CREDIT AGREEMENT AMENDMENT NO. 3
Exhibit 10.3
Execution Version
AMENDMENT NO. 3
This AMENDMENT NO. 3 (this “Amendment”) is made as of May 15, 2020 by and among CLECO CORPORATE HOLDINGS LLC (f/k/a CLECO CORPORATION), a Louisiana limited liability company (the “Borrower”),
the LENDERS party hereto (the “Lenders”), and MIZUHO BANK, LTD., as administrative agent (in such capacity, the “Administrative Agent”).
RECITALS
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to that certain Credit Agreement, dated as of April 13, 2016 (as amended, restated, supplemented or otherwise modified
from time to time prior to the date hereof, the “Revolving Credit Agreement”);
WHEREAS, the Borrower has requested certain amendments to the Revolving Credit Agreement, and the parties hereto agree to such amendments as set forth in, and in accordance with the terms and
conditions of, this Amendment (the Revolving Credit Agreement as so amended, the “Amended Revolving Credit Agreement”);
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
Article I.
DEFINITIONS
Section 1.1 Capitalized terms used and not otherwise specifically defined in this Amendment shall have the meanings given to such terms in the Amended Revolving Credit Agreement.
Section 1.2 The rules of construction set forth in Section 1.03 of the Amended Revolving Credit Agreement shall apply to this Amendment and are hereby incorporated by reference, mutatis mutandis, with the same force and effect as if fully set forth in this Amendment.
Article II.
AMENDMENT
Section 2.1 As of the Effective Date, subject to the terms and conditions set forth herein, the Required Lenders and the Borrower hereby agree to amend the Revolving Credit Agreement
to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same
manner as the following example: double-underlined text) as set forth in the pages of the Amended Revolving Credit Agreement attached as Annex A hereto.
Article III.
CONDITIONS TO EFFECTIVENESS
Section 3.1 This Amendment shall become effective on and as of the date (the “Effective Date”) on which each of the following conditions precedent shall have been satisfied in
full:
(a) the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower, the Required Lenders and the Administrative Agent;
(b) The Administrative Agent shall have received the following documents, each certified as indicated below:
(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 Amended Revolving Credit Agreement 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 Amendment 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).
(c) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Effective Date), in each case in form and substance
reasonably satisfactory to the Administrative Agent and the
Lenders, of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.P., Louisiana counsel for the Borrower and (ii) ▇▇▇▇▇ ▇▇▇▇▇, New York counsel for the Borrower.
(d) 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.
(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 “Effective Date” as defined in each of (i) that certain Term Loan Credit Agreement Amendment No. 3 dated on or about the date hereof (amending that certain Term Loan Credit
Agreement dated as of June 28, 2016 among the Borrower as borrower, the lenders party thereto and Mizuho Bank, Ltd. as administrative agent (as amended prior to the date of such Term Loan Credit Agreement Amendment No. 3)), among the Borrower as
borrower, the lenders party thereto and Mizuho Bank, Ltd., in its capacity as administrative agent for the lenders thereunder, (ii) that certain Term Loan Agreement Amendment No. 1 dated on or about the date hereof (amending that certain Term Loan
Agreement dated as of February 1, 2019 among the Borrower as borrower, the lenders party thereto and Mizuho Bank, Ltd. as administrative agent), among the Borrower as borrower, the lenders party thereto and Mizuho Bank, Ltd., in its capacity as
administrative agent for the lenders thereunder, and (iii) that certain Credit Agreement Amendment No. 1 dated on or about the date hereof (amending that certain Credit Agreement dated as of April 13, 2016 among Cleco Power LLC as borrower, the
lenders party thereto and Mizuho Bank, Ltd. as administrative agent), among Cleco Power LLC as borrower, the lenders party thereto and Mizuho Bank, Ltd. as administrative agent, shall have occurred, with the foregoing amendments each having been
consummated on terms and subject to conditions substantially consistent with those set forth in the respective amendments;
(g) After giving effect to the transaction to occur on the Effective Date (including the entry into the amendments referenced in the foregoing clause (f) and the consummation of the
transactions contemplated in connection therewith), the Borrower and each of its Subsidiaries, on a consolidated basis, will be Solvent;
(h) Since December 31, 2019, there shall not have been any material adverse change in the business, condition (financial or otherwise) operation or prospects of the Borrower and its
subsidiaries, taken as a whole, other than as previously disclosed in writing to the Lenders;
(i) the Administrative Agent shall have received certificates from (i) an Authorized Officer of the Borrower certifying as to the matters set forth in the foregoing clause (h)and the following Section 4.1 and
(ii) a Financial Officer of the Borrower certifying as to the matters set forth in the foregoing clause (g).
Article IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1 In order to induce the Lenders to provide this Amendment, the Borrower represents and warrants as of the Effective Date (as defined in this Amendment), which representations and
warranties shall survive the execution of this Amendment and the Effective Date, that each of the representations and warranties made by the Borrower in the Amended Revolving Credit Agreement and any other Financing Document is true and correct in
all material respects (and to the extent that any such representation and warranty is otherwise qualified by materiality or material adverse effect, such representation and warranty is true and correct in all respects), or in the case of any
representations and warranties made as of a specified date, such representations and warranties were true and correct in all material respects (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) as of such specified date.
Article V.
GENERAL PROVISIONS
Section 5.1 Reference to the Effect on the Financing Documents.
(a) On and after the Effective Date, each reference in the Revolving Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Revolving Credit
Agreement, and each reference in each other Financing Document to “the HoldCo Acquisition/Revolver Credit Agreement”, “the Acquisition Facilities Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Revolving Credit
Agreement, shall mean and be a reference to the Amended Revolving Credit Agreement.
(b) Except as specifically provided above, all of the terms and provisions of the Revolving Credit Agreement and all other Financing Documents are and shall remain in full force and effect
and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver or amendment of any right, power or remedy of the Lenders
or the Administrative Agent under any of the Financing Documents, nor constitute a waiver or amendment of any other provision of any of the Financing Documents or for any purpose except as expressly set forth herein.
(d) This Amendment is a Financing Document.
Section 5.2 No Oral Modification. This Amendment may not be amended, supplemented, modified or waived, except in accordance with the Financing Documents.
Section 5.3 Binding Upon Successors and Assigns. This Amendment shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors and
permitted assigns under the Financing Documents.
Section 5.4 Execution in Counterparts. This Amendment may be executed in several counterparts, each of which is an original (and by different parties hereto in different
counterparts), but all of which together constitute one and the same agreement. This Amendment and the other Financing Documents constitute the entire contract among the parties relating to the subject matter hereof and supersedes any and all
previous agreement and understanding, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Amendment by digital signature (e.g., DocuSign) or by facsimile or other electronic
imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 5.5 Notices; Applicable Law and Jurisdiction. The provisions set forth in Sections 9.01 (Notices), 9.02 (Waivers; Amendments), 9.03 (Expenses; Indemnity; Damage Waiver), 9.05 (Survival), 9.07 (Severability), 9.09
(Governing Law; Jurisdiction; Consent to Service of Process), 9.10 (WAIVER OF JURY TRIAL), 9.11 (Headings) and 9.12 (Confidentiality) of the Amended Revolving Credit Agreement shall apply to this Amendment and are hereby incorporated by reference, mutatis mutandis, with the same force
and effect as if fully set forth in this Amendment (and as if each reference to “this Agreement” were a reference to this Amendment).
[Signature Pages Follow]
IN WITNESS WHEREOF, this Amendment has been executed by the undersigned as of the date first set forth above.
| CLECO CORPORATE HOLDINGS LLC, | |||
| as Borrower | |||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| Title: | President and Chief Executive Officer | ||
| By: |
/s/ ▇▇▇▇ ▇▇▇▇▇ | ||
| Name: | ▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Chief Financial Officer |
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
| MIZUHO BANK, LTD., | ||
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as Administrative Agent and as a Lender
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| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
|
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| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Authorized Signatory | |
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
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CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK BRANCH,
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as a Lender
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| By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
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| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | Authorized Signatory | |
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
| CoBank, ACB, | ||
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as a Lender
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||
| By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
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| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Title: | Managing Director |
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Signature Page to Amendment No. 3 to the Revolving Credit Agreement
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CREDIT AGRICOLE CORPORATE AND
INVESTMENT BANK,
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as a Lender
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| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
|
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| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | Managing Director |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| Title: | Director |
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Signature Page to Amendment No. 3 to the Revolving Credit Agreement
| JPMORGAN CHASE BANK, N.A., | ||
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as a Lender
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||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
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| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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| Title: | Executive Director | |
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
| REGIONS BANK, | ||
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as a Lender
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||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇
|
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| Name: | ▇▇▇▇▇ ▇▇▇▇▇ |
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| Title: | Director | |
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
| SUMITOMO MITSUI BANKING | ||
|
CORPORATION, as a Lender
|
||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇
|
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| Name: | ▇▇▇▇▇ ▇▇▇ | |
| Title: | Director | |
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
| THE BANK OF NOVA SCOTIA, | ||
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as a Lender
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||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇
|
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| Name: | ▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Director | |
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
Annex A
Amended Revolving Credit Agreement
[see attached]
Signature Page to Amendment No. 3 to the Revolving Credit Agreement
Execution Version
CREDIT AGREEMENT
dated as of
April 13, 2016
as amended by Amendment No. 1 made as of July 30, 2018 and
, Amendment No. 2 made as of February 1, 2019 and
Amendment No. 3 made as of May 15,
2020
among
CLECO CORPORATIONCORPORATE HOLDINGS LLC,
The Lenders Party Hereto, and
MIZUHO BANK, LTD.,
as Administrative Agent
MIZUHO BANK, LTD.,
JPMORGAN CHASE BANK, N.A.,
COBANK, ACB,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
BANK, LTD.,
SUMITOMO MITSUI BANKING CORPORATION
and
THE BANK OF NOVA SCOTIA,
as Joint Lead Arrangers and Joint Bookrunners
Table of Contents
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ARTICLE I DEFINITIONS
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SECTION 1.01
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Defined Terms
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SECTION 1.02
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Classification of Loans and Borrowings
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SECTION 1.03
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Terms Generally
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SECTION 1.04
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Accounting Terms; GAAP; Pro Forma Calculations
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SECTION 1.05
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Status of Obligations
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SECTION 1.06
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Divisions
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32
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ARTICLE II THE CREDITS
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SECTION 2.01
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Revolving Loan Commitments
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SECTION 2.02
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Loans and Borrowings
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SECTION 2.03
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Requests for Borrowings
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SECTION 2.04
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Reserved
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SECTION 2.05
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SECTION 2.06
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Letters of Credit
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SECTION 2.07
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Funding of Borrowings
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SECTION 2.08
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Interest Elections
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SECTION 2.09
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Termination and Reduction of Revolving Loan Commitments
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SECTION 2.10
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Repayment of Loans; Evidence of Debt
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SECTION 2.11
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Optional Prepayment of Loans.
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SECTION 2.12
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Mandatory Prepayments
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SECTION 2.13
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Fees
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SECTION 2.14
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Interest
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SECTION 2.15
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Alternate Rate of Interest
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44
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SECTION 2.16
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Increased Costs; Illegality
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SECTION 2.17
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Break Funding Payments
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SECTION 2.18
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Taxes
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SECTION 2.19
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Payments Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of Set-offs
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SECTION 2.20
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Mitigation Obligations; Replacement of Lenders
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SECTION 2.21
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Expansion Option
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SECTION 2.22
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Defaulting Lenders
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SECTION 2.23
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Acknowledgement and Consent to Bail-In of
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SECTION 2.24
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Renewal Options
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ARTICLE III REPRESENTATIONS AND WARRANTIES
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SECTION 3.01
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Organization
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SECTION 3.02
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Authority
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SECTION 3.03
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Necessary Action
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SECTION 3.04
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Due Authorization, Etc.
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SECTION 3.05
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Compliance with Law
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SECTION 3.06
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No Litigation
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SECTION
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Governmental Approvals
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SECTION
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Financial Condition
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SECTION
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No Violation
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SECTION
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Not Investment Company
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SECTION
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Accuracy of Disclosures
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SECTION
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Margin Regulations
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SECTION
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Environmental Matters
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SECTION
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Anti-Terrorism Laws
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ARTICLE IV CONDITIONS
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SECTION 4.01
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SECTION 4.02
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Each
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ARTICLE V AFFIRMATIVE COVENANTS
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SECTION 5.01
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Use of Proceeds
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SECTION 5.02
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Financial Statements
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SECTION 5.03
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Notices of Material Events
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SECTION 5.04
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Inspection of Property
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SECTION 5.05
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Maintenance of Properties
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SECTION
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Compliance with Laws
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SECTION
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Maintenance of Legal Status
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SECTION
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Insurance
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SECTION
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Taxes
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SECTION
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Financial Covenant
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ARTICLE VI NEGATIVE COVENANTS
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SECTION 6.01
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Fundamental Changes; Sale of Assets; Etc.
