TERM LOAN CREDIT AGREEMENT AMENDMENT NO. 3

 

“IRS” means the United States Internal Revenue Service.

 

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

 

“Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

 

“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

 

“LIBOR” has the meaning set forth in the definition of “Benchmark Replacement Date”.

 

“Lien” means any mortgage, pledge, hypothecation, assignment, mandatory deposit arrangement, encumbrance, lien (statutory or other) or other security interest, any conditional sale or other title retention agreement, or any financing lease having substantially the same effect as any of the foregoing, and the filing of any financing statement or similar instrument under the UCC or comparable Governmental Rule.

 

“Loan Obligations” means, as at any date, the sum, computed without duplication, of (a) the aggregate outstanding principal amount of the Loans plus all accrued interest (whether arising or incurred before or after any bankruptcy of the Borrower) and fees on such amount or commitments relating thereto or with respect to the Facility, plus (b) any amounts (including, without limitation, insurance, insurance premiums, licensing fees, recording and filing fees, and Taxes) the Administrative Agent or the Lenders expend on behalf of the Borrower in accordance with the Financing Documents because the Borrower fails to make any such payment when required under the terms of any Financing Document, plus (c) all amounts required to be paid by the Borrower to the Lenders and the Administrative Agent under an indemnification, cost reimbursement or similar provision.

 

“Loans” means the term loans made by the Lenders to the Borrower pursuant to this Agreement. Each Loan shall be either a Base Rate Loan or a Eurodollar Loan.

 

“Macquarie” means, collectively, Macquarie Infrastructure Partners Inc. and its Affiliates, and funds, separate managed accounts or similar investment vehicles managed by it or its Affiliates.

 

“Manager” means, with respect to any Fund, any general partner, trustee, responsible entity, nominee, manager, or other entity performing a similar function with respect to such Fund.

 

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Cleco Corporate Holdings LLC 2016 Term Loan Credit Agreement

 

 

“Mandated Lead Arrangers” means, collectively, (i) each of Mizuho Bank, Ltd., Canadian Imperial Bank of Commerce, New York Branch, JPMorgan Chase Bank, N.A., Regions Capital Markets, a division of Regions Bank, Sumitomo Mitsui Banking Corporation, and The Bank of Nova Scotia and ▇▇▇▇▇ Fargo Bank, N.A., each in its capacity as joint lead arranger and joint bookrunner and (ii) each of the Amendment No. 3 Mandated Lead Arrangers.

 

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations or financial condition of the Borrower and its Subsidiaries, taken as a whole, (b) the validity or enforceability of the Financing Documents, (c) the ability of the Borrower to perform any of its obligations under the Financing Documents, or (d) the rights or remedies of the Administrative Agent or any Lender under the Financing Documents.

 

“Material Debt Financing Document” means any credit agreement, purchase agreement, indenture, note or similar contract or instrument providing for, or evidencing, the issuance or incurrence of any Indebtedness for borrowed money in an aggregate principal amount of at least

$50,000,000.

 

“Material Subsidiary” means any Subsidiary of the Borrower, other than Immaterial Subsidiaries.

 

“Maturity Date” means June 28, 20212022.

 

“Merger Agreement” means that certain Agreement and Plan of Merger, by and among Cleco MergerSub Inc., a Louisiana corporation (“MergerSub”), Cleco Partners L.P. (f/k/a Como 1 L.P.) and Cleco Corp., whereby MergerSub merged with and into Cleco Corp. on April 13, 2016, with Cleco Corp. as the surviving corporation.

 

“Maximum Rate” has the meaning set forth in Section 9.14.

 

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc. or its successors.

 

“Multiemployer ERISA Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

 

“Non-Consenting Lender” has the meaning set forth in Section 9.02(d).

 

“Net Cash Insurance Proceeds” means, with respect to any Casualty Event of any Borrower Group Member, the gross cash proceeds of casualty insurance and casualty awards actually received by such Borrower Group Member in respect thereof; provided, that, Net Cash Insurance Proceeds shall be net of: (a) the amount of any legal, advisory, title, transfer and recording tax expenses, commissions and other fees and expenses paid by the Borrower or the

 

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applicable Subsidiary in connection with such Casualty Event, (b) any federal, state and local income or other taxes estimated to be payable as a result of such Casualty Event (but only to the extent that such estimated taxes are in fact paid to the relevant federal, state or local Governmental Authority; provided that at the time such taxes are paid, an amount equal to the amount, if any, by which such estimated taxes exceed the amount of taxes actually paid shall constitute “Net Cash Insurance Proceeds” for all purposes hereunder), (c) any repayments made or to be made by the Borrower or the applicable Subsidiary of Indebtedness to the extent that the terms of such other Indebtedness require that such Indebtedness to be repaid, (d) any reserve for adjustment in respect of any liabilities (other than taxes deducted pursuant to clause (b) above) associated with such Casualty Event retained by any Borrower Group Member after such Casualty Event, including related to environmental matters or with respect to any indemnification obligations associated with such Casualty Event, and it being understood that “Net Cash Insurance Proceeds” shall include the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in this clause (d), and (e) if the applicable cash payments are in the first instance received by a Subsidiary that is not a wholly-owned Subsidiary, the related Net Cash Insurance Proceeds shall be net of the proportionate share of the common Equity Interests of such Subsidiary (and of any intermediate Subsidiary) owned by Persons that are not wholly-owned Subsidiaries of the Borrower.

 

“Net Cash Proceeds” means with respect to any Disposition by any Borrower Group Member or any issuance of Indebtedness by any Borrower Group Member, the gross proceeds of all cash actually received by such Borrower Group Member in connection with such Disposition or issuance; provided that (a) Net Cash Proceeds shall be net of: (i) the amount of any legal, advisory, title, transfer and recording tax expenses, commissions and other fees and expenses paid by the Borrower or the applicable Subsidiary in connection with such transaction and (ii) any federal, state and local income or other taxes estimated to be payable as a result of such transaction (but only to the extent that such estimated taxes are in fact paid to the relevant federal, state or local Governmental Authority; provided that at the time such taxes are paid, an amount equal to the amount, if any, by which such estimated taxes exceed the amount of taxes actually paid shall constitute “Net Cash Proceeds” for all purposes hereunder), (b) with respect to any Disposition, Net Cash Proceeds shall be net of any repayments made or to be made by the relevant Borrower Group Member of Indebtedness to the extent that the terms of such other Indebtedness require that such Indebtedness be repaid, (c) for all Dispositions, Net Cash Proceeds shall be net of any earn out, indemnity or other similar obligations owed by the relevant Borrower Group Member in connection with the acquisition thereof, (d) Net Cash Proceeds shall be net of any reserve for adjustment in respect of (i) the sale price of such asset or assets established in accordance with GAAP and (ii) any liabilities (other than taxes deducted pursuant to clause (a)(ii) above) associated with such asset or assets and retained by any Borrower Group Member after such sale or other disposition thereof, including pension and other postemployment benefit liabilities and liabilities related to environmental matters or with respect to any indemnification obligations associated with such transaction, and it being understood that “Net Cash Proceeds” shall include (A) any cash or Cash Equivalents received upon the Disposition of any non-cash consideration by any Borrower Group Member in any such Disposition and (B) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in this clause (d), and (e) if the applicable cash payments are in the first instance received by a Subsidiary that is not a wholly- owned Subsidiary, the related Net Cash Proceeds shall be net of the proportionate share of the

 

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common Equity Interests of such Subsidiary (and of any intermediate Subsidiary) owned by Persons that are not wholly-owned Subsidiaries of the Borrower.

 

“Non-U.S. Recipient” means a Recipient that is not a U.S. Person.

 

“Note” means a promissory note in the form of Exhibit F.

 

“Offer DateOFAC” has the meaning set forth in Section 2.09(f)the definition of “Anti- Terrorism Law”.

 

“Offer Notice” has the meaning set forth in Section 2.09(f).

 

“Offer Procedures” has the meaning set forth in Section 2.09(f).

 

“Offer Proceeds” means the Casualty Event Offer Amount, the Remaining Portion, the Disposition Offer Proceeds or the Available Disposition Offer Proceeds, as the context may require.

 

“OpCo” means Cleco Power LLC, a Louisiana limited liability company.

 

“OpCoOther Borrower Credit Agreement” means each of (a) the Credit Agreement, dated as of April 13, 2016, by and among OpCo (as assignee of Cleco MergerSub Inc.),the Borrower as borrower, the lenders party thereto from time to time and Mizuho Bank, Ltd., as administrative agent, and(b) the Term Loan Agreement dated as of February 1, 2019, among the Borrower as borrower, the lenders party thereto from time to time party thereto.and Mizuho Bank, Ltd., as administrative agent and (c) the Uncommitted Letter of Credit Agreement dated as of October 5, 2018 between the Borrower and The Bank of Nova Scotia, each as amended, amended and restated, waived or otherwise modified from time to time.

 

“OpCoOther Borrower Financing Documents” means the “Financing Documents” as defined in the OpCoeach Other Borrower Credit Agreement (or similar term in any refinancing, replacement, refunding, renewal or extension thereof).

 

“OpCo Loan Facility” means the “Revolving Credit Facility” as defined in the OpCo Credit Agreement and any refinancing, replacement, refunding, renewal or extension thereof.

 

“OpCo Mortgage” means the indenture of mortgage, dated as of July 1, 1950, made by OpCo to Bank One Trust Company, NA, as Trustee thereunder, as amended, supplemented, amended and restated, refinanced or replaced from time to time.

 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient negotiating, executing, delivering or performing its obligations or receiving a payment under, or enforcing, this Agreement or any other Financing Document or receiving or perfecting a security interest under any Financing Document).

 

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“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing, or any other excise or property Taxes, charges, levies or similar Taxes arising from any payment made under any Financing Document or any related credit document from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Financing Document or from the receipt or perfection of a security interest under, or otherwise with respect to any Financing Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than as assignment made pursuant to Section 2.17).

 

“Pari Passu Intercreditor Agreement” means that certain Collateral Agency and Intercreditor Agreement dated as of April 13, 2016, by and among the Borrower, the Collateral Agent, Mizuho Bank, Ltd., as administrative agent under the HoldCo Acquisition/Revolver Credit Agreement, and the other agents, trustees or other Persons from time to time party thereto, including, as of the Effective Date, the Administrative Agent.

 

“Participant” has the meaning set forth in Section 9.04(c).

 

“Participant Register” has the meaning set forth in Section 9.04(c).

 

“PBGC” means the Pension Benefit Guaranty Corporation, or any entity succeeding to any or all of its functions, established pursuant to Subtitle A of Title IV at ERISA.

 

“Permitted Acquisition” means any acquisition (whether by purchase, merger, consolidation or otherwise) or series of related acquisitions by the Borrower or any Subsidiary of the Borrower of (a) all or substantially all the assets of, or (b) all or substantially all the Equity Interests in, a Person or division or line of business of a Person, if:

 

(a)        at the time of signing the definitive acquisition agreement with respect thereto and immediately after giving effect thereto, no Default or Event of Default has occurred and is continuing or would arise after giving effect thereto,

 

(b)        such Person or division or line of business is engaged in the same or a similar line of business as the Borrower or business reasonably related, ancillary or synergistic thereto (including but not limited to other regulated utility businesses),

 

(c)        at the time of signing the definitive acquisition agreement, the Borrower is in compliance on a Pro Forma Basis with the financial covenant in Section 5.12(a) as of the most recently ended Test Period, determined as if such acquisition (and any related incurrence or repayment of Indebtedness, with any new Indebtedness being deemed to be amortized over the applicable testing period in accordance with its terms) had occurred on the first day of such relevant Test Period, and

 

(d)       in the case of an acquisition or merger involving the Borrower, the Borrower is the surviving entity of such acquisition or merger.

 

“Permitted Contest Conditions” means a contest, pursued in good faith, challenging the enforceability, validity, interpretation, amount or application of any Governmental Rule, any Taxes, assessment, fee, government charge or levy or any Lien or other claim or payment of any

 

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nature, or judgment or other matter (legal, contractual or other) by appropriate proceedings timely instituted if (a) the Borrower or the applicable Subsidiary diligently pursues such contest, (b) the Borrower or the applicable Subsidiary establishes adequate reserves with respect to the contested claim to the extent required by GAAP and (c) such contest would not reasonably be expected to result in a breach of Section 6.04 Section 6.06 or an Event of Default under clause (i) in Article VII or any criminal or unindemnified civil liability (in the case of any such civil liability, otherwise required to be indemnified by the Borrower under the Financing Documents), being incurred by the Administrative Agent or any of the Lenders.

 

“Permitted DebtLiens” has the meaning set forth in Section 6.03Section 6.06.

 

“Permitted Investments” has the meaning set forth in Section 6.05.

 

“Permitted Liens” means:

 

(a)         Liens that secure any Permitted Debt (including such Indebtedness permitted pursuant to Section 6.03(q) and Refinancing Senior Debt) so long as the Loan Obligations are secured on a pari passu basis;

 

(b)        Liens that secure any Permitted Debt of OpCo or any other Subsidiary of Borrower so long as (a) the Loan Obligations (as such term is defined in the OpCo Credit Agreement or any similar term in any refinancing, replacement, refunding, renewal or extension thereof) are secured on a pari passu basis or (b) such Liens are otherwise permitted under the OpCo Financing Documents or any refinancing, replacement, refunding, renewal or extension thereof, in each case, at the time of incurrence thereof;

 

(c)        Liens, deposits or pledges incurred or created by any Borrower Group Member in the ordinary course of business or under applicable Governmental Rules in connection with or to secure the performance of bids, tenders, contracts, leases, statutory obligations, surety bonds or appeal bonds;

 

(d)        mechanics’, materialmen’s, workers’, repairmens’, employees’, warehousemen’s, carriers’ or other like Liens arising in the ordinary course of business or under Governmental Rules securing obligations which are not yet due, or which are adequately bonded and which are being contested pursuant to the Permitted Contest Conditions;

 

(e)        Liens for Taxes, assessments or governmental charges, which are not yet due or which are being contested pursuant to the Permitted Contest Conditions;

 

(f)        Liens arising out of judgments or awards fully covered by insurance or with respect to which an appeal or proceeding for review is being prosecuted pursuant to the Permitted Contest Conditions;

 

(g)        easements, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and minor title defects affecting real property of any Borrower Group Member which, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of any Borrower Group Member;

 

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(h)       Liens arising in the ordinary course of business from netting services, overdraft protection, banking services obligations and otherwise in connection with deposit, securities and commodities accounts;

 

(i)         Liens securing judgments that do not constitute an Event of Default under clause (i) of Article VII;

 

(j)         Liens for purchase money security interests or Capital Lease obligations which are secured solely by the assets acquired securing Indebtedness permitted under Section 6.03(d);

 

(l)        Liens that have been placed by a third party on the fee title of leased real property or property over which any Borrower Group Member has easement rights, and subordination or similar agreements relating thereto;

 

(m)       Liens created or incurred by OpCo and its subsidiaries or by the Purchaser or its subsidiaries, in each case, securing obligations arising under natural gas purchase agreements, natural gas transportation and storage agreements, and Hedging Arrangements permitted under Section 6.12;

 

(n)       Liens securing other obligations in an aggregate amount not exceeding $100,000,000 at any time outstanding;

 

(o)       Liens created or incurred by OpCo and its subsidiaries securing any Permitted Receivables Financing;

 

(p)       Liens on the assets of OpCo and its Subsidiaries under the OpCo Financing Documents to secure the Liens under the OpCo Financing Documents;

 

(q)        Liens on (i) Permitted Refinancing Indebtedness permitted under the definition thereof, and (ii) Permitted Refinancing Indebtedness (as defined in the OpCo Credit Agreement) permitted under the OpCo Financing Documents;

 

(r)        the Collateral securing the Loan Obligations;

 

(s)        Liens on any cash collateral for letters of credit issued or permitted under the HoldCo Acquisition/Revolver Credit Agreement;

 

(t)        Liens created or incurred by the Borrower Group Members in favor of Governmental Authorities encumbering assets acquired in connection with a government grant program, and the right reserved to, or vested in, any Governmental Authority by the terms of any right, power, franchise, grant, license, or permit, or by any provision of law, to purchase, condemn, recapture or designate a purchaser of any property;

 

 

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Cleco Corporate Holdings LLC 2016 Term Loan Credit Agreement

 

 

(u)         agreements for an obligation (other than repayment of borrowed money) relating to the joint or common ownership, operation, and use of property, including Liens under joint venture or similar agreements securing obligations incurred in the conduct of operations or consisting of a purchase option, call or right of first refusal with respect to the Equity Interests in such jointly owned Person or assets;

 

(v)         Liens on any Acquired Assets in existence on or prior to the Effective Date;

 

(w)         any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any of its Subsidiaries, or existing on any property of any Person that becomes a Subsidiary after the Effective Date prior to the time such Person becomes a Subsidiary or that is merged with or into or consolidated with the Borrower or any Subsidiary prior to such merger or consolidation, provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary or such merger, as the case may be, (ii) such Lien shall not apply to any other property or asset of the Borrower or any of the Subsidiaries, and (iii) such Lien shall secure only those obligations and liabilities that it secures on the date of such acquisition or the date such Person becomes a Subsidiary of the Borrower or such merger, as the case may be, and any extensions, renewals, refinancings and replacements thereof that do not increase the outstanding amount thereof;

