EX-10.1 2 tm2029145d1_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1

 

EXECUTION VERSION

 

FIFTH AMENDMENT TO CREDIT AGREEMENT AND THIRD AMENDMENT TO COLLATERAL TRUST AGREEMENT

 

FIFTH AMENDMENT TO CREDIT AGREEMENT AND THIRD AMENDMENT TO COLLATERAL TRUST AGREEMENT, dated as of August 20, 2020, which shall constitute (i) the Fifth Amendment (the “Fifth CRA Amendment”) to the Second Amended and Restated Credit Agreement dated as of June 30, 2016 (as amended by the First Amendment Agreement, dated as of January 24, 2017, the Second Amendment Agreement, dated as of March 21, 2018, the Third Amendment Agreement, dated as of May 7, 2018, the Joinder Agreement, dated as of November 8, 2018, the Fourth Amendment, dated as of May 28, 2019, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Amendment Effective Date (as defined below), the “Credit Agreement”), among, inter alia, NRG Energy, Inc., a Delaware corporation (the “Borrower”), the lenders from time to time parties thereto and Citicorp North America, Inc., as administrative agent (in such capacity and together with its successors, the “Administrative Agent”) and as collateral agent (in such capacity and together with its successors, the “Collateral Agent”) and (ii) the Third Amendment (the “Third CTA Amendment”) to the Second Amended and Restated Collateral Trust Agreement, dated as of July 1, 2011 (as amended by the Amendment, dated as of February 6, 2013, the Second Amendment, dated as of June 4, 2013, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Amendment Effective Date, the “Collateral Trust Agreement”), among the Borrower, each Subsidiary Guarantor, the Administrative Agent, Deutsche Bank Trust Company Americas, as collateral trustee (in such capacity and together with its successors, the “Collateral Trustee”) and the other parties thereto (the Fifth CRA Amendment and the Third CTA Amendment collectively, this “Fifth Amendment”).

 

RECITALS

 

A.                   Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below).

 

B.                    The Borrower, the Revolving Lenders, the Administrative Agent, the Collateral Agent, the Swingline Lender and each Issuing Bank, among others, are parties to the Credit Agreement. Citigroup Global Markets Inc. and Credit Suisse Loan Funding LLC are each acting as a lead arranger and lead bookrunner in connection with this Fifth Amendment (in such capacity, each, an “Arranger” and together, the “Arrangers”).

 

C.                    The Borrower has requested that (i) the Credit Agreement be amended to increase the Revolving Commitments in effect immediately prior to the Dragon Acquisition Closing Date (as defined in the Amended Credit Agreement) (the “Existing Revolving Commitments”) in an aggregate amount of $779,100,000 (the additional commitments provided as part of such increase, the “New Tranche A Revolving Commitments” and, together with the Existing Revolving Commitments, the “Tranche A Revolving Commitments”), subject to the terms and conditions set forth herein and in the Amended Credit Agreement, with the Existing Revolving Commitments and the New Tranche A Revolving Commitments being part of a single Class under the Amended Credit Agreement (the “Tranche A Revolving Facility”), (ii) the Credit Agreement be amended to provide for a new Class of revolving loans (the “Tranche B Revolving Loans”, the commitments

 

 

 

 

in respect thereof, the “Tranche B Revolving Commitments”, and the New Tranche A Revolving Commitments and the Tranche B Revolving Commitments, the “Additional Revolving Commitments”), subject to the terms and conditions set forth herein and in the Amended Credit Agreement, in an aggregate amount of $258,200,000, and (iii) the Credit Agreement be amended to make certain other changes as more fully set forth herein.

 

D.                   The Borrower has requested that the Required Lenders (i) consent to the Third CTA Amendment and (ii) irrevocably authorize the Administrative Agent, in its capacity as Priority Debt Representative under (and as defined in) the Collateral Trust Agreement with respect to the Credit Agreement, to instruct the Collateral Trustee to implement the Third CTA Amendment pursuant to Section 7.1 of the Collateral Trust Agreement.

 

E.                    Each Lender that executes and delivers a signature page to this Fifth Amendment in the capacity of a “Non-Increasing Revolving Lender” (each, a “Non-Increasing Revolving Lender”) will, by the fact of such execution and delivery, be deemed (i) to have irrevocably agreed to the terms of this Fifth Amendment and the Amended Credit Agreement, and (ii) to have irrevocably agreed to the terms of the Third CTA Amendment and the Amended Collateral Trust Agreement (as defined below) and authorized the Administrative Agent to instruct the Collateral Trustee to implement the amendments to the Collateral Trust Agreement contemplated under the Amended Collateral Trust Agreement.

 

F.                     Each Revolving Lender holding Revolving Loans or Existing Revolving Commitments that executes and delivers a signature page to this Fifth Amendment in the capacity of an “Increasing Revolving Lender” (each, an “Increasing Revolving Lender”) will, by the fact of such execution and delivery, be deemed (i) to have irrevocably agreed to the terms of this Fifth Amendment and the Amended Credit Agreement, (ii) to have irrevocably agreed to the terms of the Third CTA Amendment and the Amended Collateral Trust Agreement and authorized the Administrative Agent to instruct the Collateral Trustee to implement the amendments to the Collateral Trust Agreement contemplated under the Amended Collateral Trust Agreement, (iii) to have committed to make New Tranche A Revolving Commitments to the Borrower on the Amendment Effective Date, subject to the condition to availability of such New Tranche A Revolving Commitments set forth in the Amended Credit Agreement, in the amount, if any, notified to such Increasing Revolving Lender by the Administrative Agent (but in no event greater than the amount, if any, such Increasing Revolving Lender committed to make as New Tranche A Revolving Commitments) and (iv) to have committed to make Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date, subject to the condition to availability of such Tranche B Revolving Commitments set forth in the Amended Credit Agreement, in the amount, if any, notified to such Increasing Revolving Lender by the Administrative Agent (but in no event greater than the amount, if any, such Increasing Revolving Lender committed to make as Tranche B Revolving Commitments).

 

G.                   Each Person that executes and delivers a signature page to this Fifth Amendment in the capacity of an “Additional Revolving Lender” (each, an “Additional Revolving Lender” and together with the Non-Increasing Revolving Lenders, the Increasing Revolving Lenders and any other Lender party hereto, each, a “Fifth Amendment Revolving Lender” and collectively, the “Fifth Amendment Revolving Lenders”) will, by the fact of such execution and delivery, be deemed (i) to have irrevocably agreed to the terms of this Fifth Amendment and the Amended

 

 

 

 

Credit Agreement, (ii) to have irrevocably agreed to the terms of the Third CTA Amendment and the Amended Collateral Trust Agreement and authorized the Administrative Agent to instruct the Collateral Trustee to implement the amendments to the Collateral Trust Agreement contemplated under the Amended Collateral Trust Agreement, (iii) to have committed to make New Tranche A Revolving Commitments to the Borrower on the Amendment Effective Date, subject to the condition to availability of such New Tranche A Revolving Commitments set forth in the Amended Credit Agreement, in the amount, if any, notified to such Additional Revolving Lender by the Administrative Agent (but in no event greater than the amount, if any, such Additional Revolving Lender committed to make as New Tranche A Revolving Commitments) and (iv) to have committed to make Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date, subject to the condition to availability of such Tranche B Revolving Commitments set forth in the Amended Credit Agreement, in the amount, if any, notified to such Additional Revolving Lender by the Administrative Agent (but in no event greater than the amount, if any, such Additional Revolving Lender committed to make as Tranche B Revolving Commitments).

 

H.                   Each Letter of Credit that is outstanding under the Credit Agreement immediately prior to the Amendment Effective Date and listed on Schedule 2.23(a) of the Amended Credit Agreement shall be deemed to be outstanding under the Amended Credit Agreement as of the Amendment Effective Date.

 

I.                       The Swingline Lender and each Issuing Bank that executes and delivers a signature page to this Fifth Amendment in its capacity as such will be deemed upon the Amendment Effective Date to have irrevocably agreed to the terms of this Fifth Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

J.                      By executing and delivering a signature page to this Fifth Amendment, each of the Administrative Agent and the Collateral Agent will be deemed upon the Amendment Effective Date to have irrevocably agreed to the terms of this Fifth Amendment, the Amended Credit Agreement and, pursuant to an Act of Instructing Debtholders (as defined in the Collateral Trust Agreement), the Third CTA Amendment and the Amended Collateral Trust Agreement.

 

K.                   By executing and delivering a signature page to this Fifth Amendment, acting as directed by the CTA Amendment Authorization (as defined below), the Collateral Trustee will be deemed upon the Amendment Effective Date to have irrevocably agreed to the terms of this Fifth Amendment, the Third CTA Amendment and the Amended Collateral Trust Agreement.

 

L.                    To accomplish the foregoing (i) the Borrower, the Administrative Agent, the Collateral Agent, the Swingline Lender, each Issuing Bank whose signature page appears below, and each Lender whose signature page appears below, are willing to amend the Credit Agreement as set forth herein and the Borrower, the Administrative Agent, the Collateral Agent, the Swingline Lender, each Issuing Bank whose signature page appears below, and each Lender whose signature page appears below and the Collateral Trustee, acting as directed by the CTA Amendment Authorization, are willing to consent to the Third CTA Amendment and (ii) each Increasing Revolving Lender and each Additional Revolving Lender is willing to make Additional Revolving Commitments to the Borrower on the Amendment Effective Date on the terms, to the extent and subject to the conditions set forth herein and in the Amended Credit Agreement.

 

 

 

 

M.                  The amendment of the Credit Agreement and the consent to the amendment of the Collateral Trust Agreement, each as set forth below, are subject to the satisfaction of the conditions precedent to effectiveness referred to herein and shall become effective as provided herein.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

 

 

Article I 

 

amendment OF CREDIT AGREEMENT AND AMENDMENT OF COLLATERAL TRUST AGREEMENT

 

Subject to the satisfaction of the conditions set forth in Section 4.1 hereof, effective as of the Amendment Effective Date:

 

Section 1.1            Fifth Amendment to Credit Agreement. The Borrower, the Administrative Agent, the Collateral Agent, each Issuing Bank whose signature page appears below, the Swingline Lender, the Required Lenders, the Non-Increasing Revolving Lenders, the Increasing Revolving Lenders and the Additional Revolving Lenders agree that on the Amendment Effective Date, (i) the Credit Agreement shall hereby be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text), as set forth in the Credit Agreement attached as Exhibit A-1 and (ii) the existing Schedules to the Credit Agreement shall hereby be amended and restated in the form attached to the Credit Agreement in Exhibit A-1 to the extent any such Schedule is included in Exhibit A-1 (collectively, the “Amended Credit Agreement”). A clean version of the Amended Credit Agreement (excluding the Schedules attached in Exhibit A-1) is hereby attached as Exhibit A-2.

 

Section 1.2            Third Amendment to Collateral Trust Agreement. The Borrower, the Administrative Agent, the Collateral Agent, each Issuing Bank whose signature page appears below, the Swingline Lender, the Required Lenders, the Non-Increasing Revolving Lenders, the Increasing Revolving Lenders and the Additional Revolving Lenders each hereby consent, as of the Amendment Effective Date, to the amendments to the Collateral Trust Agreement consisting of the deletion of the stricken text (indicated textually in the same manner as the following example: stricken text) and the addition of the double-underlined text (indicated textually in the same manner as the following example: double-underlined text), as set forth in the Collateral Trust Agreement attached as Exhibit B (the “Amended Collateral Trust Agreement”). By executing and delivering a signature page to this Fifth Amendment, each Lender and each Issuing Bank party hereto hereby consents to, and authorizes and directs the Administrative Agent, in its capacity as Priority Debt Representative (as defined in the Collateral Trust Agreement) under the Collateral Trust Agreement with respect to the Credit Agreement to instruct the Collateral Trustee pursuant to an Act of Instructing Debtholders to approve the Third CTA Amendment and the terms of the Amended Collateral Trust Agreement and to execute, acknowledge and accept this Fifth Amendment and, upon reasonable request by the Administrative Agent, in its capacity as Priority Debt Representative, in each case, any documents, instruments or certificates as may be necessary

 

 

 

 

to effectuate the amendments to the Collateral Trust Agreement provided for herein, and the Administrative Agent, in its capacity as Priority Debt Representative hereby so instructs the Collateral Trustee (collectively, the “CTA Amendment Authorization”).