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SECTION 6.02
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Conduct of Business
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SECTION 6.03
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SECTION
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Transactions with Affiliates
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SECTION
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Anti-Terrorism Laws and Sanctions;
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SECTION 6.06
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Liens
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74
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ARTICLE VII EVENTS OF DEFAULT
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ARTICLE VIII THE ADMINISTRATIVE AGENT
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SECTION 8.01
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Appointment and Authority
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SECTION 8.02
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Rights as a Lender
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SECTION 8.03
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Exculpatory Provisions
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SECTION 8.04
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Reliance by Administrative Agent
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SECTION 8.05
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Delegation of Duties
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SECTION 8.06
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Resignation of Administrative Agent
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SECTION 8.07
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Non-Reliance on Administrative Agent and Other Lenders
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SECTION 8.08
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No Other Duties
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SECTION 8.09
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No Liability
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SECTION
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Administrative Agent May File Proofs of Claim
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SECTION 8.11
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Certain ERISA Matters
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84
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ARTICLE IX MISCELLANEOUS
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SECTION 9.01
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Notices
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SECTION 9.02
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Waivers; Amendments
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SECTION 9.03
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Expenses; Indemnity; Damage Waiver
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SECTION 9.04
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Successors and Assigns
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SECTION 9.05
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Survival
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SECTION 9.06
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Counterparts; Integration; Effectiveness
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SECTION 9.07
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Severability
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SECTION 9.08
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Right of Setoff
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SECTION 9.09
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Governing Law; Jurisdiction; Consent to Service of Process
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SECTION 9.10
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WAIVER OF JURY TRIAL
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SECTION 9.11
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Headings
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SECTION 9.12
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Confidentiality
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SECTION 9.13
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USA ▇▇▇▇▇▇▇ ▇▇▇
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SECTION
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Interest Rate Limitation
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SECTION
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No Advisory or Fiduciary Responsibility
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SCHEDULES:
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Schedule 2.01
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–
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Commitments and Lenders
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EXHIBITS:
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Exhibit A
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–
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Form of Assignment and Assumption
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Exhibit B-1
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–
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Form of Borrowing Request
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Exhibit B-2
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–
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Form of Letter of Credit Request
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Exhibit B-3
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–
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Form of Interest Election Request
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Exhibit C
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–
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Form of Increasing Lender Supplement
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Exhibit D
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–
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Form of Augmenting Lender Supplement
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Exhibit E
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–
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Form of Financial Ratio Certificate
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–
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Exhibit
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-
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Form of Revolving Loan Note
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Exhibit G-1
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Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Not Partnerships)
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Exhibit G-2
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Form of U.S. Tax Certificate (Non-U.S. Lenders That Are Partnerships)
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Exhibit G-3
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Form of U.S. Tax Certificate (Non-U.S. Participants That Are Not Partnerships)
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Exhibit G-4
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Form of U.S. Tax Certificate (Non-U.S. Participants That Are Partnerships)
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CREDIT AGREEMENT (this “Agreement”) dated as of April 13, 2016 among CLECO MERGERSUB INC.CORPORATE HOLDINGS LLC (f/k/a CLECO CORPORATION), a Louisiana corporation (“Initiallimited liability company (the “Borrower”), and immediately upon consummation of the Acquisition referred to below, CLECO CORPORATION, a Louisiana corporation (“Cleco Corp.”), the LENDERS from time to time party hereto and MIZUHO BANK, LTD., as Administrative Agent, as amended by Amendment No. 1 made as of July 30, 2018 and, Amendment No. 2 made as of February 1, 2019
and Amendment No. 3 made as of May 15, 2020.
RECITALS
WHEREAS, in addition, in order to fund working capital and to fund other general corporate purposes, the Borrower has requested that the Lenders extend credit in the form of revolving loans at any time and from time to time on and after the Effective Date and prior to
the Revolving LoanLatest Maturity Date, in an aggregate
principal amount at any time outstanding, together with the aggregate principal amount of outstanding Swingline Loans and aggregate face amount of outstanding Letters of Credit, up to
$100,000,000175,000,000 (the “Revolving
Credit Facility”); and
WHEREAS, the Borrower has requested that the Issuing Banks issue
standby and commercial letters of credit, in an aggregate face amount at any time outstanding up to $100,000,000175,000,000 (and, in any case, up to $100,000,000175,000,000 measured together with the aggregate principal amount of outstanding Revolving Loans and outstanding Swingline Loans), to support certain payment obligations.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“Acceptance DeadlineAct” has the meaning set
forth in Section 2.12(g)9.13.
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“Actual Knowledge” means, with respect to any Person and any matter, the earlier of actual knowledge of, or receipt of written notice by, a responsible officer of such Person.
“Adjusted Eurodollar Rate” means, with respect to any Eurodollar Loan or Eurodollar Borrowing for any Interest Period, the rate per annum (rounded upwards, if necessary, to the next 1/100
of 1%) equal to (a) the Eurodollar Rate for such Interest Period divided by (b) 1.00 minus the Eurodollar Reserve Percentage.
“Administrative Agent” means Mizuho Bank, Ltd., in its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Advisor” means, with respect to any Fund, any entity which provides advice in relation to the management of investments of such Fund in a manner which is substantially the same as the
manner in which a Manager would provide such advice.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means (a) with respect to any Person that is not a Fund or a direct or indirect subsidiary of a Fund, any other Person that, directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common Control with such Person and (b) with respect to any Person that is a Fund or is a direct or indirect subsidiary of a Fund, any
Manager or Advisor of such Fund and any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, any such Manager or Advisor
(including, for the avoidance of doubt, any Fund or any direct or indirect subsidiary of any Fund which is Controlled by any such Person).
“Affiliated Lender” has the meaning set forth in Section 9.02(b).
“Agents” means, collectively, the Administrative Agent and the Collateral AgentAgreement” has the meaning set forth in the Preamble.
“Amendment No. 3” means that certain Credit Agreement Amendment No. 3 made as of May 15, 2020, among the Borrower, the Lenders party
thereto and the Administrative Agent.
“Amendment No. 3 Effective Date” means the “Effective Date” as defined in Amendment No. 3.
“Amendment No. 3 Fee Letters” means, collectively, (i) that certain Amended and Restated Active Arranger Fee Letter, entered into as of
May 14, 2020, among Mizuho Bank, Ltd., JPMorgan Chase Bank, N.A. and the Borrower, (ii) that certain Passive Arranger Fee Letter, entered into as of May 14, 2020, by and among Regions Capital Markets, a division of Regions Bank,
Sumitomo Mitsui Banking Corporation, The Bank of Nova Scotia and the Borrower and (iii) that certain Passive Arranger Fee Letter, entered into as of May 14, 2020, by and among CoBank, ACB, Credit
Agricole Corporate and Investment Bank and the Borrower.
“Amendment No. 3 Mandated Lead Arrangers” means each of Mizuho Bank, Ltd., JPMorgan Chase Bank, N.A., CoBank, ACB, Credit Agricole
Corporate and Investment Bank, Regions Capital Markets, a division of Regions Bank, Sumitomo Mitsui Banking Corporation, and The Bank of Nova Scotia, each in its capacity as joint lead arranger and joint bookrunner in connection with Amendment
No. 3.
“Anniversary Date” has the meaning set forth in Section 2.24.
“Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act (15 U.S.C. §§78dd-1 et seq.), the United Kingdom Bribery Act of
2010, and other anti-corruption legislation in other jurisdictions applicable to any Borrower Group Member
“Anti-Terrorism Law” means each of (a) Executive Order No. 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or
Support Terrorism; (b) Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act); (c) the Money Laundering
Control Act of 1986, Public Law 99-570; (d) the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. §§ 1 et seq., any executive order or regulation promulgated
thereunder and administered by the Office of Foreign
Assets Control (“OFAC”) of the U.S. Department of the Treasury or the U.S. Department of State; and (e) any similar law (including any laws, rules and regulations concerning or relating to
bribery or corruption) enacted in the United States of America subsequent to the date of this Agreement.
“Applicable Margin” means with respect tothe
interest rate margin for the Revolving Credit Facility, and the
Revolving Facility Applicable Margin or, with respect to the Acquisition Loan Facility, the
Acquisition Facility Applicable Margin, as applicable. rate for Commitment Fees, in each case being the rate per annum as follows:
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Pricing
Level
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Rating
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Revolving Funding – Applicable Margin
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Commitment Fee Rate
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From the
Amendment No. 3
Effective Date
until the 1st
anniversary
thereof
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Following the
first anniversary
of the
Amendment No.
3 Effective Date
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From the
Amendment
No. 3
Effective
Date until
the 1st
anniversary
thereof
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Following
the first
anniversary
of the
Amendment
No. 3
Effective
Date
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S&P/Fitch
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▇▇▇▇▇’▇ |
Euro-
dollar
Loans
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Base
Rate
Loans
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Euro-
dollar
Loans
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Base
Rate
Loans
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1
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= BBB+
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and | = Baa1 |
1.375%
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0.375%
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1.500%
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0.500%
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0.200%
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0.225%
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2
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≤ BBB
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and | ≤ Baa2 |
1.625%
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0.625%
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1.750%
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0.750%
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0.250%
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0.275%
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3
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≤ BBB-
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and | ≤ Baa3 |
1.875%
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0.875%
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2.000%
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1.000%
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0.300%
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0.325%
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4
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≤ BB+
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and | ≤ Ba1 |
2.375%
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1.375%
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2.500%
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1.500%
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0.375%
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0.400%
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5
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≤ BB
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and | ≤ Ba2 |
2.875%
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1.875%
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3.000%
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2.000%
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0.425%
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0.450%
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For purposes of determining the “Applicable Margin”,
(a) “Pricing
Level” means Pricing Level 1, 2, 3, 4 or 5 referenced in the table above, as the context may require;
(b) if
all three Rating Agencies have ratings in effect, then the Pricing Level shall be based on the two highest of such ratings. If the ratings fall within different Pricing Levels, then (i) if the split is one level, the pricing will be based on
the higher rating level, (ii) if the split is two levels, the pricing shall be based on the middle rating level, and (iii) if the split is more than two levels, the pricing shall be based on the rating level that is one level lower than the
higher rating level;
(c) if
only two of the Rating Agencies have ratings in effect, and the two ratings fall within different Pricing Levels, then (i) if the split is one level, the pricing
will be based on the higher rating level, (ii) if the split is two levels, the pricing shall be based on the level between such
ratings, and (iii) if the split is more than two levels, the pricing shall be based on the rating level that is one level lower than the higher rating level;
(d) if
only one of the Rating Agencies have ratings in effect, then the Pricing Level will be based on that rating; and
(e) if
none of the Rating Agencies have in effect a Senior Debt Rating, but any of the Rating Agencies shall have in effect a “Senior Debt Rating” as defined in the Power Financing Documents for the Indebtedness thereunder, then the Applicable Margin will be based on the Pricing Level that is two Pricing Levels
above the Pricing Level for such Indebtedness under the Power Financing Documents.
If the Senior Debt Ratings shall be changed (other than as a result of a change in the rating system of ▇▇▇▇▇’▇, S&P and Fitch, as applicable), such change shall be effective as of the date on which it is first announced by the
applicable Rating Agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative Agent and the Lenders pursuant to Section 5.03(a)(vii)
or otherwise. Each change in each Applicable Margin shall apply during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If the rating system of ▇▇▇▇▇’▇, S&P or Fitch shall change, or if any such Rating Agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such Rating Agency and, pending the effectiveness of any such amendment,
the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation.
“Applicable Percentage” (a) in respect of the Acquisition Loan Facility, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Acquisition Loan
Facility represented by (i) on or prior to the Effective Date, such Lender’s Acquisition Loan Commitment at such time, and (ii)
thereafter, the principal amount of such Lender’s Acquisition Loan at such time, and (b) in respect of the Revolving Credit Facility
(including Revolving Loans, LC Exposure or Swingline Loans)means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Lender’s Revolving Loan Commitment at such time (or, if the
Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments); provided that in the case of Section 2.22 when a
Defaulting Lender shall exist, any such Defaulting Lender’s Commitment shall be disregarded in the calculation. The initial Applicable Percentage of each Lender in respect of each of the Acquisition Loan Facility and the Revolving Credit Facilityas of the Amendment No. 3 Effective Date is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“Approved Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a
Lender.
“ASC” has the meaning set forth in Section 1.04.
“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section
9.04), and accepted by the Administrative Agent, in the form of Exhibit A.
“Augmenting Lender” has the meaning set forth in Section 2.21(b).
“Authorized Officer” means, (a) with respect to any Person that is a corporation or a limited liability company, the chairman, any director, the president, any vice president or any
Financial Officer of such Person or any other Person authorized to act on behalf of such corporation or limited liability company in respect of the action, and (b) with respect to any Person that is a partnership, any director, the president, any
vice president or any Financial Officer of a general partner or managing partner of such Person or any other Person authorized to act on behalf of such partnership in respect of the action.
“Availability Period” means, for any Lender, the period
from and including the Effective Date to but excluding the earlier of (i) the Revolving
Loan Maturity Date applicable to such Lender and (ii) the date of
termination of thesuch Lender’s Revolving Loan
Commitments.
“Available Revolving Loan Commitment” means, at any time with respect to any Lender, the Revolving Loan Commitment of such Lender then in effect minus the Revolving Credit Exposure
of such Lender at such time.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in
respect of any liability of an EEAAffected Financial
Institution.
“Bail-In Legislation” means,:
(a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the
European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for
such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.; and
(b) with respect to the
United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or
other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
“Bankruptcy Event” means, (a) commencement by the relevant Person of any case or other proceeding (i) under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, shall make a
general assignment for the benefit of its creditors; or (b) commencement against such Person of any case or other proceeding of a nature referred to in clause (a) above which (i) results in the entry of an order for relief or any such
adjudication or appointment or (ii) remains undismissed or undischarged for a period of 60 days; or (c) commencement against such Person of any case or other proceeding seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed pending appeal within 60 days from the entry thereof; or (d) such
Person taking any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (a), (b) or (c) above; or (e) such Person admitting in writing its inability to pay its debts as they
become due.
