” shall mean the U.S. Internal Revenue Service.
“ISO” shall mean “independent system operator,” as further defined by FERC policies, orders and regulations.
“ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published in the International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered into by a L/C Issuer and the Borrower or any of its Subsidiaries or in favor of a L/C Issuer and relating to such Letter of Credit.
“Joint Lead Arrangers” shall mean (v) Citibank N.A., BMO Capital Markets Corp., Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, RBC Capital Markets, LLC, MUFG Bank, Ltd., Credit Suisse Loan Funding LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and Barclays Bank PLC, as joint lead arrangers and joint bookrunners for the Lenders under this Agreement and the other Credit Documents with respect to the Initial Credit Facilities made available on the Closing Date, (wv) the Amendment No. 1 Lead Arrangers (as defined in Amendment No. 1), (xw) the Amendment No. 2 Lead Arrangers (as defined in Amendment No. 2), (yx) the Amendment No. 3 Lead Arrangers (as defined in Amendment No. 3) and, (zy) the Amendment No. 4 Lead Arrangers (as defined in Amendment No. 4) and (z) the Amendment Lead Arrangers (as defined in Amendment No. 5).
“Junior Indebtedness” shall have the meaning provided in Section 10.7(a).
“Junior Lien Intercreditor Agreement” shall mean an Intercreditor Agreement among the representative of such holders of Indebtedness junior to the Obligations, the Collateral Agent, the Collateral Trustee (if applicable), the Borrower and any First Lien Secured Parties from time to time party thereto, whether on the Closing Date or at any time thereafter, substantially in the form of Exhibit M or in a form that is reasonably satisfactory in form and substance to the Borrower and the Collateral Agent.
“L/C Issuer” shall mean, with respect to any Stand-Alone Letter of Credit, each Stand-Alone L/C Issuer, and with respect to any Revolving Letter of Credit, any Revolving L/C Issuer.
“L/C Obligations” shall mean the Revolving L/C Obligations and the Stand-Alone L/C Obligations.
“Latest Maturity Date” shall mean, at any date of determination, the latest Maturity Date applicable to any Class of Loans or Commitments hereunder as of such date of determination.
“Latest Term Maturity Date” shall mean, at any date of determination, the Latest Maturity Date applicable to any Term B Loan hereunder as of such date of determination, including the latest maturity date of any Replacement Term B Loan, any Refinancing Term B Loan or any Extended Term B Loan, in each case, as extended in accordance with this Agreement from time to time.
“LCT Election” shall have the meaning provided in Section 1.11.
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“LCT Test Date” shall have the meaning provided in Section 1.11.
“Lender” shall have the meaning provided in the preamble to this Agreement.
“Lender Default” shall mean (a) the refusal or failure (which has not been cured) of a Lender to (i) make available its portion of any Borrowing or to fund its portion of any Unpaid Drawing under Section 3.4 that it is required to make hereunder, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such ▇▇▇▇▇▇’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay any other amount required to be paid by it hereunder, (b) a Lender having notified the Administrative Agent and/or the Borrower that it does not intend to comply with its funding obligations under this Agreement or has made a public statement to that effect with respect to its funding obligations under this Agreement, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such ▇▇▇▇▇▇’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (c) a Lender has failed to confirm (within one Business Day after a request for such confirmation is received by such Lender) in a manner reasonably satisfactory to the Administrative Agent, the Borrower and, in the case of a Revolving Lender, each Revolving L/C Issuer that it will comply with its funding obligations under this Agreement (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent, such Revolving L/C Issuer or the Borrower), (d) a Lender being deemed insolvent or becoming the subject of a bankruptcy or insolvency proceeding or has admitted in writing that it is insolvent; provided that a Lender Default shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Stock in the applicable Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide the applicable Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit the applicable Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with the applicable Lender, or (e) a Lender that has, or has a direct or indirect parent company that has, (i) 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 capacity or (ii) become the subject of a Bail-In Action.
“Lender Presentation” shall mean the Lender Presentation dated April 20, 2023, relating to the Credit Facilities and the Transactions.
“Letter of Credit” shall mean a Stand-Alone Letter of Credit or a Revolving Letter of Credit, as applicable.
“Letter of Credit Request” shall have the meaning provided in Section 3.2(a).