 

Section 1.3            Act of Instructing Debtholders. The parties hereto, other than the Collateral Trustee, confirm that the CTA Amendment Authorization represents an Act of Instructing Debtholders under and as defined in the Collateral Trust Agreement with respect to the Third CTA Amendment. The Borrower hereby represents and warrants to the Administrative Agent, the Collateral Agent, the Issuing Banks, the Lenders and the Collateral Trustee and agrees for the benefit of the Administrative Agent, the Collateral Agent, the Issuing Banks, the Lenders and the Collateral Trustee that (i) Schedule I attached to this Fifth Amendment sets forth completely and correctly (A) the aggregate outstanding amount of all Priority Lien Debt for Borrowed Money (as defined in the Collateral Trust Agreement), as in effect as of the Amendment Effective Date, (B) the aggregate unfunded commitments to extend credit which, when funded, would constitute Priority Lien Debt for Borrowed Money (as defined in the Collateral Trust Agreement), as in effect as of the Amendment Effective Date, and (C) the face amount of all outstanding letters of credit issued under any Priority Lien Documents (as defined in the Collateral Trust Agreement) relating to Priority Lien Debt for Borrowed Money (as defined in the Collateral Trust Agreement), as in effect as of the Amendment Effective Date, and (ii) pursuant to and in accordance with Section 9.4 of the Collateral Trust Agreement, the holders of Priority Lien Commodity Hedging Obligations (as defined in the Collateral Trust Agreement) are not entitled to exercise any voting or consent right with respect to the execution, acknowledgment and acceptance of the Third CTA Amendment with respect to the aggregate Hedge Capacity Amount (as defined in the Collateral Trust Agreement) under Priority Lien Commodity Hedging Agreements (as defined in the Collateral Trust Agreement) that are Capacity Commodity Hedging Agreements (as defined in the Collateral Trust Agreement), including with respect to clause (i)(y)(D) of the definition of “Act of Instructing Debtholders” set forth in the Collateral Trust Agreement. To accomplish the intent set forth in the first sentence of this Section 1.3, the Lenders constituting, solely based on (and in reliance upon) the representation and warranty of the Borrower set forth in the immediately preceding sentence, holders of Priority Lien Debt (as defined in the Collateral Trust Agreement) constituting more than 50% of the sum of (1) the aggregate outstanding amount of all Priority Lien Debt for Borrowed Money (as defined in the Collateral Trust Agreement), (2) the aggregate unfunded commitments to extend credit which, when funded, would constitute Priority Lien Debt for Borrowed Money (as defined in the Collateral Trust Agreement) and (3) the face amount of all outstanding letters of credit issued under any Priority Lien Documents (as defined in the Collateral Trust Agreement) relating to Priority Lien Debt for Borrowed Money (as defined in the Collateral Trust Agreement), hereby (x) consent to the Third CTA Amendment, (y) authorize and instruct the Collateral Trustee to execute, acknowledge and accept the Third CTA Amendment, on their behalf and (z) direct the Administrative Agent, on their behalf, to authorize and instruct the Collateral Trustee to execute, acknowledge and accept the Third CTA Amendment by executing this Fifth Amendment. By executing this Fifth Amendment pursuant to the CTA Amendment Authorization, the Collateral Trustee, the Borrower and the Grantors each agree that on the Amendment Effective Date, the Collateral Trust Agreement is hereby amended in the form of the Amended Collateral Trust Agreement.

 

 

 

 

Article II 

 

Revolving Lenders; Issuing Banks; Letter of Credit; Administrative Agent Authorization

 

Section 2.1            Fifth Amendment Revolving Lenders. Subject to the terms and conditions set forth herein and in the Credit Agreement:

 

(a)               each Lender party hereto hereby (i) agrees to the terms of this Fifth Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement, (ii) provides its CTA Amendment Authorization and (iii) agrees that, except as otherwise provided in Section 4.1(e) and Section 4.2 of this Fifth Amendment, the requirements of Section 9.17 of the Credit Agreement shall not apply in connection with the amendments contemplated hereby;

 

(b)               each Increasing Revolving Lender irrevocably (i) commits to make New Tranche A Revolving Commitments and/or Tranche B Revolving Commitments, as applicable, in the amount notified to such Increasing Revolving Lender by the Administrative Agent (but in no event greater than the amount such Increasing Revolving Lender committed to make as New Tranche A Revolving Commitments or Tranche B Revolving Commitments, as applicable) and (ii) upon the Amendment Effective Date, shall make New Tranche A Revolving Commitments and/or Tranche B Revolving Commitments, as applicable, to the Borrower, subject to the condition to availability set forth in the Amended Credit Agreement; and

 

(c)               each Additional Revolving Lender irrevocably (i) commits to make New Tranche A Revolving Commitments and/or Tranche B Revolving Commitments, as applicable, in the amount notified to such Additional Revolving Lender by the Administrative Agent (but in no event greater than the amount such Additional Revolving Lender committed to make as New Tranche A Revolving Commitments or Tranche B Revolving Commitments, as applicable), and (ii) upon the Amendment Effective Date, shall make New Tranche A Revolving Commitments and/or Tranche B Revolving Commitments, as applicable, to the Borrower, subject to the condition to availability set forth in the Amended Credit Agreement.

 

Section 2.2            Issuing Banks and Swingline Lender. Subject to the terms and conditions set forth herein and in the Credit Agreement, each Issuing Bank whose signature page appears below and the Swingline Lender hereby irrevocably (i) agrees to the terms of this Fifth Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement and (ii) provides its CTA Amendment Authorization.

 

Section 2.3            Additional Revolving Commitments.

 

(a)               The commitments and undertakings of the Increasing Revolving Lenders and the Additional Revolving Lenders with respect to the Additional Revolving Commitments are several and no such Increasing Revolving Lender or Additional Revolving Lender will be responsible for any other such Lender’s failure to make Additional Revolving Commitments.

 

(b)               Each Fifth Amendment Revolving Lender acknowledges and agrees that, as of the Amendment Effective Date, it shall be a “Lender” and a “Revolving Lender” under, and for all purposes of, the Amended Credit Agreement and the other Loan Documents, and shall be subject

 

 

 

 

to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.

 

(c)               Each Increasing Revolving Lender and each Additional Revolving Lender represents and warrants that it is sophisticated with respect to decisions to provide assets of the type represented by the Additional Revolving Commitments and either it, or the Person exercising discretion in making its decision to provide Additional Revolving Commitments, if any, is experienced in providing assets of such type.

 

(d)               Each Fifth Amendment Revolving Lender represents and warrants that it has received a copy of the Credit Agreement and the Collateral Trust Agreement and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.04 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Fifth Amendment and, with respect to any Increasing Revolving Lender or Additional Revolving Lender, to provide its Additional Revolving Commitments.

 

Section 2.4            Existing Revolving Commitments. On the Amendment Effective Date, all Revolving Commitments (as defined in the Credit Agreement) outstanding under the Credit Agreement immediately prior to the Amendment Effective Date shall be renamed and thereafter referred to as “Tranche A Revolving Commitments”, and the Lenders holding such Commitments shall be referred to as “Tranche A Revolving Lenders”.

 

Section 2.5            Letters of Credit. Notwithstanding anything in the Credit Agreement to the contrary, any Letter of Credit outstanding on the Amendment Effective Date shall be deemed to be outstanding under the Amended Credit Agreement as of the Amendment Effective Date.

 

Section 2.6            Administrative Agent Authorization. The Borrower, the Collateral Agent, the Swingline Lender, each Issuing Bank whose signature page appears below and the Lenders whose signatures appear below authorize the Administrative Agent to (i) determine all amounts, percentages and other information with respect to the Commitments and Loans of each Lender, which amounts, percentages and other information may be determined only upon receipt by the Administrative Agent of the signature pages of all Lenders whose signatures appear below and (ii) enter and complete all such amounts, percentages and other information in the Amended Credit Agreement, as appropriate. The Administrative Agent’s determination and entry and completion shall be conclusive and shall be conclusive evidence of the existence, amounts, percentages and other information with respect to the obligations of the Borrower under the Amended Credit Agreement, in each case, absent clearly demonstrable error. For the avoidance of doubt, the provisions of Article VIII and Section 9.05 of each of the Credit Agreement and the Amended Credit Agreement shall apply to any determination, entry or completion made by the Administrative Agent pursuant to this Section 2.6.

 

Article III 

 

REPRESENTATIONS AND WARRANTIES.

 

Section 3.1            To induce the other parties hereto to enter into this Fifth Amendment, the Borrower and each Subsidiary Guarantor represents and warrants to each of the Lenders, the

 

 

 

 

Administrative Agent, the Collateral Agent, the Collateral Trustee, the Swingline Lender and each Issuing Bank that, as of the Amendment Effective Date:

 

(a) The Borrower and each Subsidiary Guarantor has all requisite power and authority, and the legal right, to enter into this Fifth Amendment and the Amended Credit Agreement, and to carry out the transactions contemplated by, and perform its obligations under, this Fifth Amendment, the Amended Credit Agreement, the Amended Collateral Trust Agreement and the other Loan Documents.

 

(b) Each of this Fifth Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement (i) has been duly authorized, executed and delivered by the Borrower and, with respect to this Fifth Amendment only, each Subsidiary Guarantor, (ii) constitutes the Borrower’s and, with respect to this Fifth Amendment only, each Subsidiary Guarantor’s legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws now or hereafter in effect affecting creditors’ rights generally and (including with respect to specific performance) subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and to the discretion of the court before which any proceeding therefor may be brought, (iii) will not violate (A) any applicable provision of any material law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of the Borrower or any Subsidiary Guarantor, (B) any order of any Governmental Authority or arbitrator or (C) after giving effect to the transactions contemplated by this Fifth Amendment, any provision of any indenture or any material agreement or other material instrument to which the Borrower or any Subsidiary Guarantor is a party or by which any of them or any of their property is or may be bound, (iv) after giving effect to the transactions contemplated by this Fifth Amendment, will not be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any such indenture or material agreement or other material instrument and (v) will not result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any other Loan Party (other than Liens created under the Security Documents).

 

(c) No action, consent or approval of, registration or filing with, notice to, or any other action by, any Governmental Authority is or will be required in connection with this Fifth Amendment, the Amended Credit Agreement or the Amended Collateral Trust Agreement, except for (i) the filing of UCC financing statements and filings with the United States Patent and Trademark Office and the United States Copyright Office, (ii) recordation of modifications of the Mortgages, if any, (iii) actions specifically described in Section 3.19 of the Credit Agreement or any of the Security Documents, if any, (iv) any immaterial actions, consents, approvals, registrations or filings or (v) such as have been made or obtained and are in full force and effect.

 

(d) The representations and warranties set forth in the Amended Credit Agreement and each other Loan Document are true and correct in all material respects on and as of the Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date,

 

 

 

 

in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier is not applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect) in the text thereof.

 

Article IV 

 

CONDITIONS TO EFFECTIVENESS OF THIS FIFTH AMENDMENT; CONDITIONS SUBSEQUENT.