“Base Rate” means a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus ½ of 1%, and (c) the
Eurodollar Rate for a one-month Interest Period on such day (or if any such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that, for the avoidance of doubt, the Eurodollar Rate for any day
shall be based on the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such page) at approximately 11:00 a.m., London time, two (2) Business Days prior to such date. Any change in the Base Rate
due to a change in the Prime Rate, the Federal Funds Rate or the Eurodollar Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or the Eurodollar Rate, respectively. Notwithstanding anything herein to the contrary, any change in the Base Rate due to replacement of the Eurodollar Rate with the Benchmark Replacement shall be governed by Section 2.15.
“Base Rate Loans” means, when used in reference to any
Loan or Borrowing, refers to a Loan, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Base Rate.
“Basel III” has the meaning set
forth in the definition of “Change in Law”.
“Benchmark Replacement” has the meaning set forth in Section 2.15(e).
“Benchmark Replacement Adjustment” has the meaning set forth in Section 2.15(e).
“Benchmark Replacement Conforming Changes” has the meaning set forth in Section
2.15(e).
“Benchmark Replacement Date” has the meaning set forth in Section 2.15(e).
“Benchmark Transition Event” has the meaning set forth in Section 2.15(e).
“Benchmark Transition Start Date” has the meaning set forth in Section 2.15(e).
“Benchmark Unavailability Period” has the meaning set forth in Section 2.15(e).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” has the meaning set forth in Section 8.11(c).
“BIS” means the Bank of International Settlements.
“Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower” means (a) initially, the Initial Borrower and (b) from and after the Effective Date, after giving effect to the Acquisition on the Effective Date, Cleco Corphas the meaning set forth
in the Preamble.
“Borrowing” means (a) Acquisition Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period
is in effect, (b) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect
or (c) a Swingline Loan.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03, substantially in the form of Exhibit B-1 or in such other form as the
Administrative Agent and Borrower may agree.
“Business” has the meaning set forth in Section 6.02.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York are authorized or required by law to remain closed; provided that
when used in connection with a Loan bearing interest at the Eurodollar Rate, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital Lease” means, as applied to the Borrower and its Subsidiaries, any lease of any property (whether real, personal or mixed) by the Borrower or a Subsidiary as lessee that, in
conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of the Borrower; provided that the adoption or issuance of any accounting standards after the Effective Date will not cause any lease
that was not or would not have been a Capital Lease prior to such adoption or issuance to be deemed a Capital Lease, except that 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; provided, however, no power purchase agreement with an independent power producer or a power producer which is not an Affiliate of Borrower that either (a) is in effect as of the
Effective Date or (b) becomes effective after the Effective Date (to the extent costs incurred by the Borrower thereunder are approved by all relevant Governmental Authorities (such as the Louisiana Public Service Commission) to be recoverable
from customers of the Borrower or its Subsidiaries) shall, in each case, constitute a Capital Lease.
“Cash Equivalents” means any of the following types of investments, to the extent owned by the Borrower or any Subsidiary:
(a) marketable direct obligations of the United States of America;
(b) marketable obligations directly and fully guaranteed as to interest and principal by the United States of America;
(c) demand deposits, time deposits, certificates of deposit and banker’s acceptances issued by any member bank of the Federal Reserve System
which is organized under the laws of the United States of America or any political subdivision thereof or under the laws of Canada, Switzerland or any country which is a member of the European Union having a
combined capital and surplus of at least $250,000,000 and having long-term unsecured debt securities rated “A-2” or equivalent by one Rating Agency;
(d) commercial paper or tax exempt obligations given the highest rating by two Rating Agencies;
(e) obligations of any other bank meeting the requirements of clause (c) above, in respect of the repurchase of obligations of the type as
described in clauses (a) and (b) above, provided, that such repurchase obligations shall be fully secured by obligations of the type described in said clauses (a) and (b) above, and the possession of such obligations shall be transferred
to, and segregated from other obligations owned by, such bank;
(f) a money market fund or a qualified investment fund given one of the two highest long-term ratings available from S&P and ▇▇▇▇▇’▇; and
(g) Eurodollar certificates of deposit issued by a bank meeting the requirements of clause (c) above. With respect to any rating requirement set
forth above, if the issuer is rated by either S&P or ▇▇▇▇▇’▇, but not both, then only the rating of such rating agency shall be utilized for the purpose of this definition.
“Change in Control” means:
(a) (i) at any time prior to a Qualifying IPO, (A) the Sponsors shall cease to collectively directly or indirectly own and control, both legally and beneficially, more than 50% of the voting equity interests in the Borrower on a fully diluted basis (and
taking into account all such securities that such “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act of 1934) has the right to acquire pursuant to any option right) or (B) prior to the payment in full of the Acquisition Loan Facility, Macquarie shall cease to collectively directly or indirectly own and control, both legally and beneficially, more than 25% of the
voting equity interests in the Borrower on a fully diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right) and (ii) at any time following a Qualifying IPO, any “person” or “group” owns a greater
percentage of the voting equity interests in Cleco Corp.the Borrower than the Sponsors collectively hold; or
(b) the Sponsors shall cease to collectively directly or indirectly have the right to elect a majority in voting power of the board of directors
(or comparable governing body) of the Borrower; or
(c) the Borrower shall cease to own, directly or indirectly, 100% of the equity interests of OpCoPower other than any such equity interests (not to
exceed at any time, in the aggregate, 5.0% of all issued and outstanding equity interests in OpCoPower) owned by current or former officers, directors and employees of OpCoPower (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 (“Incentive Plan Equity Interests”).
“Change in Law” means the occurrence of any of the following (a) the adoption of any Governmental Rule (including, without limitation, in respect of the implementation of the reforms to
the International Convergence of Capital Measurements and Capital Standards published by the Basel Committee on Banking Supervision in September 2010 (“Basel III”), or the adoption by any Lender of any policy (or change to, or in its
interpretation or application of, any policy in existence as of the date hereof) implementing any provision of Basel III) in each case following October 17, 2014the Amendment No. 3 Effective Date, (b) any change in any Governmental Rule (including, without limitation, in respect of the implementation of Basel III) or in the interpretation
or application thereof by any Governmental Authority following October 17, 2014the Amendment No. 3 Effective Date or (c) compliance by any Lender with any request, guideline or directive (whether or
not having the force of law) of any applicable Governmental Authority made or issued following October 17, 2014the
Amendment No. 3 Effective Date, in each case applicable to the relevant Lender or its holding or parent companies; provided that the adoption of any Governmental Rule, the change in any Governmental Rule or in the
interpretation or application thereof by any Governmental Authority or the compliance by any Lender with any request, guideline or directive of any applicable Governmental Authority, in each case, made or issued in connection with the ▇▇▇▇-▇▇▇▇▇
Street Reform and Consumer Protection Act of 2010, as amended (“▇▇▇▇-▇▇▇▇▇”), the application of which affects the reserve, capital, liquidity or similar requirements of the relevant Lender (or its holding or parent companies, if any)
regardless of the date enacted, adopted or issued shall be deemed to be a Change in Law.
“Cleco Corp.Charges” has the meaning set
forth in the PreambleSection 9.14.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute.
“Commitment Fee” has the meaning set forth in Section 2.13(a).
“Commitments” means the Acquisition Loan Commitments, the Revolving Loan Commitments,
the Swingline Commitment and any Incremental Revolving Loan Commitments.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes imposed in lieu of net income taxes
or branch profits Taxes.
“Constitutive Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of
securities, by contract or otherwise, which, for the avoidance of doubt, shall include, with respect to any Fund, any Manager or Advisor of such Fund. “Controlling” and “Controlled” have meanings correlative thereto.
“Credit Event” means a Borrowing, the issuance of a Letter of Credit, an LC Disbursement or any of the foregoing.
“Credit Party” means the Administrative Agent, any Issuing Bank, the Swingline Lender or
any Lender.
“Debt” means the Loans and any other Indebtedness that is at least pari passu with the Loans.
“Debt to Capital Ratio” means, as of any date of determination, the ratio (expressed as a percentage) of (a) all DebtIndebtedness of the Borrower and its Subsidiaries net of cash and Cash Equivalents as of such date on a consolidated
basis in excess of $5,000,000; provided that the amount of cash and Cash Equivalents to be deducted pursuant to this clause (a) shall not (x) include any cash or Cash Equivalents that would appear as “restricted” on a consolidated balance sheet of the Borrower and its Subsidiaries or (y) exceed $75,000,000; to
(b) the sum of (i) all DebtIndebtedness of the Borrower
and its Subsidiaries net of cash and Cash Equivalents as of such date on a consolidated basis in excess of $5,000,000; provided that the amount of cash and Cash Equivalents to be deducted pursuant to this clause (b)(i) shall not (x) include any cash or Cash Equivalents that would appear as “restricted” on a consolidated balance sheet of the Borrower and its Subsidiaries
or (y) exceed $75,000,000; plus (ii) all shareholders’ equity of the Borrower as of such date plus (iii) all Permitted Subordinated Debt as of such date; provided further that as of the
last day of the fourth full fiscal quarter following the Effective Date and any date thereafter, outstanding DebtIndebtedness under the Revolving Credit Facility used
for working capital purposes shall be based on a rolling four fiscal quarter average for such DebtIndebtedness.
“Declining Lender” has the meaning set forth in Section 2.24(b).
“Default” means any event or condition which would, with the expiry of a grace period, the giving of notice or any combination of the foregoing, become an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any
portion of its participations in Letters of Credit, or LC Disbursements or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the
case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the
particular default, if any) has not been satisfied, (b) has notified the Borrower or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding
obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if
any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by the Administrative Agent or the Borrower,
acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement; provided that such Lender shall cease to be a Defaulting Lender
pursuant to this clause (c) upon the Administrative Agent’s or Borrower’s, as applicable, receipt of such certification, (d) has become the subject of a Bankruptcy Event, or (e) has, or has a direct or indirect parent company that has,
become the subject of a Bail-inBail-In Action.
“Distribution” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any equity interests in the Borrower or any payment (whether in
cash, securities or other property other than common equity), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance, retirement, acquisition, cancellation or termination of any equity interests in the
Borrower or any option, warrant or other right to acquire any such Equity Interest in the Borrower, and (b) any payments in respect of Permitted Subordinated
Debt and (c) any management fees to the extent not constituting operating expenses.
“Dollars” or “$” refers to lawful money of the United States of America.
“Early Opt-in Election” has the meaning set forth in Section 2.15(e).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,
(b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution
described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02)April 13, 2016.
“Eligible Assignee” means a commercial bank, finance company, insurance company, pension fund, or other financial institutions or funds (whether a corporation, partnership or other entity)
engaged generally in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business, in each case solely to the extent that (i) such Person has been approved (not to be unreasonably withheld, conditioned or
delayed, provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent
within ten (10) Business Days after having received notice thereof and provided, further, that no consent of the Borrower shall be required for an assignment if an Event of Default has occurred and is continuing) by the Borrower, and (ii) with respect to assignments under the Revolving Credit Facility, such Person has obtained a rating of BBB+ or better by S&P and an equivalent credit rating by another Rating Agency (or an
equivalent credit rating from at least two nationally recognized Rating Agencies if the named Rating Agency ceases to publish ratings); provided that (i) no private equity, infrastructure or mezzanine fund shall in any event constitute an
Eligible Assignee and (ii) none of the Sponsors, the Borrower, or any of their Affiliates shall in any event constitute an Eligible Assignee.
“Environmental Laws” means all federal, state, and local statutes, laws, regulations, rules, judgments, orders or decrees, in each case as modified and supplemented and in effect from time
to time regulating or imposing liability or standards of conduct relating to the regulation, use or protection of the environment or to emissions, discharges, Releases or threatened Releases of Hazardous Materials into the environment, including,
without limitation, ambient air, soil, surface water, groundwater, wetlands, coastal waters, land or subsurface strata, or otherwise relating to the generation, manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials or to the protection or safety of
the health of human beings or other living organisms and natural resources related to the environment, as now are, or may at any time hereafter be, in effect.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any applicable Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares, membership interests, rights, participations or other equivalents (however designated) of capital stock of (or
other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a ERISA Plan (other than an event for which the
30-day notice period is waived); (b) the existence with respect to any ERISA Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any ERISA Plan; (d)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any ERISA Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any ERISA Plan or ERISA Plans or to appoint a trustee to administer any ERISA Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any ERISA Plan or Multiemployer ERISA Plan; (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer ERISA Plan from the Borrower or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer ERISA Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or in endangered or critical status
within the meaning of Section 432 of the Code or Section 305 of ERISA; (h) the cessation of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (i) the withdrawal by the
Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (j) conditions for imposition of a lien under Section 303(k) of ERISA shall have
been met with respect to any ERISA Plan; or (k) a determination that any ERISA Plan is in “at risk” status (within the meaning of Section 303 of ERISA).
“ERISA 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.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurodollar Loans”, when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the
Adjusted Eurodollar Rate.
“Eurodollar Rate” means, with respect to any Eurodollar Borrowing or Eurodollar Loan for any Interest Period, the rate per annum rounded upwards, if necessary, to the nearest 1/100th of
1%) appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such
service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in Dollars in the London interbank market) at approximately 11:00 a.m., London time, two (2)
Business Days prior to the commencement of such Interest Period, as the rate for deposits in Dollars with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the “Eurodollar Rate” with respect to such Eurodollar Borrowing or Eurodollar Loan for such
Interest Period shall be the rate at which deposits in Dollars in an amount equal to $5,000,000 and for a maturity comparable to such
“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day,
whether or not applicable to any Lender, under regulations issued from time to time by the Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of
the effective date of any change in the Eurodollar Reserve Percentage.
“Event of Default” has the meaning set forth in Article VII.