“Lien” shall mean any mortgage, pledge, security interest, hypothecation, collateral assignment, lien (statutory or other) or similar encumbrance (including any conditional sale or other title retention agreement or any lease or license in the nature thereof); provided, that, in no event shall an operating lease be deemed to be a Lien.
“Limited Condition Transaction” shall mean (i) any Permitted Acquisition or other permitted acquisition or Investment, merger, asset sale, fundamental change, designation of any Restricted Subsidiaries or Unrestricted Subsidiaries or other transaction that the Borrower or one or more of its Restricted Subsidiaries is contractually committed to consummate and whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase,
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defeasance, satisfaction and discharge or repayment of Indebtedness or restricted payment requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge, repayment or payment.
“LMBE-MC Facility” shall mean the Credit and Guaranty Agreement, dated as of December 3, 2018, entered into by and among MC Project Company LLC, a Delaware limited liability company, LMBE Project Company LLC, a Delaware limited liability company, LMBE-MC Holdco I LLC, a Delaware limited liability company, LMBE-MC Holdco II LLC, a Delaware limited liability company, the lenders from time to time party thereto, MUFG Union Bank, N.A., as the initial issuing bank, and MUFG Bank, Ltd., as administrative agent for the lender parties (as amended, restated, supplemented or otherwise modified).
“Loan” shall mean any Revolving Loan or Term B Loan made by any Lender hereunder.
“Management Investors” shall mean the officers, directors, employees and other members of the management of any parent of the Borrower, the Borrower or any of the Borrower’s respective Subsidiaries, or family members or relatives of any thereof (provided, that, solely for purposes of the definition of “Permitted Holders”, such family members or relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by the Borrower), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date Beneficially Own or have the right to acquire, directly or indirectly, Stock of the Borrower or any parent of the Borrower.
“Master Agreement” shall have the meaning provided in the definition of “Hedging Agreement”.
“Material Adverse Effect” shall mean any circumstances or conditions affecting the business, assets, operations, properties or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole (excluding any matters publicly disclosed prior to the Closing Date (i) in connection with the Case and the events and conditions related and/or leading up to the Case and the effects thereof or (ii) in any annual, quarterly or periodic report of the Borrower publicly filed prior to the Closing Date (which for the avoidance of doubt, includes the annual financials of the Borrower for the fiscal year ended December 31, 2022)), that would, in the aggregate, materially adversely affect (a) the ability of the Borrower and its Restricted Subsidiaries, taken as a whole, to perform their payment obligations under this Agreement or any of the other Credit Documents (taken as a whole) or (b) the material rights or remedies (taken as a whole) of the Administrative Agent, the Collateral Representative and the Lenders under the Credit Documents.
“Material Indebtedness” shall mean at any time any Indebtedness (other than the Obligations) of the Borrower or any Restricted Subsidiary in an outstanding principal amount exceeding the greater of (x) $315,000,000 and (y) 30% of Consolidated Adjusted EBITDA for the most recently ended Test Period at such time.
“Material Intellectual Property” shall mean any Intellectual Property that is, in the good faith determination of the Borrower, material to the operation of the business of the Borrower and its Restricted Subsidiaries, taken as a whole.
“Material Subsidiary” shall mean, at any date of determination, each Restricted Subsidiary of the Borrower (a) whose total assets (when combined with the assets of such Restricted Subsidiary’s Restricted Subsidiaries, after eliminating intercompany obligations) at the last day of the most recent Test Period for which Section 9.1 Financials have been delivered were equal to or greater than 5.0% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose total revenues (when
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combined with the revenues of such Restricted Subsidiary’s Restricted Subsidiaries, after eliminating intercompany obligations) during such Test Period were equal to or greater than 5.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case, determined in accordance with GAAP; provided, that, if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x) total assets (when combined with the assets of such Restricted Subsidiary’s Restricted Subsidiaries, after eliminating intercompany obligations) at the last day of such Test Period equal to or greater than 10.0% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (y) total revenues (when combined with the revenues of such Restricted Subsidiary’s Restricted Subsidiaries, after eliminating intercompany obligations) during such Test Period equal to or greater than 10.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case, determined in accordance with GAAP, then the Borrower shall, on the date on which the Officer’s Certificate delivered pursuant to Section 9.1(c) of this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as “Material Subsidiaries” so that such condition no longer exists. It is agreed and understood that no Receivables Entity or no Securitization Subsidiary shall be a Material Subsidiary.