 

Section 4.1            This Fifth Amendment shall become effective on the date (the “Amendment Effective Date”) on which each of the following conditions has been satisfied:

 

(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Fifth Amendment that, when taken together, bear the signatures of the Borrower, the Collateral Agent, the Collateral Trustee, the Swingline Lender, each Issuing Bank that is also an Increasing Revolving Lender, each Increasing Revolving Lender, each Additional Revolver Lender, all Subsidiary Guarantors and the Required Lenders;

 

(b) Each of (i) the representations and warranties set forth in Article III herein shall be true and correct in all material respects on and as of the Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect) in the text thereof, and (ii) the condition in Section 4.01(c) of the Amended Credit Agreement shall have been satisfied or waived in accordance with the terms of the Amended Credit Agreement;

 

(c) The Administrative Agent shall have received a certificate, dated as of the Amendment Effective Date, duly executed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 4.1 (b) above;

 

(d) The Administrative Agent shall have received (i) a certificate as to the good standing of each Loan Party as of a recent date, from the Secretary of State of the state of its organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated as of the Amendment Effective Date and certifying (A) that the by-laws or other similar governing documents, as applicable, of such Loan Party have not been amended or changed since the Fourth Amendment Effective Date (or for Loan

 

 

 

 

Parties joined through that certain Assumption Agreement dated March 31, 2020, since March 31, 2020) other than those changes attached to such certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other similar governing body, as applicable, of such Loan Party authorizing the execution, delivery and performance of this Fifth Amendment and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of such Loan Party have not been amended since the Fourth Amendment Effective Date (or for Loan Parties joined through that certain Assumption Agreement dated March 31, 2020, since March 31, 2020), other than such changes attached to such certificate and (D) as to the incumbency and specimen signature of each officer executing this Fifth Amendment or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above;

 

(e) With respect to each Mortgaged Property required to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated thereunder, because it is located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area,” the Borrower or the applicable Subsidiary Guarantor shall have delivered to the Administrative Agent (i) a policy of flood insurance that covers such Mortgaged Property and is written in an amount reasonably satisfactory to the Administrative Agent, (ii) a “life of loan” standard flood hazard determination with respect to such Mortgaged Property and (iii) a confirmation that the Borrower or such Subsidiary Guarantor has received the notice requested pursuant to Section 208(e)(3) of Regulation H of the Board;

 

(f) The Administrative Agent shall have received (i) and be reasonably satisfied (solely with respect to the absence of any Liens that are not Permitted Liens) with the results of a recent Lien and judgment search in each jurisdiction of organization with respect to the Borrower and the Subsidiary Guarantors and (ii) a completed perfection certificate in form reasonably satisfactory to the Administrative Agent, dated as of the Amendment Effective Date, executed by a duly authorized officer of each Loan Party;

 

(g) The Administrative Agent shall have received a solvency certificate, dated as of the Amendment Effective Date, from a Financial Officer of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, supporting the conclusions that after giving effect to the transactions contemplated by this Fifth Amendment, the Borrower will not be insolvent or be rendered insolvent by the Indebtedness incurred in connection therewith, or be left with unreasonably small capital with which to engage in its businesses, or have incurred debts beyond its ability to pay such debts as they mature;

 

(h) The Administrative Agent shall have received, on behalf of itself, the Lenders and the Issuing Banks, a favorable written opinion of Baker Botts L.L.P., counsel for the Borrower and certain other Loan Parties (i) in form and substance reasonably satisfactory to the Administrative Agent, (ii) dated the Amendment Effective Date, (iii) addressed to the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders and (iv) covering such matters relating to this Fifth Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein;

 

(i) The Administrative Agent and the Collateral Trustee shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that has been requested, in the case of delivery to the Administrative Agent, by the Administrative Agent or any Revolving Lender or, in the case of delivery to the Collateral

 

 

 

 

Trustee, by the Collateral Trustee, in each case, at least five Business Days prior to the Amendment Effective Date;

 

(j) The Arrangers and the Administrative Agent shall have received, to the extent invoiced, reimbursement or other payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating thereto;

 

(k) The Collateral Trustee shall have received (i) a written opinion of Baker Botts L.L.P., counsel for the Borrower and certain other Loan Parties in form and substance reasonably satisfactory to the Collateral Trustee dated as of the Amendment Effective and (ii) a certificate, dated as of the Amendment Effective Date, duly executed by a Financial Officer of the Borrower, in each case, in accordance with the terms of Section 7.1 of the Collateral Trust Agreement.

 

Section 4.2            Within 90 days after the Dragon Acquisition Closing Date (or such longer period as the Administrative Agent may agree in its reasonable discretion), the Borrower shall cause to be delivered to the Administrative Agent and the Collateral Trustee:

 

(a)               amendments to each of the Mortgages existing on the Dragon Acquisition Closing Date (after giving effect to any release effected in accordance with the Credit Agreement on or prior to the Dragon Acquisition Closing Date), in each case in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent and/or the Collateral Trustee, together with any documents reasonably required in connection with the recording of such mortgage amendments; and

 

(b)               customary legal opinions relating to the amendments to the Mortgages described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, noting, however that opinions delivered in substantially the same form as provided for the Mortgages existing prior to this Fifth Amendment, and by the same counsel, shall be deemed acceptable.

 

Article V 

 

EFFECT OF AMENDED CREDIT AGREEMENT AND AMENDED COLLATERAL TRUST AGREEMENT.

 

Section 5.1            Except as expressly set forth herein, in the Amended Credit Agreement and the Amended Collateral Trust Agreement, none of this Fifth Amendment, the Amended Credit Agreement or the Amended Collateral Trust Agreement shall by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Collateral Agent, the Collateral Trustee or the Issuing Banks under the Credit Agreement, the Amended Credit Agreement or any other Loan Document or the Collateral Trustee under the Collateral Trust Agreement or the Amended Collateral Trust Agreement, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or the Amended Credit Agreement or any other provision of the Credit Agreement, the Amended Credit Agreement, the Collateral Trust

 

 

 

 

Agreement, the Amended Collateral Trust Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower, any Subsidiary Guarantor or any other Person to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Amended Credit Agreement, the Collateral Trust Agreement, the Amended Collateral Trust Agreement or any other Loan Document in similar or different circumstances.

 

Section 5.2            The parties hereto acknowledge and agree that (i) this Fifth Amendment, the Amended Credit Agreement, the Amended Collateral Trust Agreement, any other Loan Document or other document or instrument executed and delivered in connection herewith do not constitute a novation, or termination of the obligations of the Borrower and the Subsidiary Guarantors under the Credit Agreement or the Collateral Trust Agreement, as applicable, in each case as in effect prior to the Amendment Effective Date (collectively, the “Obligations”); (ii) such Obligations are in all respects continuing (as amended by this Fifth Amendment) with only the terms thereof being modified to the extent provided herein; and (iii) the Security Documents and the Liens and security interests granted thereunder are in all respects continuing in full force and effect. On the Amendment Effective Date, (A) the provisions of this Fifth Amendment and the Amended Credit Agreement will become effective and binding upon, and enforceable against, the Borrower and each of the Administrative Agent, the Collateral Agent, the Swingline Lender, each Issuing Bank and the Lenders and (B) the provisions of this Fifth Amendment and the Amended Collateral Trust Agreement will become effective and binding upon, and enforceable against the Borrower, the Grantors (as defined in the Collateral Trust Agreement, the Collateral Trustee and each holder of the Secured Obligations (as defined in the Collateral Trust Agreement). Upon and after the execution of this Fifth Amendment by each of the parties hereto, (A) each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, herein,” “hereinafter,” “hereto,” “hereof” and words of like import referring to the Amended Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Amended Credit Agreement and (B) each reference in the Collateral Trust Agreement, to “this Agreement,” “hereunder,” “herein,” “hereinafter,” “hereto,” “hereof,” and words of like import referring to the Collateral Trust Agreement, shall be and mean a reference to the Amended Collateral Trust Agreement.

 

Section 5.3            This Fifth Amendment shall constitute a Loan Document for all purposes under the Amended Credit Agreement and a Security Document (as defined in the Collateral Trust Agreement and the Amended Collateral Trust Agreement) for all purposes under the Collateral Trust Agreement and the Amended Collateral Trust Agreement, and shall be administered and construed pursuant to the terms of the Amended Credit Agreement, the Collateral Trust Agreement and the Amended Collateral Trust Agreement.

 

Article VI 

 

MISCELLANEOUS

 

Section 6.1            Counterparts. This Fifth Amendment 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, and shall become effective as provided in Article V. Delivery of an executed signature page to this Fifth Amendment by facsimile or other electronic transmission (including “pdf”) shall be as effective as delivery of a manually signed counterpart of this Fifth Amendment. The words “execution,” “execute”, “signed,” “signature,” “delivery,” and words of like import in or relating to this Fifth Amendment and any document to be signed in connection with this Fifth Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

Section 6.2            Applicable Law; Notices; Waiver of Jury Trial; Severability; Jurisdiction; Consent to Service of Process; Waivers. THIS FIFTH AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. Sections 9.07, 9.11 and 9.15 of the Amended Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

Section 6.3            Headings. Headings used herein are for convenience of reference only, are not part of this Fifth Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Fifth Amendment.

 

Section 6.4            Reaffirmation. The parties hereto acknowledge and agree that (i) this Fifth Amendment, any other Loan Document or other document or instrument executed and delivered in connection herewith do not constitute a novation, or termination of the obligations of the Borrower and the Subsidiary Guarantors under the Credit Agreement as in effect prior to the Fifth Amendment Effective Date (collectively, the “Obligations”) and (ii) such Obligations are in all respects continuing (as amended by this Fifth Amendment) with only the terms thereof being modified to the extent provided in this Fifth Amendment. Each of the Borrower and the Subsidiary Guarantors hereby consents to the entering into the Fifth Amendment and each of the transactions contemplated hereby, confirms its respective guarantees, pledges, grants of security interests, Liens and other obligations, as applicable, under and subject to the terms of the Security Documents to which it is a party and each of the other Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of the Fifth Amendment or any of the transactions contemplated hereby, such guarantees, pledges, grants of security interests, Liens and other obligations, and the terms of each of the other Security Documents to which it is a party and each of the other Loan Documents to which it is a party, are not impaired or affected in any manner whatsoever and shall continue to be in full force and effect and shall continue to secure all Guaranteed Obligations, as amended, reaffirmed and modified pursuant to the Fifth Amendment or any of the transactions contemplated thereby.

 

[Signature pages follow]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly executed by their respective officers as of the day and year first above written.

  

  NRG ENERGY, INC.
   