 

(y)       Liens on any Equity Interest owned or otherwise held by or on behalf of the Borrower or any Subsidiary in any Person created in connection with any project financing;

 

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(z)         Liens on assets of OpCo securing the payment of Indebtedness of OpCo to a state of the United States or any political subdivision thereof issued in a transaction in which such state or political subdivision issued industrial revenue bonds or other obligations, the interest on which is excludable from gross income by the holders thereof pursuant to the provisions of the Code, as in effect at the time of the issuance of such obligations, and Indebtedness to the issuer of a letter of credit, bond insurance or guaranty to support any such obligations to the extent OpCo is required to reimburse such issuer for drawings under such letter of credit, bond insurance or guaranty with respect to the principal of or interest on such obligations, including Liens arising pursuant to a pledge of OpCo’s mortgage bonds issued under the OpCo Mortgage; provided that such pledged bonds shall not exceed an aggregate principal amount of $125,000,000 at any time;

 

(aa)      Liens created for the sole purpose of extending, renewing or replacing in whole or in part Indebtedness secured by any lien, mortgage or security interest referred to in this definition of “Permitted Liens”; provided, however, that the principal amount of Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement and that such extension, renewal or replacement, as the case may be, shall be limited to all or a part of the property or Indebtedness that secured the lien or mortgage so extended, renewed or replaced (and any improvements on such property);

 

(bb)      Liens created by any Finsub for any Securitization Financing pursuant to any order of the applicable regulatory Governmental Authority (such as the Louisiana Public Service Commission) which allows for a securitization financing by the OpCo and/or a Finsub authorized by a Securitization Statute (any such order, a “Securitization Financing Order”);

 

(cc)      Liens on cash or invested funds used to make a defeasance, covenant defeasance or in substance defeasance of any Debt pursuant to an express contractual provision in the agreements governing such Debt or GAAP, provided that immediately before and immediately after giving effect to the making of such defeasance, no Default or Event of Default shall exist;

 

(dd)       Liens created to secure Debt of any subsidiary of Opco to OpCo or to any of OpCo’s other subsidiaries and Liens created to secure Debt of any subsidiary of the Purchaser to the Purchaser or to any of the Purchaser’s other subsidiaries;

 

(ee)       the Lien evidenced by the OpCo Mortgage as renewed or replaced from time to time; provided, however, that such Lien shall not extend to or over any property of a character not subject on the Effective Date to the Lien granted under the OpCo Mortgage; or

 

(ff)       “permitted liens” as defined under Section 1.04 of the OpCo Mortgage, as in effect on the Effective Date, other than “funded liens” described in clause (ix) of said Section 1.04, and other Liens not otherwise prohibited by Section 5.05 of the OpCo Mortgage, as in effect on the Effective Date, and in the event the OpCo Mortgage is terminated, Liens of the same type and nature as the foregoing Liens referred to in this clause (ff), provided, that the amounts secured by such other Liens shall not exceed the amounts that may be secured by such foregoing Liens as of the last day on which the OpCo Mortgage was in effect.

 

 

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“Permitted Receivables Facility Assets” means (a) receivables (whether now existing or arising in the future) of OpCoPower and its subsidiaries which are transferred or pledged to a Receivables Entity pursuant to a Permitted Receivables Financing and any related Permitted Receivables Related Assets which are also so transferred or pledged to such Receivables Entity and all proceeds thereof and (b) loans to the Borrower and its Subsidiaries secured by receivables (whether now existing or arising in the future) and any Permitted Receivables Related Assets of OpCoPower and its Subsidiariessubsidiaries which are made pursuant to a Permitted Receivables Financing.

 

“Permitted Receivables Financing” means any receivables facility providing for the sale or pledge by OpCoPower and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby providing financing to the Borrower and such Receivables Sellers) to a Receivables Entity (either directly or through another Receivables Seller), which in turn shall sell or pledge interests in the respective Permitted Receivables Facility Assets to third-party investors (with the Receivables Entity permitted to issue investor certificates, purchased interest certificates or other similar documentation evidencing interests in the Permitted Receivables Facility Assets) in return for the cash used by the Receivables Entity to purchase the Permitted Receivables Facility Assets from OpCoPower and/or the respective Receivables Sellers., in an aggregate for all such facilities not to exceed at any time an amount equal to 10% of the aggregate receivables of the Borrower and its Subsidiaries as set forth in the most recent audited financial statements delivered pursuant to Section 5.02(a). For purposes of this definition, the “principal amount” of any receivables facility shall mean the Invested Amount.

 

“Permitted Receivables Related Assets” means any other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving receivables similar to receivables and any collections or proceeds of any of the foregoing.

 

“Permitted Refinancing Indebtedness” means any Indebtedness of any Borrower Group Member issued in exchange for, or the Net Cash Proceeds of which are used to refund, refinance, replace, defease or discharge, other Indebtedness of such Person; provided that:

 

(a)        the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on such Indebtedness and the amount of all reasonable out-of-pocket expenses and premiums, underwriting, issuance, commitment, syndication and other similar fees, costs and expenses reasonably incurred in connection therewith);

 

(b)        such Permitted Refinancing Indebtedness has a weighted average life to maturity equal to or greater than the weighted average life to maturity of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

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

 

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Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; provided that a certificate of an Authorized Officer of the Borrower is delivered to the Administrative Agent at least five (5) Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such subordination terms or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees);

 

(d)        the direct or any contingent obligor with respect to such Permitted Refinancing Indebtedness is not changed from the direct or contingent obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

(e)        the Permitted Refinancing Indebtedness is not secured by any collateral not granted to the holders of the Indebtedness being financed, renewed, replaced, defeased or refunded;

 

(f)        such Permitted Refinancing Indebtedness shall have terms which shall be no more restrictive taken as a whole, and shall not, taken as a whole, be materially less favorable, in any respect on the Borrower or its Subsidiaries than the provisions of the Indebtedness being refinanced, renewed, replaced, defeased or refunded; provided, however, that the foregoing requirements shall not apply to pricing terms in respect of any Indebtedness being so refinanced, renewed, replaced, defeased or refunded so long as such pricing is consistent with then prevailing market pricing; and

 

(g)        no Default or Event of Default shall have occurred and be continuing at the time of the incurrence of such Permitted Refinancing Indebtedness, or would occur as a result of the incurrence of such Permitted Refinancing Indebtedness.

 

“Permitted Subordinated Debt” means any unsecured subordinated Indebtedness incurred by Borrower or OpCo; provided that, all such Indebtedness shall (a) have a maturity date not earlier than six (6) months after the Maturity Date, (b) be fully subordinated in right of payment and liquidation to the prior payment in full of the Facility (in the case of the Borrower) and the OpCo Loan Facility (in the case of OpCo) in accordance with the terms set forth on Exhibit J hereto, and (c) in the case of any such Indebtedness owing by OpCo, be owed to the Borrower.

 

“Person” means any individual, corporation, limited liability company, company, voluntary association, partnership, joint venture, trust, or other enterprises or unincorporated organization or government (or any agency, instrumentality or political subdivision thereof) or other entity.

 

“Power” means Cleco Power LLC, a Louisiana limited liability company.

 

“Power Credit Agreements” means, collectively, (a) the Credit Agreement, dated as of April 13, 2016, by and among Power, as borrower, Mizuho Bank, Ltd., as administrative agent, and the lenders from time to time party thereto and (b) the Uncommitted Letter of Credit

 

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Agreement dated as of April 30, 2018 between Power and The Bank of Nova Scotia, each as amended, amended and restated, waived or otherwise modified from time to time,.

 

“Power Financing Documents” means the “Financing Documents” as defined in the Power Credit Agreement (or similar term in any refinancing, replacement, refunding, renewal or extension thereof).

 

“Power Mortgage” means the Indenture of Mortgage, dated as of July 1, 1950, between Power (successor to Cleco Utility Group Inc., formerly Central Louisiana Electric Company, Inc.) and The Bank of New York Mellon Trust Company, N.A. (formerly The Bank of New York Trust Company, N.A., successor to ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A., successor to Bank One Trust Company, N.A., formerly The National Bank of Commerce in New Orleans), as Trustee thereunder, as amended, modified, supplemented, renewed, restated, refinanced or replaced from time to time.

 

“Plan” means any employee pension benefit plan (other than a Multiemployer ERISA Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“Pledge Agreement” means the Pledge Agreement, dated as of April 13, 2016, by the Borrower, as pledgor, in favor of the Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time).

 

“Pledged Debt” means the Indebtedness subject to, and with respect to which a Lien is purported to be created under, the Pledge Agreement.

 

“Pledged Equity” means the Equity Interests subject to, and with respect to which a Lien is purported to be created under, the Pledge Agreement.

 

“Prepayment Portion” means (a) the aggregate amount of the Net Cash Proceeds received with respect to a Casualty Event, Disposition or issuance of Refinancing Senior Debt, as the case may be, times (b) a fraction, the numerator of which is the aggregate principal amount of Loans outstanding on the date of prepayment or the date of the offer to make a prepayment under Section 2.09 and the denominator of which is the aggregate amount of Debt of the Borrower outstanding on the date of prepayment or the date of the offer to make a prepayment under Section 2.09 that is required to be similarly prepaid.

 

“Prime Rate” means the rate of interest per annum published in the Wall Street Journal Eastern Edition as the “prime rate” for such day, and if the Wall Street Journal Eastern Edition does not publish such rate on such day, then such rate as most recently published prior to such day, or if for any reason such rate is no longer published or available, the rate publicly announced from time to time by the Administrative Agent (or any Lender (which agrees in writing to have its rates so used) selected by the Administrative Agent) as its prime rate.

 

“Pro Forma Basis” means, with respect to any event, that the Borrower is in compliance on a pro forma basis with the applicable covenant, calculation or requirement herein recomputed

 

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as if the event with respect to which compliance on a Pro Forma Basis is being tested had occurred on the first day of the most recently ended Test Period and otherwise in accordance with Section 1.04(b) herein.

 

“Property” means any right or interest in or to property of any kind whatsoever, whether real or personal, or mixed and whether tangible or intangible, and including, for the avoidance of doubt, revenues and contractual rights.

 

“PTE” has the meaning set forth in Section 8.11(c).

 

“Proportional Share” means, with respect to any Lender and any offer in accordance with Section 2.09(f), a fraction, (a) the numerator of which is the outstanding principal amount of Loans held by such Lender as of the date of determination and (b) the denominator of which is the principal amount of all outstanding Loans held by all Lenders as of such date of determination.

 

“Purchaser” means Cleco Cajun LLC (formerly known as Cleco Energy LLC), a Louisiana limited liability company and wholly-owned subsidiary of the Borrower.

 

“Quarter End Date” means March 31, June 30, September 30 and December 31 of each year.

 

“Qualified Eligible Assignee” means any Person that (immediately prior to giving effect to the relevant assignment under this Agreement) is (a) a Lender or (b) an Affiliate or an Approved Fund of a Lender.

 

“Qualifying IPO” shall mean the issuance by the Borrower or any other direct or indirect parent of the Borrower of its common stock in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the Securities and Exchange Commission (or any Governmental Authority succeeding to any of its principal functions) in accordance with the Securities Act of

1933 (whether alone or in connection with a secondary public offering).

 

“Quarter End Date” means March 31, June 30, September 30 and December 31 of each year.

 

“Rating Agency” means any of S&P, ▇▇▇▇▇’▇ or Fitch or any similar entity or any of their respective successors.

 

“Receivables Entity” means a wholly-owned direct or indirect Subsidiary of the Borrower which engages in no activities other than in connection with the financing of accounts receivable of Receivables Sellers and which is designated (as provided below) as the “Receivables Entity”

 

(a)        no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is Guaranteed by the Borrower or any other Subsidiary of the Borrower (excluding Guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any other

 

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Subsidiary of the Borrower in any way (other than pursuant to Standard Securitization Undertakings) or (iii) subjects any property or asset of the Borrower or any other Subsidiary of the Borrower, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings,

 

(b) with which neither the Borrower nor any of its Subsidiaries has any contract, agreement, arrangement or understanding (other than pursuant to documents relating to the relevant Permitted Receivables Financing (including with respect to fees payable in the ordinary course of business in connection with the servicing of accounts receivable and related assets)) on terms less favorable to the Borrower or such Subsidiary than those that might be obtained at the time from persons that are not Affiliates of the Borrower, and

 

(c) to which neither the Borrower nor any other Subsidiary of the Borrower has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s certificate of the Borrower certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions. For the avoidance of doubt, the representations, warranties, covenants and events of default contained in the Financing Documents shall not apply to any Receivables Entity.

 

“Receivables Seller” means OpCoPower and any direct or indirect subsidiary of OpCoPower that are from time to time party to a Permitted Receivables Financing.

 

“Recipient” means, as applicable, (a) the Administrative Agent and (b) any Lender (and, in the case of a Lender that is classified as a partnership for U.S. federal tax purposes, a Person treated as the beneficial owner thereof for U.S. federal tax purposes).

 

“Refinancing Senior Debt” means any Indebtedness of the Borrower designated by the Borrower as “Refinancing Senior Debt” issued in exchange for, or the Net Cash Proceeds of which are used to refund, refinance, replace, defease or discharge, other Indebtedness of the Borrower; provided that:

 

(a)       the Net Cash Proceeds of such Refinancing Senior Debt shall be used to prepay the Loans, in whole or in part, in accordance with Section 2.09(b) herein;

 

(b)       the Net Cash Proceeds of such Refinancing Senior Debt shall not exceed an amount equal to the aggregate principal amount of such Loans so repaid (or to be repaid) in accordance with Section 2.09(b) plus any amounts of Loans so prepaid pursuant to Section 2.09(b) prior to the relevant time of determination;

 

(c)        to the extent applicable, such Refinancing Senior Debt shall have a weighted average life to maturity equal to or greater than the weighted average life to maturity of the then-outstanding principal amount of the Loans;

 

(d)       such Refinancing Senior Debt shall not benefit from any Liens, unless the benefits of any such other Liens have been granted to the Lenders on a pari passu basis with the

 

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lenders or providers of such Refinancing Senior Debt pursuant to the Pari Passu Intercreditor Agreement or otherwise reasonably satisfactory to the Required Lenders; and

 

(e)        no Default or Event of Default shall have occurred and be continuing at the time of the issuance of such Refinancing Senior Debt, or would occur as a result of the issuance of such Refinancing Senior Debt.

 

“Register” has the meaning set forth in Section 9.04(b)(iv).

 

“Reinvestment Deadline” has the meaning set forth in Section 2.09(e).

 

“Reinvestment Rights” has the meaning set forth in Section 2.09(e).

 

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

 

“Releases” means with respect to any Hazardous Material, any release, spill, emission, emanation, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration of such Hazardous Material into the indoor or outdoor environment, including, without limitation, the movement of such Hazardous Material through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.

 

“Remaining PortionRelevant Governmental Body” has the meaning set forth in Section 2.09(a)Section 2.15(e).

 

“Removal Effective Date” has the meaning set forth in Section 8.06(b).

 

“Replacement Deadline” has the meaning set forth in Section 2.09(a).

 

“Replacement Rights” has the meaning set forth in Section 2.09(a).

 

“Required Lenders” means, at any time, subject to Section 2.18, Lenders holding outstanding Loans representing more than 50% of the sum of the principal amount of all Loans outstanding at such time.

 

“Resignation Effective Date” has the meaning set forth in Section 8.06(a).

 

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

“Restricted Party” means any Person listed (a) in the Exhibit to Executive Order No. 13224 of September 23, 2001 - Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism; (b) on the “Specially Designated Nationals and Blocked persons” list maintained by the OFAC; (c) in any sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State or any country, region or territory which is itself the subject or target of any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time pursuant to Anti-Terrorism Laws, (d) in any successor list to either of the foregoing; or (e) any Person

 

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operating, organized or resident in or owned or controlled by any such Person or Persons described in the foregoing clauses (at the time of this Agreement, the parties hereto acknowledge that Restricted Parties include the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria).

 

“S&P” means Standard & Poor’s Rating ServicesS&P Global Ratings or its successors.

 

“Sale and Leaseback Transaction” means any sale or other transfer of any property or asset by any Person, contemporaneously with the lease of such property or asset by the seller thereof as lessee.

 

“Secured Obligations” has the meaning assigned thereto in the Pari Passu Intercreditor Agreement.

 

“Secured Parties” means, collectively, the Agents, the Lenders and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to this Agreement.

 

“Securitization Financing” means an issuance of any bonds, other evidence of indebtedness or certificates of participation or beneficial interests that, in compliance with Internal Revenue Service Revenue Procedure 2005-62, is (a) issued by a Finsub and (b) secured by the intangible property right to collect charges for the recovery of specified costs and such other assets, if any, of a Finsub.

 

“Securitization Financing Order” has the meaning specified in clause (bb) of the definition of “Permitted Liens”Section 6.06(ff).