“Maturity Date” shall mean the Term B Maturity Date, the Revolving Credit Maturity Date, the Stand-Alone Letter of Credit Maturity Date, any Incremental Term B Maturity Date, including the 2024-1 Incremental Term B Loan Maturity Date and the 2025-1 Incremental Term B Loan Maturity Date, any maturity date related to any Extension Series of Extended Term B Loans, any maturity date related to any Extension Series of Extended Revolving Commitments, any maturity date related to any Extension Series of Extended Stand-Alone Letter of Credit Commitments, any maturity date related to any Refinancing Term B Loan, any maturity date related to any Refinancing Revolving Loan, any maturity date related to any Refinancing Letter of Credit Commitments, any maturity date related to any Replacement Revolving Commitments, any maturity date related to any Replacement Stand-Alone Letter of Credit Commitments or any maturity date related to any Replacement Term B Loan, as applicable.
“Maximum Incremental Facilities Amount” shall mean, at any date after the Closing Date, the
sum of:
(1) the greater of (x) $1,050,000,000 and (y) an amount equal to 100% of Consolidated Adjusted EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis), plus
(2) all voluntary prepayments of the Term B Loans, Incremental Term B Loans (including the 2024-1 Incremental Term B Loans and the 2025-1 Incremental Term B Loans), Permitted Other Debt, other Indebtedness that ranks pari passu with the Obligations, permanent commitment reductions of the Revolving Commitment, Stand-Alone Letter of Credit Commitment or any other revolving or letter of credit facility that ranks pari passu with the Obligations on or prior to the incurrence or establishment of the applicable Incremental Facility (in each case, except to the extent (i) funded with proceeds of long term refinancing Indebtedness (other than revolving loans) or (ii) the prepaid Indebtedness was originally incurred under clause (3)(i), (4) or (5) below), plus
(3)    (i) the amount available under the dollar basket set forth in Section 10.1(n) at such time (it being understood that usage of such amount shall reduce availability under such basket on a dollar-for-dollar basis in an amount equal to the principal amount of such usage then outstanding) plus (ii) an amount not to exceed $800,000,000 in respect of a stand-alone letter of credit facility, provided, for the avoidance of doubt, that, the $900,000,000 aggregate principal amount of Stand-Alone L/C Commitments incurred on the Amendment No. 4 Effective Date were incurred in reliance on this clause (3)(ii) and clause (4) below and,
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effective as of the Amendment No. 4 Effective Date, capacity under this clause (3)(ii) shall be deemed permanently reduced to $0, plus
(4)    the amount available under the basket set forth in Section 10.1(i)(B) at such time (it being understood that usage of such amount shall reduce availability under such basket on a dollar-for-dollar basis in an amount equal to the principal amount of such usage then outstanding), plus
(5)    an unlimited additional amount so long as, in the case of this clause (5) only, such amount at such time could be incurred without causing:
(x)    in the case of Indebtedness secured by Liens on the Collateral that rank pari passu with the Liens securing the Credit Facilities, the Consolidated First Lien Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed the greater of (A) 2.50:1.00 and (B) the Consolidated First Lien Net Leverage Ratio (calculated on a Pro Forma Basis) immediately prior to the incurrence of such Indebtedness and use of proceeds thereof,
(y)    in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Credit Facilities, the Consolidated Secured Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed the greater of (A) 3.00:1.00 and (B) the Consolidated Secured Net Leverage Ratio (calculated on a Pro Forma Basis) immediately prior to the incurrence of such Indebtedness and use of proceeds thereof, and
(z)    in the case of unsecured Indebtedness or Indebtedness secured only by Liens on assets that do not constitute Collateral either (I) the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed the greater of (A) 3.75:1.00 and (B) the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) immediately prior to the incurrence of such Indebtedness and use of proceeds thereof or (II) the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) to be less than the lesser of (A) 2.00:1.00 or (B) the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) immediately prior to the incurrence of such Indebtedness and use of proceeds thereof,
in each case, after giving effect to any acquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the prepayment of Indebtedness in connection therewith), and assuming for purposes of this calculation that:
(i)    the full committed amount of any New Revolving Commitments then being incurred shall be treated as outstanding for such purpose,
(ii)    the full committed amount of any Incremental Letter of Credit Commitment then being incurred shall be treated as issued for such purpose; and
(iii)    cash proceeds of any such Incremental Facility or Permitted Other Debt then being incurred shall not be netted from Consolidated Total Debt Indebtedness for purposes of calculating such Consolidated First Lien Net Leverage Ratio, Consolidated Secured Net Leverage Ratio, Consolidated Total Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable;
provided, however, that if amounts incurred under this clause (5) are incurred concurrently with the incurrence of Incremental Facilities in reliance on clause (1), (2), (3) and/or (4) above or under any other fixed dollar basket set forth in this Agreement (other than the Revolving Credit Facility), the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio or the Fixed Charge Coverage Ratio shall be determined for purposes of clause (5) above without giving effect to such amounts incurred in reliance on clause (1), (2), (3) and/or (4) or such fixed
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dollar basket solely for the purpose of determining whether such concurrently incurred amounts incurred under this clause (5) are permissible.