  By: /s/ Gaëtan C. Frotté
  Name: Gaëtan C. Frotté
  Title:   Senior Vice President & Treasurer

 

 

 

 

  GUARANTORS:
   
  ACE ENERGY, INC.
  ALLIED HOME WARRANTY GP LLC
  ALLIED WARRANTY LLC
  ARTHUR KILL POWER LLC
  ASTORIA GAS TURBINE POWER LLC
  BIDURENERGY, INC.
  CABRILLO POWER I LLC
  CABRILLO POWER II LLC
  CARBON MANAGEMENT SOLUTIONS LLC
  CIRRO ENERGY SERVICES, INC.
  CIRRO GROUP, INC.
  CONNECTICUT JET POWER LLC
  DEVON POWER LLC
  DUNKIRK POWER LLC
  EASTERN SIERRA ENERGY COMPANY LLC
  EL SEGUNDO POWER, LLC
  EL SEGUNDO POWER II, LLC
  ENERGY CHOICE SOLUTIONS LLC
  ENERGY PLUS HOLDINGS LLC
  ENERGY PLUS NATURAL GAS LLC
  EVERYTHING ENERGY LLC
  FORWARD HOME SECURITY, LLC
  GCP FUNDING COMPANY, LLC
  GREEN MOUNTAIN ENERGY COMPANY
  GREGORY PARTNERS, LLC
  GREGORY POWER PARTNERS LLC
  HUNTLEY POWER LLC
  INDEPENDENCE ENERGY ALLIANCE LLC
  INDEPENDENCE ENERGY GROUP LLC
  INDEPENDENCE ENERGY NATURAL GAS LLC
  INDIAN RIVER OPERATIONS INC.
  INDIAN RIVER POWER LLC
  MERIDEN GAS TURBINES LLC
  MIDDLETOWN POWER LLC
   
  By: /s/ Gaëtan C. Frotté
  Name: Gaëtan C. Frotté
  Title:   Treasurer

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

 

 

  MONTVILLE POWER LLC
  NEO CORPORATION
  NEW GENCO GP, LLC
  NORWALK POWER LLC
  NRG ADVISORY SERVICES LLC
  NRG AFFILIATE SERVICES INC.
  NRG ARTHUR KILL OPERATIONS INC.
  NRG ASTORIA GAS TURBINE OPERATIONS INC.
  NRG BUSINESS SERVICES LLC
  NRG CABRILLO POWER OPERATIONS INC.
  NRG CALIFORNIA PEAKER OPERATIONS LLC
  NRG CEDAR BAYOU DEVELOPMENT COMPANY, LLC
  NRG CONNECTED HOME LLC
  NRG CURTAILMENT SOLUTIONS, INC.
  NRG DEVELOPMENT COMPANY INC.
  NRG DEVON OPERATIONS INC.
  NRG DISPATCH SERVICES LLC
  NRG DISTRIBUTED ENERGY RESOURCES HOLDINGS LLC
  NRG DISTRIBUTED GENERATION PR LLC
  NRG DUNKIRK OPERATIONS INC.
  NRG ECOKAP HOLDINGS LLC
  NRG EL SEGUNDO OPERATIONS INC.
  NRG ENERGY LABOR SERVICES LLC
  NRG ENERGY SERVICES GROUP LLC
  NRG GENERATION HOLDINGS INC.
  NRG GREENCO LLC
  NRG HOME & BUSINESS SOLUTIONS LLC
  NRG HOME SERVICES LLC
  NRG HOME SOLUTIONS LLC
  NRG HOME SOLUTIONS PRODUCT LLC
  NRG HOMER CITY SERVICES LLC
  NRG HQ DG LLC
  NRG HUNTLEY OPERATIONS INC.
  NRG IDENTITY PROTECT LLC
  NRG ILION LP LLC
  NRG INTERNATIONAL LLC
  NRG MEXTRANS INC.
  NRG MIDDLETOWN OPERATIONS INC.
  NRG MONTVILLE OPERATIONS INC.
  NRG NORTH CENTRAL OPERATIONS INC.
   
  By: /s/ Gaëtan C. Frotté
  Name: Gaëtan C. Frotté
  Title:   Treasurer

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

 

 

  NRG NORWALK HARBOR OPERATIONS INC.
  NRG OSWEGO HARBOR POWER OPERATIONS INC.
  NRG PORTABLE POWER LLC
  NRG POWER MARKETING LLC
  NRG RENTER’S PROTECTION LLC
  NRG RETAIL LLC
  NRG RETAIL NORTHEAST LLC
  NRG ROCKFORD ACQUISITION LLC
  NRG SAGUARO OPERATIONS INC.
  NRG SECURITY LLC
  NRG SERVICES CORPORATION
  NRG SIMPLYSMART SOLUTIONS LLC
  NRG TEXAS GREGORY LLC
  NRG TEXAS HOLDING INC.
  NRG TEXAS LLC
  NRG TEXAS POWER LLC
  NRG WARRANTY SERVICES LLC
  NRG WEST COAST LLC
  NRG WESTERN AFFILIATE SERVICES INC.
  OSWEGO HARBOR POWER LLC
  RELIANT ENERGY NORTHEAST LLC
  RELIANT ENERGY POWER SUPPLY, LLC
  RELIANT ENERGY RETAIL HOLDINGS, LLC
  RELIANT ENERGY RETAIL SERVICES, LLC
  RERH HOLDINGS, LLC
  SAGUARO POWER LLC
  SGE ENERGY SOURCING, LLC
  SGE TEXAS HOLDCO, LLC
  SOMERSET OPERATIONS INC.
  SOMERSET POWER LLC
  STREAM ENERGY COLUMBIA, LLC
  STREAM ENERGY DELAWARE, LLC
  STREAM ENERGY ILLINOIS, LLC
  STREAM ENERGY MARYLAND, LLC
  STREAM ENERGY NEW JERSEY, LLC
  STREAM ENERGY NEW YORK, LLC
  STREAM ENERGY PENNSYLVANIA, LLC
  STREAM GEORGIA GAS SPE, LLC
  STREAM OHIO GAS & ELECTRIC, LLC
  STREAM SPE GP, LLC
  TEXAS GENCO GP, LLC
  TEXAS GENCO HOLDINGS, INC.
  TEXAS GENCO LP, LLC
  US RETAILERS LLC
  VIENNA OPERATIONS INC.
  VIENNA POWER LLC
  WCP (GENERATION) HOLDINGS LLC
  WEST COAST POWER LLC
  xoom alberta holdings, llc

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

 

 

  xoom british columbia holdings, llc
  xoom energy global holdings, llc
  xoom energy, llc
  xoom ontario holdings, llc
  xoom solar, llc
   
  By: /s/ Gaëtan C. Frotté
  Name: Gaëtan C. Frotté
  Title:   Treasurer

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

 

 

  ENERGY ALTERNATIVES WHOLESALE, LLC
  NRG OPERATING SERVICES, INC.
  NRG SOUTH CENTRAL OPERATIONS INC.
   
  By: /s/ David Callen
  Name: David Callen
  Title:   Vice President
   
  NRG CONSTRUCTION LLC
  NRG ENERGY SERVICES LLC
  NRG MAINTENANCE SERVICES LLC
  NRG RELIABILITY SOLUTIONS LLC
   
  By: /s/ Rachel Smith
  Name: Rachel Smith
  Title:   Treasurer
   
  ENERGY PROTECTION INSURANCE COMPANY
   
  By: /s/ David Callen
  Name: David Callen
  Title:   Vice President
   
  NRG ILION LIMITED PARTNERSHIP
   
  By: NRG Rockford Acquisition LLC, its General Partner
   
  By: /s/ Gaëtan Frotté
  Name: Gaëtan Frotté
  Title:   Treasurer
   
  NRG SOUTH TEXAS LP
   
  By: Texas Genco GP, LLC, its General Partner
   
  By: /s/ Gaëtan Frotté
  Name: Gaëtan Frotté
  Title:   Treasurer
   
  TEXAS GENCO SERVICES, LP
   
  By: New Genco GP, LLC, its General Partner
   
  By: /s/ Gaëtan Frotté
  Name: Gaëtan Frotté
  Title:   Treasurer

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

 

 

  STREAM SPE, LTD.
   
  By: STREAM SPE GP, LLC, the sole general partner
   
  By: /s/ Gaëtan Frotté
  Name: Gaëtan Frotté
  Title:   Treasurer
   
  XOOM ENERGY CALIFORNIA, LLC
   
  By: /s/ Leonard Gardner
  Name: Leonard Gardner
  Title:   Vice President
   
  XOOM ENERGY CONNECTICUT, LLC
  XOOM ENERGY DELAWARE, LLC
  XOOM ENERGY GEORGIA, LLC
  XOOM ENERGY ILLINOIS, LLC
  XOOM ENERGY INDIANA, LLC
  XOOM ENERGY KENTUCKY, LLC
  XOOM ENERGY MAINE, LLC
  XOOM ENERGY MARYLAND, LLC
  XOOM ENERGY MASSACHUSETTS, LLC
  XOOM ENERGY MICHIGAN, LLC
  XOOM ENERGY NEW HAMPSHIRE, LLC
  XOOM ENERGY NEW JERSEY, LLC
  XOOM ENERGY NEW YORK, LLC
  XOOM ENERGY OHIO, LLC
  XOOM ENERGY PENNSYLVANIA, LLC
  XOOM ENERGY RHODE ISLAND, LLC
  XOOM ENERGY TEXAS, LLC
  XOOM ENERGY VIRGINIA, LLC
  XOOM ENERGY WASHINGTON D.C., LLC
   
  By: XOOM ENERGY, LLC, the sole member
   
  By: /s/ Gaëtan Frotté
  Name: Gaëtan Frotté
  Title:   Treasurer

 

 

 

 

ACKNOWLEDGED AND ACCEPTED BY:  
   
CITICORP NORTH AMERICA, INC., as
Administrative Agent and Collateral Agent
 
   
By: /s/ Akshay Kulkarni  
  Name: Akshay Kulkarni  
  Title: Director  
   
CITIBANK, N.A., as an Issuing Bank
and Swingline Lender
 
   
By: /s/ Akshay Kulkarni  
  Name: Akshay Kulkarni  
  Title: Director  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Citibank, N.A., Canadian Branch,
as Swingline Lender
 
   
By: /s/ Akshay Kulkarni  
  Name: Akshay Kulkarni  
  Title: Director  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Bank of America, National Association (Canada branch),
as a Lender
 
   
By: /s/ Medina Sales de Andrade  
  Name: Medina Sales de Andrade  
  Title: Vice President  

 

[Signature Page to Fifth Amendment]

 

 

 

 

ACKNOWLEDGED AND AGREED BY:  
   
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Trustee
 
   
By: /s/ Irina Golovashchuk  
  Name: Irina Golovashchuk  
  Title: Vice President  
   
By: /s/ Jeffrey Schoenfeld  
  Name: Jeffrey Schoenfeld  
  Title: Vice President  

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second
Amended and Restated Collateral Trust Agreement]

 

 

 

 

Barclays Bank PLC,
as an Issuing Bank
 
   
By: /s/ Sydney G. Dennis  
  Name: Sydney G. Dennis  
  Title: Director  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Bank of America, N.A.,
as an Issuing Bank
 
   
By: /s/ Jennifer K. Cochrane  
  Name: Jennifer Cochrane  
  Title: Vice President  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Bank of Montreal, Chicago Branch,
as an Issuing Bank
 
   
By: /s/ Darren Thomas  
  Name: Darren Thomas  
  Title: Vice President  

 

[Signature Page to Fifth Amendment]

 

 

 

 

BNP Paribas,
as an Issuing Bank
 
   
By: /s/ Nicole Rodriguez  
  Name: Nicole Rodriguez  
  Title: Director  
   
By: /s/ Christopher Sked  
  Name: Christopher Sked  
  Title: Managing Director  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Credit Suisse AG, Cayman Islands Branch,
as an Issuing Bank
 
   
By: /s/ Mikhail Faybusovich  
  Name: Mikhail Faybusovich  
  Title: Authorized Signatory  
   
By: /s/ Christopher Zybrick  
  Name: Christopher Zybrick  
  Title: Authorized Signatory  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Deutsche Bank AG New York Branch,
as an Issuing Bank
 
   
By: /s/ Yumi Okabe  
  Name: Yumi Okabe  
  Title: Vice President  
    Email: yumi.okabe@db.com  
    Tel: (212) 250-2966  
   
By: /s/ Jennifer Culbert  
  Name: Jennifer Culbert  
  Title: Vice President  
    jennifer-a.culbert@db.com
212 250 0738
 

 

[Signature Page to Fifth Amendment]

 

 

 

 

JPMorgan Chase Bank, N.A.,
as an Issuing Bank
 
   
By: /s/ Jeffrey Miller  
  Name: Jeffrey Miller  
  Title: Executive Director  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Morgan Stanley Bank, N.A.,
as an Issuing Bank
 
   
By: /s/ Alysha Salinger  
  Name: Alysha Salinger  
  Title: Authorized Signatory  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Natixis, New York Branch,
as an Issuing Bank
 
   
By: /s/ Guillaume De Parscau  
  Name: Guillaume De Parscau  
  Title: Managing Director  
   
By: /s/ Hanane Hablal  
  Name: Hanane Hablal  
  Title: Vice President  

 

[Signature Page to Fifth Amendment]

 

 

 

 

Royal Bank of Canada,
as an Issuing Bank
 
   
By: /s/ Justin Painter  
  Name: Justin Painter  
  Title: Authorized Signatory  

 

[Signature Page to Fifth Amendment]

 

 

 

 

SIGNATURE PAGE TO
FIFTH AMENDMENT

 

FIFTH AMENDMENT REVOLVING LENDERS SIGNATURE PAGE

 

[Please see attached.]