“Excluded Taxes” means, with respect to any payment made by the Borrower under any Financing Document, any of the following Taxes imposed on or with respect to a Recipient:
(a) Taxes imposed on or measured by net income (however denominated), franchise Taxes imposed in lieu of net income taxes and branch profits Taxes or similar Taxes, in each case, imposed
by (i) the jurisdiction (or any political subdivision thereof) under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, or
(ii) that are Other Connection Taxes;
(b) any Taxes imposed as a result of the failure of any Recipient to furnish any form, documentation or information required by Section 2.18(e);
(c) in the case of a Lender, any withholding Tax that is imposed on amounts payable to such Lender pursuant to a law in effect on the date on which such Lender (i) becomes a party to this
Agreement or (ii) subsequently designates a new lending office except to the extent that amounts with respect to Taxes, if any, were payable to such Lender’s assignor (in the case where such Lender is a permitted assignee under Section 9.04)
or to such Lender immediately before it changed its lending office (in the case where such Lender designated a new lending office); and
(d) any withholding of Tax imposed under FATCA.
“FATCA” means Sections 1471 through 1474 of the Code, as of October 17, 2014the Amendment No. 3 Effective Date (or any amended or successor version that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of
the Code, and any intergovernmental agreements entered into to implement or further the collection of Taxes imposed pursuant to the foregoing (together with any law implementing such agreements).
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day immediately succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the immediately succeeding Business Day
and, (b) if no such rate is so published on such immediately succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent and (c) if the Federal Funds Rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Federal Reserve Bank of New York’s Website” has the meaning set forth in Section 2.15(e).
“Fee Letters” means, collectively, (i) the Fee Letters
dated on or about October 17, 2014 between the Sponsors, each of the Mandated Lead Arrangers party thereto and the
Lenders party thereto, as amended and modified by that certain assignment and assumption agreement, dated June 17, 2015, whereby, among other matters, The Royal Bank of Scotland plc and RBS Securities Inc. assigned their respective rights and
obligations as financial institutions thereunder, (ii) the Amendment No. 3 Fee Letters and (iii) any letter or agreement documenting fees of the type set forth in Section 2.13(c).
“Financial Officer” means the chief financial officer, principalchief accounting officer, vice president finance, treasurer or assistant treasurer of the Borrower or individual holding a similar position.
“Financial Ratio Certificate” has the meaning set forth in Section 5.02(c).
“Financing Documents” means (a) this Agreement, (b) any Notes issued pursuant to Section 2.10(e), and (c) the Security Documents and (d) the Fee Letters. Any reference in
this Agreement or any other Financing Document to a Financing Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or
such Financing Document as the same may be in effect at any and all times such reference becomes operative.
“Finsub” means each special purpose bankruptcy remote Person that is a wholly-owned (directly or indirectly) Subsidiary of the OpCoPower organized solely for the purpose of
engaging in a Securitization Financing authorized by a Securitization Statute and a Securitization Financing Order and activities related thereto, and each is a “Finsub”.
“Fitch” means Fitch Investors Service, Inc. or its successors. “Fronting Fee” has the meaning set forth in Section 2.13(b).
“Fund” means any investment company, limited partnership, general partnership or other collective investment scheme or any body corporate or other entity, in each case, the business,
operations or assets of which are managed professionally for investment purposes.
“GAAP” means generally accepted accounting principles in the United States; provided, however, that if at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Financing Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (a) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (b) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
“Governmental Approvals” means all authorizations, consents, approvals, waivers, exceptions, variances, filings, permits, orders, licenses, exemptions and declarations of or with any
Governmental Authority.
“Governmental Authority” means any nation, state, sovereign or government, any federal, regional, state or local government or political subdivision thereof, any central bank or other
entity exercising executive, legislative, judicial, treasury, regulatory or administrative functions of or pertaining to government and having jurisdiction over the Person or matters in question (including any supra-national body exercising such
powers or functions, such as the European Union or the European Central Bank).
“Governmental Rule” means any statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement, directive requirement, treaty or
other governmental restriction or any similar form of decision of or determination by or any interpretation or administration of any of the foregoing, in each case, having the force of law by, any Governmental Authority, which is applicable to
any Person, whether now or hereafter in effect.
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other monetary obligation payable or performable by another Person (the “Primary Obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or
pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other monetary obligation, (iv) as an account party in respect
of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation or (v) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation
of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person,
whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall
not include endorsement for a collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof,
in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.
“Hazardous Material” means, but is not limited to, any solid, liquid, gas, odor, heat, sound, vibration, radiation or other substance or emission which is a contaminant, pollutant,
dangerous substance, toxic substance, hazardous waste, subject waste, hazardous material or hazardous substance which is or becomes regulated by applicable Environmental Laws or which is classified as hazardous or toxic under applicable
Environmental Laws (including gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls, asbestos and urea formaldehyde foam insulation).
“Hedging Arrangements” means any agreement or arrangement with respect to any swap, cap, collar, forward, future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or
any combination of these transactions.
“Immaterial Subsidiary” means any Subsidiary of the Borrower whose total assets (excluding intercompany receivables) at the relevant time of determination have a gross asset value of less
than 5% of total assets (excluding intercompany receivables) of the Borrower and its Subsidiaries on a consolidated basis as set forth on the most recent financial statements delivered pursuant to Section 5.02(a) or Section 5.02(b)
and whose total consolidated revenues (excluding intercompany sales) for the twelve (12) months ending at the relevant time of determination are less than 5% of total consolidated revenues (excluding intercompany sales) of the Borrower and its
Subsidiaries as set forth on the most recent financial statements delivered pursuant to Section 5.02(a) or Section 5.02(b); provided that at no time shall all Immaterial Subsidiaries so designated pursuant to this
definition have in the aggregate (x) total assets
(excluding intercompany receivables) at the relevant time of determination having a gross asset value in excess of 5% of total assets (excluding intercompany receivables) of the Borrower and its Subsidiaries on a
consolidated basis as set forth on the most recent financial statements delivered pursuant to Section 5.02(a) or Section 5.02(b), or (y) total consolidated revenues (excluding intercompany sales) for the twelve (12) months ending
at the relevant time of determination in excess of 5% of total consolidated revenues (excluding intercompany sales) of the Borrower and its Subsidiaries on a consolidated basis as set forth on the most recent financial statements delivered
pursuant to Section 5.02(a) or Section 5.02(b).
“Increasing Lender” has the meaning set forth in Section 2.21(b).
“Incremental FacilitiesIncreasing Renewing Lender”
has the meaning set forth in Section 2.212.24(ac).
“Incremental Loans” has the meaning set forth in Section 2.21(a).
“Incremental Revolving Increase” has the meaning set forth in Section 2.21(a).
“Incremental Revolving Loan Commitment” has the meaning set forth in Section 2.21(a). “Indebtedness” of any Person means:
(a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments,
(c) all obligations of such Person to pay the deferred purchase price of property or services (other than trade payables not overdue for more than 180 days) that in accordance with GAAP
would be included as a liability on the balance sheet of such Person,
(d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person,
(e) any Capital Lease obligations (and the amount of these obligations shall be the amount so capitalized),
(f) all obligations, contingent or otherwise, of such Person under acceptances issued or created for the account of such Person,
(g) all unconditional obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or other Equity Interests of such Person or any
warrants, rights or options to acquire such capital stock or other Equity Interests,
(h) all net obligations of such Person pursuant to hedging transactions,
(i) all Guarantees of such Person in respect of obligations of the kind referred to in clauses (a) through (h) above, and
(j) all Indebtedness of the type referred to in clauses (a) through (h) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Financing
Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning set forth in Section 9.03(b).
“Initial BorrowerInformation” has the
meaning set forth in the PreambleSection 9.12.
“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.08, substantially in the form of Exhibit B-3 or
in such other form as the Administrative Agent and Borrower may agree.
“Interest Payment Date” means (a) with respect to any Base Rate Loan (other than a Swingline Loan), the last day of each March, June, September and December and the Maturity Date, applicable to the relevant Lender, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the Maturity Date and
(c) with respect to any Swingline Loan, the day that such Loan is required to be repaid pursuant to
Section 2.10 and the Maturity Dateapplicable to the relevant Lender.
“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month
that is one week or one, two, three, six or, if agreed to by all Lenders, twelve months thereafter, as the Borrower may elect; provided that:
(a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period;
(c) any Interest Period with respect to an Acquisition Loan that would otherwise extend beyond the Acquisition LoanLatest Maturity Date will end on the Acquisition Loan Maturity
Date and any Interest Period with respect to a Revolving Loan that would otherwise extend beyond the Revolving Loan Maturity Date will end on the Revolving LoanLatest Maturity Date; and
(d) subject to clause (a) above, the initial Interest Period selected by the Borrower for any Eurodollar Borrowing may, if so specified in the related Borrowing Request for such
Eurodollar Borrowing, be an irregular Interest Period ending on the final day of any calendar month that is not less than three Business Days after, and not more than three months after, the date of such Eurodollar Borrowing.
For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Invested Amounts” means the amounts invested by investors that are not Affiliates of the Borrower in connection with any receivables
facility and paid to the Borrower or its Subsidiaries, as reduced by the aggregate amounts received by such investors from the payment of receivables and applied to reduce such invested amounts.
“IRS” means the United States Internal Revenue Service. “ISP” means the International Standby Practices ISP98.
“Issuing Bank” means Mizuho Bank, Ltd., in its capacity as issuer of Letters of Credit hereunder, or any otherany Lender or Affiliate of a Lender
as the Borrower may from time to time select as an Issuing Bank hereunder (provided that each such other Lender or Affiliate of a Lender has agreed to be an Issuing Bank, in its sole discretion), and each of their successors in such capacity as provided in Section 2.06(i). Each Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“Latest Maturity Date” means, at any time, the latest Maturity Date applicable to any Lender at such time.
“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.
“LC Collateral Account” has the meaning set forth in Section 2.06(j).
“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
“LC Sublimit” means, (a) with respect to Mizuho Bank, Ltd. as Issuing Bank, $35,000,0001, and (b) with
respect to any other Issuing Bank, the amount designated by such Issuing Bank as its LC Sublimit in a written notice delivered upon becoming an Issuing Bank to the Borrower and the
Administrative Agent; provided that the LC Sublimit of any Issuing Bank may be modified from time to time by written agreement between such Issuing Bank and the Borrower, a copy of which shall have been delivered to the Administrative
Agent.
“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 2.21 or Section 2.24 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. Unless the context otherwise requires, the term “Lenders” includes each Issuing Bank and the Swingline Lender.
“Letter of Credit” means any standby or commercial letter of credit issued pursuant to this Agreement.
“Letter of Credit Fee” has the meaning set forth in Section 2.13(b).
“Letter of Credit Request” means a request by the Borrower for a Letter of Credit in accordance with Section 2.06, substantially in the form of Exhibit B-2 or in such other
form as
the Administrative Agent, the Issuing Bank issuing such Letter of Credit and the Borrower may agree.
“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 Loan FacilitiesRevolving Credit 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 Acquisition Loans, Revolving Loans and Swingline 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.
“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.
“Mandated Lead Arrangers” means, collectively, (i) each of
Canadian Imperial Bank of Commerce, New York Branch, Credit Agricole Corporate and Investment Bank, Mizuho Bank, Ltd., Sumitomo Mitsui Banking Corporation and The Bank of Nova Scotia, 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 the Revolving LoanJune 28,
2022, as such Maturity Date or the Acquisition
Loan Maturity Date, as the context may requiremay be extended from time to time pursuant to Section 2.24.
“Merger AgreementMaximum Rate” has the
meaning set forth in the Recitals heretoSection 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).
“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-1 or Exhibit F-2, as the context may requireF.
“Offer DateOFAC” has the meaning set forth in Section 2.12(g)the definition of “Anti- Terrorism Law”.
“OpCoOther Borrower Credit Agreement” means each of (a) the Term Loan Credit Agreement, dated as of April 13June 28, 2016, by and among the Initial Borrower, or, immediately upon consummation of the Acquisition, OpCo, 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).
“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).
“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 2.20).
“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 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 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 6.046.06 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 Debt6.036.06.
“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.
“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 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.
“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 or Issuing Bank
(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 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).
“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 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, (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) and (c) any Issuing Bank.
“Register” has the meaning set forth in Section 9.04(b)(iv).
“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 2.122.15(be).
“Removal Effective Date” has the meaning set forth in Section 8.06(b).
“Replacement DeadlineRenewal Agreement”
has the meaning set forth in Section 2.12(b)2.24.
“Replacement RightsRenewing Lender” has
the meaning set forth in Section 2.12(b)2.24.
“Renewal Request” has the meaning set forth in Section 2.24.
“Required Lenders” means, at any time, subject to Section 2.22(b), Lenders
holding outstanding Loans, Revolving Credit Exposures and Available Revolving Loan Commitments representing more than 50% of the sum of the principal amount of all Loans outstanding at such time and the aggregate amount of all Revolving Credit
Exposures and Available Revolving Loan Commitments 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 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).
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.
“Revolving Credit Facility” has the meaning set forth in the Recitals hereto.
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“Revolving Lender” means a Lender with a Revolving Loan Commitment.
“Revolving Loan” means a Loan made pursuant to Section 2.01(b)2.02.
“Revolving Loan Commitment” means, (a) with respect to any Lender at any time, the commitment, if any, of such Lender to make Revolving Loans hereunder up to the amount set forth on Schedule
2.01 hereto or on Schedule 1 to the Assignment and Assumption pursuant to which such Lender assumed its Revolving Loan Commitment, as applicable, and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (i) increased from time to time pursuant to Section
2.21 or Section 2.24, (ii) reduced from time to time pursuant to Section 2.09 and (iii) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to
Section 9.04 and (b) with respect to all Lenders at all times, the aggregate of the amounts in clause (a). The aggregate principal amount of the Lenders’ Revolving Loan Commitments on the Amendment No. 3 Effective Date is $100,000,000175,000,000.2
“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.