 

“Securitization Statute” means any Law, including the Louisiana Electric Utility Storm Recovery Securitization Act and the Louisiana Electric Utility Investment Recovery Securitization Act, that (a) is enacted to facilitate the recovery of certain specified costs incurred by OpCoPower; (b) authorizes OpCoPower to apply for, and authorizes the applicable regulatory Governmental Authority to issue, a financing order determining the amount of specified costs OpCoPower will be allowed to recover; (c) provides that pursuant to the financing order, OpCoPower acquires an intangible property right to charge, collect, and receive amounts necessary to provide for the full recovery of the specified costs determined to be recoverable, and assures that the charges are non-bypassable; (d) guarantees that the applicable regulatory Governmental Authority will not rescind or amend the financing order, revise the amount of specified costs, or in any way reduce or impair the value of the intangible property right, except as may be contemplated by periodic adjustments authorized by such legislation; (e) provides (if applicable) procedures assuring that the sale, if any, of the intangible property right from OpCoPower to any special purpose bankruptcy remote Person that is a wholly owned (directly or indirectly) Subsidiary of OpCosubsidiary of Power organized solely for the purpose of engaging in any securitization financing pursuant to any order of the applicable regulatory Governmental Authority will be perfected under applicable law as an absolute transfer of OpCo’sPower’s right, title, and interest in the property, and (f) authorizes the securitization of the intangible property right to recover the fixed amount of specified costs through the issuance of bonds, other evidences of Indebtedness, or certificates of participation or beneficial interest that are issued

 

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pursuant to an indenture, contract or other agreement of the OpCoPower or a such special bankruptcy remote Person.

 

“Security Documents” means, collectively, the Pari Passu Intercreditor Agreement, the Pledge Agreement and, to the extent required by Section 6.03(o) or Section 6.03(q) or otherwise agreed to in writing by the Borrower in its sole discretion, any other security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent for the benefit of the Secured Parties that create or purport to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

 

“Senior Debt Rating” means at any date, the credit rating identified by S&P, Fitch or ▇▇▇▇▇’▇ as the credit rating which (a) it has assigned to long term unsecured senior unsecured debt of the Borrower or (b) it would assign to long term unsecured senior unsecured debt of the Borrower were the Borrower to issue or have outstanding any long term unsecured senior unsecured debt on such date.

 

“Senior Notes” means each of (i) (a) the $535,000,000 3.743% Senior Secured Notes due 2026 issued by the Borrower on May 17, 2016, (b) the $350,000,000 4.973% Senior Secured Notes due 2046 issued by the Borrower on May 17, 2016 and (c) the $165,000,000 3.25% Senior Secured Notes due 2023 issued by the Borrower on May 24, 2016, in each case, pursuant to the Indenture, dated as of May 17, 2016, by and between the Borrower and ▇▇▇▇▇ Fargo Bank, N.A., as trustee, as supplemented from time to time., and (ii) the $300,000,000 3.375% Senior Notes due 2029 issued by the Borrower on September 11, 2019 pursuant to the Indenture, dated as of September 11, 2019, by and between the Borrower and Regions Bank, as trustee, as supplemented from time to time.

 

“SOFR” has the meaning set forth in Section 2.15(e).

 

“Solvent” means, when used with respect to any Person, as of any date of determination, that (a) such Person is able to pay all of its liabilities as such liabilities become due, (b) the sum of the debt (including contingent liabilities) of such Person and its subsidiaries, on a consolidated basis, does not exceed the fair value of the present assets of such Person and its subsidiaries, on a consolidated basis, and (c) the capital of such Person and its subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business, taken as a whole, as contemplated on such date of determination (provided that, as used in this definition, the amount of any contingent liability shall be the amount that, in light of all of the facts and circumstances existing as of such date of determination, represents the amount that can reasonably be expected as of that date to become due and payable as an actual or matured liability (and for avoidance of doubt, excluding any liabilities treated as pass-through costs under the applicable regulatory regime), as determined reasonably and in good faith by such Person).

 

“Sponsors” means, collectively, MIP Cleco Partners L.P. (f/k/a Como B L.P.), bcIMC Como Investment Limited Partnership and ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company (U.S.A.), and each of their respective Affiliates.

 

“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any of its Subsidiaries in connection with a

 

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Permitted Receivables Financing which are reasonably customary in accounts receivable financing transactions.

 

“Subordinated Indebtedness” means any Indebtedness of the Borrower or any Subsidiary the payment of which is subordinated in right to the SecuredLoan Obligations.

 

“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than

50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

“Subsidiary” means any subsidiary of the Borrower.

 

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other similar charges now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax, penalties or similar liability with respect thereto.

 

“Term Loan Facility” has the meaning set forth in the Recitals hereto.

 

“Term SOFR” has the meaning set forth in Section 2.15(e).

 

“Test Period” means, as of any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower ending on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 5.02(a) or 5.02(b). Any financial ratio or compliance with any covenant in respect of any Test Period shall be determined on the date on which the financial statements pursuant to Section 5.02(a) or Section 5.02(b) have been, or should have been, delivered for the applicable fiscal period ending on such Quarter End Date.

 

“Transactions” means the execution, delivery and performance by the Borrower of this Agreement and the other Financing Documents, the borrowing of the Loans and the use of the proceeds thereof.

 

“Type” means, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Eurodollar Rate or the Base Rate.

 

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.

 

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Cleco Corporate Holdings LLC 2016 Term Loan Credit Agreement

 

 

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

“Unadjusted Benchmark Replacement” has the meaning set forth in Section 2.15(e).

 

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

 

“Unliquidated Obligations” means, at any time, any Loan Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Loan Obligation that is: (a) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (b) any other obligation (including any guarantee) that is contingent in nature at such time; or (c) an obligation to provide collateral to secure any of the foregoing types of obligations.

 

“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Tax Code.

 

“U.S. Tax Certificate” has the meaning set forth in Section 2.15(f)(ii)(D).

 

“Withdrawal Liability” means liability to a Multiemployer ERISA Plan as a result of a complete or partial withdrawal from such Multiemployer ERISA Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

“Withholding Agent” means the Borrower and the Administrative Agent.

 

“Write-Down and Conversion Powers” means,:

 

(a)    with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.; and

 

(b)    with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Type (e.g., a “Eurodollar

 

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Cleco Corporate Holdings LLC 2016 Term Loan Credit Agreement

 

Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).

 

SECTION 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders and decrees, of all Governmental Authorities. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules, Recitals, paragraphs, clauses, Appendices shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement (and Articles, Sections, etc. shall be deemed to be incorporated by reference into this Agreement), (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (g) all actions by specified officers of a Person shall be deemed to be taken by such specified officer solely in such specified officer’s capacity as such officer, (h) all calculations are to be made without duplication unless otherwise specified, (i) references to “days” means calendar days unless the term “Business Days” is used, and (j) references to a time of day means such time in New York, New York unless otherwise specified.

 

SECTION 1.04 Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided 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 date hereof 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) (including, without limitation, any change in GAAP resulting in any operating lease being reclassified as a capital lease), 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

 

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accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification ▇▇▇-▇▇-▇▇ (previously referred to as Statement of Financial Accounting Standards (“ASC”) 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under ASC ▇▇▇-▇▇-▇▇ (previously referred to as Financial Accounting Standards Board Staff Position APB 14-1) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything herein to the contrary, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence before ASC 842 took effect) that would constitute capital leases in conformity with GAAP before ASC 842 took effect shall be considered capital leases, and all calculations and deliverables under this Agreement or any other Financing Document shall be made or delivered, as applicable, in accordance therewith.

 

(b)          All computations on a Pro Forma Basis with respect to any period shall be made giving effect to any acquisition, investment or disposition, or issuance, incurrence or assumption of or amendment to Indebtedness, or other transaction that occurred after the first day of such period, in each case, as if such acquisition, investment or disposition, or issuance, incurrence or assumption of or amendment to Indebtedness, or other transaction had occurred on the first day of such period (or, in the case of any balance sheet item, on the last day of the relevant period), and, to the extent applicable, giving pro forma effect to historical earnings and cash flows associated with assets acquired and investments made and excluding the pro forma effect of historical earnings and cash flows associated with assets disposed of, in each case, during such relevant period (but, in each case, without giving effect to any synergies or cost savings therefrom) and any related incurrence or reduction of Indebtedness, including adjustments in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Arrangements applicable to such Indebtedness).

 

SECTION 1.05            Status of Obligations. In the event that the Borrower shall at any time issue or have outstanding any Subordinated Indebtedness, the Borrower shall take all such actions as shall be necessary to cause the SecuredLoan Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated Indebtedness and to enable the Collateral Agent and the Secured Parties Administrative Agent (and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to this Agreement) , and the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness. Without limiting the foregoing, the Loan Obligations are hereby designated as “senior indebtedness” and as “designated senior indebtedness” and words of similar import under and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as

 

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shall be required under the terms of any such Subordinated Indebtedness in order that the Secured PartiesAdministrative Agent (and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to this Agreement), the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.

 

ARTICLE II 

THE CREDITS

 

SECTION 2.01            Commitments. Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single Loan in Dollars to Borrower on the Effective Date in the original aggregate principal amount equal to its Commitment or its Applicable Percentage of the amount of all Loans requested by Borrower. Amounts paid or prepaid in respect of Loans may not be reborrowed. To the extent Borrower requests less than all of the aggregate Commitments for funding on the Effective Date, the remaining unfunded commitment shall be deemed terminated at the end of business on the Effective Date.

 

SECTION 2.02             Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Type made by the Lenders ratably in accordance with their respective Applicable Percentages. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b)          Subject to Section 2.12, each Borrowing shall be comprised entirely of Base Rate Loans or Eurodollar Loans as the Borrower may request in accordance herewith; provided, that, except to the extent the Administrative Agent shall have received an indemnification substantially consistent with the terms of Section 2.13not less than three (3) Business Days prior to the Effective Date, all Borrowings made on the Effective Date must be made as Base Rate Borrowings but may be converted into Eurodollar Borrowings in accordance with Section 2.06. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Section 2.12, 2.13, 2.14 and 2.15 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

(c)           Each Borrowing of Eurodollar Loans shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $5,000,000. Each Borrowing of Base Rate Loans shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000. Borrowings of more than one Type may be outstanding at the same time; provided

  

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that there shall not at any time be more than a total of ten (10) Eurodollar Borrowings outstanding.

 

SECTION 2.03             Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone, hand delivery, facsimile or electronic transmission, which such notice shall be in the form of (or, in the case of telephonic notification, promptly confirmed in the form of) a written Borrowing Request signed by the Borrower (a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of a Base Rate Borrowing, not later than 11:00 a1:00 p.m., New York City time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

 

(i)           the aggregate amount of the requested Borrowing;

 

(ii)          the date of such Borrowing, which shall be a Business Day;

 

(iii)         whether such Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;

 

(iv)          in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and

 

(v)          the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.

 

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be a Base Rate Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

SECTION 2.04              Reserved.

 

SECTION 2.05             Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount equal to such Lender’s Applicable Percentage. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request.

 

(b)           Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may

 

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assume that such Lender has made such share available on such date in accordance with clause (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing or (ii) in the case of the Borrower, the interest rate applicable to Base Rate Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsectionclause (b) shall be conclusive, absent manifest error.

 

(c)           If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in this Section 2.05, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

SECTION 2.06            Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

 

(b)          To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone, hand delivery, facsimile or electronic transmission by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and shall be in the form of (or in the case of telephonic notice, shall be confirmed promptly by hand delivery, facsimile or electronic transmission to the Administrative Agent of) a written Interest Election Request signed by the Borrower. Notwithstanding any contrary provision herein, this Section shall not be construed to permit the Borrower to (i) elect an Interest Period for Eurodollar Loans that would end after the Maturity Date or (ii) convert any Borrowing to a Borrowing of a Type not available under the Commitments.

  

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(c)           Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i)          the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

 

(ii)          the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)         whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing; and

 

(iv)         if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which Interest Period shall be a period contemplated by the definition of the term “Interest Period”.

 

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

(d)          Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e)           If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Base Rate Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing the Borrower may only elect Interest Periods not in excess of one month; provided that the Administrative Agent may (or, if so instructed by the Required Lenders, shall) notify the Borrower otherwise, whereupon each Eurodollar Borrowing shall be converted to a Base Rate Borrowing at the end of the Interest Period applicable thereto.

 

SECTION 2.07            Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the ratable account of each Lender the then unpaid principal amount of each Loan on the Maturity Date the aggregate principal amount of all Loans then outstanding.

 

(b)           Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

  

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(c)           The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

 

(d)          The entries made in the accounts maintained pursuant to clause (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.

 

(e)           Any Lender may request that Loans made by it be evidenced by a Note in substantially the form of Exhibit F. In such event, the Borrower shall prepare, execute and deliver to such Lender a Note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more Notes in such form payable to the order of the payee named therein (or, if such Note is a registered note, to such payee and its registered assigns).

 

SECTION 2.08             Optional Prepayment of Loans. The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with the provisions of this Section 2.08. The Borrower shall notify the Administrative Agent by telephone, hand delivery, facsimile or electronic transmission (promptly confirmed, in the case of telephonic notice, by hand delivery, facsimile or electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three (3) Business Days before the date of prepayment or (ii) in the case of prepayment of a Base Rate Borrowing, not later than 1:00 p.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify (x) the prepayment date, (y) the principal amount of each Borrowing or portion thereof to be prepaid and (z) the Type of Borrowing to be prepaid; provided that a notice of prepayment may state that such notice is conditioned upon the effectiveness of other credit facilities or the consummation of another transaction, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in a minimum aggregate amount of $1,000,000 and $500,000 increments in excess thereof. Any such prepayment will be applied to the relevant Loans of the same type designated by the Borrower, at its sole discretion; provided, however, no optional prepayments or redemptions may be made in respect of any Refinancing Senior Debt unless the Loans are prepaid on at least a pro rata basis. Prepayments shall be payable without penalty or premium and shall be accompanied by (i) accrued interest to the extent required by Section 2.11 and (ii) break funding payments to the extent required by Section 2.14.

  

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SECTION 2.09 Mandatory Prepayments and Mandatory Offers.

 

(a) Mandatory Offer with the Net Cash Insurance Proceeds of Casualty Events. On each applicable Offer Date, the Borrower shall make a mandatory offer to each Lender for the prepayment of outstanding Loans in an amount equal to 100% of the Prepayment Portion of any Net Cash Insurance Proceeds received by the Borrower or any of its Subsidiaries since the last Interest Payment Date (and not yet applied in accordance with this Section 2.09(a)) to the extent all such Net Cash Insurance Proceeds received in such fiscal year exceed $30,000,000 (such amount, the “Casualty Event Offer Amount”); provided, however, no such mandatory offer shall be required under this Section 2.09(a) to the extent the Borrower notifies the Administrative Agent in writing no later than five (5) Business Days before the relevant Offer Date that the Borrower or such Subsidiary has elected to apply such Casualty Event Offer Amount to restore or replace the affected Property or otherwise to reinvest in Property of a kind then used or usable in the Business (including reinvestments in Permitted Acquisitions) within three-hundred sixty (360) days of the receipt of such Casualty Event Offer Amount (the “ Replacement Deadline ” and such rights, the “ Replacement Rights ”); provided, further, to the extent the Borrower or Subsidiary fails to apply any or all of such Casualty Event Offer Amount to any such restoration, replacement or reinvestment by the Replacement Deadline (any amount of the relevant Net Cash Insurance Proceeds not so applied, the “Remaining Portion”), the Borrower shall make a mandatory prepayment offer in accordance with the procedures set forth in Section 2.09(f) below.

 

(b) Mandatory Prepayment with the Net Cash Proceeds of Refinancing Senior Debt. On the Business Day the Borrower receives any such Net Cash Proceeds after all outstanding loans, and accrued interest thereon, under the HoldCo Acquisition Loan Facility have been repaid or paid in full or, if so agreed by the Administrative Agent (acting on the instructions of the Required Lenders), on the next Interest Payment Date thereafter, the Borrower shall make a mandatory prepayment of the Loans in an amount equal to 100% of the Net Cash Proceeds received by the Borrower on account of the issuance of Refinancing Senior Debt since the last Interest Payment Date. Any such amount required to be prepaid hereunder shall be applied in accordance with Section 2.09(g) and Section 2.09(h) below.

 

(c) Mandatory Prepayment of the Cure Amount. On each Interest Payment Date (or, at the Borrower’s election, on any earlier date, subject to the payment of breakage costs in accordance with Section 2.14, if applicable), the Borrower shall make a mandatory prepayment of the Loans in an amount equal to 100% of the Cure Amount received by the Borrower since the last Interest Payment Date and not yet applied in accordance with this Section 2.09(c). Any such amount required to be prepaid hereunder shall be applied in accordance with Section 2.09(g) and Section 2.09(h) below.

 

SECTION 2.09              (d) Reserved.