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22,620,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Adam E. Schroeder

 

Tel: (212) 526-8035

 

Email: Adam.Schroeder@Barclays.com

BARCLAYS BANK PLC

 

By: /s/ Sydney G. Dennis                                              

Name: Sydney G. Dennis

Title: Director

 

For any Lender requiring a second signature line:

 

By:                                                                                  

Name:
Title:

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22.62MM

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15.08MM

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Jennifer Cochrane

 

Tel: (646) 855-1889

 

Email: jennifer.cochrane@bofa.com

Bank of America, N.A.

 

By: /s/ Jennifer K. Cochrane                                         

Name: Jennifer Cochrane

Title: Vice President

 

For any Lender requiring a second signature line:

 

By:                                                                                  

Name:
Title:

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22,620,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Darren Thomas

 

Tel: (929) 474 - 0849

 

Email: darren.thomas@bmo.com

Bank of Montreal, Chicago Branch

 

By: /s/ Darren Thomas                                                   

Name: Darren Thomas

Title: Vice President

 

For any Lender requiring a second signature line:

 

By:                                                                                  

Name:
Title:

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $69.82MM

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15.08MM

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name:_________________________________

 

Tel:___________________________________

 

Email:_________________________________

BNP Paribas

 

By: /s/ Nicole Rodriguez                                               

Name: Nicole Rodriguez

Title: Director

 

For any Lender requiring a second signature line:

 

By: /s/ Christopher Sked                                              

Name: Christopher Sked
Title: Managing Director

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22,620,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Darrell Stanley

 

Tel: (713) 890-8602

 

Email: Darrell.stanley@ca-cib.com

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK

 

By: /s/ Darrell Stanley                                                   

Name: Darrell Stanley

Title: Managing Director

 

For any Lender requiring a second signature line:

 

By: /s/ Michael Willis                                                   

Name: Michael Willis
Title: Managing Director

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $34,620,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $23,080,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name:_________________________________

 

Tel:___________________________________

 

Email:_________________________________

CITIBANK, N. A.,

 

By: /s/ Akshay Kulkarni                                                

Name: Akshay Kulkarni

Title: Director

 

For any Lender requiring a second signature line:

 

By:                                                                                  

Name:
Title:

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $34,620,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $23,080,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name:_________________________________

 

Tel:___________________________________

 

Email:_________________________________

Credit Suisse AG, Cayman Islands Branch

 

By: /s/ Mikhail Faybusovich                                        

Name: Mikhail Faybusovich

Title: Authorized Signatory

 

For any Lender requiring a second signature line:

 

By: /s/ Christopher Zybrick                                          

Name: Christopher Zybrick
Title: Authorized Signatory

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22,620,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Reagan Farish

 

Tel: +1 (904)-271-2420

 

Email: Reagan.farish@db.com

Deutsche Bank AG New York Branch

 

By: /s/ Michael Strobel                                                 

Name: Michael Strobel

Title:  Vice President
          michael-p.strobel@db.com
          212-250-0939

 

By: /s/ Jennifer Culbert                                                 

Name: Jennifer Culbert
Title:  Vice President
           jennifer-a.culbert@db.com
          212 250 0738

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Non-Increasing Revolving Lenders

 

x Mark this box to consent as a Non-Increasing Revolving Lender as described above.

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name:                                                                              

 

Tel:                                                                                  

 

Email: GSD.Link@gs.com                                            

Goldman Sachs Bank USA

 

By: /s/ Jamie Minieri                                                      

Name: Jamie Minieri

Title: Authorized Signatory

 

For any Lender requiring a second signature line:

 

By:                                                                                   

Name:

Title:

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $34,700,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $23,000,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Antonella Pasetto

 

Tel: 212 270 0275

 

Email: antonella.pasetto@jpmorgan.com

JPMORGAN CHASE BANK, N.A.

 

By: /s/ Jeffrey C. Miller                                                 

Name: Jeffrey C. Miller

Title: Executive Director

 

For any Lender requiring a second signature line:

 

By:                                                                                   

Name:

Title:

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $9,000,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $6,000,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Renee Bonnell

 

Tel: 216.689.7729

 

Email: renee.bonnell@key.com

 

KeyBank National Association

 

By: /s/ Renee M. Bonnell                                             

Name: Renee M. Bonnell

Title: Senior Vice President

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22.62 million

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15.08 million

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name:                                                                             

 

Tel:                                                                                 

 

Email                                                                               

Morgan Stanley Bank, N.A.

 

By: /s/ Alysha Salinger                                                 

Name: Alysha Salinger

Title: Authorized Signatory

 

For any Lender requiring a second signature line:

 

By:                                                                                    

Name:

Title:

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22,620,000

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Viet-Linh Fujitaki

 

Tel: (213) 236-6254

 

Email: vfujitaki@us.mufg.jp

MUFG BANK, LTD.

 

By: /s/ Viet-Linh Fujitaki                                               

Name: Viet-Linh Fujitaki

Title: Director

 

For any Lender requiring a second signature line:

 

By:                                                                                    

Name:

Title:

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $15,000,000.00

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $10,000,000.00

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Alex Penn

 

Tel: (212) 891-6255

 

Email: alex.penn@natixis.com

Natixis, New York Branch

 

By: /s/ Guillaume De Parscau                                       

Name: Guillaume De Parscau

Title: Managing Director

 

For any Lender requiring a second signature line:

 

By: /s/ Hanane Hablal                                                    

Name: Hanane Hablal

Title: Vice President

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22,620,000.00

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000.00

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Justin Painter

 

Tel: 646-574-4225

 

Email: Justin.painter@rbccm.com

 

 

ROYAL BANK OF CANADA

 

By: /s/ Justin Painter                                                      

Name: Justin Painter

Title: Authorized Signatory

 

 

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

ANNEX A

 

Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement

 

1.       Existing Revolving Lenders

 

a.       Increasing Revolving Lenders

 

x Mark this box to consent as an Increasing Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting (which amount shall be in addition to any Existing Revolving Commitments you have, and exclusive of such amount of Existing Revolving Commitments): $22,620,000.00

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000.00

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Katie Lee

 

Tel: (212) 224-4088

 

Email: Klee@smbc-LF.com

 

 

SUMITOMO MITSUI BANKING CORPORATION

 

By: /s/ Katie Lee                                                             

Name: Katie Lee

Title: Director

 

 

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

2.       Additional Revolving Lenders

 

a.       Additional Tranche A Revolving Lenders

 

x Mark this box to consent as an Additional Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting: $194,920,000.00

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting: $15,080,000.00

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: Edwin Stone

 

Tel: 917-921-9043

 

Email: edwin.stone@mizuhogroup.com

 

 

MIZUHO BANK, LTD.

 

By: /s/ Edward Sacks                                                     

Name: Edward Sacks

Title: Authorized Signatory

 

For any Lender requiring a second signature line:

 

By:                                                                                     

Name:

Title:

 

 

[Signature Page to Fifth Amendment to Second Amended and Restated Credit Agreement and Third Amendment to Second Amended and Restated Collateral Trust Agreement]

 

 

2.       Additional Revolving Lenders

 

a.       Additional Tranche A Revolving Lenders

 

x Mark this box to consent as an Additional Revolving Lender and to make New Tranche A Revolving Commitments and Tranche B Revolving Commitments to the Borrower on the Amendment Effective Date in an amount not to exceed the amount expressly set forth on your signature pages hereto as described in the Amendment.

 

Specify the maximum amount of New Tranche A Revolving Commitments you are requesting:

 

$194.92 million.

 

Specify the maximum amount of Tranche B Revolving Commitments you are requesting:

 

$15.08 million.

 

By executing this Amendment, the undersigned consents to this Amendment, the Amended Credit Agreement and the Amended Collateral Trust Agreement.

 

Please enter the information of a contact for any questions on this signature page:

 

Name: John Kovarik

 

Tel: 832-297-8785

 

Email: john.kovarik@suntrust.com

 

 

Truist Bank

 

By: /s/ John Kovarik                                                      

Name: John Kovarik

Title: Director

 

For any Lender requiring a second signature line:

 

By:                                                                                     

Name:

Title:

 

 

 

 

 

EXHIBIT A-2

 

AMENDED CREDIT AGREEMENT (CLEAN VERSION)

 

[Please see attached.]

 

 

 

 

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of June 30, 2016

 

among

 

NRG ENERGY, INC.,

as Borrower,

 

THE LENDERS PARTY HERETO,

 

CITIGROUP GLOBAL MARKETS INC., MORGAN STANLEY SENIOR FUNDING, INC., BARCLAYS BANK PLC, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS BANK USA, JPMORGAN CHASE BANK, N.A., MUFG BANK, LTD., ROYAL BANK OF CANADA, SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS, DNB CAPITAL ASA, ING CAPITAL LLC, NATIXIS, NEW YORK BRANCH and BANK OF MONTREAL

as Joint Lead Arrangers and Joint Lead Bookrunners,

 

CITICORP NORTH AMERICA, INC.,

as Administrative Agent and Collateral Agent,

 

COMMERZBANK AG, NEW YORK BRANCH, KEYBANK CAPITAL MARKETS INC. and

CIT BANK, N.A.
as Co-Managers

 

and

 

BNP PARIBAS,
as Sustainability Structuring Agent

 

as amended through August 20, 2020

 

 

 

 

 

 

TABLE OF CONTENTS

Page

 

ARTICLE I.

 

Definitions

 
SECTION 1.01.   Defined Terms 3
SECTION 1.02.   Terms Generally 66
SECTION 1.03.   Classification of Loans and Borrowings 67
SECTION 1.04.   Exchange Rates and Conversion of Foreign Currencies 67
SECTION 1.05.   Limited Condition Transactions 67
SECTION 1.06.   Divisions 68
   

ARTICLE II.

 

The Credits

 
SECTION 2.01.   Commitments 69
SECTION 2.02.   Loans 69
SECTION 2.03.   Borrowing Procedure 72
SECTION 2.04.   Repayment of Loans; Evidence of Debt 72
SECTION 2.05.   Fees 73
SECTION 2.06.   Interest on Loans 74
SECTION 2.07.   Default Interest 75
SECTION 2.08.   Alternate Rate of Interest 75
SECTION 2.09.   Termination and Reduction of Commitments 76
SECTION 2.10.   Conversion and Continuation of Borrowings 77
SECTION 2.11.   Repayment of Term Loans, New Term Loans and Refinancing Term Loans 79
SECTION 2.12.   Prepayment 79
SECTION 2.13.   Mandatory Prepayments 83
SECTION 2.14.   Reserve Requirements; Change in Circumstances 85
SECTION 2.15.   Change in Legality 86
SECTION 2.16.   Indemnity 87
SECTION 2.17.   Pro Rata Treatment 87
SECTION 2.18.   Sharing of Setoffs 88
SECTION 2.19.   Payments 88
SECTION 2.20.   Taxes 89
SECTION 2.21.   Assignment of Commitments Under Certain Circumstances; Duty to Mitigate 91
SECTION 2.22.   Swingline Loans 93
SECTION 2.23.   Letters of Credit 94
SECTION 2.24.   Incremental Facilities 100
SECTION 2.25.   Incremental Refinancing Facilities 103
SECTION 2.26.   Defaulting Lenders 105

 

i

 

 

ARTICLE III.