Notwithstanding anything to the contrary herein, it is understood that (A) if the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, incurrence test is met, then, at the election of the Borrower, any Incremental Facility or Permitted Other Debt may be incurred under clause (5) above regardless of whether there is capacity under clause (1), (2), (3) and/or (4) above or such fixed dollar basket and (B) any portion of any Incremental Facility or Permitted Other Debt incurred in reliance on clause (1), (2), (3) and/or (4) or such fixed dollar basket may be reclassified, as the Borrower may elect from time to time, as incurred under clause (5) if the Borrower meets the applicable leverage under clause (5) at any time on a Pro Forma Basis.
“Maximum Tender Condition” shall have the meaning provided in Section 2.17(b).
“Minimum Borrowing Amount” shall mean (a) with respect to a Borrowing of Term SOFR Loans, $5,000,000 (or, if less, the entire remaining Commitments of any applicable Credit Facility at the time of such Borrowing) and (b) with respect to a Borrowing of ABR Loans, $1,000,000 (or, if less, the entire remaining Commitments of any applicable Credit Facility at the time of such Borrowing).
“Minimum Liquidity” shall mean, on any date, the sum of (i) the amount of Unrestricted Cash of the Borrower and its Subsidiaries as of such date, (ii) the unused availability under the Revolving Credit Facility as of such date and (iii) the amount on deposit in the Term C Collateral Account(s) (as defined in this Agreement prior to the Amendment No. 4 Effective Date) in excess of the sum of (x) the Stated Amount of all Term Letters of Credit (as defined in this Agreement prior to the Amendment No. 4 Effective Date) outstanding as of such date and (y) all Term Letter of Credit Reimbursement Obligations (as defined in this Agreement prior to the Amendment No. 4 Effective Date) as of such date.
“Minimum Tender Condition” shall have the meaning provided in Section 2.17(b).
“Minority Investment” shall mean any Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary owns Stock or Stock Equivalents, including any joint venture (regardless of form of legal entity).
“MNPI” shall mean, with respect to any Person, information and documentation that is (a) of a type that would not be publicly available (and could not be derived from publicly available information) if such Person and its Subsidiaries were public reporting companies and (b) material with respect to such Person, its Subsidiaries or the respective securities of such Person and its Subsidiaries for purposes of U.S. federal and state securities laws, in each case, assuming such laws were applicable to such Person and its Subsidiaries.
“▇▇▇▇▇’▇” shall mean ▇▇▇▇▇’▇ Investors Service, Inc. or any successor to its rating agency business.
“Mortgage” shall mean a mortgage or a deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged Property and the Collateral Representative for the benefit of the Secured Parties in respect of that Mortgaged Property, in a form to be mutually agreed with the Administrative Agent.
“Mortgaged Property” shall mean all Real Estate (i) set forth on Schedule 1.1(c) and (ii) with respect to which a Mortgage is required to be granted pursuant to Section 9.14(b).
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“Multiemployer Plan” shall mean a plan that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA (i) to which any Credit Party or any ERISA Affiliate is then making or has an obligation to make contributions or (ii) with respect to which any Credit Party or any ERISA Affiliate would reasonably be expected to incur liability pursuant to Title IV of ERISA.
“Narrative Report” shall mean, with respect to the financial statements for which such narrative report is required, a management’s discussion and analysis of the financial condition and results of operations of the Borrower and its consolidated Restricted Subsidiaries for the applicable period to which such financial statements relate. For the avoidance of doubt, the Narrative Report to be delivered with respect to such applicable period may be identical to any Narrative Report (or its functional equivalent) delivered in connection with the 2023 Notes.
“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act.