 

(e) Mandatory Offer with Net Cash Proceeds of a Disposition . On each applicable Offer Date, the Borrower shall make a mandatory offer to each Lender for the prepayment of outstanding Loans in an amount equal to 100% of the Prepayment Portion of the Net Cash Proceeds received by the Borrower or any of its Subsidiaries on account of any Disposition pursuant to Section 6.01(b) herein since the last Interest Payment Date (and not yet subject to an

  

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offer in accordance with this Section 2.09(e)) to the extent all such Net Cash Proceeds received in such fiscal year exceed $30,000,000 (the “ Disposition Offer Proceeds ”); provided , however , no such offer shall be required under this Section 2.09(e) to the extent the Borrower notifies the Administrative Agent in writing no later than five (5) Business Days before the relevant Offer Date that the Borrower or such Subsidiary has elected to apply such Disposition Offer Proceeds to reinvest in Property of a kind then used or usable in the Business (including reinvestments in Permitted Acquisitions) within three-hundred sixty (360) days of the receipt of such Disposition Offer Proceeds (the “ Reinvestment Deadline ” and such rights, the “ Reinvestment Rights ”); provided , further , to the extent the Borrower or Subsidiary fails to apply any or all of such Disposition Offer Proceeds to any such reinvestment by the Reinvestment Deadline (any amount of the Disposition Offer Proceeds not so applied, the “ Available Disposition Offer Proceeds ”), the Borrower shall make a mandatory prepayment offer in accordance with the procedures set forth in Section 2.09(f) below.

 

(f) Mandatory Offer Procedures . Any mandatory offer pursuant to Section 2.09(a) or Section 2.09(e) shall be made in accordance with the following procedures:

 

(i) not more than thirty (30) days after (x) in the event the Borrower does not exercise its Replacement Rights, receipt of the Casualty Event Offer Amount or, in the event the Borrower does exercise its Replacement Rights, the Replacement Deadline, or (y) in the event the Borrower does not exercise its Reinvestment Rights, receipt of the Disposition Offer Proceeds or, in the event the Borrower does exercise its Reinvestment Rights, the Reinvestment Deadline, as applicable (the “ Offer Date ”), the Borrower shall send a notice to the Administrative Agent for distribution to each Lender (such notice, the “ Offer Notice ” and the procedures set forth therein, the “ Offer Procedures ”) stating:

 

(A) that a prepayment offer is being made pursuant to Section 2.09(a) or Section 2.09(e) , as applicable,

 

(B) the amount of Offer Proceeds subject to such offer,

 

(C) that any Lender that accepts such offer in accordance with this Section 2.09(f)(i) shall receive a prepayment of its Loans equal to its Proportional Share of the Offer Proceeds determined as of the Offer Payment Date, to be applied in accordance with Section 2.09(h) of this Agreement,

 

(D) the time and date by which such Lender must deliver to the Administrative Agent and Borrower written notice of its acceptance of such offer (which, in any case, shall not be less than five (5) Business Days nor longer than twenty (20) Business Days after the distribution of the Offer Notice) (the “ Acceptance Deadline ”),

 

(E) the date such prepayment is to occur (which, in any case, shall be no later than the next Interest Payment Date occurring after the Acceptance Deadline) (the “ Offer Payment Date ”),

 

(F) that any Lender accepting such offer shall be required to surrender the Notes (if any) held by such Lender to be so prepaid by no later than the Offer Payment Date (unless such requirement is waived by the Borrower in its sole discretion), if

  

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applicable, subject to receipt of, and only in exchange for, a replacement Note pursuant to clause (iii) below, and

 

(G) that any Lender that accepts the offer shall be entitled to withdraw its election if the Administrative Agent receives written notice thereof by no later than 5:00 p.m. New York City time on the date before the Offer Payment Date.

 

(ii) Any Loans held by a Lender that validly accepts such offer by the Acceptance Deadline will continue to accrue interest at the rate otherwise required hereunder until (but excluding) the Offer Payment Date (or, if different, the date actually repaid).

 

(iii) The Lenders whose Loans are being repaid only in part will, if requested, be issued new Notes equal in principal amount to the unpaid portion of the Loans.

 

(iv) The Loans to be prepaid pursuant to the offer shall be paid without penalty or premium and shall be accompanied by (A) accrued interest to the extent required by Section 2.11 and (B) break funding payments to the extent required by Section 2.14 .

 

(v) The Proportional Share of the Offer Proceeds of any Lender that does not accept the offer in accordance with the Offer Procedures shall be retained by the Borrower.

 

(vi) The offer and prepayment will be carried out in accordance with the applicable Offer Procedures.

 

(g) Notice; Interest. The Borrower shall notify the Administrative Agent by telephone, hand delivery, facsimile or electronic transmission (promptly confirmed, in the case of telephonic notice, by hand delivery, facsimile or electronic transmission) of any prepayment under Section 2.09(b) or Section 2.09(c) (i) in the case of prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three (3) Business Days before the date of prepayment and (ii) in the case of prepayment of a Base Rate Borrowing, not later than 1:00 p.m., New York City time, on the date of prepayment. Each such notice shall specify (x) the prepayment date, (y) the principal amount of each Borrowing or portion thereof to be prepaid and (z) the Type of Loans to be prepaid in accordance with Section 2.09(h) . Prepayments shall be payable without penalty or premium and shall be accompanied by (i) accrued interest to the extent required by Section 2.11 and (ii) break funding payments to the extent required by Section 2.14 .

 

(h) Application of Mandatory Prepayments and Mandatory Offers . Prepayments required to be made pursuant to Section 2.09(b) , Section 2.09(c) and Section 2.09(f) shall be applied to the outstanding Loans on a pro rata basis in accordance with the amount of Loans held by each Lender.

 

Amounts to be applied pursuant to this Section 2.09(h) to the prepayment of Loans shall be applied, first , to reduce outstanding Base Rate Loans and, then , to reduce outstanding Eurodollar Loans, unless otherwise directed by the Borrower.

 

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SECTION 2.10           Fees(A) . (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender on the Effective Date an upfront fee in accordance with the Fee LetterLetters.

 

(b)       The Borrower agrees to pay to the Administrative Agent, for its own account, agency fees in accordance with the Fee LetterLetters.

 

(c)        All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, in the case of commitment fees and participation fees, to the applicable Lenders. Fees paid shall not be refundable under any circumstances.

 

SECTION 2.11          Interest. (a) The Loans comprising each Base Rate Borrowing shall bear interest at the Base Rate plus the Applicable Margin; provided that notwithstanding the foregoing, such interest rate shall at no time be less than 0.00% per annum.

 

(b)        The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted Eurodollar Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin; provided that notwithstanding the foregoing, such interest rate shall at no time be less than 0.00% per annum.

 

(c)        Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in clause (a) or (b) of this Section or (ii) in the case of any other amount, 2.00% plus the rate applicable to Base Rate Loans as provided in clause (a) of this Section.

 

(d)        Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to clause (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor in accordance with this Agreement, accrued interest on such Loan shall be payable on the effective date of such conversion.

 

(e)        All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Base Rate at times when the Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Base Rate, Adjusted Eurodollar Rate or Eurodollar Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

 

SECTION 2.12        Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:; Effect of Benchmark Transition Event.

 

 

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(a) the Administrative Agent determines (acting reasonably and taking into consideration the conditions in the bank credit markets generally) that adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate or the Eurodollar Rate, as applicable, for such Interest Period; or

 

(b) the Administrative Agent is advised by the Required Lenders (acting reasonably and taking into consideration the conditions in the bank credit markets generally) that the Adjusted Eurodollar Rate or the Eurodollar Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;

 

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or electronic transmission as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist (and the Administrative Agent shall provide such notice promptly following such circumstances no longer existing as determined by the Administrative Agent in its sole discretion (or, in the case of clause (b) above, promptly following the Administrative Agent being advised thereof by the Required Lenders)), (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be converted or continued as a Base Rate Borrowing on the last day of the then current Interest Period applicable thereto and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as a Base Rate Borrowing.

 

(a)      Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Financing Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of the Eurodollar Rate with a Benchmark Replacement pursuant to this Section will occur prior to the applicable Benchmark Transition Start Date.

 

(b)      Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right, acting in good faith, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Financing Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

 

(c)      Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark

 

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Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, shall be made in good faith and shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section.

 

(d)      Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period, the component of Base Rate based upon the Eurodollar Rate will not be used in any determination of Base Rate.

 

(e)      Certain Defined Terms. As used in this Agreement, each of the following capitalized terms has the meaning given to such term below:

 

“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the Eurodollar Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

 

“Benchmark Replacement Adjustment” means, with respect to any replacement of the Eurodollar Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, 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 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 the Eurodollar Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body 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 the Eurodollar Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

 

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the 

 

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definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent 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 the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

 

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the Eurodollar Rate:

 

(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 the London interbank offered rate (“LIBOR”) permanently or indefinitely ceases to provide LIBOR; or

 

(2)     in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

 

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the Eurodollar Rate:

 

(1)      a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR;

 

(2)      a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or

 

(3)      a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR announcing that LIBOR is no longer representative.

 

“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders,

 

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as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

 

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Eurodollar Rate and solely to the extent that the Eurodollar Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the Eurodollar Rate for all purposes hereunder in accordance with Section 2.15 and (y) ending at the time that a Benchmark Replacement has replaced the Eurodollar Rate for all purposes hereunder pursuant to Section 2.15.

 

“Early Opt-in Election” means the occurrence of:

 

(1)      (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 2.15, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Eurodollar Rate, and

 

(2)      (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

 

“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source.

 

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

 

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

 

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

SECTION 2.13      Increased Costs; Illegality. (a) If any Change in Law shall:

 

(i)       impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with 

 

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or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted Eurodollar Rate);

 

(ii)      impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender; or

 

(iii)       subject any Recipient to any Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);

 

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)      If any Lender determines that any Change in Law, or directive from the BIS or another regulatory authority that such Lender is regulated by, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), by an amount deemed by such Lender to be material, then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

 

(c)      A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in clause (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

 

(d)      Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than two hundred ten (210) days prior to the date that such Lender notifies the Borrower of the Change in Law or directive giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such 

 

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increased costs or reductions is retroactive, then the two hundred ten (210)-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

Notwithstanding the foregoing, (i) to the extent that (x) a Lender will increase its level of capital or liquidity above the level that would have been maintained by such Lender had the Effective Date occurred on October 17, 2014 and there has not been a Change in Law or a directive from BIS or another regulatory authority that such Lender is regulated by or (y) there has been a Change in Law or a directive from BIS or another regulatory authority that such Lender is regulated by and a Lender will increase its level of capital or liquidity by an amount greater than the increase attributable thereto, the Borrower will not be required to pay any amount or amounts pursuant to this Section 2.13 with respect to such increase in capital above that required by the Change in Law and (ii) to the extent that an assignment of all or any portion of the Loan or commitment of any Lender would, at the time of such assignment, result in an increase in costs from those being charged by the assigning Lender prior to the assignment, then the Borrower will not be required to pay such increased costs.

 

(e)      If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its lending office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Loans or to convert Base Rate Loans to Eurodollar Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate (and such Lender shall use commercially reasonable efforts to provide such notice promptly following such circumstances no longer existing as determined by such Lender in its sole discretion). Upon

 

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any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

 

SECTION 2.14      Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.08 or Section 2.09), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.17, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted Eurodollar Rate (excluding, for the avoidance of doubt, the Applicable Margin) that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in Dollars of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

 

SECTION 2.15       Taxes. (a) Withholding of Taxes; Gross-Up. Each payment by the Borrower under any Financing Document shall be made without withholding for any Taxes, unless such withholding is required by any law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so required to withhold Taxes, then such Withholding Agent may so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by the Borrower shall be increased as necessary so that, net of such withholding (including such withholding applicable to additional amounts payable under this Section), the applicable Recipient receives the amount it would have received had no such withholding been made.

 

(b)       Payment of Other Taxes by the Borrower. The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(c)      Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. 

 

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(d)      Indemnification by the Borrower. The Borrower shall indemnify each Recipient for any Indemnified Taxes that are paid or payable by such Recipient in connection with any Financing Document (including amounts paid or payable under this Section 2.15(d)) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this Section 2.15(d) shall be paid within ten (10) days after the Recipient delivers to the Borrower a certificate stating the amount of any Indemnified Taxes so paid or payable by such Recipient and describing in reasonable detail the basis of the indemnity claim. Such certificate shall be conclusive of the amount so payable absent manifest error; provided that the Borrower will not be required to indemnify a Lender pursuant to this Section 2.15 for any amounts paid by such Lender more than two hundred ten (210) days prior to the date of delivery of such certificate. Such Recipient shall deliver a copy of such certificate to the Administrative Agent.

 

(e)      Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so) attributable to such Lender that are paid or payable by the Administrative Agent or the Borrower (as applicable) in connection with any Financing Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this Section 2.15(e) shall be paid within ten (10) Business Days after the Administrative Agent delivers to the applicable Lender a certificate stating the amount of Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent manifest error.

 

(f)       Status of Lenders.

 

(i)      Any Recipient that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments under any Financing Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Recipient, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Recipient is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.15(f)(ii)(A) through Section 2.15(f)(ii)(E) below) shall not be required if in the Recipient’s judgment such completion, execution or submission would subject such Recipient to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Recipient. Upon the reasonable request of the Borrower or the Administrative Agent, any Recipient shall

 

 

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update any form or certification previously delivered pursuant to this Section 2.15(f). If any form or certification previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any respect with respect to a Recipient, such Recipient shall promptly (and in any event within ten (10) days after such expiration, obsolescence or inaccuracy) notify the Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.

 

(ii)      Without limiting the generality of the foregoing, if the Borrower is a U.S. Person, any Recipient shall, if it is legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such number of copies reasonably requested by the Borrower and the Administrative Agent) on or prior to the date on which such Recipient becomes a party hereto, duly completed and executed copies of whichever of the following is applicable:

 

(A)      in the case of a Recipient that is a U.S. Person, IRS Form W-9 certifying that such Recipient is exempt from U.S. federal backup withholding tax;

 

(B)      in the case of a Non-U.S. Recipient claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under any Financing Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other applicable payments under any Financing Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(C)      in the case of a Non-U.S. Recipient for whom payments under any Financing Document constitute income that is effectively connected with such Recipient’s conduct of a trade or business in the United States, IRS Form W-8ECI;

 

(D)      in the case of a Non-U.S. Recipient claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN or W-8BEN-E, as applicable, and (2) a certificate substantially in the form of Exhibit G (a “U.S. Tax Certificate”) to the effect that such Recipient is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or business in the United States with which the relevant interest payments are effectively connected;

 

(E)      in the case of a Non-U.S. Recipient that is not the beneficial owner of payments made under this Agreement (including a partnership or a participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this clauseSection 2.15(f)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Recipient is a

  

 

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partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Recipient may provide a U.S. Tax Certificate on behalf of such partners; or

 

(F)       any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. federal withholding Tax together with such supplementary documentation necessary to enable the Borrower or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.

 

(iii)         If a payment made to a Recipient under any Financing Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Withholding Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine whether such Recipient is in compliance with such Recipient’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.15(f)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

(g)      Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.15 (including additional amounts paid pursuant to this Section 2.15), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid to such indemnified party pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.15(g), in no event will any indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 2.15(g) if such payment would place such indemnified party in a less favorable position (on a net after-Tax basis) than such indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 2.15(g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person. 

 

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SECTION 2.16      Payments Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of Set-offs.

 

(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or of amounts payable under Section 2.13, Section 2.14 or Section 2.15, or otherwise) prior to 1:00 p.m., New York City time on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at Harborside Financial Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of Nobu Sakyo, (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇), (Telephone No. ▇▇▇-▇▇▇-▇▇▇▇), except that payments pursuant to Section 2.13, Section 2.14, Section 2.15 and Section 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars.

 

(b) Subject to the terms of the Pari Passu Intercreditor Agreement, any proceeds of CollateralIf at any time insufficient funds are received by the Administrative Agent (i) not constituting a specific paymentto pay fully all amounts of principal, interest, and fees or other sum payablesums then due under the Financing Documents (which shall be applied as specified by the Borrower) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably as follows:

 

first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent from the Borrower,

 

second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower,

 

third, to pay interest then due and payable on the Loans ratably,

 

fourth, to prepay principal on the Loans, and

 

fifth, to the payment of any other SecuredLoan Obligation then due and payable to the Administrative Agent or any Lender by the Borrower.

 

(c)      Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless a Default or Event of Default is in existence, none of the Administrative Agent or any Lender shall apply any payment which it receives to any Eurodollar Loan, except (i) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (ii) in the event, and only to the extent, that there are no outstanding Base Rate Loans and, in any event, the Borrower shall pay the break funding payment required in accordance with Section 2.14. The Administrative Agent and the Lenders shall have the 

 

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continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the SecuredLoan Obligations.

 

(d)      At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Financing Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section.

 

(e)       If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

 

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

 

(g)       If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b), 2.15(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by

 

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the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

 

SECTION 2.17      Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.13, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or Section 2.15, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)       If (i) any Lender requests compensation under Section 2.13 or, (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, or (iii) any Lender becomes a Defaulting Lender then the Borrower may, at its sole expense, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under the Financing Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (A) the Borrower shall have paid to the Administrative Agent the assignment fees (if any) specified in Section 9.04, (B) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (C) in the case of any such assignment resulting from a claim for compensation under Section 2.13 or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or payments and (D) such assignment does not conflict with applicable Governmental Rules. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. In the event that a Lender being replaced hereunder does not execute an Assignment and Assumption pursuant to this Section within three (3) Business Days after receipt by such Lender of a notice of replacement pursuant to this Section, the Administrative Agent shall be entitled (but not obligated) to execute such an Assignment and Assumption on behalf of such Lender, and any such Assignment and Assumption so executed by the Administrative Agent and the replacement Lender shall be effective for purposes of this Agreement.