 

Representations and Warranties

 
SECTION 3.01.   Organization; Powers 107
SECTION 3.02.   Authorization; No Conflicts 107
SECTION 3.03.   Enforceability 107
SECTION 3.04.   Governmental Approvals 108
SECTION 3.05.   Financial Statements 108
SECTION 3.06.   No Material Adverse Effect 108
SECTION 3.07.   Title to Properties; Possession Under Leases 108
SECTION 3.08.   Subsidiaries 109
SECTION 3.09.   Litigation; Compliance with Laws 109
SECTION 3.10.   Agreements 109
SECTION 3.11.   Federal Reserve Regulations 109
SECTION 3.12.   Investment Company Act 110
SECTION 3.13.   Use of Proceeds 110
SECTION 3.14.   Tax Returns 110
SECTION 3.15.   No Material Misstatements 111
SECTION 3.16.   Employee Benefit Plans 111
SECTION 3.17.   Environmental Matters 111
SECTION 3.18.   Insurance 112
SECTION 3.19.   Security Documents 112
SECTION 3.20.   Location of Real Property 113
SECTION 3.21.   Labor Matters 114
SECTION 3.22.   Intellectual Property 114
SECTION 3.23.   Energy Regulation 114
SECTION 3.24.   Solvency 115
SECTION 3.25.   Liabilities and Obligations of Funded L/C SPV 116
SECTION 3.26.   Anti-Terrorism Laws 116
SECTION 3.27.   Anti-Corruption Laws and Sanctions 116
   
   

ARTICLE IV.

 

Conditions of Lending

 
SECTION 4.01.   All Credit Events 116
SECTION 4.02.   Conditions Precedent to the Closing Date 117
   

ARTICLE V.

 

Affirmative Covenants

 
SECTION 5.01.   Corporate Existence 117
SECTION 5.02.   Insurance 118
SECTION 5.03.   Taxes 118
SECTION 5.04.   Financial Statements, Reports, etc. 118
SECTION 5.05.   Litigation and Other Notices 120
SECTION 5.06.   Information Regarding Collateral 120
SECTION 5.07.   Maintaining Records; Access to Properties and Inspections; Environmental Assessments 121

 

ii

 

 

SECTION 5.08.   Use of Proceeds 122
SECTION 5.09.   Additional Collateral, etc. 122
SECTION 5.10.   Further Assurances 125
SECTION 5.11.   Ownership of Funded L/C SPV 125
SECTION 5.12.   Maintenance of Energy Regulatory Authorizations and Status 125
   

ARTICLE VI.

 

Negative Covenants

 
SECTION 6.01.   Incurrence of Indebtedness and Issuance of Preferred Stock 126
SECTION 6.02.   Liens 131
SECTION 6.03.   Limitation on Sale and Leaseback Transactions 131
SECTION 6.04.   Asset Sales 131
SECTION 6.05.   Dividend and Other Payment Restrictions Affecting Subsidiaries 134
SECTION 6.06.   Restricted Payments 136
SECTION 6.07.   Transactions with Affiliates 139
SECTION 6.08.   Merger, Consolidation or Sale of Assets 141
SECTION 6.09.   Limitations on Funded L/C SPV 142
SECTION 6.10.   Designation of Restricted, Unrestricted and Excluded Project Subsidiaries 143
SECTION 6.11.   Consolidated Interest Coverage Ratio 144
SECTION 6.12.   Leverage Ratio 144
SECTION 6.13.   Fiscal Year 144
SECTION 6.14.   Use of Proceeds 144
   

ARTICLE VII.

 

Events of Default

 

ARTICLE VIII.

 

The Agents, the Arrangers and the Lenders

 

ARTICLE IX.

 

Miscellaneous

 
SECTION 9.01.   Notices 152
SECTION 9.02.   Survival of Agreement 154
SECTION 9.03.   Binding Effect 155
SECTION 9.04.   Successors and Assigns 155
SECTION 9.05.   Expenses; Indemnity 160
SECTION 9.06.   Right of Setoff 161
SECTION 9.07.   Applicable Law 161
SECTION 9.08.   Waivers; Amendment; Replacement of Non-Consenting Lenders 162
SECTION 9.09.   Interest Rate Limitation 164
SECTION 9.10.   Entire Agreement 164
SECTION 9.11.   WAIVER OF JURY TRIAL 164
SECTION 9.12.   Severability 165
SECTION 9.13.   Counterparts 165

 

iii

 

 

SECTION 9.14.   Headings 165
SECTION 9.15.   Jurisdiction; Consent to Service of Process 165
SECTION 9.16.   Confidentiality 166
SECTION 9.17.   Mortgage Modifications 167
SECTION 9.18.   Effect of Amendment and Restatement 167
SECTION 9.19.   Permitted Amendments 168
SECTION 9.20.   Certain Undertakings with Respect to Securitization Vehicles 169
SECTION 9.21.   Undertaking Regarding Bankruptcy or Similar Proceeding against Funded L/C SPV 169
SECTION 9.22.   PATRIOT Act 170
SECTION 9.23.   No Fiduciary Duty 170
SECTION 9.24.   Acknowledgment and Consent to Bail-In of Affected Financial Institutions 171
SECTION 9.25.   Release and Reinstatement of Collateral 171
SECTION 9.26.   Acknowledgement Regarding Any Supported QFCs 172
SECTION 9.27.   Judgment Currency 173

 

Exhibits and Schedules  
   
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Assumption
Exhibit C Form of Borrowing Request
Exhibit D Form of Joinder Agreement
Exhibit E Form of Mortgage
Exhibit F Form of Revolving Note
Exhibit G Form of Term Note
Exhibit H Form of Prepayment Notice
Exhibit I Form of Discounted Purchase Option Notice
Exhibit J Form of Lender Participation Notice
Exhibit K Form of Discounted Voluntary Purchase Notice
Exhibit L Form of Asset Sale Offer Notice
Exhibit M Form of Non-Bank Certificate

 

Schedule 1.01(a) Excluded Foreign Subsidiaries
Schedule 1.01(b) Excluded Project Subsidiaries
Schedule 1.01(c) Existing Commodity Hedging Agreements
Schedule 1.01(d) Mortgaged Properties
Schedule 1.01(e) Revolving Commitments
Schedule 1.01(f) Subsidiary Guarantors
Schedule 1.01(g) Term Commitments
Schedule 1.01(h) Unrestricted Subsidiaries
Schedule 2.23(a) Existing Letters of Credit
Schedule 2.23(b) Letter of Credit Commitments
Schedule 3.07 Properties
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance

 

iv

 

 

Schedule 3.19(a) UCC Filing Offices
Schedule 3.19(c) Mortgage Filing Offices
Schedule 3.20 Owned and Leased Real Property
Schedule 3.23(b) Rate Proceedings
Schedule 3.23(d) FERC Matters
Schedule 3.23(g) Regulatory Status
Schedule 5.09(b) Title Insurance and Survey Requirements
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.03 Sale and Leaseback Transactions

 

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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 30, 2016, among NRG ENERGY, INC., a Delaware corporation (the “Borrower”), the LENDERS from time to time party hereto (the “Lenders”), CITICORP NORTH AMERICA, INC. (together with its Affiliates, “CNA”), as administrative agent (in such capacity and together with its successors, the “Administrative Agent”), collateral agent (in such capacity and together with its successors, the “Collateral Agent”), an Issuing Bank and Swingline Lender, BANK OF AMERICA, N.A. (together with its Affiliates, “BANA”), as an Issuing Bank, BARCLAYS BANK PLC (together with its Affiliates, “Barclays”), as an Issuing Bank, BNP PARIBAS (together with its Affiliates, “BNPP”), as an Issuing Bank, CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (together with its Affiliates, “CS”), as an Issuing Bank, DEUTSCHE BANK AG NEW YORK BRANCH (together with its Affiliates, “DB”), as an Issuing Bank, JPMORGAN CHASE BANK, N.A. (together with its Affiliates, “JPM”), as an Issuing Bank, MORGAN STANLEY BANK, N.A. (together with its Affiliates, “MSB”), as an Issuing Bank and NATIXIS, NEW YORK BRANCH (together with its Affiliates, “Natixis”), as an Issuing Bank, and BNP PARIBAS, as sustainability structuring agent (in such capacity and together with its successors, the “Sustainability Structuring Agent”).

 

A.       Immediately prior to the Closing Date, the Borrower, the lenders party thereto (including certain of the Lenders), Citicorp North America, Inc., as administrative agent, collateral agent and swingline lender thereunder, and the other financial institutions party thereto are party to the Amended and Restated Credit Agreement, dated as of July 1, 2011 (as further amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date, the “Existing Credit Agreement”), pursuant to which the lenders party thereto (including certain of the Lenders) agreed, subject to the terms and conditions thereof, to continue to extend credit to the Borrower thereunder in the form of (i) Term Loans (as defined in the Existing Credit Agreement) and (ii) a revolving credit facility (including a letter of credit facility and a swingline loan facility thereunder).

 

B.       It is understood and agreed that, immediately prior to the Closing Date, the Guaranteed Obligations (as defined in the Existing Credit Agreement) are guaranteed pursuant to the Existing Guarantee and Collateral Agreement and secured pursuant to the Security Documents by a legal, valid, binding and enforceable security interest and a fully perfected Lien in favor of the Collateral Trustee (as defined in the Collateral Trust Agreement), for the ratable benefit of the Secured Parties (as defined in the Existing Credit Agreement), in the Collateral and the proceeds thereof.

 

C.       The Borrower has requested that certain of the Lenders (as defined in the Existing Credit Agreement) and the other parties hereto (including all Lenders) agree, and such Lenders (as defined in the Existing Credit Agreement) and other parties (including all Lenders) have agreed, subject to the terms and conditions hereof, to continue to extend credit to the Borrower hereunder in the form of (i) Term Loans re-evidenced on the Closing Date in an aggregate principal amount on the Closing Date equal to $1,900,000,000 and (ii) a replacement revolving credit facility (including a letter of credit facility and a swingline loan facility thereunder) in an aggregate principal amount at any time outstanding on the Closing Date not to exceed $2,536,000,000, subject to the limitations set forth herein.

 

D.       The Borrower will use the proceeds of the Term Loans on the Closing Date, together with other funds available to it, to (i) re-evidence in full all Term Loans (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement, on the terms and subject to the conditions set forth herein, including via the assignment by certain of the Lenders under and as defined in the Existing Credit Agreement who do not remain Lenders hereunder on the Closing Date to certain of the Lenders hereunder as of the Closing Date of certain of the Term Loans under and as defined in the Existing Credit Agreement, which shall thereafter be continued

 

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as and be deemed to be a portion of the Term Loans hereunder, and (ii) pay or cause to be paid fees, costs and expenses incurred in connection with the Transactions in accordance with the terms and conditions of this Agreement. The revolving credit facility (including the letter of credit facility and the swingline loan facility thereunder) under the Existing Credit Agreement will, on the terms and subject to the conditions set forth herein, be replaced on the Closing Date with the revolving credit facility (including the letter of credit facility and swingline loan facility thereunder) under this Agreement in an aggregate principal amount at any time outstanding on the Closing Date not to exceed $2,536,000,000, subject to the limitations set forth herein.