“Necessary CapEx” shall mean Capital Expenditures that are required by Applicable Law (other than Environmental Law) or otherwise undertaken voluntarily for health and safety reasons (other than as required by Environmental Law). The term “Necessary CapEx” does not include any Capital Expenditure undertaken primarily to increase the efficiency of, expand or re-power any power generation facility.
“Necessary CapEx Debt” shall mean Indebtedness of the Borrower or its Restricted Subsidiaries incurred for the purpose of financing Necessary CapEx.
“Net Cash Proceeds” shall mean, with respect to any Prepayment Event, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the Borrower or any Restricted Subsidiary in respect of such Prepayment Event, as the case may be, less (b) the sum of:
(i)    the amount, if any, of (A) all Taxes (including in connection with any repatriation of funds) paid or estimated by the Borrower in good faith to be payable by the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary and (B) all payments paid or estimated by the Borrower in good faith to be payable by the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary pursuant to the Shared Services and Tax Agreements in connection with such Prepayment Event,
(ii)    the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any Taxes deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such Prepayment Event and (y) retained by the Borrower or any Restricted Subsidiary (including any pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction); provided, that, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such Prepayment Event occurring on the date of such reduction,
(iii)    the amount of any Indebtedness (other than Indebtedness hereunder and any other Indebtedness secured by a Lien that ranks pari passu with or is subordinated to the Liens securing the Obligations) secured by a Lien on the assets that are the subject of such Prepayment Event, to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event,
(iv)    in the case of any Asset Sale Prepayment Event or Recovery Prepayment Event, the amount of any proceeds of such Prepayment Event that the Borrower or any Restricted
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Subsidiary has reinvested (with any expenditures made up to 180 days prior to the date of receipt of Net Cash Proceeds deemed to have been reinvested within the Reinvestment Period at the option of the Borrower) (or intends to reinvest within the Reinvestment Period, has entered into an Acceptable Reinvestment Commitment on or prior to the last day of the Reinvestment Period to reinvest or, with respect to any Recovery Prepayment Event, provided an Acceptable Reinvestment Commitment or a Restoration Certification on or prior to the last day of the Reinvestment Period) in the business of the Borrower or any Restricted Subsidiary (subject to Section 9.16), including for the repair, restoration or replacement of an asset or assets subject to such Prepayment Event; provided, that, any portion of such proceeds that has not been so reinvested within such Reinvestment Period (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds”) shall, unless the Borrower or any Restricted Subsidiary has entered into an Acceptable Reinvestment Commitment or provided a Restoration Certification on or prior to the last day of such Reinvestment Period to reinvest such proceeds, (x) be deemed to be Net Cash Proceeds of such Prepayment Event occurring on the last day of such Reinvestment Period or, if later, 180 days after the date the Borrower or such Restricted Subsidiary has entered into such Acceptable Reinvestment Commitment or provided such Restoration Certification, as applicable (such last day or 180th day, as applicable, the “Deferred Net Cash Proceeds Payment Date”), and (y) be applied to the repayment of Term B Loans in accordance with Section 5.2(a)(i),
(v)    in the case of any Asset Sale Prepayment Event, any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction solely to the extent that the Borrower and/or any Restricted Subsidiaries receives cash in an amount equal to the amount of such reduction,
(vi)    in the case of any Asset Sale Prepayment Event or Recovery Prepayment Event by a non-Wholly Owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (vi)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a Wholly Owned Restricted Subsidiary as a result thereof, and
(vii)    reasonable and customary fees, commissions, expenses (including attorney’s fees, investment banking fees, survey costs, title insurance premiums and recording charges, transfer Taxes, deed or mortgage recording Taxes and other customary expenses and brokerage, consultant and other customary fees), issuance costs, premiums, discounts and other costs paid by the Borrower or any Restricted Subsidiary, as applicable, in connection with such Prepayment Event, in each case, only to the extent not already deducted in arriving at the amount referred to in clause (a) above.
“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 Disposition 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
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(b)    any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss.
“Netting Agreement” shall mean a netting agreement, master netting agreement or other similar document having the same effect as a netting agreement or master netting agreement and, as applicable, any collateral annex, security agreement or other similar document related to any master netting agreement or Permitted Contract.
“New Contracts” shall have the meaning provided in clause (18) of the definition of “Consolidated Adjusted EBITDA”.