 

SECTION 2.18      Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then any payment of

 

 

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principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows:

 

first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;

 

second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;

 

third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement;

 

fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;

 

fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and

 

sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.17. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.18 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

SECTION 2.19    Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions. Notwithstanding anything to the contrary in any Financing Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEAAffected Financial Institution arising under any Financing Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEAthe applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: 

 

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(a)       the application of any Write-Down and Conversion Powers by an EEAthe applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEAAffected Financial Institution; and

 

(b)       the effects of any Bail-inBail-In Action on any such liability, including, if applicable:

 

(i)       a reduction in full or in part or cancellation of any such liability;

 

(ii)     a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEAAffected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Financing Document; or

 

(iii)     the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEAthe applicable Resolution Authority.

 

SECTION 2.20 Expansion OptionA) . (a) The Borrower may from time to time elect to add one or more additional tranches of term loans or increase the existing Loan (each an “Incremental Term Facility” and the loans extended thereunder, the “Incremental Loans”) or a combination thereof in (i) an unlimited amount so long as, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Term Facility (assuming the full amount thereof is drawn) and after giving effect to any acquisition consummated in connection therewith and all other appropriate pro forma adjustments, the Borrower is in compliance with the financial covenant in Section 5.12(a) as of the last date of the immediately preceding Test Period plus, (ii) the amount of any optional prepayments of the Loans or any Incremental Loans since the Effective Date (it being understood that any such voluntary prepayment financed with the proceeds of a substantially concurrent borrowing under an Incremental Term Facility shall be permitted under this clause (ii)), in each case, subject solely to the following terms and conditions:

 

(i) no existing Lender will be required to participate in any such Incremental Term Facility without its consent;

 

(ii) no Default or Event of Default under the Financing Documents would exist after giving effect thereto, or, if the proceeds of any Incremental Term Facility are being used to finance a Permitted Acquisition or other permitted investment, no Default or Event of Default would exist as of the date of signing the definitive agreement with respect to such Permitted Acquisition or other permitted investment;

 

(iii) (y) the maturity date of such Incremental Term Facilities shall be no earlier than the Maturity Date or, if later, the latest maturity date of any other Incremental Term Facility then outstanding and (z) if such Incremental Term Facility (a) is made a part of the existing tranche of Loans, shall be on the exact same terms and pursuant to the exact same documentation applicable to the Facility (other than with respect to closing fees, 

 

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upfront fees and similar closing payments which shall be as agreed between the Borrower and the Increasing Lender) or (b) consists of an additional tranche of term loans, shall have such terms as determined by the Borrower and the Augmenting Lenders; and

 

(iv) the interest rate margins and (subject to clause (iii)(z)) amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the Augmenting Lenders or other lenders thereunder.

 

(b) The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its existing Loan, or to participate in such Incremental Term Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”), to increase their existing Loan, or to participate in such Incremental Term Facility, as the case may be; provided that (i) each Increasing Lender and Augmenting Lender shall be subject to the approval of the Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit D hereto. Incremental Term Facilities created pursuant to this Section 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof.

 

(c) The Incremental Term Facilities shall rank pari passu in right of payment with the Facility.

 

(d) Incremental Term Facilities may be made pursuant to separate documentation (which shall be subject to the Pari Passu Intercreditor Agreement, if applicable) or hereunder pursuant to an amendment or restatement (an “Incremental Term Facility Amendment”) of this Agreement and, as appropriate, the other Financing Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Financing Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Loan hereunder, or provide Incremental Term Facilities, at any time. This Section 2.20 shall supersede any provisions herein requiring pro rata treatment of the Lenders or Section 9.02 to the contrary.

 

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ARTICLE III

 

REPRESENTATIONS AND WARRANTIES

 

The Borrower represents and warrants to the Administrative Agent and the Lenders that:

 

SECTION 3.01          Organization. The Borrower is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of Louisiana.

 

SECTION 3.02          Authority. The Borrower and each of its Subsidiaries has the full power and authority to conduct its business as now conducted and as proposed to be conducted by it and to execute, deliver and perform its respective obligations under the Financing Documents to which it is a party.

 

SECTION 3.03          Necessary Action. All necessary action on the part of the Borrower or any of its Subsidiariesand its Affiliates required to authorize the execution, delivery and performance of the Financing Documents has been duly and effectively taken.

 

SECTION 3.04          Due Authorization, Etc. The execution, delivery and performance of the Financing Documents have been duly authorized by all necessary action on the part of the Borrower and each of its Subsidiaries party thereto, and the Financing Documents have been executed and delivered by the Borrower and each such Subsidiary and constitute the legal, valid and binding obligations of the Borrower and each such Subsidiary, enforceable against the Borrower and each such Subsidiary in accordance with the terms thereof, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the rights of creditors generally and subject to general principles of equity (regardless of whether considered in equity or at law).

 

SECTION 3.05          Compliance with Law. Except as otherwise disclosed in writing to the HoldCo Facilities Mandated Lead Arrangers Lenders prior to October 17, 2014the Amendment No. 3 Effective Date, the Borrower and each of its Subsidiaries is in compliance with all Governmental Rules (including Environmental Law) applicable to the Borrower and such Subsidiary and with the terms of all Governmental Approvals obtained by the Borrower except to the extent that where (i) any failure to so comply would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect or (ii) the necessity of compliance therewith is contested pursuant to Permitted Contest Conditions.

 

SECTION 3.06          No Litigation. Except as otherwise disclosed to the HoldCo Facilities Mandated Lead ArrangersLenders prior to October 17, 2014the Amendment No. 3 Effective Date , no action, suit or other proceeding is pending and, to the Borrower’s Actual Knowledge, no action, suit or proceeding has been threatened in writing or any investigation instituted, in each case with respect to the execution and delivery of the Financing Documents or the performance of any of the Borrower’s obligations thereunder that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, except that the commencement by the Borrower or any of its Subsidiaries or any Governmental Authority of a rate proceeding, fuel adjustment clause audit or, earnings review or market power filing before such Governmental Authority shall not constitute such an action, suit or proceeding unless and

 

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until such Governmental Authority has made a final determination thereunder that would reasonably be expected to have a Material Adverse Effect.

 

SECTION 3.07 Title(A) . As of the Effective Date, (a) OpCo has a valid ownership interest in and good title in all material property it purports to own, and (b) the Borrower has a valid ownership interest and good title in the membership interests of OpCo it purports to own and in all other material property it purports to own, in each case free and clear of Liens, subject only to Permitted Liens (limited in the case of equity interests in OpCo to Liens securing the Loan Obligations and non-consensual Permitted Liens that do not secure any Indebtedness) and except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or reasonably anticipated to be conducted or to utilize such properties for their intended purposes.

 

SECTION 3.07          SECTION 3.08 Governmental Approvals. All Governmental Approvals required to be obtained by the Borrower and each of its Subsidiaries in connection with (i) the execution and delivery of, and performance by it of its obligations, and the exercise of its rights, under and in accordance with, the Financing Documents, (ii) the ownership and operation of the Acquired AssetsBorrower and its Subsidiaries in accordance with all Governmental Rules (including all applicable material Environmental Laws) and (iii) the validity and enforceability of the Financing Documents to which it is a party have been obtained, except in any such case, to the extent not required to be obtained at the date this representation is made or repeated or where any failure to obtain the same would not reasonably be expected to result in a Material Adverse Effect. Such Governmental Approvals that are required to be in effect on or prior to the date this representation is made or repeated have been validly issued and are in full force and effect. With respect to any Governmental Approval not required to be obtained as of such date, the Borrower has no reason to believe that such Governmental Approval will not be obtained in the ordinary course of business as and when needed except to the extent that the failure to obtain any such Governmental Approval would not reasonably be expected to result in a Material Adverse Effect.

 

SECTION 3.08          SECTION 3.09 Financial Condition. The Borrower’s latest financial statements provided on any date subsequent to the Effective Date, copies of which shall have been delivered to the Administrative Agent, have been prepared in conformity with GAAP and, in each case, present fairly, in all material respects, (a) the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the Effective Date or the date of such financial statements, as applicable, and (b) all material liabilities, direct and contingent, of the Borrower and its Subsidiaries, which are required by GAAP to be so disclosed, existing as of the date of such financial statementstatements are disclosed in such statements. No Material Adverse Effect shall have occurred and be continuing since the date of the most recent audited annual financial statements of the Borrower delivered pursuant to Section 5.02(a).

 

SECTION 3.10 Capitalization. On the Effective Date:

 

(a) the Sponsors collectively own, directly or indirectly, 100% of the equity interests of the Borrower; and

 

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(b) the Borrower owns 100% of the equity interests of OpCo and all Permitted Subordinated Debt owed by OpCo or any subsidiary of OpCo, in each case free and clear of all Liens other than non-consensual Permitted Liens that do not secure any Indebtedness or Liens securing the obligations under the Facility and the HoldCo Loan Facilities.

 

SECTION 3.11 Subsidiaries. As of the Effective Date, the Borrower has no subsidiaries other than those that have been created or acquired in accordance with the Financing Documents that have been (or will promptly be) disclosed in writing to the Administrative Agent.

 

SECTION 3.12 Taxes. The Borrower and each of its Subsidiaries has timely filed or caused to be filed all material income Tax returns and all other material Tax returns and reports which are required to be filed by it, and has paid or caused to be paid all material income Taxes and all other material Taxes due, except such Taxes, if any, as are being contested pursuant to Permitted Contest Conditions.

 

SECTION 3.13 No Default. No Default or Event of Default has occurred and is continuing under the Financing Documents to which it is a party.

 

 

SECTION 3.09          SECTION 3.15 No Violation. None of the execution, delivery or performance by the Borrower or any of its Subsidiaries of the Financing Documents to which it is a party (i) violates, contravenes or conflicts with the terms of the Borrower’s or such Subsidiary’s Constitutive Documents or (ii) violates or constitutes a default or requires consent (except for such consents that have been obtained or are not required at the date this representation is made or repeated) by the Borrower or any of its Subsidiaries under any material Governmental Rule applicable to the Borrower or any of its Subsidiaries or the Acquired Assets or any other material contractual obligation to which the Borrower or any such Subsidiary is a party, except for, with respect solely to clause (ii) hereof, for any defaults or violations or consents that would not reasonably be expected to result in a Material Adverse Effect. None of the execution, delivery or performance of the Financing Documents results in, or requires, the creation or imposition of any Lien on properties or revenues of the Borrower or any of its Subsidiaries except for Permitted Liens.

 

SECTION 3.10          SECTION 3.16 Not Investment Company. The Borrower is not, and is not required to be registered as, an “Investment Company” within the meaning of the Investment Company Act of 1940, as amended.

 

SECTION 3.11         SECTION 3.17 Accuracy of Disclosures. The written information furnished by or on behalf of the Borrower to the Administrative Agent and the Lenders in connection with the Financing Documents or delivered thereunder (other than any report prepared by an independent third party consultant), that relates to the Borrower, or any of its Subsidiaries or the Acquired Assets, other than any projections, forecasts, estimates, budgets and other forward-looking statements, does not contain, as of the date furnished any untrue statement

 

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of a material fact or omit to state any material fact necessary in order to make the statements therein, not materially misleading in light of the circumstances under which they were made, provided that with respect to projections, forecasts, estimates, budgets and other forward-looking statements and information, the Borrower only represents that such projections, forecasts, estimates, budgets and other forward-looking information were prepared in good faith upon assumptions believed by the Borrower to be reasonable at the time made.

 

SECTION 3.12          SECTION 3.18 Margin Regulations. The use of proceeds of the Facility will not violate or result in a violation of Regulations T, U and X of the Board of Governors of the Federal Reserve System of the United States of America. The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), or extending credit for the purpose of purchasing or carrying margin stock.

 

SECTION 3.19 Labor Relations. Except as would not reasonably be expected to have a Material Adverse Effect, there is (a) no unfair labor practice complaint pending or, to the best knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under a collective bargaining agreement is so pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened, (b) no strike, labor dispute, slowdown or stoppage pending or threatened against the Borrower or any of its Subsidiaries, and (c) no union representation question existing with respect to the employees of the Borrower or any of its Subsidiaries and, no union organizing activities are taking place with respect to any thereof.

 

SECTION 3.13          SECTION 3.20 Environmental Matters. Except as otherwise disclosed in writing to the HoldCo Facilities Mandated Lead Arrangers prior to October 17, 2014 (including, without limitation, the draft of the disclosure letter delivered by Cleco Corp. in connection with the Merger Agreement):Lenders prior to the Amendment No. 3 Effective Date:

 

(a)       To the Borrower’s knowledge, the facilities and properties owned, leased or operated by the Borrower and its Subsidiaries (as used in this Section 3.20Section 3.13, “properties”) do not contain any Hazardous Materials in amounts or concentrations which (i) constitute or constituted a violation of, or (ii) could give rise to liability under, any applicable Environmental Law except in either case insofar as such violation or liability, or any aggregation thereof, is not reasonably likely to result in a Material Adverse Effect.

 

(b)      To the Borrower’s knowledge, (i) except where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect, the properties and all operations at the properties are in compliance, and have, for the last five years, been in compliance in all material respects with all applicable Environmental Laws and Environmental Permits, and (ii) there is no contamination at, under or about the properties or violation of any applicable Environmental Law or Environmental Permit with respect to the properties or the Business except as would not reasonably be expected to have a Material Adverse Effect. All Environmental Permits necessary in connection with the ownership and operation of the Borrower’s or its Subsidiaries’ businesses have been obtained and are in full force and effect,

 

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except where any such failure to obtain and maintain in full force and effect (individually or in the aggregate) has not had and is not reasonably likely to result in a Material Adverse Effect.

 

(c)      Neither the Borrower nor any of its Subsidiaries has received any written notice of violation, alleged violation, non-compliance, liability or potential liability pursuant to Environmental Laws or Environmental Permits with regard to any of the properties or the Business, nor does the Borrower have knowledge or reason to believe that any such notice is being threatened, except insofar as such notice or threatened notice, or any aggregation thereof, does not involve a matter or matters that is or are reasonably likely to result in a Material Adverse Effect.

 

(d)      To the Borrower’s knowledge, Hazardous Materials have not been transported or disposed of from the properties in violation of, or in a manner or to a location which could reasonably be expected to give rise to liability under, any applicable Environmental Law, nor have any Hazardous Materials been generated, treated, stored or disposed of at, on or under any of the properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Law, except insofar as any such violation or liability referred to in this paragraph, or any aggregation thereof, is not reasonably likely to result in a Material Adverse Effect.

 

(e)       No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened, under any Environmental Law against the Borrower or any of its Subsidiaries with respect to any of the properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements or liens outstanding under any Environmental Law with respect to any of the properties or the Business, except insofar as such proceeding, action, decree, order or other requirement or lien, or any aggregation thereof, is not reasonably likely to result in a Material Adverse Effect.

 

(f)       To the Borrower’s knowledge of the Borrower, there has been no release or threat of release of Hazardous Materials at or from any of the properties arising from or related to the operations of the Borrower or any of its Subsidiaries in connection with any of the properties or otherwise in connection with the Business in violation of or in amounts or in a manner that could reasonably be expected to give rise to liability under applicable Environmental Laws, except insofar as any such violation or liability referred to in this paragraph, or any aggregation thereof, is not reasonably likely to result in a Material Adverse Effect.

 

SECTION 3.14          SECTION 3.21 Anti-Terrorism Laws and; Sanctions; Anti-Corruption Laws. (a) The Borrower and each of its Subsidiaries has not, directly or indirectly, (i) knowingly conducted any business or engaged in making or receiving any contribution of funds (including the proceeds from any Borrowing), goods or services to or for the benefit of any Restricted Party, (ii) knowingly dealt in, or otherwise engaged in any transaction relating to, any property or interests in property blocked pursuant to any Anti-Terrorism Law, or (iii) knowingly engaged in or conspired to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law. To the knowledge of the Borrower, its employees and agents are in

 

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compliance with Anti-Terrorism Laws applicable to the Borrower in all material respects. As of the Amendment No. 3 Effective Date, the information included in any Beneficial Ownership Certification (to the extent required to be provided) is true and correct in all respects.

 

(b)        The Borrower and its Subsidiaries have conducted their businesses in compliance in all material respects with applicable Anti-Corruption Laws and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

 

SECTION 3.22 Immunity. Neither the Borrower nor any of its material assets or material properties is entitled to any immunity from jurisdiction or legal process.

 

SECTION 3.23 Pari Passu Rankings. The obligations of the Borrower under the Financing Documents rank at least pari passu in right of payment with the claims of all of its other unsecured and unsubordinated creditors.

 

SECTION 3.24 Solvency. After giving effect to the incurrence of the Debt being incurred in connection herewith on the Effective Date, the Borrower and each of its Subsidiaries, on a consolidated basis, will be Solvent.