“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 pursuant to an indenture, contract or other agreement of the OpCoPower or a such special bankruptcy remote Person.
“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 Notes due 2026 issued by the Borrower on May 17, 2016, (b) the
$350,000,000 4.973% Senior Notes due 2046 issued by the Borrower on May 17, 2016 and (c) the $165,000,000 3.25% Senior 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 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 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 Loans
and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
“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.
“UCP” means the Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication No. 600.
“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.
“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 2.18(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 Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class
and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type
(e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Loan 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 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), the Lenders and the Issuing Banks 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 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 and the Issuing Banks 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.
SECTION 1.06 Divisions. For
all purposes under the Financing Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any
Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new
Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its
Equity Interests at such time.
ARTICLE II
THE CREDITS
SECTION 2.01 (b) Revolving Loan CommitmentCommitments. Subject to the terms and conditions set forth herein, each Revolving
Lender severally agrees to make Revolving Loans to the Borrower in Dollars from time to time during the Availability Period applicable to such Revolving Lender in an aggregate principal amount that will not result in (i)the amount of such Revolving Lender’s Revolving Credit Exposure exceeding such Revolving Lender’s Revolving Loan Commitment or (ii) the sum of
the total Revolving Credit Exposures exceeding the sum of all Revolving Loan Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02 Loans and Borrowings. (a) Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type
made by the Lenders ratably in accordance with their respective Applicable Percentages of such Borrowing. 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. Any Swingline Loan shall be made in accordance with the procedures set forth in Section 2.05.
(b) Subject to Section 2.15, 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 2.16 not 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 2.08. Each Swingline Loan shall be a Base Rate Loan. 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 2.15, 2.16, 2.17 and
2.18 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, other than a Borrowing that is in an aggregate amount equal to the entire unused balance of all Revolving Loan
Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) or to repay a Swingline Loan as contemplated by Section 2.05. Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and not less than $1,000,000. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of (i) ten (10) Eurodollar Acquisition Loan Borrowings outstanding or (ii) five (5) Eurodollar Revolving Loan Borrowings outstanding.
SECTION 2.03 Requests for Borrowings. To request a Borrowing (other than a Swingline Loan, which may be requested in accordance with Section
2.05), 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) (ii) the aggregate amount of the requested Borrowing;
(ii) (iii) the date of such Borrowing, which shall be a Business Day;
(iii) (iv) whether such Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;
(iv) (v) 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) (vi) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07.
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 Reserved.
SECTION 2.06 Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Borrower may request the
issuance of, and each Issuing Bank agrees, on the terms and conditions hereinafter set forth, to issue (or cause one or more of its Affiliates to issue on its behalf) Letters of Credit denominated in Dollars for the account of the Borrower, in a
form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time on any Business Day during the Availability Period
applicable to such Issuing Bank. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Subject to the terms and conditions set forth herein, no Issuing Bank shall be
obligated to issue, amend or increase any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing
Bank shall prohibit, or request that such Issuing Bank refrain from, such issuance of letters of credit generally, or such Letter of Credit in particular, or shall impose upon such Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which such Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(ii) the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of
credit generally.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to any
Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with clause (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower
also shall submit a letter of credit application in a form acceptable to such Issuing Bank. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the aggregate LC Exposure would not exceed $100,000,000the aggregate Revolving Loan Commitments either at the time of such issuance, amendment, renewal or extension or at
the
stated expiration date of such Letter of Credit (giving effect to such issuance, amendment, renewal or extension), (ii) the sum
of the total Revolving Credit Exposures would not exceed the aggregate amount of all Revolving Loan Commitments, and (iii) the aggregate face amount of all outstanding Letters of Credit issued by or on behalf of the Issuing Bank issuing such
Letter of Credit would not exceed such Issuing Bank’s LC Sublimit.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Revolving Loan Maturity Date applicable to the
Issuing Bank of such Letter of Credit; provided that any Letter of Credit with a one-year tenor may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to
in clause (ii) above (as extended pursuant to the terms of such clause (ii)).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. The
participations acquired by Lenders in each Letter of Credit shall, automatically and without further action by any Lender or Issuing Bank, be adjusted to reflect any increase or decrease in the Applicable Percentage of any Lender at the time
of such increase or decrease. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent in Dollars the amount equal to such LC Disbursement, calculated as of the date such Issuing Bank made such LC Disbursement not later than 2:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then not
later than 2:00 p.m., New York City time, on the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; provided that, if such LC
Disbursement is not less than
$1,000,000 and if the payment has not been made by the time due therefor, the Borrower shall be deemed to have requested (it being understood that for such purpose, the condition to Borrowing set forth herein shall
not apply) that such payment be financed with a Base Rate Revolving Borrowing in an equivalent amount of such LC Disbursement and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the
resulting Base Rate Revolving Borrowing. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section
2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to
the applicable Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment
to the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the applicable Issuing Bank for any LC Disbursement (other than the funding of Base Rate Revolving Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in clause (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the
Administrative Agent, the Lenders nor the applicable Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing Bank; provided
that the foregoing shall not be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower
that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the part of any Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of
Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy or electronic transmission) of such demand for payment and whether such
Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Lenders with
respect to any such LC Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to Base Rate Loans; provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to clause (e) of this Section, then Section 2.14(c) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to clause (e) of this Section to reimburse the applicable Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of Issuing Bank. Any Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative
Agent and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.13(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the applicable Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous related Issuing Bank, or to such successor and all
previous related Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank
under this
Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. In the event that (i) any Event of Default shall occur and be continuing or (ii) any LC Disbursements remain
unreimbursed on or after the fifthdate that is five (5th) Business DayDays prior to the Revolving Loan Maturity Date applicable to the
Issuing Bank of such Letter of Credit, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders (the “LC Collateral Account”), an
amount in cash equal to 103% of the amount of the LC Exposure as of such date plus any accrued and unpaid interest thereon (A) on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Revolving Lenders demanding the deposit of cash collateral pursuant to this paragraph in the case of clause (i) above
or (B) on or before the fifth (5th) Business Day prior to the Revolving Loanapplicable Maturity Date, as applicable, in the
case of clause (ii); provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in clause (h) of Article VII. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Loan Obligations.
The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account (and the Borrower hereby grants the Administrative Agent a security interest in the LC Collateral Account). Such
deposit shall not bear interest, nor shall the Administrative Agent be under any obligation whatsoever to invest the same; provided that, at the request of the Borrower, such deposit shall be invested by the Administrative Agent in direct
short term obligations of, or short term obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America, in each case maturing no later than the expiry date of the Letter of Credit giving rise
to the relevant LC Exposure. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or
waived. If the Borrower is required to provide cash collateral hereunder as a result of clause (ii) of the first sentence of this subsection, the amount thereof (to the extent not applied as aforesaid) shall be returned to the Borrower
when the LC Exposure is zero and all Letters of Credit shall have been returned to the Issuing Banks and shall have been cancelled.
(k) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a Letter of
Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, an Issuing Bank shall not be responsible to the
Borrower for, and an Issuing Bank’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of such Issuing Bank required or
permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including Governmental Rules or any order of a jurisdiction where such Issuing Bank
or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade –
International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
SECTION 2.07 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; provided that Swingline Loans shall be made as provided in Section 2.05. 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; provided that Base Rate Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(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 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 2.07,
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 2.08 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. This Section shall not apply to Swingline Loan Borrowings, which may not be converted or continued.
(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 Revolving 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 Class of Commitments pursuant to which such Borrowing was madeapplicable to the relevant Lender.
(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 2.09 Termination and Reduction of Revolving Loan Commitments. (a) Unless previously terminated, the Revolving Loan Commitments of any Lender shall terminate on the Revolving Loan Maturity Date applicable to such Lender.
(b) The Borrower may at any time terminate, or from time to time reduce, the Revolving Loan Commitments; provided that (i) each reduction
of the Revolving Loan Commitments shall, if in part, be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Loan Commitments to the extent that,
after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the Revolving Loan Commitment.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Loan Commitments under clause (b)
of this Section at least three (3) Business Days prior to the effective date of such termination or reduction (or such shorter period as the Administrative Agent may agree in its sole discretion), specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Revolving Loan Commitments delivered by the Borrower 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. Any termination or reduction of the Revolving Loan Commitments shall be permanent. Each reduction of
the Revolving Loan Commitments shall be made ratably among the Revolving Lenders in accordance with their respective Revolving Loan Commitments.
SECTION 2.10 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the ratable account of each AcquisitionLender on the Maturity Date applicable to such Lender the then unpaidaggregate principal amount of each Acquisition Loan on the Acquisition Loan Maturity Date, (ii) to the Administrative Agent for the account of each Revolving Lender the then unpaid principal
(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.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and 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-1 in the case of Acquisition Loans and Exhibit F-2 in the case of Revolving LoansF. 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 2.11 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 2.11. The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) 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 or
(iii) in the case of prepayment of a Swingline Loan, 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 Class and 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 Acquisition 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 2.14 and (ii) break funding payments to the extent required by Section 2.17.
SECTION 2.12 Mandatory Prepayments and Mandatory Offers.
(a) Mandatory Prepayment of Revolving Loans. If at any time the sum of the aggregate principal amount of all Revolving Credit Exposures
exceeds the aggregate amount of all Revolving Loan Commitments, the Borrower shall immediately repay Revolving Borrowings or cash collateralize LC Exposure in an account with the Administrative Agent pursuant to Section 2.06(j), as
applicable, in an aggregate principal amount sufficient to cause the aggregate principal amount of all Revolving Credit Exposures to be less than or equal to the aggregate amount of all Revolving Loan Commitments.
(b) (h) Notice; Interest. The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline
Loan, the Swingline Lender) 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 2.12(a) Section 2.12(c) or Section 2.12(d) (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 Class
and Type of Loans to be prepaid in accordance with Section 2.12(ic).
Prepayments shall be payable without penalty or premium and shall be accompanied by (i) accrued interest to the extent required by Section 2.14 and (ii) break funding payments to the extent required by Section 2.17.
(c) (i) Application of Mandatory Prepayments and Mandatory Offers. Prepayments required to be made pursuant to Section 2.12(a), Section 2.12(c), Section 2.12(d) and Section 2.12(g) shall be applied (i) first to the
outstanding Acquisition Loans on a pro rata basis in accordance with the amount of Acquisition Loans held by each Acquisition Lender and (ii) second shall be applied to the outstanding Revolving Loans on a
pro rata basis in accordance with the amount of Revolving Loans held by each Revolving Lender.
Amounts to be applied pursuant to this Section 2.12(i) to the prepayment of Acquisition Loans shall be applied, first, to reduce outstanding Base Rate Acquisition Loans and, then, to reduce outstanding Eurodollar Acquisition Loans, unless otherwise directed by
the Borrower.
SECTION 2.13 Fees. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee
(the “Commitment Fee”), which shall accrue at the “Commitment Fee Rate”, as set forth in the definition of Revolving Facility Applicable
Margin, on the average daily amount of the Available Revolving Loan Commitment of such Revolving Lender during the period from and including the Effective Date to but excluding the earlier of (i) the Revolving
Loan Maturity Date applicable to such Lender and (ii) the date on which such Revolving Loan
Commitment is terminated or reduced to zero in accordance with Section 2.09; provided that for purposes of calculating the Available Revolving Loan Commitment of each such Revolving
Lender, the Swingline Exposure of such Revolving Lender shall not be included in the Revolving Credit Exposure for such Revolving Lender. Accrued fees shall be payable in arrears on each Quarter End Date and on the date on
which such Commitments terminate or are reduced to zero, commencing on the first such date to occur after the Effective Date; provided that any accrued commitment fees outstanding after the date on which the Commitments terminate shall be
payable on demand. All Commitment Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit (the “Letter of Credit Fee”), which shall accrue at the same Revolving Facility Applicable Margin used to determine the interest rate applicable to Eurodollar Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period (x) from and including the later of (A) the issuance date of such Letter of Credit and (B) the most recent Quarter End Date (y) to but excluding the earlier of (A) the Quarter End Date on which the
payment thereof is made in accordance with the terms hereof or (B) the date of termination of such Letter of Credit and (ii) to each Issuing Bank for its own account a fronting fee (the “Fronting Fee”), which shall accrue at a rate per
annum and in accordance with terms mutually and separately agreed upon between the Borrower and such Issuing Bank, which such agreement shall also set forth such Issuing Bank’s standard fees and commissions with respect to the issuance,
amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Unless otherwise specified above, Letter of Credit Fees and Fronting Fees accrued through and
including each Quarter End Date shall be payable on each such Quarter End Date, commencing (if applicable) on the first such Quarter End Date to occur after the Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Loan Commitments terminate and any such fees accruing after the date on which the Commitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable within
ten (10) days after demand. All Letter of Credit Fees and Fronting Fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own account, agency fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to an Issuing
Bank, in the case of fees payable to it) 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 2.14 Interest. (a) The Loans comprising each Base Rate Borrowing (including each
Swingline Loan) 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 Revolving 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 and, in the case of Revolving Loans,
upon termination of the Revolving Loan Commitments; 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 2.15 Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:; Effect of Benchmark Transition Event.