“New Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness permitted to be issued or incurred under Section 10.1(y)(i), and any Refinancing Loans, any Replacement Term B Loans and any loans under any Replacement Facility.
“New Refinancing Lender” shall mean any Person (other than a natural Person) that is not an existing Lender and that has agreed to provide Refinancing Commitments pursuant to Section 2.15(b).
“New Refinancing Letter of Credit Commitments” shall have the meaning provided in Section 2.15(b)(i).
“New    Refinancing    Revolving    Commitments” shall    have the meaning    provided    in Section 2.15(b).
“New Refinancing Term B Commitment” shall have the meaning provided in Section 2.15(b)(i).
“New Revolving Commitments” shall have the meaning provided in Section 2.14(a).
“New Revolving Lender” shall have the meaning provided in Section 2.14(b).
“New Revolving Loan” shall have the meaning provided in Section 2.14(b).
“Non-Consenting Lender” shall have the meaning provided in Section 13.7(b).
“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.
“Non-Extension Notice Date” shall have the meaning provided in Section 3.2(b).
“Non-Recourse Debt” shall mean any Indebtedness incurred by any Non-Recourse Subsidiary to finance the acquisition, improvement, installation, design, engineering, construction, development, completion, maintenance or operation of, or otherwise to pay costs and expenses relating to or provide financing for a project, which Indebtedness does not provide for recourse against the Borrower or any Restricted Subsidiary of the Borrower (excluding, for the avoidance of doubt, a Non-Recourse Subsidiary and such recourse as exists under a Performance Guaranty) or any property or asset of the Borrower or any Restricted Subsidiary of the Borrower (other than the Stock in, or the property or assets of, a Non-Recourse Subsidiary); 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 Non-Recourse Subsidiary to the extent that 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 Restricted Subsidiary to make capital contributions to a Non-Recourse Subsidiary; (iii) any credit support or liability consisting of reimbursement obligations in respect of letters of credit issued hereunder to support obligations of a Non-Recourse Subsidiary, (iv) agreements of the Borrower or any Restricted Subsidiary to provide, or guarantees or other credit support (including letters of credit) by the Borrower or any Restricted
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Subsidiary of any agreement of another Restricted Subsidiary to provide, corporate, management, marketing, administrative, technical, energy management or marketing, engineering, procurement, construction, operation and/or maintenance services to such Non-Recourse 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 Restricted Subsidiary with or otherwise involving any other Non-Recourse Subsidiary, including any guarantees or other credit support (including letters of credit) in connection therewith, (vi) any Investments in a Non-Recourse Subsidiary and, for the avoidance of doubt, pledges by the Borrower or any Restricted Subsidiary of the equity interests of any Non-Recourse Subsidiary that are directly owned by the Borrower or any Restricted Subsidiary in favor of the agent or lenders in respect of such Non-Recourse Subsidiary’s Non-Recourse Debt and (vii) any Performance Guarantees related to clauses (i) through (vi).
“Non-Recourse Subsidiary” shall mean (i) any Restricted Subsidiary of the Borrower whose principal purpose is to incur Non-Recourse Debt and/or construct, lease, own or operate the assets financed thereby, or to become a direct or indirect partner, member or other equity participant or owner in a Person created for such purpose, and substantially all the assets of which Subsidiary and such Person are limited to (x) those assets being financed (or to be financed), or the operation of which is being financed (or to be financed), in whole or in part by Non-Recourse Debt, or (y) Stock in, or Indebtedness or other obligations of, one or more other such Subsidiaries or Persons, or (z) Indebtedness or other obligations of the Borrower or its Subsidiaries or other Persons and (ii) any Restricted Subsidiary of a Non-Recourse Subsidiary.
“Non-U.S. Lender” shall mean any Agent or Lender that is not a U.S. Person.
“Notice of Borrowing” shall mean a request of the Borrower in accordance with the terms of Section 2.3 and substantially in the form of Exhibit A or such other form as shall be approved by the Administrative Agent (acting reasonably).
“Notice of Conversion or Continuation” shall have the meaning provided in Section 2.6(a).
“NYFRB” shall mean the Federal Reserve Bank of New York.