 

SECTION 3.25 Use of Proceeds. The Borrower is using or has used the proceeds of the Loans exclusively for the purposes specified in Section 5.01.

 

ARTICLE IV

CONDITIONS

 

SECTION 4.01           Reserved.

 

SECTION 4.01 Effective Date. The effectiveness of the Facility and the obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02) (the making of such Loans being conclusively deemed to be its satisfaction or waiver of the conditions precedent):

 

(a)   This Agreement, the Pledge Agreement, the Pari Passu Intercreditor Agreement and any Notes required to be in place on the Effective Date shall have been duly authorized, executed, and delivered by the Borrower and shall be in full force and effect.

 

(b)   The Administrative Agent shall have executed an Accession Agreement (as defined in the Pari Passu Intercreditor Agreement) and acceded to the Pari Passu Intercreditor Agreement as the Secured Debt Representative (as defined in the Pari Passu Intercreditor Agreement) for the Lenders in accordance with Section 4.06 of the Pari Passu Intercreditor Agreement, and the Borrower shall have acknowledged and executed such Accession Agreement.

 

(c)   The Administrative Agent shall have received the following documents, each certified as indicated below:

 

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(i) a copy of a certificate as to the existence/authorization of the Borrower from the Secretary of State of the Borrower’s state of organization dated as of a recent date;

 

(ii) a copy of the articles of incorporation or certificate of formation (or such other Constitutive Documents as the case may be) of the Borrower, together with any amendments thereto, certified by the Secretary of State of the Borrower’s state of organization dated as of a recent date; and

 

(iii) a certificate of the Borrower, executed by an Authorized Officer of such Person certifying:

 

(A)  that attached to such certificate is a true and complete copy of the Constitutive Documents of the Borrower, as amended and in effect on the date of such certificate;

 

(B)  that attached to such certificate is a true and complete copy of resolutions duly adopted by the authorized governing body of the Borrower, authorizing the execution, delivery and performance of the Financing Documents to which it is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and

 

(C)  as to the incumbency and specimen signature of each officer, member or partner (as applicable) of the Borrower, executing the Financing Documents to which the Borrower is a party and each other document to be delivered by the Borrower, from time to time pursuant to the terms thereof (and the Administrative Agent and each Lender may conclusively rely on such incumbency certification until it receives notice in writing from the Borrower).

 

(d) The Administrative Agent shall have received (A) a written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, New York counsel for the Borrower, in substantially the form attached hereto as Exhibit I-1, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., Louisiana regulatory counsel for the Borrower, in substantially the form attached hereto as Exhibit I-2, and (iii) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, federal regulatory counsel for the Borrower, in substantially the form attached hereto as Exhibit I-3 and (B) a reliance letter (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC, Louisiana counsel for the Borrower, in substantially the form attached hereto as Exhibit I-4.

 

(e) The Administrative Agent and the Lenders shall have received, or simultaneously with the Effective Date shall receive, all fees, expenses and other amounts due and payable to, or for the account of, the Agents and Lenders on or prior to the Effective Date.

 

(f) The Administrative Agent shall have received, at least three Business Days prior to the requested funding date in the case of Eurodollar Loans and on the requested funding date in the case of Base Rate Loans, a Borrowing Request, duly executed by an Authorized Officer of the Borrower, requesting the funding of the Loans.

 

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(g) The representations and warranties made by the Borrower in Article III and in Section 5 of the Pledge Agreement, in each case, shall be true and correct (and to the extent that any such representation and warranty is otherwise qualified by materiality or material adverse effect, such representation and warranty shall be true and correct in all respects) on and as of the Effective Date (or to the extent that such representations and warranties specifically refer to a specified date, as of such specified date).

 

(h) The Lenders shall, to the extent the Borrower shall have received a reasonable request therefor at least ten (10) Business Days in advance, have received at least three (3) Business Days in advance of the Effective Date all documentation and other information reasonably required by the Lenders to comply with any requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act. (Title III of Pub. Law 107-56 (signed into law October 26, 2001), as amended.

  

(i) There has been no Material Adverse Effect on the Borrower since December 31, 2015.

 

(j) The Administrative Agent shall have received certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each as of a recent date prior to the Effective Date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name the Borrower as debtor and that are filed in those state and county jurisdictions in which the Borrower is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Pledge Agreement (other than Permitted Liens).

 

(k) At the time of and immediately after giving effect to such Loans, no Default or Event of Default shall have occurred and be continuing, or would occur as a result of such Loans.

 

(l) The Administrative Agent shall have received evidence the HoldCo Acquisition Loan Facility shall have been terminated and cancelled and all indebtedness thereunder shall have been fully repaid.

 

ARTICLE V

 

AFFIRMATIVE COVENANTS

 

Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees and other Loan Obligations shall have been paid in full, the Borrower covenants and agrees with the Lenders that the Borrower will, and will cause its Subsidiaries (other than any Receivables Entity or any Finsub) to:

 

SECTION 5.01          Use of Proceeds. The Borrower shall use the proceeds of the Loans (a) to repay outstanding loans under the HoldCo Acquisition Loan Facility, pay accrued interest thereon and pay fees and the expenses incurred by or on behalf of the Borrower in connection therewith and with the Facility and (b) for general corporate purposes.

 

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SECTION 5.02           Financial Statements. Deliver to the Administrative Agent (for prompt further distribution to each Lender):

 

(a) within one-hundred twenty (120) days after the end of each fiscal year of the Borrower, a copy of the audited balance sheet, and related statements of comprehensive income, stockholder’s equity and cash flows of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal year, setting forth in comparative form the respective audited figures for the previous fiscal year, if such comparative figures shall be available, prepared in accordance with GAAP and certified by an independent public accounting firm of recognized national standing or any other independent registered public accounting firm acceptable to the Required Lenders (without qualification or exception as to scope of the audit) to the effect that the financial statements present fairly in all material respects the consolidated financial condition and results of operations of the Borrower and its consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP, consistently applied;

 

(b) within sixty (60) days after the end of each fiscal quarter of the Borrower (commencing with the first full quarter to end following the Effective Date), copies of the unaudited consolidated balance sheet and related statements of comprehensive income, stockholder’s equity and cash flows of the Borrower and its consolidated Subsidiaries as of the end of such quarterly period or for the portion of the fiscal year then-ended prepared in accordance with GAAP and stating in comparative form the respective figures for the corresponding period in the previous fiscal year, if such comparative figures shall be available, all certified by one of the Borrower’s Authorized Officers as presenting fairly in all material respects the consolidated financial condition of the Borrower and its consolidated Subsidiaries as to the end of such period and the results of its operations as of the end of such period in accordance with GAAP, consistently applied, subject to normal year-end adjustments and the absence of footnotes; and

 

(c) concurrently with the delivery of the annual and quarterly financial statements of the Borrower under Section 5.02(a) or Section 5.02(b), (i) a certificate of an Authorized Officer of the Borrower (A) certifying whether, to such Authorized Officer’s Actual Knowledge, a Default or Event of Default has occurred at any time since the delivery of the prior certificate delivered pursuant to this Section 5.02(c) (or, with respect to the first such certificate, since the Effective Date) and, if a Default or Event of Default has occurred and is continuing, a statement specifying the nature thereof and any action taken or proposed to be taken with respect thereto to remedy the same and (B) if any change has occurred in GAAP or in the application thereof since the date of the most recent audited financial statements of the Borrower previously delivered to the Administrative Agent pursuant to Section 5.02(a) that has had a material effect on the financial statements accompanying such certificate, specifying the effect of such change, and (ii) a certificate of a Financial Officer of the Borrower in the form attached as Exhibit E (a “Financial Ratio Certificate”) together with the supporting documentation therein specified.

 

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SECTION 5.03 Notices of Material Events.

 

(a)           The Borrower will, as soon as practicable and in any event within five (5) Business Days after the Borrower obtains Actual Knowledge of any of the following, give written notice to the Administrative Agent:

 

(i)           the occurrence of any Default or Event of Default (with a description of any action being taken or proposed to be taken with respect thereto);

 

(ii) the occurrence of any event of loss which would reasonably be expected to result in a mandatory prepayment under Section 2.09(a);

 

(iii) any sale or other disposition of the assets or other property of the Borrower or any of its Subsidiaries which would result in an offer to make a mandatory prepayment pursuant to Section 2.09(e);

 

(ii)          (iv) any written notice to the Borrower indicating that any material Governmental Approval will not be granted or renewed or will be granted or renewed on terms materially more burdensome than proposed or will be terminated, revoked or suspended, or any action, suit or other proceeding has been filed or commenced related to any of the foregoing;, in each case other than any rate proceeding, fuel adjustment clause audit, earnings review or market power filing before any Governmental Authority unless and until such Governmental Authority has made a final determination thereunder that would reasonably be expected to result in a Material Adverse Effect;

 

(iii)         (v) any material citation, summons, subpoena, order, notice, claim or proceeding brought by, or brought against, the Borrower or any of its Subsidiaries, with respect to (A) any proceeding before any Governmental Authority (other than proceedings in the ordinary course of business before any applicable regulatory authority) or (B) any real property under any Environmental Law, in each case that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;

 

(iv)         copies of all reports on Form 8-K that the Borrower or any Material Subsidiary files with the Securities and Exchange Commission or any national securities exchange;

 

(v)     (vi) the occurrence of a Change in Control; and

 

(vii) any occurrence, fact or circumstance that would reasonably be expected to have a Material Adverse Effect since the date of the most recent audited annual financial statements of the Borrower delivered pursuant to Section 5.02(a); and

 

(vi)         (viii) details of each change to the Senior Debt Rating.

 

(b)          “Know Your Customer.”; Beneficial Ownership. The Borrower will promptly provide any information requested by the Administrative Agent (on behalf of the Lenders or any of them) within twenty (20) Business Days of such request in order for the Lenders to

 

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comply with their respective internal “know your customer” or similar internal processes (but solely to the extent that such internal processes are designed to ensure compliance by such Lenders with Governmental Rules in respect of anti-money laundering, counter-terrorism financing or similar matters) or the Beneficial Ownership Regulation.

 

(c)         Additional Debt. The Borrower will, promptly upon execution thereof, deliver to the Administrative Agent a copy of each Material Debt Financing Document (excluding, for the avoidance of doubt, commitment letters, fee letters and similar letters with respect to the arrangement, establishment, syndication, or underwriting of any additional DebtIndebtedness); provided, that the Borrower shall have the right to redact any provision set forth in such Material Debt Financing Documents to the extent necessary to comply with binding confidentiality obligations or to protect proprietary market information.

 

Each notice pursuant to this Section shall be accompanied by a written statement of an Authorized Officer of the Borrower (x) that such notice is being delivered pursuant to Section 5.03(a), (b) or (c) (as applicable) and (y) in the case of any notice pursuant to Section 5.03(a)(i), (iv)(ii), (v) (iii) or (vii)(vi), setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.

 

Documents required to be delivered hereto (including pursuant to Section 5.02 and Section 5.03) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 9.01; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), provided that the Borrower shall notify the Administrative Agent (by hand delivery, facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

SECTION 5.04            Inspection of Property. The Borrower and each of its Subsidiaries will keep proper books and records in accordance with GAAP and will permit reasonable examinations of its books and records and reasonable inspections of its property (subject to reasonable procedures relating to safety and security), accompanied by personnel of the Borrower, by the Administrative Agent and/or its any Lender and/or their respective accountants or other professional advisers; provided that such examinations and inspections (a) will occur not more frequently than twiceonce in any calendar year, with reasonable efforts to make combined visits (unless a Default or an Event of Default has occurred and is continuing in which case such examinations may occur as frequently as reasonably determined by the Administrative Agent or any Lender, with no obligation to combine visits), (b) will be at the sole expense of the Administrative Agent and/or requesting Lender, as the case may be (unless a Default or an Event of Default has occurred and is continuing in which case such examinations will be at the expense of the Borrower), (c) will be undertaken at reasonable times following the provision of written

 

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notice in advance to the Borrower, and (d) will not unduly interfere with the operations or management of the Borrower’s business. Notwithstanding anything set forth herein to the contrary, under no circumstances shall the Borrower or any Subsidiary be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non−financial trade secrets or non-financial confidential proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective Affiliates, representatives, contractors, accountants or other professionals) is prohibited by any Governmental Rule or binding confidentiality agreement with a Person that is not an Affiliate of the Borrower and that was not entered into in contemplation of this Agreement or, (iii) that is subject to attorney−client or similar privilege or constitutes attorney work product, or (iv) in the case of any discussions with accountants, only if the Borrower has been given the opportunity to participate in the discussions.

 

SECTION 5.05           Maintenance of Properties. The Borrower and each of its Subsidiaries will maintain in all material respects in good working order and condition (ordinary wear and tear and customary decommissioning and/or degradation for maintenance excepted) all of its material assets necessary or desirable in the conduct of its business taken in the aggregate; provided, however, that nothing shall prevent the Borrower or its Subsidiaries, as appropriate, from discontinuing the maintenance or operation of any property if such discontinuance is, in the judgment of the Borrower or such Subsidiary, desirable in the conduct of the business of the Borrower or such Subsidiary. It is understood that this covenant relates only to working order and condition of such property in accordance with prudent industry practices and shall not be construed as a covenant not to dispose of property.

 

SECTION 5.06 Governmental Approvals. The Borrower and each of its Subsidiaries will at all times obtain, comply with and maintain in full force and effect all Governmental Approvals necessary for the operation and maintenance of its business, except where the failure to maintain such Governmental Approvals would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

SECTION 5.06           SECTION 5.07 Compliance with Laws. The Borrower and each of its Subsidiaries will comply and will ensure that the Borrower is in compliance in all respects with all applicable Governmental Rules (including Environmental Laws), except where any failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect and except that the Borrower and each of its Subsidiaries may, in good faith and by appropriate proceedings, diligently contest the validity or application of any Governmental Rules subject to the Permitted Contest Conditions.

 

SECTION 5.07           SECTION 5.08 Maintenance of Legal Status. The Borrower and each of its Subsidiaries will at all times preserve and maintain in full force and effect (a) its legal existence under the laws of the jurisdiction of its organization (except in the case of any Subsidiary of the Borrower that is not a MaterialImmaterial Subsidiary or as permitted under Section 6.01Section 6.01) and (b) all material rights, franchises, privileges and consents necessary for the maintenance of its existence and the operation of its business, except, with respect to this clause (b), where the failure to do any of the foregoing, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. It is

  

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understood that this covenant shall not be construed to prohibit the Borrower from dissolving or terminating the corporate existence of any Subsidiary (except OpCoPower) which is inactive or whose preservation otherwise is no longer desirable in the conduct of the business of the Borrower and its Subsidiaries taken as a whole.

 

SECTION 5.08            SECTION 5.09 Insurance. The Borrower and each of its Subsidiaries will maintain with financially sound and reputable insurance companies insurance and/or make provisions for self-insurance in such amounts and against such risks as are usually carried by companies engaged in similar business and as are consistent with the prudent operation of its business. The Borrower will furnish to the Administrative Agent, upon written request of the Administrative Agent or any Lender, reasonable information as to the insurance carried; provided, however, such requests shall be limited to twice per calendar year in the aggregate.

 

SECTION 5.09           SECTION 5.10 Taxes. The Borrower and each of its Subsidiaries will timely pay and discharge all material income Taxes and all other material Taxes for which it is responsible and make timely Tax filings with respect to material Taxes prior to the date on which penalties, fines or interest attach thereto; provided that the Borrower or such Subsidiary may permit any such Tax to remain unpaid or unfiled if it meets the Permitted Contest Conditions.

 

SECTION 5.11 Auditors. The Borrower will maintain independent auditors with recognized national standing (or any other independent registered public accounting firm acceptable to the Required Lenders).

 

SECTION 5.10            SECTION 5.12 Financial Covenant.

 

(a)    The Borrower shall not permit the Debt to Capital Ratio as of the last day of any fiscal quarter occurring prior to the Maturity Date to be greater than 65%.

 

(b) In the event that the Borrower fails to comply with the requirement set forth in Section 5.12(a) as of the last day of any fiscal quarter, then until the date that is fifteen (15) Business Days after the deadline for delivery of (or, if earlier, the date of actual delivery of) the Financial Ratio Certificate required to be delivered in respect of such fiscal quarter then-ended (the “Cure Expiration Date”), the Borrower shall have the right to obtain from its members or shareholders an equity contribution in the Borrower in cash (the “Cure Right”) in the amount necessary (but not in excess of such amount) to cause compliance with the requirement set forth in Section 5.12(a) and for no other purpose. Upon the receipt by the Borrower of the cash proceeds pursuant to the exercise of the Cure Right (the “Cure Amount”), (x) the covenant set forth in Section 5.12(a) (and no other provision hereof, including Section 6.06) shall be recalculated solely with such Cure Amount deemed to increase shareholders equity on a Dollar- for-Dollar basis. The Borrower’s right to exercise the Cure Right shall be subject to a maximum of (a) two (2) such cures in any period of four (4) consecutive fiscal quarters, and (b) four (4) such cures during the term of the Facility. For the avoidance of doubt, (i) the Cure Right shall be applicable for this Section 5.12 and this Section 5.12 alone and no effect shall be given to any equity cure pursuant to this Section 5.12 for any other purpose under the Financing

 

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Documents and (ii) such cash contributions shall be given effect for purposes of this Section 5.12 with respect to applicable successive fiscal quarters.