(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 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 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, 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 2.16 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 or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted Eurodollar Rate) or any Issuing Bank;
(ii) impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost
or expense affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein; 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 increase
the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other
Recipient hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such
Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank 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 or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such
Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to
capital adequacy and liquidity), by an amount deemed by such Lender or such Issuing Bank to be material, then from time to time the Borrower will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank 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 or such Issuing Bank,
as the case may be, 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 or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or an Issuing Bank 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 or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law or directive giving rise to such increased costs or reductions and of such Lender’s or Issuing
Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such 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 2.16
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 any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.
SECTION 2.17 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 2.11 or Section 2.12), (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 2.20, 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 2.18 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.
(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 2.18(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 2.18(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 2.18 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 2.18(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 2.18(f)(ii)(A) through Section 2.18(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 update any form or certification
previously delivered pursuant to this Section 2.18(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 2.18(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 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 2.18(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 2.18 (including additional amounts paid pursuant to this Section 2.18), 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 2.18(g), in no event will any indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 2.18(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 2.18(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.
(h) Issuing Bank. For purposes of Section 2.18(e) and Section 2.18(f), the term “Lender” includes the Issuing Banks.
SECTION 2.19 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 reimbursement of LC
Disbursements, or of amounts payable under Section 2.16, Section 2.17 or Section 2.18, 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 to be
made directly to an Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Section 2.16,
Section 2.17, Section 2.18 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 and any Issuing Bank 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 unreimbursed LC Disbursements and to pay an amount to the Administrative Agent equal to one hundred
three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral for such Loan Obligations, 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 of a Class, 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 of the
same Class and, in any event, the Borrower shall pay the break funding payment required in accordance with Section 2.17. The Administrative Agent and the
Lenders shall have the 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, LC Disbursements, 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. The Borrower hereby irrevocably authorizes the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal,
interest and fees as it becomes due hereunder or any other amount due under the Financing Documents and agrees that all such amounts charged shall constitute Revolving Loans and that all such Borrowings shall be deemed to have been requested
pursuant to Section 2.03 or 2.05, as applicable.
(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 or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and Swingline 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 and participations in LC Disbursements and Swingline 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 Revolving Loans and participations in LC Disbursements and Swingline 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 or
participations in LC Disbursements and Swingline 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 or the applicable Issuing Banks 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 or the applicable Issuing Banks, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each
of the applicable Lenders or the applicable Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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(c), 2.06(d) or (e), 2.07(b), 2.18(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 the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Banks 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 2.20 Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.16, 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 2.18, 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 2.16 or Section 2.18, 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 2.16, (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 2.18 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 and participations in LC Disbursements and Swingline 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 2.16 or payments required to be made pursuant to Section 2.18, 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 2.21 Expansion Option. (a) The Borrower may from time to time elect to (x) increase
the Revolving Loan Commitments (any such increase, an “Incremental Revolving Increase”) and/or (y) add one or more incremental revolving credit facility tranches (each an “Incremental
Revolving Facility”; the Incremental Revolving Increases and the Incremental
(i) no existing Lender will be required to participate in any such Incremental
FacilityRevolving Increase 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 Revolving 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) immediately
after giving effect thereto, the sum of all increases (other than any increase in any Lender’s Revolving Loan Commitment in order to replace another Lender pursuant to Section 9.04) in the aggregate Revolving Loan Commitments made pursuant to
this Section 2.21 shall not exceed $87,500,000;
(iv) the interest rate margins and (subject to clause
(iii)(y)) amortization schedule applicable to any Incremental Revolving Facility shall be determined by the Borrower and the Augmenting Lenders or other lenders thereunder;each such increase of the aggregate Revolving Loan Commitments shall be in minimum increments of $10,000,000 or such remaining partial amount not to exceed the
maximum aggregate increase set forth in clause (iii) above; and
(v) any Incremental Revolving Facility shall be on terms and pursuant to
documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Revolving Credit Facility (except to the extent permitted by clause (iii) or (iv) above), they shall
be reasonably satisfactory to the Administrative Agent; andall representations and warranties made by the Borrower in any Financing Document shall be true and correct in all material respects (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 date of such request by the Borrower for an Incremental Revolving Loan Commitment (or to the extent that such representations and warranties specifically refer to a specified date, as of such specified date).
(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 Revolving Loan Commitment, or to participate in such Incremental Revolving 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 Revolving Loan Commitments, or to participate in
such Incremental Revolving Facility, or extend new Revolving Loan Commitments, as the case may be; provided that (i) each Increasing Lender and Augmenting Lender shall be subject to the approval of the Borrower, the Administrative Agent and each
Issuing Bank, 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 Revolving
Increases, and new
Revolving Loan Commitments and Incremental Revolving Facilities created pursuant
to this Section 2.21 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) On the effective date of any Incremental Revolving Increase being made, (i) each relevant Increasing Lender shall make available to the
Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such
amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed to have
repaid and reborrowed all outstanding Revolving Loans as of the date of any Incremental Revolving Increase (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice
delivered by the Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount
prepaid and, in respect of each Eurodollar Loan, shall be subject to indemnification
by the Borrower pursuant to the provisions of Section 2.17 if the deemed payment occurs other than on the last day of the related Interest Periods.
(d) (e)
Incremental Revolving 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
Revolving 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 Revolving Facility Amendment may, withoutWithout the consent of any other Lenders, the Increasing Lenders and/or Augmenting Lenders, the
Borrower and the Administrative Agent may 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 2.21. Nothing contained in this Section 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment
hereunder, or provide Incremental Revolving FacilitiesIncreases,
at any time. This Section 2.21 shall supersede any provisions herein requiring pro rata treatment of the Lenders or Section 9.02 to the contrary.
SECTION 2.22 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Available Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.13;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, Required Acquisition Loan Lenders or Required Revolving Lenders have taken or may take any action hereunder (including any consent to any
amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification
requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default shall be continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the
extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within one (1) Business Day following notice by the Administrative Agent
(x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of each Issuing Bank only the
Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(j) for so long
as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii)
above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash
collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the
Lenders pursuant to Section 2.13(a) and Section 2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to
clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.13(b) with respect to such Defaulting Lender’s
LC Exposure shall be payable to each Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(vi) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related
exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.06(j), and
participating interests in any such newly made Swingline Loan or any newly issued
or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.06(j) (and such Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event with respect to a Lender Parent or any Lender shall occur following the date hereof and for so long as such event shall continue, (ii) a Bail-in Action with respect to a
Lender Parent or any Lender shall occur following the date hereof or (iii) the Swingline Lender or the Issuing Banks have a good faith belief that any Lender has defaulted in
fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and an
Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as
the case may be, shall have entered into
arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank,
as the case may be, to defease any risk to it in respect of such Lender hereunder.
(d) Any payment of 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, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to any Issuing Bank or Swingline Lender hereunder;
third, to cash collateralize the Issuing Banks’ Swingline Exposure and LC
Exposure in accordance with clause (c) above;
fourth, 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;
fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future Swingline Exposure and LC Exposure with respect to such Defaulting Lender;
sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, or the Issuing Banks or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;
seventh, 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
eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x)
such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at
a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro
rata basis prior to
being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.20. 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 2.22 shall be deemed paid to and redirected by
such Defaulting Lender, and each Lender irrevocably consents hereto.
(e) In the event that the Administrative Agent, the Borrower, the Swingline Lender
and the Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline
Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender shall
purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as
the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
SECTION 2.23 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:
(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 2.24 Renewal Options.
(a) The Borrower may, by
notice (a “Renewal Request”) to the Administrative Agent (who shall promptly notify the Lenders) given at any one time in any calendar year not less than sixty (60) days prior to any anniversary of the Amendment No. 3 Effective Date (such
date, the “Anniversary Date”), request an extension of the Latest Maturity Date to a date one (1) year following the Latest Maturity Date; provided that no more than two (2) Renewal Requests may be delivered pursuant to this Section 2.24. If
the conditions in Section 2.24(e) are met, the Maturity Date applicable to each Renewing Lender (as defined below) shall be extended to the date one (1) year after the Latest Maturity Date that was previously applicable, effective as of the
date such conditions are met.
(b) Each Lender may, in its
individual and sole discretion, agree to so extend its Commitments (a “Renewing Lender”) by delivering to the
Administrative Agent a written notice of its agreement to do so no later
than thirty-five (35) days prior to the relevant Anniversary Date, and the Administrative Agent shall (i) notify the Borrower in writing of the Lenders’ decisions and (ii) notify the Lenders in writing of the aggregate Commitments of the
Declining Lenders (as defined below), in each case no later than thirty (30) days prior to the relevant Anniversary Date. The Commitment of any Lender that fails to accept or respond to a Renewal Request (such Lender, a “Declining Lender”)
shall be terminated as provided in Section 2.09(a) on the Maturity Date applicable to such Lender, and any outstanding Loans of such Declining Lender shall be repaid as provided in Section 2.10(a) on such Maturity Date, in each case to the
extent such Commitments and Loans are not assigned to an Increasing Renewing Lender or a New Renewing Lender pursuant to Section 2.24(c) or Section 2.24(d) below.
(c) The Borrower shall
have the right, on or before the relevant Anniversary Date, to replace any Declining Lender with a Renewing Lender (an “Increasing Renewing Lender”) or with one or more Eligible Assignees (each, a “New Renewing Lender”) that agrees, in each
case in its individual and sole discretion, to assume all or a portion of the Commitment of a Declining Lender, and a Declining Lender shall upon the request of the Borrower assign its Commitment to such Increasing Renewing Lender or New
Renewing Lender; provided that such assignment shall require each of the consents required under Section 9.04(b)(i) and must otherwise be made in compliance with Section 9.04.
(d) Upon any assignment by
a Declining Lender pursuant to clause (c) above, the Borrower shall pay in full to each Declining Lender the unpaid principal amount of all Loans owing to such Declining Lender in respect of any Commitments so assigned, together with all
accrued and unpaid interest thereon and all fees accrued and unpaid under this Agreement to the date of such payment of principal, any break funding payment required in accordance with Section 2.17, and all other amounts due to such Declining
Lender under the Financing Documents.
(e) As a condition
precedent to any extension pursuant to this Section 2.24, (i) more than fifty percent (50%) of the aggregate outstanding Commitments under the Revolving Credit Facility immediately prior to the relevant Anniversary Date must be extended
(including by way of assignments to Increasing Renewing Lenders and New Renewing Lenders) thereby, (ii) such
extension shall have been duly authorized by the Borrower and the relevant Extension Agreement and any other documentation related thereto
shall have been duly executed and delivered by the Borrower, (iii) all representations and warranties made by the Borrower in any Financing Document shall be true and correct in all material respects (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 extension effective date (or to the extent that such representations and warranties
specifically refer to a specified date, as of such specified date), (iv) no Default or Event of Default under the Financing Documents shall have occurred and be continuing as of the Extension Date or would result from such extension and (v)
the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower dated as of the extension effective date certifying as to the matters set forth in the foregoing clauses (ii) – (iv) and attaching a copy of the resolutions adopted by the
Borrower in compliance with the foregoing clause (ii). Any extension pursuant to this Section 2.24 shall be effected pursuant to an extension agreement executed and delivered by the Borrower, the Renewing Lenders, any New Renewing Lenders
and the Administrative Agent (“Renewal Agreement”). Each Renewal Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Financing Documents solely as may be necessary or appropriate in
the reasonable opinion of the Administrative Agent to effect the provisions of this Section 2.24 as mutually agreed upon by the Administrative Agent and the Borrower.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
SECTION 3.01 Organization. Prior to the consummation of the Acquisition, theThe Borrower is a ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ liability company, duly formed, validly existing and in good standing under the laws of the State of Louisiana. Following the
consummation of the Acquisition, the Borrower is a corporation, duly formed, validly existing and in good standing under the laws of the State of Louisiana; provided that if the Borrower changes its form of organization within seven
(7) days after the Effective Date, the Borrower shall be a limited liability company, duly formed, validly existing and in good standing under the laws of a state of the United States of America.
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 Mandated
Lead ArrangersLenders 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 thatwhere (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 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 until such Governmental Authority has made a final determination thereunder that would reasonably be expected to have a Material Adverse Effect.
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 (a) Pro Forma Balance Sheet provided on the Effective Date, a copy of which shall have been delivered to the
Administrative Agent, presents fairly, in all material respects, the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the date thereof and (b) 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, (ia) 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 (iib) 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 statement
or Pro Forma Balance Sheet, as applicable,statements are
disclosed in such statements. No Material Adverse Effect shall have occurred and be continuing since
the later of (x) the date of the Pro Forma Balance Sheet and (y) the date of the most recent audited annual financial
statements of the Borrower delivered pursuant to Section 5.02(a).
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, the Acquired Assets or the Acquisition, other than any projections, forecasts, estimates, budgets and other
forward-looking statements, does not contain, as of the date furnished any untrue statement 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 Loan FacilitiesRevolving Credit 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 3.13 SECTION 3.20 Environmental
Matters. Except as otherwise disclosed in writing to the Mandated Lead Arrangers prior to October 17, 2014 (including, without limitation, the draft of the disclosure letter to be 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 3.203.13, “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, 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
(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.
ARTICLE IV
CONDITIONS
SECTION 4.01 Reserved.
SECTION 4.02 Each Subsequent Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing (other than any Incremental Loan, which shall be governed by Section 2.21) and of any Issuing Bank to issue, amend, renew or
extend any Letter of Credit, in each case, after the Effective Date, is subject to the satisfaction or waiver by the relevant Required Lenders of the following conditions:
(b) (a) (i) In the case of a Letter
of Credit, or a Revolving Loan or a Swingline Loan, the
Administrative Agent and the relevant Issuing Bank, as applicable, shall have received a Borrowing Request, a request for a Swingline Loan or
a Letter of Credit Request, as applicable, in accordance with Article II hereto, duly executed by an Authorized Officer of the Borrower, requesting the funding of the Revolving Loans or the Swingline Loan or the issuance of the Letter of Credit, as applicable.