“Obligations” shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party or Restricted Subsidiary arising under any Credit Document or otherwise with respect to any Loan or Letter of Credit or under any Secured CA Cash Management Agreement or Secured CA Hedging Agreement, in each case, entered into with the Borrower or any Restricted Subsidiary, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, in each case, other than (x) Excluded Swap Obligations, (y) Permitted Other Debt Obligations secured pursuant to the Security Documents and (z) First Lien Obligations (as defined in the Collateral Trust Agreement) other than Credit Agreement Obligations (as defined in the Collateral Trust Agreement). Without limiting the generality of the foregoing, the Obligations of the Credit Parties under the Credit Documents (and any of their Restricted Subsidiaries to the extent they have obligations under the Credit Documents) (i) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any Credit Party under any Credit Document and (ii) exclude, notwithstanding any term or condition in this Agreement or any other Credit Documents, any Excluded Swap Obligations, Permitted Other Debt Obligations secured pursuant to the
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Security Documents and First Lien Obligations (as defined in the Collateral Trust Agreement) other than Credit Agreement Obligations (as defined in the Collateral Trust Agreement).
“Officer’s Certificate” shall mean a certificate signed on behalf of the Borrower by an Authorized Officer of the Borrower.
“Operations Failure” shall have the meaning provided in the definition of “EBITDA Lost as a Result of a Unit Outage”.
“Organizational Documents” shall mean, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” shall mean, with respect to any recipient of any payment to be made by or on account of any obligation of any Credit Party under any Credit Document, Taxes imposed as a result of any current or former connection between such recipient and the jurisdiction imposing such Tax (other than any such connection arising from such recipient having executed, delivered or performed its obligations or received a payment under, received or perfected a security interest under, or having been a party to or having engaged in any other transaction pursuant to or enforced, this Agreement or any other Credit Document, or sold or assigned an interest in any Loan or Credit Document).
“Other Taxes” shall mean any and all present or future stamp, registration, court, documentary or any other excise, property or similar Taxes (including interest, fines, penalties, additions to such Taxes) arising from any payment made or required to be made under this Agreement or any other Credit Document or from the execution or delivery of, registration or enforcement of, from the receipt or perfection of a security interest under, consummation or administration of, or otherwise with respect to, this Agreement or any other 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 13.7).
“Overnight Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
“Parent” shall mean Talen Energy Corporation, a Delaware corporation.
“Parent Entity” shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a partnership) of the Borrower.
“Participant” shall have the meaning provided in Section 13.6(c)(i).
“Participant Register” shall have the meaning provided in Section 13.6(c)(iii).
“Participating Receivables Grantor” shall mean the Borrower or any Restricted Subsidiary that is or that becomes a participant or originator in a Permitted Receivables Financing.
“Patriot Act” shall have the meaning provided in Section 13.8.
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“Payment Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default under Section 11.1.
“Payment Recipient” shall have the meaning assigned to it in Section 12.14(a).
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Perfection Certificate” shall mean a certificate of the Borrower substantially in the form of Exhibit D or any other form approved by the Administrative Agent.
“Performance Guaranty” shall mean any guaranty issued in connection with any Non-Recourse Debt that (i) if secured, is secured only by assets of, or Stock in, an Excluded Project Subsidiary, and (ii) guarantees to the provider of such Non-Recourse Debt or any other Person the (a) performance of the improvement, installation, design, engineering, construction, acquisition, development, completion, maintenance or operation of, or otherwise affects any such act in respect of, all or any portion of the project that is financed by such Non-Recourse Debt, (b) completion of the minimum agreed equity contributions to the relevant Excluded Project Subsidiary, or (c) performance by an Excluded Project Subsidiary of obligations to Persons other than the provider of such Non-Recourse Debt.
“Permitted Acquisition” shall mean the acquisition, by merger or otherwise, by the Borrower or any Restricted Subsidiary of assets (including assets constituting a business unit, line of business or division) or Stock or Stock Equivalents, so long as (a) if such acquisition involves any Stock or Stock Equivalents, such acquisition shall result in the issuer of such Stock or Stock Equivalents and its Subsidiaries becoming a Restricted Subsidiary and, to the extent required by Section 9.11, a Subsidiary Guarantor, or designated as an Unrestricted Subsidiary pursuant to the terms hereof, (b) such acquisition shall result in the Collateral Representative, for the benefit of the applicable Secured Bank Parties, being granted a security interest in any Stock, Stock Equivalent or any assets so acquired, to the extent required by Sections 9.11, 9.12 and/or 9.14, and (c) after giving effect to such acquisition, the Borrower and the Restricted Subsidiaries shall be in compliance with Section 9.16.