 

E.       It is the intent of the parties hereto that (i) this Agreement shall be deemed to be the Credit Agreement (as defined in the Collateral Trust Agreement) for all purposes under the Collateral Trust Agreement and the other Security Documents and, pursuant and in accordance with Section 3.8(b) of the Collateral Trust Agreement, all extensions of credit under this Agreement (including issuances of Letters of Credit) shall constitute extensions of credit under the Credit Agreement (as defined in the Collateral Trust Agreement) for all purposes under the Collateral Trust Agreement and the other Security Documents and shall be deemed to be incurred (solely for purposes of Section 3.8(b) of the Collateral Trust Agreement) on February 2, 2006 and no further designation shall be required to be made so that (a) all extensions of credit under this Agreement (regardless when made or incurred) will be deemed Priority Lien Debt (as defined in the Collateral Trust Agreement) pursuant to clause (i) of the definition thereof and the Guaranteed Obligations will be deemed Priority Lien DFBM Obligations (as defined in the Collateral Trust Agreement) and (b) this Agreement and the other Loan Documents will at all times constitute Priority Lien Documents (as defined in the Collateral Trust Agreement) and (ii) the Guaranteed Obligations under this Agreement will henceforth be guaranteed pursuant to the Existing Guarantee and Collateral Agreement and the Guarantee and Collateral Agreement and secured pursuant to the Security Documents by a legal, valid, binding and enforceable security interest and a fully perfected Lien in favor of the Collateral Trustee (as defined in the Collateral Trust Agreement), for the ratable benefit of the Secured Parties, in the Collateral and the proceeds thereof.

 

F.       In addition, the Borrower has requested that, on the Closing Date, (i) the Collateral Trust Agreement be amended to make certain changes as more fully set forth in the Restatement Agreement and (ii) the Existing Guarantee and Collateral Agreement be amended and restated in its entirety to make certain changes as more fully set forth in the Guarantee and Collateral Agreement.

 

G.       On the Fourth Amendment Effective Date, the Borrower repaid all outstanding Term Loans and New Term Loans outstanding on such date immediately prior to the effectiveness of the Fourth Amendment, together with accrued interest thereon.

 

H.       On the Fourth Amendment Effective Date, the Revolving Lenders have agreed to extend the Revolving Maturity Date and increase the aggregate amount of the Revolving Commitments to $2,600,000,000 on the terms and subject to the limitations set forth herein

 

I.       On the Fifth Amendment Effective Date, (x) the Required Lenders have agreed to effect certain changes to this Agreement as set out herein, (y) the Tranche A Revolving Lenders have agreed to increase the aggregate amount of the Tranche A Revolving Commitments to $3,379,100,000 on the terms and subject to the limitations set forth herein and (z) the Tranche B Revolving Lenders have agreed to establish a new Class of Revolving Loans and to provide Tranche B Revolving Commitments in an aggregate amount of $258,200,000 on the terms and subject to the limitations set forth herein.

 

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J.       Accordingly, in consideration of the mutual agreements contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

ARTICLE I.

Definitions

 

Section 1.01.             Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:

 

2018 Baseline Sustainability Report” shall mean the sustainability report of the Borrower setting forth each KPI Metric as of December 31, 2018.

 

ABR”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

Acceptable Price” shall have the meaning assigned to such term in Section 2.12(e)(iii).

 

Acceptance Date” shall have the meaning assigned to such term in Section 2.12(e)(ii).

 

Accepting Lenders” shall have the meaning assigned to such term in Section 9.19(b).

 

Accepting Tranche B Revolving Lenders” shall have the meaning assigned to such term in Section 9.19(a).

 

Account” shall have the meaning assigned to such term in the UCC.

 

Acquired Debt” shall mean, with respect to any specified Person, (a) Indebtedness of any other Person or asset existing at the time such other Person or asset is merged with or into, is acquired by, or became a Subsidiary of such specified Person, as the case may be, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person and (b) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

Additional Senior Notes” shall mean senior notes issued by the Borrower after the Closing Date in compliance with this Agreement having substantially the same terms in all material respects (other than pricing and maturity) as the Senior Notes or terms more favorable to the Borrower.

 

Additional Senior Notes Documents” shall mean the indentures under which the Additional Senior Notes are issued and all other instruments, agreements and other documents evidencing or governing the Additional Senior Notes or providing for any Guarantee or other right in respect thereof, in each case as the same may be amended or supplemented from time to time in accordance with the terms hereof and thereof.

 

Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, (x) for any amounts denominated in dollars, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves and (y) for any amounts denominated in Canadian Dollars, the CDOR Rate in effect for such Interest Period; provided that at no time shall the Adjusted LIBO Rate be less than zero for purposes of this Agreement.

 

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Administrative Agent” shall have the meaning assigned to such term in the preamble.

 

Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).

 

Administrative Questionnaire” shall mean an Administrative Questionnaire substantially in the form of Exhibit A, or such other similar form as may be supplied from time to time by the Administrative Agent.

 

Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affiliate” of any specified Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

Affiliate Transaction” shall have the meaning assigned to such term in Section 6.07.

 

Agents” shall have the meaning assigned to such term in Article VIII.

 

Aggregate Revolving Exposure” shall mean the aggregate amount of the Lenders’ Revolving Exposures.

 

Agreement” shall mean this Second Amended and Restated Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified and in effect from time to time.

 

AHYDO Catch-Up Payment” shall mean any payment with respect to any obligations of the Borrower or any Restricted Subsidiary, including subordinated debt obligations, in each case to the extent such payment is necessary to avoid the application of Section 163(e)(5) of the Tax Code.

 

Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1.00% and (c) the Adjusted LIBO Rate for an interest period of one month beginning on such day (determined as if the relevant ABR Borrowing were a Eurodollar Borrowing) plus 1.00%; provided that at no time shall the Alternate Base Rate determined pursuant to clause (c) above be less than 1.00% for purposes of this Agreement.

 

Alternative Currency” shall mean, with respect to Revolving Loans or Letters of Credit, Canadian Dollars.

 

Anti-Corruption Laws” shall mean the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and, to the extent applicable, other similar legislation in any other jurisdictions.

 

Anti-Terrorism Laws” shall mean (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R.,

 

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Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (ii) the PATRIOT Act.

 

Applicable Discount” shall have the meaning assigned to such term in Section 2.12(e)(iii).

 

Applicable Laws” shall mean, as to any Person, any ordinance, law, treaty, rule or regulation, or any determination, ruling or other directive by or from an arbitrator or a court or other Governmental Authority, including ERCOT, in each case, applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property or assets is subject.

 

Applicable Margin” shall mean, for any day, a rate per annum equal to (a) with respect to ABR Revolving Loans and Canadian Base Rate Loans, 0.75% and (b) with respect to Eurodollar Revolving Loans, 1.75%.

 

Following the date on which the Borrower provides a Pricing Certificate pursuant to Section 5.04(e) for the fiscal year ending December 31, 2019, the Applicable Margin for ABR Revolving Loans and Eurodollar Revolving Loans may be increased or decreased pursuant to the Applicable Sustainability Adjustment as in effect from time to time. For purposes of the foregoing, (a) the Applicable Sustainability Adjustment shall be determined as of the Business Day following receipt by the Administrative Agent of a Pricing Certificate delivered in accordance with Section 5.04(e), based upon the KPI Metrics set forth in the Pricing Certificate and the Applicable Sustainability Adjustment calculations therein (such day, the “Sustainability Pricing Adjustment Date”) and (b) each change in the Applicable Margin for ABR Revolving Loans and Eurodollar Revolving Loans resulting from a Pricing Certificate shall be effective during the period commencing on and including the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate should have been delivered).

 

Applicable Sustainability Adjustment” shall mean, for any fiscal year (commencing with the fiscal year ending December 31, 2019), with reference to the reported values of the KPI Metrics in the Pricing Certificate delivered for the end of the most recent previously ended fiscal year:

 

KPI Metrics Change in Applicable Margin for ABR
Revolving Loans and Eurodollar Revolving
Loans
If both KPI Metrics are ≥ 110% of the applicable Baseline Sustainability Amount   0.030% increase
If both KPI Metrics are ≤ 90% of the applicable Baseline Sustainability Amount   0.030% decrease
If one KPI Metric is ≥ 110%, and the other KPI Metric is < 110% but > 90%, of the applicable Baseline Sustainability Amount   0.015% increase
If one KPI Metric is ≤ 90%, and the other KPI Metric is < 110% but > 90%, of the applicable Baseline Sustainability Amount   0.015% decrease
If both KPI Metrics are < 110% but > 90% of the applicable Baseline Sustainability Amount   No change

 

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If one KPI Metric is ≥ 110%, and the other KPI Metric is < 90%, of the applicable Baseline Sustainability Amount No change

 

; provided that, in the event the Borrower fails to timely deliver a Pricing Certificate in accordance with Section 5.04(e), the Applicable Sustainability Adjustment shall be a 0.030% increase in the Applicable Margin for ABR Revolving Loans and Eurodollar Revolving Loans until the delivery of such Pricing Certificate (and commencing on the Business Day following such delivery, such 0.030% increase shall be rescinded and the Applicable Sustainability Adjustment shall be determined based upon the KPI Metrics set forth in such Pricing Certificate); provided further that, during such period, if the Borrower determines in good faith that it is not possible to calculate either KPI Metric for any fiscal year for whatever reason, the Administrative Agent (acting on the instructions of the Revolving Lenders entitled to vote in connection therewith pursuant to Section 9.08) and the Borrower will negotiate in good faith to agree on the selection of an alternative measure that is customarily applied by Persons carrying out similar businesses or being subject to similar environmental incentives and, if after 20 Business Days, the Borrower and the Administrative Agent (acting on the instructions of the Revolving Lenders entitled to vote in connection therewith pursuant to Section 9.08) are unable to agree on the selection of such alternative measure, the Applicable Margin applicable to each Type of Loan shall apply without any increase or decrease (and if such increase or decrease was already applied at that point in time, it will then be discontinued as of the end of such 20 Business Day period).

 

If (a) the Borrower or the Revolving Lenders become aware of any material inaccuracy in the Applicable Sustainability Adjustment or the KPI Metrics as reported on the applicable Pricing Certificate or (b) the Borrower and the Revolving Lenders agree that the Applicable Sustainability Adjustment or KPI Metrics as calculated by the Borrower at the time of delivery of the relevant Pricing Certificate was inaccurate, and in each case, a proper calculation of the Applicable Sustainability Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Margin for ABR Revolving Loans and Eurodollar Revolving Loans for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the Revolving Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Law, automatically and without further action by the Administrative Agent or any Revolving Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.

 

Approved Electronic Communications” shall mean each Communication that any Loan Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, including any financial statement, financial and other report, notice, request, certificate and other information material; provided, however, that, solely with respect to delivery of any such Communication by any Loan Party to the Administrative Agent and without limiting or otherwise affecting either the Administrative Agent’s right to effect delivery of such Communication by posting such Communication to the Approved Electronic Platform or the protections afforded hereby to the Administrative Agent in connection with any such posting, “Approved Electronic Communication” shall exclude (i) any Borrowing Request, Letter of Credit notice (other than as expressly set forth in Section 2.23(b)), Swingline Loan notice, notice of conversion or continuation, and any other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing, Borrowing, (ii) any notice pursuant to Sections 2.12 and 2.13 and any other notice relating to the payment of any principal or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice,

 

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demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Article IV or any other condition to any Borrowing or other extension of credit hereunder or any condition precedent to the effectiveness of this Agreement.

 

Approved Electronic Platform” shall have the meaning assigned to such term in Section 9.01(d).

 

Arrangers” shall mean Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Credit Agricole Corporate and Investment Bank, Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., MUFG Bank, Ltd. formerly known as The Bank of Tokyo-Mitsubishi UFJ, Ltd., Royal Bank of Canada, Sumitomo Mitsui Banking Corporation, BNP Paribas, DNB Capital ASA, ING Capital LLC, Natixis, New York Branch and Bank of Montreal.

 

Asset Sale” shall mean (a) the sale, lease (other than an operating lease), conveyance or other disposition of any assets or rights; provided that the sale, conveyance or other disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of this Agreement described under Section 6.08 and not by the provisions of Section 6.04 and (b) the issuance of Equity Interests in any of the Borrower’s Restricted Subsidiaries or the sale of Equity Interests in any of its Subsidiaries.