(c) (b) All representations and
warranties made by the Borrower in any Financing Document (other than the representations and warranties set forth in Section 3.06, the last
sentence of Section 3.08, Section 3.13(c) and Section 3.13(e) hereof) shall be true and correct in all material respects (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), with all representations and warranties that are made as of a specified date being true
and correct in all material respects (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) as
of such specified date.
(d) (c) At the time of and
immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing, or would occur as a result of
such Borrowing or such Letter of Credit.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit under this Section 4.02 shall be deemed to constitute a representation and warranty by the Borrower on the date
thereof as to the matters specified in clauses (b) and (c) of this Section.
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 and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed,
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 (a) the Acquisition Loans to partly fund the Acquisition and pay fees and the expenses incurred by or on behalf of the Borrower in connection therewith and (b) the Revolving Loans for general corporate purposes including to finance the ongoing
Capital Expenditures capital
expenditures and working capital requirements of the Borrower, to fund Permitted Acquisitions, to fund fees and expenses incurred in connection with the Acquisition (including the closing of the Loan Facilities) and to refinance outstanding Indebtedness under the Existing Credit Facilities. and its Subsidiaries.
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.
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) (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
(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 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), (vii) or (viiiii), 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 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, Issuing Bank or
Swingline 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 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 6.01) 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 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 5.10 SECTION 5.12 Financial Covenant.
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 and all Letters of Credit have expired or
terminated and all LC Disbursements shall have been reimbursed, 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 if another Subsidiary of the Borrower or the Borrower assumes all assets and obligations of such dissolving, liquidating or wound-up Subsidiary.
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 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, 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, (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 6.05 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 6.096.05) 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 the Borrower and its Subsidiaries with all applicable Anti-Terrorism Laws and Anti-Corruption Laws.
SECTION 6.06 SECTION 6.12 Derivative TransactionsLiens. The Borrower shall not, nor shall it permit any
of its Subsidiaries to, enter into any derivative transactions, except (i) transactions in
futures, floors, collars and similar Hedging Arrangement involving the stock price of a Person involved in a merger or similar transaction permitted by the Financing Documents or (ii) in the ordinary course of the Borrower’s or such
Subsidiary’s business for non-speculative purposes, including, but not limited to, interest rate Hedging Arrangements with respect to create, incur, assume or permit to exist any Lien upon or with respect to (i) any Equity Interests in Power (other than non-consensual Permitted Liens that do not secure any Indebtedness) or (ii) any of its property, assets or revenues, owned or hereafter acquired, except for the following (“Permitted Debt.Liens”):
(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 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;
(k) leases or subleases
granted to others that do not materially interfere with the ordinary conduct of business of the Borrower and its Subsidiaries;
(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;
(q) Liens granted on cash or invested funds constituting proceeds of any sale or disposition of property deposited into
escrow accounts to secure indemnification, adjustment of purchase price or similar obligations incurred in connection with such sale or disposition, in an amount not to exceed the amount of gross proceeds received from such sale
or disposition;
(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;
(t) Liens created or incurred by the Borrower or any Subsidiary securing obligations arising under natural gas purchase agreements, natural gas
transportation and storage agreements, and Hedging Arrangements;
(u) Liens securing other obligations in an aggregate amount not exceeding
$100,000,000 at any time outstanding;
(v) Liens created or incurred by any Subsidiary securing any Permitted Receivables Financing;
(w) Liens on any cash collateral for Letters of Credit issued under this Agreement or for letters of credit issued or permitted under any Other Borrower Credit Agreement or for a Defaulting Lender’s LC Exposure;
(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, (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 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);
(ff) 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 Power and/or a Finsub authorized by a Securitization Statute (any such order, a “Securitization
Financing Order”);
(gg) Liens created to secure Debt of any Subsidiary to the Borrower or any other Subsidiary;
(hh) the Lien evidenced by the Power 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 Power Mortgage; or
(ii) “permitted liens” as defined under Section 1.04 of the Power 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 Power Mortgage, as in effect on the Effective Date, and in the event the Power Mortgage is terminated, Liens of the same type and nature as the foregoing Liens referred to in this clause (ii), 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 Power Mortgage was in effect.
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 or the Commitment Fees 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 or Commitment Fees, 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, principal and Commitment
Fees) 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 5.085.07(a), Section 5.10, Section 6.01, Section 6.02, Section 6.046.03, Section 6.05 or Section 6.06,
(B) Section 5.02, Section 5.04, Section 6.03, Section 6.05, Section 6.07 or Section 6.096.04 unless
such failure is remedied within ten (10) Business Days after the Borrower becomes aware of such failure, or (C) Section 5.085.07 (other than Section 5.085.07(a)), Section 5.10 or Section 6.125.09, 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
(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 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 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.
Notwithstanding anything set forth herein or in any Financing Document to the contrary, no Lender may, except by participating in a Lender vote under Section 9.02 of this Agreement, (i) ▇▇▇ for or
institute any creditor’s process (including an injunction, garnishment, execution or levy, whether before or after judgment) in respect of any Loan Obligation (whether or not for the payment of money) owing to it under or in respect of any
Financing Document, (ii) take any step for the winding-up, administration of or dissolution of, or any insolvency proceeding in relation to, the Borrower or any of its Subsidiaries, or for a voluntary arrangement, scheme of arrangement or
other analogous step in relation to the Borrower or any of its 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 and the Issuing Banks 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, the
Swingline Lender and the Issuing Banks, 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 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 9.02) 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 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 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, the Issuing Banks 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 and the Issuing Banks, 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 or the Issuing Banks
under any of the Financing Documents, the retiring or removed Administrative Agent shall continue 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 and Issuing Bank 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 and Issuing Bank 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
and Issuing Bank 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.
(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, the Issuing Banks and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the Issuing Banks and the Administrative Agent under Section 2.13 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 and Issuing Bank 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 and the Issuing Banks, 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 2.13 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 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 ▇▇▇ ▇▇- ▇▇), (▇▇) 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”.
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject
to clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy (or e-mail in accordance with Section 9.01(b) below), as follows:
(i) if to the Borrower, to it at Cleco Corporate Holdings LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of ▇▇▇▇ ▇▇▇▇▇, CFO (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇), (; Telephone No. ▇▇▇-▇▇▇-▇▇▇▇), with
a copy to (which shall not constitute notice) Cleco Corporate Holdings LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer
(Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇), (7777; Telephone No.
▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇), and ▇▇▇▇▇ ▇▇▇▇▇▇,Cleco Corporate
Holdings LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of General Counsel (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇),
(; Telephone No. ▇▇▇-▇▇▇-▇▇▇▇), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, (Telecopy No. 504-568- 9130), (; Telephone
No. ▇▇▇-▇▇▇-▇▇▇▇);
(ii) if to the Administrative Agent, to it at Mizuho Bank, Ltd., Harborside Financial Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of Nobu Sakyo, (Telecopy No. 201-626-9335),▇▇▇▇▇ ▇▇▇▇▇▇, Agency/Bilateral Loan Administration Unit (Telephone No. ▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇; e-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), with a copy to (other than with respect to a Borrowing Request or an Interest
Election Request) Shearman and Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇,▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy
No. ▇▇▇-▇▇▇-▇▇▇▇), (▇▇▇-▇▇▇▇; Telephone No. ▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇);
(iii) (iv) if to any Issuing Bank, in accordance with the applicable Letter of Credit; and
(iv) (v) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to
have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through
electronic communications, to the extent provided in clause (b) below, shall be effective as provided in said clause (b).
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent
and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided
that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business
on the next business day for the recipient.
(c) Any party hereto may change its address or telecopy number or email address for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications
given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if received by the recipient during its normal business hours.
SECTION 9.02 Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising
any right or power hereunder or under any other Financing Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Financing Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same
shall be permitted by clause (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified and no consent to any departure therefrom shall be
effective except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (except as otherwise expressly provided in Section 2.21(d) and Section 2.24(e)) or by the Borrower and the Administrative
Agent with the consent of the Required Lenders; provided that no such agreement shall:
(i) extend, reinstate or increase the Commitment of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder or change the currency of any Loan, without the written consent of each Lender directly affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby,
(iv) change Section 2.182.19(b) or (d) in a
manner that would alter the pro rata sharing of payments required thereby, without the written consent of each affected Lender whose share is to be decreased, or
(v) release all or substantially all of the Collateral, without the
consent of each Lender or as otherwise expressly required by law (excluding any such law that exists or is applicable to the Collateral due to any action or omission by the Borrower or any of its Affiliates), or
(v) (vi) change any of the provisions of this Section or the definition of “Required Lenders”, “Required Acquisition Loan Lenders” or “Required Revolving Lender” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each affected Lender whose voting power is to be decreased;
provided that (A) no amendment, waiver or consent with respect to any provision of this Agreement that applies solely to the Acquisition Loan Facility shall, unless in writing and signed by the Required Acquisition Loan Lenders in addition to the Lenders required above, affect
the rights or duties of the Acquisition Loan Lenders under this Agreement; (B) no amendment, waiver or consent with respect to any provision of this Agreement that applies solely to the Revolving Credit Facility shall, unless in writing
and signed by the Required Revolving Lenders in addition to the Lenders required above, affect the rights or duties of the Revolving Lenders under this Agreement; (C) no amendment, waiver or consent with respect to any
provision of this Agreement that materially and adversely affects the Administrative Agent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the
Administrative Agent; and (DB) no amendment, waiver or consent with respect to any provision of
this Agreement that materially and adversely affects any Issuing Bank shall, unless in writing and signed by such Issuing Bank in addition to the Lenders required above, affect the rights or duties of such Issuing Bank; and
provided, further, in each case, that any Lender that is a direct or indirect owner of the Equity Interests of the Borrower and any Affiliate of such Person (an “Affiliated Lender”) shall
not, in
any event, be entitled to vote (and the Loans and Revolving Loan Commitments of any such Person shall be disregarded in such vote) unless such amendment disparately or disproportionately affects such Affiliated
Lender; provided, however, if such vote is sufficient to effectuate any amendment, modification, waiver, consent or other action, such Affiliated Lender shall be deemed to have voted affirmatively. The Lenders shall use
reasonable efforts to promptly review any requests by the Borrower to amend, modify, supplement and/or waive any provision in this Agreement or any related document.
(c) Notwithstanding the foregoing (but subject to the limitations set forth in Section 9.02(b)(i), Section 9.02(b)(ii) and
Section 9.02(b)(iii)), this Agreement and any other Financing Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more credit
facilities to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Financing Documents
with the Revolving Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) (e) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other
necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may upon prior written notice to the Administrative Agent and such
Non-Consenting Lender elect to replace such Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (A) (i) another Person that is an Eligible Assignee which is reasonably
satisfactory to the Borrower shall agree, as of such date, to purchase for cash at par the Loans and other Loan Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and
to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of
Section 9.04; provided that in the case of any such assignment, such assignment shall be sufficient (together with all other consenting Lenders) to cause the adoption of the applicable change, waiver, consent or departure from
this Agreement and/or (ii) so long as no Event of Default shall have occurred and be continuing, Borrower may terminate the Revolving Loan Commitments of such Non-Consenting Lenders and repay at par all Loans and other Loan Obligations of the
Borrower owing to any such Non-Consenting Lender relating to the Loans and participations held by such Non-Consenting Lenders as of such termination date; provided, it is agreed and understood that in the case of clauses (A)(i)
and (A)(ii) above the pro rata prepayment requirements otherwise required under this Agreement shall not apply, and (B) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all
interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Section
2.16 and Section 2.18, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.17 had the Loans of such Non-Consenting Lender been prepaid
on such date rather than sold to the replacement Lender. In the event that a Non-Consenting Lender does not execute an Assignment and Assumption pursuant to this Section within three (3) Business Days after receipt by such Non-Consenting
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 Non-Consenting 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.
(e) (f) Notwithstanding anything to the contrary in this Section 9.02, if any amendment, waiver or
consent to this Agreement is ministerial in nature or is necessary to correct an error or inconsistency in this Agreement and does not involve any material change, then the Administrative Agent may execute or approve such amendment, waiver or
consent in its discretion without seeking instructions of the Required Lenders. The Administrative Agent shall provide to each of the Lenders a copy of any such amendment, waiver or consent promptly upon its effectiveness.
SECTION 9.03 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and the Mandated Lead Arrangers, including the reasonable and documented out-of-pocket fees, charges and disbursements of counsel for the Administrative Agent and Mandated Lead Arrangers (limited, in the case of legal
fees, to the legal fees of one primary outside counsel and, to the extent reasonably necessary and requested by the Mandated Lead Arrangers, one outside Louisiana counsel, in each case, for the Administrative Agent and the Mandated Lead
Arrangers, taken as a whole), in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinks) of the Loan Facilities
provided for hereinRevolving Credit Facility, the preparation and administration of this Agreement and the other Financing Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated); provided, however, under no circumstances shall the Borrower be responsible for any travel or transportation costs of the Administrative Agent or Mandated Lead Arrangers, (ii) all
reasonable and documented out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Bank or any Lender (but solely one counsel and, if requested by the Mandated Lead
Arrangers, one Louisiana counsel, in respect of the Administrative Agent, the Mandated Lead Arrangers, the Issuing Banks and the Lenders, collectively) in connection with the enforcement or protection of its rights in connection with this
Agreement and any other Financing Document, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit; provided, that, notwithstanding anything herein to the contrary, other than as set forth in this Section 9.03(a)(iii), the Borrower will not be
responsible for any other amounts relating to independent advisors, experts, counsel, consultants or other Persons retained by the Administrative Agent, the Lenders, the Issuing Banks or the Mandated Lead Arrangers. Any agreements that the
Administrative Agent enters into with independent advisors, experts, counsel, consultants or any other Person involving costs to be reimbursed by the Borrower shall be required to be approved by the Required Lenders and be in accordance with
the terms of the Financing Documents.