 

(c) Notwithstanding anything set forth herein to the contrary, in the event the Borrower has exercised its Cure Right under this Section 5.12, (i) no Default or Event of Default shall be deemed to have occurred on the basis of any failure to comply with Section 5.12(a) unless such failure is not cured pursuant to this Section 5.12 on or prior to the Cure Expiration Date and (ii) none of the Administrative Agent, the Collateral Agent or any Lender shall have the right to take any remedial actions, including the right to accelerate the Loans or to foreclose on the Pledged Equity solely on the basis of a violation of Section 5.12(a) unless such failure is not cured pursuant to this Section 5.12 on or prior to the Cure Expiration Date.

 

SECTION 5.13 Debt Rating. So long as the Facility is available or outstanding, the Borrower shall use commercially reasonable efforts to maintain a rating (but not a specific rating) applicable to the Borrower’s long term unsecured senior Indebtedness from any two of S&P, ▇▇▇▇▇’▇ or Fitch.

 

ARTICLE VI

 

NEGATIVE COVENANTS

 

Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees and other Loan Obligations have been paid in full, the Borrower covenants and agrees with the Lenders that the Borrower shall not, nor shall it permit any of its Subsidiaries (other than any Receivables Entity or any Finsub), to:

 

SECTION 6.01            Fundamental Changes; Sale of Assets; Etc.

 

The Borrower and each of its Subsidiaries shall not (ia) (Ai) enter into any merger or consolidation (except for Permitted Acquisitions or transactions in which Borrower is successor), (B) in the case of Borrower or OpCo, change its form of organization (provided that the Borrower may change its form of organization to a limited liability company formed under the laws of a state of the United States of America if (1) other than for any such change effective within seven (7) days after the Effective Date, the Borrower delivers to the Administrative Agent a written notice of such change at least five (5) Business Days prior to such change, (2) immediately before and after giving effect to such change, no Default or Event of Default shall have occurred and be continuing, and (3) the obligations of the Borrower under the Financing Documents shall not be affected by such change), or (C) change its business, or (ii) split-off or liquidate, wind up or dissolve itself, or suffer any liquidation or dissolution or (iib) convey, sell, lease, assign, transfer or otherwise dispose of all or substantially all of its assets other than as may be expressly permitted pursuant to the terms of the Financing Documents (including Section 6.01(b) and 6.05); provided that, with respect to clauses (ia) and (iib), any Subsidiary of the Borrower (x) may merge into any other Subsidiary of the Borrower or, if the Borrower is the surviving entity, the Borrower, or (y) may transfer all or substantially all of its assets to another Subsidiary of the Borrower or to the Borrower, or (z) may be dissolved, liquidated or wound-up

 

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if another Subsidiary of the Borrower or the Borrower assumes all assets and obligations of such dissolving, liquidating or wound-up Subsidiary.

 

(b) The Borrower and each of its Subsidiaries shall not, except as otherwise permitted in accordance with the Financing Documents (including Section 6.01(a)), Dispose of, in one transaction or a series of related transactions, any of its properties or assets in excess of $60,000,000 per year in the aggregate except for:

 

(i) sales or other dispositions of obsolete, worn out or defective equipment in the ordinary course of business;

 

(ii) sales or other dispositions of equipment or other property where the proceeds of such sale or disposition are to be used to replace such equipment or property;

 

(iii) sales, transfers or other dispositions of cash and Cash Equivalents;

 

(iv) sales of assets for which the Net Cash Proceeds are (A) (x) reinvested or (y) committed to be reinvested (in Property (including Permitted Acquisitions) identified to the Administrative Agent in writing with reasonable specificity), in each case, within one-hundred eighty (180) days following the receipt of such Net Cash Proceeds and, in the case of clause (y), such reinvestment is completed within three-hundred sixty (360) days after the receipt of such Net Cash Proceeds or (B) an offer to apply such Net Cash Proceeds to the Loans is made in accordance with and to the extent required by Section 2.09(e) and Section 2.09(f);

 

(v) sales of assets pursuant to transactions permitted under Section 6.03(d);

 

(vi) sales of receivables under Permitted Receivables Financings not to exceed $50,000,000 in face value of receivables subject thereto at any one time outstanding;

 

(vii) sales, transfers or other dispositions of assets between or among the Borrower and its Subsidiaries; and

 

(viii) sales, dispositions or transfers of equity interests of OpCo to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) in connection with any long-term incentive plan.

  

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SECTION 6.02           Conduct of Business. The Borrower and each of its Subsidiaries shall not engage at any time in any business other than the management and operation of the Acquired Assetstheir assets as conducted on the Amendment No. 3 Effective Date and other activities reasonably related, incidental, synergistic or ancillary thereto (including but not limited to other regulated utility businesses) (the “Business”) such that the general nature of the business in which the Borrower and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the Business.

 

SECTION 6.03 Indebtedness. The Borrower and each of its Subsidiaries shall not create, incur, assume or permit to exist any Indebtedness, except for the following (“Permitted Debt”):

 

 

(b) (x) additional Debt of OpCo and its subsidiaries if:

 

(i) both before and after giving effect thereto on a Pro Forma Basis as of the last day of the most recently-ended Test Period, OpCo would be in compliance with Section 5.12 of the OpCo Credit Agreement or any similar financial covenants in any replacement, refinancing, refunding, renewal or extension thereof; and

 

(ii) such additional Debt shall not benefit from any Liens, unless the benefits of any such other Liens have been granted to the lenders under the OpCo Financing Documents (or lenders under any replacement, refinancing, refunding, renewal or extension thereof) on a pari passu basis with the lenders of such additional Debt pursuant to intercreditor provisions reasonably satisfactory to the Required Lenders (as such term is defined in the OpCo Credit Agreement or any similar term in any replacement, refinancing, refunding, renewal or extension thereof),

 

together with (y) any other additional Indebtedness of OpCo and its subsidiaries as permitted under the OpCo Financing Documents, in the case of clause (x) and (y), so long as such additional Indebtedness shall not have restrictions on the ability of OpCo or its subsidiaries to pay dividends or make other distributions to their respective members or shareholders more restrictive than those set forth in the OpCo Financing Documents on the Effective Date or as may be required by law;

 

(c) Hedging Arrangements permitted under Section 6.12;

 

(d) purchase money obligations of the Borrower Group Members incurred to finance discrete items of equipment that extend to and are secured by only the equipment being financed in an aggregate principal amount outstanding not to exceed $125,000,000 at any time;

 

(e) Indebtedness of OpCo and its subsidiaries or of the Purchaser and its subsidiaries, in each case, created in connection with any Capital Lease, Sale and Leaseback Transaction or

  

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lease-leaseback transaction in an aggregate principal amount outstanding not to exceed $100,000,000 at any time;

 

(f) current accounts payable arising, accrued expenses incurred, and financing of insurance premiums, in the ordinary course of business which are payable in accordance with customary practices that are not overdue by more than ninety (90) days (unless the Borrower or the applicable Subsidiary is contesting the existence or amount of such accounts payable in accordance with the Permitted Contest Conditions);

 

(g) amounts payable or provided as collateral under any contracts to which the Borrower or any of its Subsidiaries is a party that are permitted pursuant to the Financing Documents (to the extent the same constitute Indebtedness);

 

(h) Indebtedness owing by the Borrower or any of its Subsidiaries to the Borrower or any other subsidiary, and guarantees by the Borrower or any guarantee by the Borrower or any of its Subsidiaries of any Indebtedness, or other obligations or liabilities of the Borrower or any such Subsidiary otherwise permitted hereunder;

 

(i) Permitted Subordinated Debt;

 

(j) liabilities arising under the Merger Agreement or with respect to customary indemnification obligations in favor of sellers in connection with acquisitions or investments (including Permitted Investments) and purchasers in connection with dispositions permitted under Section 6.01;

 

(k) Indebtedness under deferred compensation or other similar arrangements incurred in connection with an acquisition or any other investment permitted hereunder (including Permitted Investments);

 

(l) obligations in respect of performance, bid, appeal and surety bonds, in each case in the ordinary course of business or consistent with past practice of Cleco Corp. or the Borrower and its Subsidiaries;

 

(m) Indebtedness assumed by OpCo or any of its subsidiaries or by the Purchaser or any of its subsidiaries, in each case, in connection with any acquisition permitted hereunder (including Permitted Investments) and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct and contingent obligors with respect thereto are not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;

 

(n) other additional unsecured Debt in an aggregate principal amount outstanding not to exceed $125,000,000 at any time;

 

(o) (i) the Senior Notes and (ii) Refinancing Senior Debt;

  

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(p) other additional Debt of OpCo, so long as (i) such Debt is issued in place of all or a portion of the Debt of OpCo contemplated by the OpCo Financing Documents, (ii) such additional Debt has a weighted average life to maturity equal to or greater than the weighted average life to maturity of the Debt being refinanced and (iii) such additional Debt does not have restrictions on the ability of OpCo or its subsidiaries to pay dividends or make other Distributions to their respective members or shareholders more restrictive than those set forth in the OpCo Financing Documents as in effect on the Effective Date or as may be required by law; and

 

(q) so long as no loans under the HoldCo Acquisition Loan Facility remain outstanding, additional Debt of Borrower if:

 

(i) both before and after giving effect thereto on a Pro Forma Basis as of the last day of the most recently-ended Test Period, the Borrower would be in compliance with Section 5.12;

 

(ii) such additional Debt has a weighted average life to maturity equal to or greater than the weighted average life to maturity of the then-outstanding principal amount of the Loans; and

 

(iii) such additional Debt shall not benefit from any Liens, unless (A) the benefits of any such other Liens have been granted to the Lenders on a pari passu basis with the lenders of such additional Debt pursuant to intercreditor provisions reasonably satisfactory to the Required Lenders and (B) no Default or Event of Default shall have occurred and be continuing at the time of the incurrence of such additional Debt, or would occur as a result of the incurrence of such additional Debt; and

 

(r) any Permitted Refinancing Indebtedness in respect of clauses (a) through (q) above.

 

 

SECTION 6.05 Investments. The Borrower shall not, nor shall it permit any of its Subsidiaries to, make any investments in any equity or debt securities (issued by Persons other than the Borrower) or make any loan or advance to any Person, other than (collectively, “Permitted Investments”):

 

(a) Cash Equivalents;

 

(b) Hedging Arrangements permitted under Section 6.12;

  

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(c) investments by the Borrower or any of its Subsidiaries in any Subsidiary of the Borrower;

 

(d) investments by OpCo and its subsidiaries in the equity of any Receivables Entity, pursuant to a Permitted Receivables Financing in an aggregate amount not to exceed $75,000,000 at any one time outstanding;

 

(e) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and supplies, in each case in the ordinary course of business;

 

(f) extensions of trade credit by the Borrower Group Members in the ordinary course of business;

 

(g) investments made as a result of the receipt of non-cash consideration from dispositions in compliance with Section 6.01;

 

(h) loans and advances made in the ordinary course of business to the Borrower’s or any of its Subsidiaries’ employees in an aggregate principal amount not to exceed $3,000,000 at any time outstanding;

 

(i) Permitted Acquisitions by the Borrower Group Members;

 

(j) additional investments by the Borrower Group Members so long as the aggregate amount invested, loaned or advanced does not exceed $10,000,000 in any fiscal year;

 

(k) additional investments so long as both before and after giving effect thereto (i) no Default or Event of Default has occurred and is continuing under Article VII(a), Article VII(b), Article VII(f), Article VII(g), Article VII(h) or Article VII(l) and (ii) the Borrower would be in compliance with the financial covenant in Section 5.12(a) on a Pro Forma Basis as of the relevant Test Period as though such investments had been consummated as of the first day of such Test Period; and

 

(l) to the extent constituting investments, transactions permitted under Section 6.01, Section 6.03, Section 6.04 or Section 6.06.

 

SECTION 6.03          SECTION 6.06 Distributions. The Borrower shall not directly or indirectly make or declare any Distribution if any Default or Event of Default then exists or would result therefrom upon giving pro forma effect to such Distribution, except that, so long as no Default or Event of Default under Article VII(a), Article VII(b), Article VII(f), Article VII(g), Article VII(h) or Article VII(l) shall have occurred and be continuing or would result from such Distribution, the Borrower may declare and pay tax Distributions to its members and shareholders at any time in an amount equal to the federal and state taxable income of such members or shareholders or their shareholders, partners or members, as applicable, with respect to the taxable income generated with respect to the Borrower and its Subsidiaries (if any), as calculated in accordance with the Code and applicable federal and state income tax regulations,

 

 

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multiplied by the highest marginal tax rate applicable to such respective federal and state taxable income.

 

SECTION 6.04          SECTION 6.07 Transactions with Affiliates. The Borrower shall not, nor shall it permit any of its Subsidiaries to, enter into any agreement or arrangement with any of its Affiliates or Sponsors or any Affiliate of any Sponsor (in each case, other than any such agreement or arrangement with the Borrower or any of its Subsidiaries and any other subsidiary or other than de minimis contracts with consideration less than an amount to be agreed$500,000) unless such transaction is in compliance with applicable laws and regulations of the Federal Energy Regulatory Commission and the Louisiana Public Service Commission pertaining to affiliate transactions and is (i) entered into in the ordinary course of business, (ii) authorized by a tariff or rate schedule which has been approved by a Governmental Authority or performed in accordance with its orders, (iii) permitted under Section 6.01 or Section 6.03, (ivSection 6.01, (iv) Indebtedness owing by the Borrower to any Subsidiary or by any Subsidiary to the Borrower or any other Subsidiary and other arrangements (including with respect to any Permitted Receivables Financing or any Securitization Financing) among the Borrower and its Subsidiaries or among Subsidiaries, (v) a Guaranty by any Borrower Group Member of any obligations or liabilities of another Borrower Group Member, (vi) pursuant to any contract in effect on the Effective Date, as the same may be amended, extended or replaced from time to time so long as such contract as so amended, extended or replaced is, taken as a whole, not materially less favorable to the Borrower and its Subsidiaries, or (vvii) on terms no less favorable to the Borrower (or the applicable Subsidiary) than the Borrower (or the applicable Subsidiary) could obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of a Sponsor.

 

SECTION 6.08 Constitutive Documents. The Borrower will not, nor will it permit any of its Subsidiaries to, modify its Constitutive Documents to the extent that such change will materially and adversely affect the rights of the Lenders.

 

SECTION 6.05          SECTION 6.09 Anti-Terrorism Laws and Sanctions; Anti-Money LaunderingAnti-Corruption Laws. The Borrower shall not, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly, (i) knowingly conduct any business or engage in making or receiving any contribution of funds (including the proceeds of any Borrowing), goods or services to or for the benefit of any Restricted Party or in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Restricted Party in violation of any Anti-Terrorism Laws, (ii) knowingly deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to any Anti-Terrorism Law, or (iii) knowingly engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the Borrower shall deliver to the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming compliance with this Section 6.09) orSection 6.05) or Anti-Corruption Laws, or (b) cause or knowingly permit any of the funds of the Borrower that are used to repay the Loans to be derived from any unlawful activity with the result that the making of the Loans would (1) be in violation of law or benefit any Restricted Party. or (2) violate any applicable Anti-Corruption Laws. The Borrower shall at all times implement and maintain policies and procedures reasonably designed to ensure compliance by

 

 

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the Borrower and its Subsidiaries with all applicable Anti-Terrorism Laws and Anti-Corruption Laws.

 

SECTION 6.10 Name, Fiscal Year. The Borrower shall not change its name or its fiscal year without providing prior written notice to the Administrative Agent.

 

SECTION 6.11 Registered Office. The Borrower shall not move its registered office from the State of Louisiana without providing prior written notice to the Administrative Agent and shall maintain at its principal place of business originals or copies of its principal books and records.