“Permitted Contract” shall have the meaning provided in Section 10.2(bb).
“Permitted Debt Exchange” shall have the meaning provided in Section 2.17(a).
“Permitted Debt Exchange Notes” shall have the meaning provided in Section 2.17(a).
“Permitted Debt Exchange Offer” shall have the meaning provided in Section 2.17(a).
“Permitted Holders” shall mean (a) any of the Management Investors, (b) each participant holding at least 5% of the Stock of the Borrower (or a Parent Entity) as of the Closing Date after giving effect to the Equity Rights Offering (and their respective Affiliates and any funds, partnerships or other co-investment and continuation vehicles managed, advised or controlled by the foregoing or their respective Affiliates); provided that this clause (b) shall not include any investor that had a controlling equity interest in the Company as of May 9, 2022, (c) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, the persons set forth in clauses (a) and (b), collectively, have Beneficial Ownership of more than 50% of the total voting power of the Voting Stock of the Borrower or any other Parent Entity, (d) any Parent Entity, for so long as more than 50% of the total voting power of the Voting Stock of such Parent Entity is Beneficially Owned, directly or indirectly, by one or more of the Persons described in the foregoing clauses (a) through (c), (e) any entity (other than a Parent Entity) through which a Parent Entity described in clause (d) directly or indirectly holds Stock of the Borrower and has no other material
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operations other than those incidental thereto, (f) any Person acting in the capacity of an underwriter (solely to the extent that and for so long as such Person is acting in such capacity) in connection with a public or private offering of Stock of the Borrower (or any Parent Entity), and (g) any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) whose acquisition of Beneficial Ownership or assets or properties of the Borrower constitutes a Change of Control that is not an Event of Default under Section 11.11, together with its Affiliates.
“Permitted Investments” shall mean:
(a)    securities issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof, in each case having maturities and/or reset dates of not more than 24 months from the date of acquisition thereof;
(b)    securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then from another nationally recognized rating service);
(c)    commercial paper or variable or fixed rate notes maturing no more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-3 or P-3 from either S&P or ▇▇▇▇▇’▇ (or, if at any time neither S&P nor ▇▇▇▇▇’▇ shall be rating such obligations, an equivalent rating from another nationally recognized rating service);
(d)    time deposits with, or domestic and eurodollar certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by, the Administrative Agent (or any Affiliate thereof), any Lender or any other bank having combined capital and surplus of not less than $500,000,000 in the case, of domestic banks and $100,000,000 (or the dollar equivalent thereof) in the case of foreign banks;
(e)    repurchase agreements with a term of not more than 90 days for underlying securities of the type described in clauses (a), (b) and (d) above entered into with any bank meeting the qualifications specified in clause (d) above or securities dealers of recognized national standing;
(f)    marketable short-term money market and similar funds (x) either having assets in excess of $500,000,000 or (y) having a rating of at least A-3 or P-3 from either S&P or ▇▇▇▇▇’▇ (or, if at any time neither S&P nor ▇▇▇▇▇’▇ shall be rating such obligations, an equivalent rating from another nationally recognized rating service);
(g)    shares of investment companies that are registered under the Investment Company Act of 1940 and substantially all the investments of which are one or more of the types of securities described in clauses (a) through (f) above;
(h)    any Secured Hedging Agreement (including any netting, set-off or netting rights thereunder); and
(i)    in the case of Investments by any Restricted Foreign Subsidiary or Investments made in a country outside the United States of America, other customarily utilized high-quality Investments in the country where such Restricted Foreign Subsidiary is located or in which such Investment is made.
“Permitted Liens” shall mean:
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(a)    Liens for Taxes, assessments or governmental charges or claims not yet delinquent or that are being contested in good faith and by appropriate proceedings for which appropriate reserves have been established to the extent required by and in accordance with GAAP or that are not required to be paid pursuant to Section 9.4;
(b)    Liens in respect of property or assets of the Borrower or any Restricted Subsidiary of the Borrower imposed by Applicable Law, such as carriers’, landlords’, construction contractors’, warehousemen’s and mechanics’ Liens and other similar Liens, arising in the ordinary course of business or in connection with the construction or restoration of facilities for the generation, transmission or distribution of electricity, in each case so long as such Liens arise in the ordinary course of business and do not individually or in the aggregate have a Material Adverse Effect;
(c)    Liens arising from judgments or decrees in

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Filed: November 25th, 2025