(b) The Borrower shall indemnify the Administrative Agent, each Issuing Bank, each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising in connection with, or as a result of (i) the preparation, execution or delivery of any Financing Document or any agreement or instrument contemplated thereby,
the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Commitment, Loan or Letter of Credit, or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned, leased or operated by the Borrower or any Subsidiary, or any Environmental Liability with respect to the Borrower or any
Subsidiary, or (iv) any actual claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to
have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or the material breach in bad faith by any Indemnitee of its express obligations hereunder or any other Financing Document. This Section 9.03(b)
shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, or any
Issuing Bank or the Swingline Lender under clause (a) or
(b) of this Section, each Lender severally agrees to pay to the Administrative Agent, and each Lender agrees to pay to such Issuing Bank or the Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount (it being understood that the Borrower’s failure to pay any such amount shall not relieve the Borrower of any default in the payment thereof); provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, or such Issuing Bank or the Swingline Lender in its capacity as such.
(d) To the fullest extent permitted by applicable law, none of the parties hereto or to any other Financing Document shall assert, and each
such party hereby waives, any claim against any other party on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Financing Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof or arising out of the activities in connection
therewith; provided, however, that, for the avoidance of doubt, the waiver in this Section 9.03(d) shall be without prejudice to the rights and remedies of an Indemnitee under Section 9.03(b) with respect to
any and all out- of-pocket losses, claims, damages, liabilities and related expenses incurred by any Indemnitee as and to the extent provided in Section 9.03(b).
(e) In the event that any claim, litigation, investigation or proceeding shall be brought against any Indemnitee relating to the matters set
forth in clause (a)(iii) of this Section 9.03, such Indemnitee shall promptly notify the Borrower thereof, and the Borrower shall be entitled, in its sole discretion, to assume and direct the defense thereof and appoint
counsel of its own choosing in connection therewith. The same shall be a condition to the ability of such Indemnitee to receive any related indemnification contemplated herein. Notwithstanding the Borrower’s assumption and direction of such
defense or election to appoint counsel to represent an Indemnitee in any action, such Indemnitee shall have the right to employ separate counsel (including local counsel, but only one such counsel in any jurisdiction in connection with any
action), and the Borrower shall bear the reasonable fees, costs and expenses of such separate counsel if, and only if (i) the use of counsel chosen by the Borrower to represent the Indemnitee would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnitee and the Borrower, and the Indemnitee shall have reasonably concluded that there may be legal defenses available to it or other
Indemnitees which are different from or additional to those available to the Borrower, (iii) the Borrower shall not have employed counsel to represent the Indemnitee within a reasonable time after notice of the institution of such action
shall have been received by the Borrower, or (iv) the Borrower shall authorize the Indemnitee to employ separate counsel at their reasonable expense. The Borrower shall not be liable for any settlement or compromise of any action or claim
by an Indemnitee affected without its prior written consent, but if settled with the Borrower’s written consent, or if there is a final judgment against an Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless
each Indemnitee in the manner and subject to the conditions set forth in this Section 9.03. In any such claim or proceeding, the defense of which is assumed by the Borrower, the Borrower agrees that it will not, without the prior
written consent of the relevant Indemnitees, which
consent shall not be unreasonably withheld, delayed or conditioned, settle any pending or threatened claim or proceeding relating to the matters contemplated in this clause (e) (whether or not such
Indemnitee is a party to such claim or proceeding) unless such settlement includes a provision unconditionally releasing such Indemnitee from all liability in respect of any such claims or proceedings by any releasing party related to or
arising out of such relevant proceedings and does not impose upon such Indemnitee any payment or performance obligations or similar liability and does not contain any factual or legal admission or finding by or with respect to such
Indemnitee.
(f) All amounts due under this Section shall be payable not later than fifteen (15) days after written demand therefor.
(g) Each party’s obligations under this Section shall survive the termination of the Financing Documents and payment of the obligations
hereunder.
SECTION 9.04 Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in clauseSection 9.04(b)(ii) below, any Lender may assign or
sell (either as an assignment or any other means by which title or interest in any rights, including economic rights, to its respective Loans (or any portion thereof) are alienated, transferred, sold or otherwise encumbered (including by use
of any derivative instrument)) (for purposes of this Section 9.04, an “assignment”) to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its
Revolving Loan Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) of:
(A) the Borrower (provided that the Borrower shall be deemed to have consented to any such assignment unless it shall
object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof); and provided, further, that no consent of the Borrower shall be required for an assignment if an Event of Default has occurred and is continuing);
| (B) |
the Administrative Agent; and
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(C) in the case of the Revolving Credit Facility, each Issuing Bank and the Swingline Lender;
provided that (x) no assignment to the Borrower or any Affiliate of the Borrower shall be permitted, (y) any assignment made in violation of this proviso shall be void ab
initio and (z) no such consent by the Borrower or the
Administrative Agent (but subject to the consent of each Issuing Bank) shall be required for any assignment to a Qualified Eligible Assignee, and the assigning Lender shall provide written notice of such assignment to a Qualified Eligible Assignee to the Administrative Agent and
the Borrower promptly following such assignment.
| (ii) |
Assignments shall be subject to the following additional conditions:
|
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 and will be in integral multiples of $1,000,000 in excess thereof (in the case of Revolving Loan Commitments, Revolving Loans and Acquisition Loans) unless the Borrower otherwise
consents, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Revolving Loan Commitment on the Loan assigned, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights
and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 or such other fee as may be agreed in relation to such Assignment and Assumption, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such
Lenders; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in
which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their Related Parties or their respective
securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including federal and state securities laws.
(iii) Subject to acceptance and recording thereof pursuant to clauseSection
9.04(b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Section 2.16, Section 2.17, Section 2.18 and Section 9.03, each only as to the costs, amounts and claims relating to the period prior to
such assignment). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with clause (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower, any Issuing Bank and any Lender with respect to the entries applicable to such Lender and its Affiliates, at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt the parties intend that
the Loans shall at all times be maintained in “registered form” within the meaning of Section 163(f), 871(h)(2) and 881(c)(2) of the Code.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in clause (b) of this Section and any written consent to such assignment
required by clause (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the
assignee shall have failed to make any payment required to be made by it pursuant to Section 2.05, Section 2.06(d), Section
2.06(e), Section 2.07(b), Section 2.18(e) or Section 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless
and until such payment shall have been made in full, together with all accrued interest
thereon, or otherwise waived. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) Notwithstanding anything set forth herein to the contrary, to the extent that an assignment under this Section
9.04(b) results at the time of such assignment in an increase in costs described in Section 2.16 or Section 2.18 from those being charged by the assigning Lender prior to such assignment (measured as of the date on which
the assignment is made to such assignee), then the Borrower will not be required to pay such costs in excess of the comparable costs that were required to be paid by the Borrower to the assigning Lender as of such date (prior to giving effect
to such assignment).
(c) Notwithstanding anything to the contrary in this Section 9.04, any Lender may at any time, without the consent of, or notice to,
the Borrower, the Administrative Agent, or the Issuing Banks or the Swingline Lender,, sell participations to one or more Persons (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Revolving Loan Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement or any Financing Document shall remain unchanged and such participation shall not constitute a “Lender” hereunder;
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and such participation shall not give rise to any legal privity
between the Borrower and the Participant; (C) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement and (D) such participation shall not entitle the Participant to consent to any amendments, consents or waivers with respect to any Financing Document; provided, further that no participation may be sold
to any individual, the Borrower, the Sponsors, any Affiliate of the Borrower or any Sponsor, or any private equity, infrastructure or mezzanine fund. Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and each other Financing Document and to approve any amendment, modification or waiver of any provision of this Agreement and each other Financing Document; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver to the extent such amendment, modification or waiver would (i) extend the final
scheduled maturity of any Loan in which such Participant is participating, or reduce the rate or extend the time of payment of principal or interest thereon (except in connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof (it being understood that any amendment or modification to the financial definitions in this Agreement or the calculations in respect thereof shall not constitute a reduction in the rate
of interest), or increase the amount of the Participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory prepayment of the Loans or reduction of
Commitments shall not constitute a change in the terms of such participation) or (ii) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement. The Borrower agrees that each Participant
shall be entitled to the benefits of Section 2.16, Section 2.17 and Section 2.18 (subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that
the documentation required under Section 2.18(f) shall be delivered to the participating
Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section; provided that such Participant (A) agrees to be subject to
the provisions of Sections 2.18 and 2.19 as if it were an assignee under clause (b) of this Section; (B) shall not be entitled to receive any payment under Section 2.16 or Section 2.18, unless such
participation shall have been made with the Borrower’s prior written consent, and (C) shall not be entitled to receive any greater payment under Section 2.16 or Section 2.18, with respect to any participation greater than its
participating Lender would have been entitled to receive; provided further, other than as provided in the foregoing clause (B), no participation shall result in the Borrower having to pay any additional amounts as a result
thereof. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(d) as though it were a
Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest)
of each Participant’s interest in the Loans or other Loan Obligations under this Agreement and each other Financing Document (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest
error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt the
parties intend that the Loans shall at all times be maintained in “registered form” within the meaning of Section 163(f), 871(h)(2) and 881(c)(2) of the Code.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central banking authority, and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto or
otherwise affect or alter the obligations or rights of the Borrower.
SECTION 9.05 Survival. All covenants, agreements, representations and warranties made by the Borrower in the Financing Documents and
in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Financing Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Financing Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any
Issuing Bank or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Financing Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Section 2.16, Section 2.17, Section 2.18 and Section 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this Agreement or any other Financing Document or any provision hereof or thereof.
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Financing Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, thisThis Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of
this Agreement by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of any Financing Document held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates
is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final and in whatever currency denominated) at any
time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all of the SecuredLoan Obligations held by such Lender, irrespective of whether or not such Lender shall have made any demand under the
Financing Documents and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in the Borough of Manhattan and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating
to any Financing Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Financing Document shall affect any right that
the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Financing Document against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Financing Document in any court referred to in clause (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01.
Nothing in this Agreement or any other Financing Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER FINANCING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each of the Administrative Agent, the Issuing Banks, the Mandated Lead Arrangers and the Lenders
agrees to maintain the confidentiality of the Information (as defined below) contained in any documents exchanged or otherwise disclosed in connection with the transactions contemplated by the Financing Documents or the Commitment Letter, except that Information may be disclosed (a) to any of its respective
Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any
remedies under this Agreement or any other Financing Document or any suit, action or proceeding relating to this Agreement or any other Financing Document or any action or proceeding relating to this Agreement or any other Financing Document
or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its Related Parties or brokers) to any Hedging Arrangements or other transaction under which payments are to be made by reference to
the Borrower and its obligations, this Agreement or payments hereunder as permitted pursuant to the Financing Documents, (g) with the prior written consent of the Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank, any Mandated Lead Arranger, any Lender or any of their respective Affiliates on a non-confidential basis from a source
other than the Borrower (except as a result of a breach of a confidentiality obligation known to such Administrative Agent, Issuing Bank, Mandated Lead Arranger, Lender or respective Affiliate). For the purposes of this Section, “Information”
means all information received from the Borrower or its Subsidiaries relating to the Borrower or its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any
Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower or any of its Subsidiaries (except as a result of a breach of a confidentiality obligation known to such Administrative Agent, Lender or Affiliate).
Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential information. Each party’s obligations under this Section will terminate on the second (2nd) anniversary of the date on which the principal of and
interest on each Loan and all fees and other Loan Obligations are paid in full.
SECTION 9.13 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act (Title III of Pub. L. 10756
(signed into law October 26, 2001)) (the “Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Act.
SECTION 9.14 SECTION 9.15 Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law
(collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.15 SECTION 9.16 No
Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Financing Document), the
Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the
Lenders and their Affiliates, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and
accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Financing Documents; (ii) (A) each of the Lenders and their Affiliates is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) no Lender or any of its Affiliates has any
obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Financing Documents; and (iii) each of the Lenders and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and no Lender or any of its Affiliates has any obligation to disclose any of such
interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against each of the Lenders and their Affiliates with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
[Signature Pages Follow]
SCHEDULE 2.01 TO CREDIT AGREEMENT
COMMITMENTS AND LENDERS
|
Lenders
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Commitment
|
|
Mizuho Bank, Ltd.
|
$37,631,578.94
|
|
Credit Agricole Corporate & Investment Bank
|
$37,631,578.95
|
|
The Bank of Nova Scotia
|
$37,631,578.95
|
|
CoBank, ACB
|
$21,052,631.58
|
|
Canadian Imperial Bank of Commerce, New York Branch
|
$12,631,578.95
|
|
Sumitomo Mitsui Banking Corporation
|
$12,631,578.95
|
|
JPMorgan Chase Bank, N.A.
|
$7,894,736.84
|
|
Regions Bank
|
$7,894,736.84
|
|
Total
|
$175,000,000.00
|
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert
name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex I attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including any letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action
and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).
Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
| 1. |
Assignor: |
|
|
| 2. |
Assignee: |
[and is an Affiliate/Approved Fund of [identify Lender]1]
|
|
| 3. |
Borrower: |
Cleco |
|
|
1
|
Select as applicable.
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