 

 

(a)         Liens that secure Indebtedness incurred or created under the Financing Documents and, so long as the Loan Obligations are also secured on a pari passu basis, under the Other Borrower Financing Documents, the Senior Notes or other Indebtedness;

 

(b)         Liens, deposits or pledges incurred or created by the Borrower or any Subsidiary in the ordinary course of business or under applicable Governmental Rules in connection with or to secure the performance of bids, tenders, contracts, leases, statutory obligations, surety bonds or appeal bonds;

 

(c)         pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations (but not ERISA);

 

(d)         mechanics’, materialmen’s, workers’, contractors’, repairmens’, employees’, warehousemen’s, carriers’, maritime, customs, or other like Liens arising in the ordinary course of business or under Governmental Rules securing obligations which are not yet due, or which are adequately bonded and which are being contested pursuant to the Permitted Contest Conditions;

 

(e)          Liens for Taxes, assessments or governmental charges, which are not yet due or which are being contested pursuant to the Permitted Contest Conditions;

 

(f)          Liens arising out of judgments or awards fully covered by insurance (other than customary deductibles) or with respect to which an appeal or proceeding for review is being

 

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prosecuted pursuant to the Permitted Contest Conditions, or that do not constitute an Event of Default under clause (i) of Article VII;

 

(g)         easements, servitudes (contractual and legal), rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and minor title defects affecting real property of the Borrower or any Subsidiary which, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of the Borrower or applicable Subsidiary;

 

(h)         zoning, building and other generally applicable land use restrictions, which, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of the Borrower or applicable Subsidiary;

 

(i)          Liens that have been placed by a third party on the fee title of leased real property or property over which the Borrower or applicable Subsidiary has easement, servitude, right-of-way or franchise rights, and subordination or similar agreements relating thereto;

 

(j)          any interest of a lessor or licensor in property under an operating lease under which the Borrower or any Subsidiary is lessee or licensee, and any restriction or encumbrance to which the interest of such lessor or licensor is subject;

 

(l)          licenses of intellectual property granted by the Borrower or any Subsidiary in the ordinary course of business and not materially interfering with the ordinary conduct of the business of the Borrower and its Subsidiaries;

 

(m)        with respect to properties involved in the production of oil, gas and other minerals, unitization and pooling agreements and orders, operating agreements, royalties, reversionary interests, preferential purchase rights, farmout agreements, gas balancing agreements and other agreements, in each case that are customary in the oil, gas and mineral production business in the general area of such property and that are entered into in the ordinary course of business;

 

(n)         Liens (including contractual security interests and rights of set-off) arising in the ordinary course of business from netting services, overdraft protection, banking services obligations and otherwise in connection with deposit, securities and commodities accounts;

 

(o)         Liens for the fees and expenses of trustees and escrow agents pursuant to any indenture, escrow agreement or similar agreement establishing a trust or escrow arrangement, and Liens on monies held by trustees in payment or construction accounts under indentures;

 

(p)         Liens on cash or invested funds used to make a defeasance, covenant defeasance or in substance defeasance of any Debt pursuant to an express contractual provision in the agreements governing such Debt or GAAP, provided that immediately before and immediately after giving effect to the making of such defeasance, no Default or Event of Default shall exist;

 

 

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(r)        Liens for purchase money security interests or Capital Lease obligations which are secured solely by the assets acquired;

 

(s)       Liens arising from filed UCC-1 financing statements relating solely to leases not prohibited by this Agreement;

 

 

 

(x)        Liens created or incurred by the Borrower or any Subsidiary in favor of Governmental Authorities encumbering assets acquired in connection with a government grant program, and the right reserved to, or vested in, any Governmental Authority by the terms of any right, power, franchise, grant, license, or permit, or by any provision of law, to terminate such right, power, franchise, grant, license or permit or to purchase, condemn, recapture or designate a purchaser of any property, or any obligations or duties to any Governmental Authority affecting the property of the Borrower or applicable Subsidiary with respect to any franchise, grant, license or permit;

 

(y)       agreements for an obligation (other than repayment of borrowed money) relating to the joint or common ownership, operation, and use of property, including Liens under joint venture or similar agreements securing obligations incurred in the conduct of operations or consisting of a purchase option, call or right of first refusal with respect to the Equity Interests in such jointly owned Person or assets;

 

(z)        Liens on any property in existence on or prior to the Effective Date;

 

(aa)      any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any of its Subsidiaries, or existing on any property of any Person that becomes a Subsidiary after the Effective Date prior to the time such Person becomes a Subsidiary or that is merged with or into or consolidated with the Borrower or any Subsidiary prior to such merger or consolidation, provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary or such merger, as the case may be,

 

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(ii) such Lien shall not apply to any other property or asset of the Borrower or any of the Subsidiaries, and (iii) such Lien shall secure only those obligations and liabilities that it secures on the date of such acquisition or the date such Person becomes a Subsidiary of the Borrower or such merger, as the case may be, and any extensions, renewals, refinancings and replacements thereof that do not increase the outstanding amount thereof;

 

(bb)      Liens (including precautionary Liens in connection with Capital Leases) on fixed or capital assets and other property (including any natural gas, oil or other mineral assets, pollution control facilities, electrical generating plants, equipment and machinery, and related accounts, financial assets, contracts and general intangibles) acquired, constructed, explored, drilled, developed, improved, repaired or serviced (including in connection with the financing of working capital and ongoing maintenance) by the Borrower or any Subsidiary, provided that (i) such security interests and the obligations and liabilities secured thereby are incurred prior to or within two hundred seventy (270) days after the acquisition of the relevant asset or the completion of the relevant construction, exploration, drilling, development, improvement, repair or servicing (including the relevant financing of working capital and ongoing maintenance), or within two hundred seventy (270) days after the extension, renewal, refinancing or replacement of the obligations and liabilities secured thereby, as the case may be, (ii) the obligations and liabilities secured thereby do not exceed the cost of acquiring, constructing, exploring, drilling, developing, improving, repairing or servicing (including the financing of working capital and ongoing maintenance in respect of) the relevant assets, and (iii) such security interests shall not apply to any other property beyond the relevant property set forth in this clause (bb) (and in the case of construction or improvement, any theretofore unimproved real property on which the property so constructed or the improvement is located) and clause (cc), as applicable, of the Borrower or any Subsidiary, and (iv) recourse for such obligations and liabilities under any financing secured under this clause (bb) shall be limited to the property subject to Liens permitted under this clause (bb) and clause (cc) and (A) in the case of any financing of Power, to Power and (B) in the case of any other financing, to a special purpose, bankruptcy-remote Person described in clause (cc);

 

(cc)       Liens on any Equity Interest owned or otherwise held by or on behalf of the Borrower or any Subsidiary in any Person created in connection with any project financing;

 

(dd)      Liens on assets of Power securing the payment of Indebtedness of Power to a state of the United States or any political subdivision thereof issued in a transaction in which such state or political subdivision issued industrial revenue bonds or other obligations, the interest on which is excludable from gross income by the holders thereof pursuant to the provisions of the Code, as in effect at the time of the issuance of such obligations, and Indebtedness to the issuer of a letter of credit, bond insurance or guaranty to support any such obligations to the extent Power is required to reimburse such issuer for drawings under such letter of credit, bond insurance or guaranty with respect to the principal of or interest on such obligations, including Liens arising pursuant to a pledge of Power’s mortgage bonds issued under the Power Mortgage; provided that such pledged bonds shall not exceed an aggregate principal amount of $125,000,000 at any time;

 

(ee)       Liens created for the sole purpose of extending, renewing or replacing in whole or in part Indebtedness secured by any lien, mortgage or security interest referred to in this

 

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definition of “Permitted Liens”; provided, however, that the principal amount of Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement and that such extension, renewal or replacement, as the case may be, shall be limited to all or a part of the property or Indebtedness that secured the lien or mortgage so extended, renewed or replaced (and any improvements on such property);

 

 

(gg)     Liens created to secure Debt of any Subsidiary to the Borrower or any other Subsidiary;

 

 

 

ARTICLE VII

EVENTS OF DEFAULT

 

The occurrence and continuance of any one or more of the following events shall (after the lapse of any cure period applicable thereto) constitute an “Event of Default”:

 

(a)           The Borrower shall fail to pay any principal of or interest on the Loans on the date when due or, in the event of any technical or administrative error in connection with the making of any such payment of interest, such failure is not remedied within three (3) Business Days after the applicable due date therefor;

 

(b)           The Borrower shall fail to pay fees or other amounts payable under any Financing Document (other than interest and principal) when due and such failure is not remedied within ten (10) Business Days after the applicable due date therefor;

 

(c)           The Borrower or any of its Subsidiaries shall fail to comply with any covenant or agreement applicable to it contained in (A) Section 5.01, Section 5.03(a)(i), Section 5.08(a), Section 6.01, Section 6.02, Section 6.04 or Section 6.06, (B) Section 5.02, Section 5.04, Section 6.03, Section 6.05, Section 6.07 or Section 6.09Section 5.01, Section 5.03(a)(i), Section 5.07(a), Section 5.10, Section 6.01, Section 6.02, Section 6.03, Section 6.05 or Section 6.06, (B) Section 5.02, Section 5.04 or Section 6.04 unless such failure is remedied within ten (10) Business Days after the Borrower becomes aware of such failure, or

 

 

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(C) Section 5.08 (other than Section 5.08(a)), Section 5.10 or Section 6.12Section 5.07 (other than Section 5.07(a)), or Section 5.09, unless such failure is remedied within thirty (30) days after the Borrower becomes aware of such failure, or such longer period not to exceed sixty (60) days (as may be extended by the Required Lenders), as is reasonably necessary under the circumstances to remedy such failure, or (D) Section 5.12 and such failure shall not have been cured in accordance therewith;;

 

(d)          The Borrower or any of its Subsidiaries shall fail to comply with any covenant under this Agreement (other than set forth in clauses (a) through (c) above) and such failure is not remedied within thirty (30) days after the Borrower becomes aware of such failure or such longer period, not exceeding ninety (90) days, or is reasonably necessary under the circumstances to remedy such failure; provided, that, if the Borrower or the applicable Subsidiary is continuing diligently in good faith to remedy such failure, such ninety (90) day period will be extended to the earlier of (i) the date in which the Borrower or such Subsidiary is no longer working in good faith to remedy such failure and (ii) one-hundred twenty (120) days (as may be extended by the Required Lenders);;

 

(e)          Any representation or warranty made by the Borrower or any of its Subsidiaries in any Financing Document or in any certificate or document required to be delivered thereby proves to have been incorrect in any material respect when made, unless such misrepresentation is capable of remedy and either (A) is remedied within thirty (30) days after the Borrower becomes aware of such misrepresentation or (B) the Borrower or the applicable Subsidiary is continuing diligently in good faith to remedy such inaccuracy, in which case the thirty (30) day period will be extended to the earlier of (1) the date on which the Borrower or such Subsidiary is no longer working in good faith to remedy such inaccuracy and (2) sixty (60) days (as may be extended by the Required Lenders);;

 

(f)           Any Financing Document ceases (other than in accordance with its terms) to be in full force and effect (other than, in the case of the Equity Pledge, as a result of any act or omission by the Administrative Agent or any Lender), or or the Borrower denies in writing further liability or obligation under, or otherwise repudiates, any Financing Document;

 

(g)          Any Change in Control shall occur;

 

(h)          A Bankruptcy Event shall occur with respect to the Borrower or any of its Material Subsidiaries;

 

(i)           A final judgment shall be entered against the Borrower or any of its Subsidiaries for the payment of money in an aggregate amount in excess of $50,000,000 (to the extent not covered by insurance or an enforceable indemnity) and such judgment remains unsatisfied without any procurement of a stay of execution for a period of sixty (60) days;

 

(j)           Any material Governmental Approval necessary for the execution, delivery and performance of the material obligations under the Financing Documents shall be terminated or shall not be obtained, maintained, or complied with; unless such Governmental Approval is replaced, obtained, re-obtained, renewed or complied with within forty-five (45) days after the Borrower receives written notice of such termination or failure to obtain, maintain or comply

 

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from the Administrative Agent, or such longer period, not exceeding ninety (90) days, as is reasonably necessary under the circumstances to replace, obtain, re-obtain, renew or comply with any such Governmental Approval; provided that, if the Borrower has commenced any process to obtain or re-obtain any such Governmental Approval within such ninety (90) day period and is continuing diligently in good faith to obtain or re-obtain any such Governmental Approval, such ninety (90) day period will be extended to the earlier of (i) the date on which the Borrower is no longer working in good faith to remedy such failure and (ii) one-hundred eighty (180) days;

 

(k)           An ERISA Event shall have occurred which, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect; or

 

(l)           The Borrower or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) with respect to any of its DebtIndebtedness in an aggregate principal amount outstanding in excess of $50,000,000 when and as the same shall become due and payable (after giving effect to any applicable grace or cure period), or any such DebtIndebtedness in an aggregate principal amount outstanding in excess of $50,000,000 shall have been declared immediately due and payable prior to its scheduled maturity., provided that this clause (l) shall not apply to (i) Indebtedness that becomes due as a result of a notice of voluntary prepayment or redemption delivered by the Borrower or a Subsidiary, (ii) secured Indebtedness that becomes due solely as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, (iii) intercompany Indebtedness or (iv) any Indebtedness of a Finsub or a Receivables SPC so long as there is no recourse with respect to such Indebtedness to the Borrower or any of its Subsidiaries.

 

If any Event of Default occurs and is continuing, then the Administrative Agent (at the direction of the Required Lenders) shall have the right: (i) by notice to the Borrower, to declare the commitments to be terminated, whereupon the same will be terminated immediately; (ii) by notice to the Borrower, to declare the entire unpaid principal amount of the Loans (together with all accrued and unpaid interest thereon and any other amount then due under the Financing Documents to the Lenders) to be forthwith due and payable, whereupon such amounts will become and be immediately due and payable, without presentment, demand, protest, or notice of any kind except as expressly provided herein, all of which are hereby expressly waived by the Borrower; and (iii) to exercise all rights and remedies permitted by law and as set forth in the Financing Documents. Notwithstanding the foregoing, if the Event of Default set forth in clause (h) occurs, the actions described in clause (i) and (ii) above will be deemed to have occurred automatically and without notice.

 

 

 

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Subsidiaries, or (iii) apply for any order for an injunction or specific performance in respect of the Borrower or any of its Subsidiaries in relation to any of the Financing Documents.

 

ARTICLE VIII

 

THE ADMINISTRATIVE AGENT

 

SECTION 8.01          Appointment and Authority. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Financing Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Financing Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and, except as expressly provided in Section 8.06(a) or Section 8.06(b), the Borrower shall not have rights, whether as a third-party beneficiary or otherwise, of any such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Financing Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

 

SECTION 8.02          Rights as a Lender. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.

 

SECTION 8.03          Exculpatory Provisions.

 

(a)           The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Financing Documents. Without limiting the generality of the foregoing,

 

(i)            the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing,

 

(ii)           the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Financing Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Financing Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic

 

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stay under the Bankruptcy Code or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of the Bankruptcy Code, and

 

(iii)           except as expressly set forth in the Financing Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.

 

(b)           The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Financing Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Financing Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Financing Document, (iv) the validity, enforceability, effectiveness or genuineness of any Financing Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vi) the satisfaction of any condition set forth in Article IVArticle IV or elsewhere in any Financing Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

SECTION 8.04          Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

SECTION 8.05          Delegation of Duties. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent

 

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that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

 

SECTION 8.06          Resignation of Administrative Agent.

 

(a)           Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed and provided such consent shall not be required for the appointment of any successor Administrative Agent that is a Lender or an Affiliate of a Lender) which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.

 

(b)           If the bank serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such bank remove such bank as Administrative Agent and, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed and provided such consent shall not be required for the appointment of any successor Administrative Agent that is a Lender or an Affiliate of a Lender), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

 

(c)           With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Financing Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Financing Documents, the retiring or removed Administrative Agent shall continue

 

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to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Financing Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Financing Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

 

SECTION 8.07          Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Financing Document or any related agreement or any document furnished hereunder or thereunder.

 

SECTION 8.08          No Other Duties. None of the Lenders, if any, identified in this Agreement as a Mandated Lead Arranger shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Mandated Lead Arranger as it makes with respect to the Administrative Agent in the preceding paragraph.

 

SECTION 8.09          No Liability. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

 

SECTION 8.10        Representative of Secured Parties.

 

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(a) In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into the Pari Passu Intercreditor Agreement, the Pledge Agreement and each other Security Document (if any) to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Security Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Security Documents.

 

(b) In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations in accordance with Section 6.03(o), Section 6.03(g) or otherwise as agreed by the Borrower in writing in its sole discretion, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Financing Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties.

 

(c) The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (ii) as permitted by, but only in accordance with, the terms of the applicable Financing Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale, transfer or Disposition of assets constituting Collateral which is permitted pursuant to the terms of any Financing Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold, transferred or Disposed; provided, however, that (x) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral.

 

(d) In accordance with Section 8.01 of the Pari Passu Intercreditor Agreement, the Administrative Agent and the Lenders hereby designate and appoint ▇▇▇▇▇ Fargo Bank, N.A. as the Collateral Agent under the Pari Passu Intercreditor Agreement and the Pledge Agreement, vested with all the authority, rights, powers, duties and obligations of the Collateral Agent

 

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thereunder. By its execution of the Accession Agreement referred to in Section 4.01(b), ▇▇▇▇▇ Fargo Bank, N.A. will accept such designation and appointment.

 

SECTION 8.11 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under the Bankruptcy Code or any other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

 

(a)           to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loan and all other obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.10 and Section 9.03) allowed in such judicial proceeding; and

 

(b)           to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.10 and Section 9.03.

 

SECTION 8.11          Certain ERISA Matters.

 

(a)          Each Lender (i) represents and warrants, as of the date such Person became a Lender party hereto, to, and (ii) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:

 

	(A)	such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement;

(B)

the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance

 

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company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement;

 

	(C)	(I) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (II) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (III) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (IV) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement; or

	(D)	such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)          In addition, unless either (i) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (ii) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (D) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Financing Document or any documents related hereto or thereto).

 

(c)          As used in this Section 8.11, the following terms have the respective meanings set forth below:

 

“Benefit Plan” means 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”.

 

 

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