 

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale: (i) any single transaction or series of related transactions for which the Borrower or its Restricted Subsidiaries receive aggregate consideration of less than $100,000,000; (ii) a transfer of assets or Equity Interests between or among the Borrower and its Restricted Subsidiaries and/or between Restricted Subsidiaries; (iii) an issuance of Equity Interests by a Restricted Subsidiary to the Borrower or to a Restricted Subsidiary; (iv) the sale or lease of products or services (including power, capacity, energy, ancillary services, and other products or services, or the sale of any other inventory or contracts related to any of the foregoing (in each case, whether in physical, financial or any other form), or fuel or emission credits) and any sale or other disposition of damaged, worn-out or obsolete assets; (v) the sale or discount, in each case without recourse, of accounts receivable, but only in connection with the compromise or collection thereof; (vi) the licensing of intellectual property; (vii) the sale, lease, conveyance or other disposition for value of energy, fuel or emission credits or contracts for any of the foregoing; (viii) the sale or other disposition of cash or Cash Equivalents; (ix) a Restricted Payment that does not violate Section 6.06 or a Permitted Investment; (x) to the extent allowable under Section 1031 of the Tax Code, any exchange of like property (excluding any “boot” thereon) for use in a Permitted Business; (xi) a disposition of assets in connection with a foreclosure, transfer or deed in lieu of foreclosure or other exercise of remedial action; (xii) any sale and leaseback transaction that is a Permitted Tax Lease; and (xiii) any disposition of Securitization Assets or Seller’s Retained Interest for Fair Market Value in connection with any Permitted Securitization Indebtedness, provided that the Permitted Securitization Indebtedness issued or incurred in connection therewith is permitted by Section 6.01(b)(xxi).

 

Asset Sale Offer” shall have the meaning assigned to such term in Section 6.04(e).

 

Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an assignee (with the consent of any Person whose consent is required by Section 9.04), substantially in the form of Exhibit B or such other similar form as shall be approved by the Administrative Agent.

 

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

 

BANA” shall have the meaning assigned to such term in the preamble.

 

Barclays” shall have the meaning assigned to such term in the preamble.

 

Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolutions of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

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

 

Baseline Sustainability Amount” shall mean (a) in the case of the Greenhouse Gas Emission Amount, (i) 46 million mTCO₂e (as contained in the 2018 Baseline Sustainability Report) or (ii) if applicable, the most recent Pro Forma Greenhouse Gas Emission Amount as certified by the Borrower pursuant to Section 5.04(e), and (b) in the case of the Revenue Carbon Intensity, 4,628 mTCO₂e/$M (as contained in the 2018 Baseline Sustainability Report). For the avoidance of doubt, the Borrower is under no obligation to update the Pro Forma Greenhouse Gas Emission Amount between the delivery of annual Pricing Certificates pursuant to Section 5.04(e) and is under no obligation to advise of changes to the Baseline Sustainability Amount as a result of a business change throughout the year.

 

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

 

Benefit Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Tax Code or Section 302 of ERISA, and which is maintained, sponsored or contributed to by the Borrower or any ERISA Affiliate or with respect to which the Borrower otherwise has any liability.

 

BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

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BNPP” shall have the meaning assigned to such term in the preamble.

 

Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

 

Board of Directors” shall mean (a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; (b) with respect to a partnership, the board of directors of the general partner of the partnership; (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

 

Borrower” shall have the meaning assigned to such term in the preamble.

 

Borrowing” shall mean (a) Loans of the same Class and 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 (it being understood that on an and after the Dragon Acquisition Closing Date, Revolving Loans made under the Tranche A Revolving Commitments and the Tranche B Revolving Commitments shall be deemed Loans of the same “Borrowing” for purposes hereof), or (b) a Swingline Loan.

 

Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C.

 

Breakage Event” shall have the meaning assigned to such term in Section 2.16.

 

Business Day” shall mean any day other than a Saturday, Sunday or day on which commercial banks in New York City are authorized or required by law to close; provided, however, that, when used in connection with a Eurodollar Loan (including with respect to all notices and determinations in connection therewith and any payments of principal, interest or other amounts thereon), the term “Business Day” shall also exclude (i) in the case of any Eurodollar Loan denominated in dollars, any day on which banks are not open for dealings in dollar deposits in the London interbank market and (ii) in the case of any Eurodollar Loan denominated in Canadian Dollars, any day on which commercial banks in Toronto, Ontario are authorized or required by law to close.

 

Canadian Base Rate” shall mean, for any day, the annual rate of interest equal to the greater of (a) the annual rate of interest announced by Citibank, N.A. in effect as its prime rate on such day for determining interest rates on Canadian Dollar denominated commercial loans in Canada and commonly known as “prime rate”, and (b) the annual rate of interest equal to the sum of (A) the one-month CDOR Rate in effect on such day (determined as if the relevant Canadian Base Rate Borrowing were a Eurodollar Borrowing denominated in Canadian Dollars) and (B) 1.00%, with any such rate to be adjusted automatically, without notice, as of the opening of business on the effective date of any change in such rate; provided that at no time shall the Canadian Base Rate determined pursuant to clause (b) above be less than 1.00% for purposes of this Agreement.

 

Canadian Base Rate Loan” shall mean Revolving Loans or Swingline Loans bearing interest at a rate by reference to the Canadian Base Rate.

 

Canadian Dollars” or “C$” refers to the lawful money of Canada.

 

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

 

Capital Stock” shall mean (a) in the case of a corporation, corporate stock; (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (c) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

Cash Collateralized Letter of Credit Facilities” shall mean one or more cash collateralized letter of credit facilities provided by one or more LC Issuers to the Funded L/C SPV after the Closing Date.

 

Cash Equivalents” shall mean:

 

(a)                United States dollars, Euros, any other currency of countries members of the Organization for Economic Co-operation and Development or, in the case of any Foreign Subsidiary, any local currencies held by it from time to time;

 

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

 

(c)                certificates of deposit and eurodollar time deposits with maturities of 12 months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 12 months and overnight bank deposits, in each case, with any commercial bank having capital and surplus in excess of $500,000,000;

 

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

 

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

 

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

 

(g)                money market funds that invest primarily in securities described in clauses (a) through (f) of this definition.

 

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CDOR Rate” shall mean, with respect to any Eurodollar Borrowing denominated in Canadian Dollars for any Interest Period, the rate per annum equal to the annual rate of interest that is the rate equal to the average discount rate for Canadian Dollar bankers’ acceptances issued on the first day of such Interest Period for a term equal or comparable to such Interest Period as such rate appears on the “Reuters Screen CDOR Page” (as defined in the International Swaps and Derivatives Association, Inc. 2000, definitions, as modified and amended from time to time or any successor thereto) rounded to the nearest 1/l00th of 1% (with 0.005% being rounded up), as of 10:00 a.m. (Toronto, Ontario time) on such day, or if such day is not a Business Day, then on the immediately preceding Business Day; provided, that, if such rate does not appear on the Reuters Screen CDOR Page as contemplated, then the CDOR Rate on any day shall be the average of the annual discount rate applicable in respect of an issue of Canadian Dollar bankers’ acceptances having a term equal or comparable to such Interest Period, quoted by CNA as of 10:00 a.m. (Toronto, Ontario time) on such day, or if such day is not a Business Day, then on the immediately preceding Business Day; provided that in no event shall the CDOR Rate be less than zero.

 

Change in Lawshall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.14, by any lending office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date adopted, issued, promulgated, implemented or enacted.

 

Change of Control” shall mean the occurrence of any of the following: (a) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act, but excluding any employee benefit plan of the Borrower or any of its Restricted Subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan); (b) the adoption of a plan relating to the liquidation or dissolution of the Borrower; (c) the consummation of any transaction (including any merger or consolidation) the result of which is that any “person” (as defined above), other than a corporation owned directly or indirectly by the stockholders of the Borrower in substantially the same proportion as their ownership of stock of the Borrower prior to such transaction, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Borrower, measured by voting power rather than number of shares; or (d) the first day on which a majority of the members of the Board of Directors of the Borrower are not Continuing Directors.

 

Charges” shall have the meaning assigned to such term in Section 9.09.

 

Class”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Tranche A Revolving Loans, Tranche B Revolving Loans, New Revolving Loans, Refinancing Revolving Loans, Term Loans, New Term Loans, Refinancing Term Loans or Swingline Loans, and, when used in reference to any Commitment, shall refer to whether such Commitment is a Tranche A Revolving Commitment, Tranche B Revolving Commitment, New Revolving Commitment, Refinancing Revolving

 

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Commitment, Term Commitment, New Term Commitment, Refinancing Term Commitment or Swingline Commitment. For the avoidance of doubt, any Loans or Commitments created pursuant to a Permitted Amendment shall constitute a separate Class.

 

Class A Membership Units” shall mean the class of membership interests of the Funded L/C SPV consisting of Class A membership interests pursuant to and in accordance with the operating agreement of the Funded L/C SPV, which shall be substantially the same as that certain Operating Agreement of NRG LC Facility Company LLC, dated as of June 30, 2010.

 

Closing Date” shall mean June 30, 2016.

 

CNA” shall have the meaning assigned to such term in the preamble.

 

"Co-Managers" shall mean Commerzbank AG New York Branch, KeyBank Capital Markets Inc. and CIT Bank, N.A.,

 

Collateral” shall mean all property and assets of the Loan Parties, now owned or hereafter acquired, other than the Excluded Assets.

 

Collateral Agent” shall have the meaning assigned to such term in the preamble.

 

Collateral Reinstatement Date” shall have the meaning assigned to such term in Section 9.25.

 

Collateral Reinstatement Event” shall mean, after a release of Collateral as provided for in Section 9.25(a), that (a) the most recently announced rating by at least two of the Rating Agencies with respect to the Borrower’s senior, unsecured, non-credit enhanced, long-term debt securities (considering, if any Rating Agency shall have issued more than one such public rating with respect to the Borrower’s senior, unsecured, non-credit enhanced, long-term debt securities, the lowest such public rating issued by such Rating Agency) shall not be an Investment Grade Rating, (b) the most recently announced rating by at least two of the Rating Agencies with respect to the Borrower’s Obligations in respect of the Revolving Loans shall not be an Investment Grade Rating, or at least two of the Rating Agencies shall have ceased to publish a rating with respect to the Borrower’s Obligations in respect of the Revolving Loans or (c) the Borrower notifies the Administrative Agent in writing that it has elected to terminate the Collateral Suspension Period.

 

Collateral Release Date” shall have the meaning assigned to such term in Section 9.25.

 

Collateral Release Event” shall mean the satisfaction of each of the following conditions:

 

(a) (i) the senior, unsecured, non-credit enhanced, long-term debt securities of the Borrower, if the Borrower has any such securities outstanding, receive an Investment Grade Rating from at least two of the Rating Agencies (considering, if any Rating Agency shall have issued more than one such public rating with respect to the Borrower’s senior, unsecured, non-credit enhanced, long-term debt securities, the lowest such public rating issued by such Rating Agency) and (ii) the Obligations of the Borrower in respect of the Revolving Loans receive an Investment Grade Rating from at least two of the Rating Agencies after giving effect to the proposed release of Collateral pursuant to Section 9.25;

 

(b) [Reserved];

 

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(c) all Liens securing the obligations in respect of the Senior Secured Notes shall be released substantially concurrently with the release of Liens securing the Guaranteed Obligations on the applicable Collateral Release Date; and

 

(d) no Event of Default shall have occurred and be continuing.

 

Collateral Release Period” shall mean a period commencing on any Collateral Release Date and ending upon the occurrence of a Collateral Reinstatement Date.

 

Collateral Trust Agreement” shall mean the Second Amended and Restated Collateral Trust Agreement, dated as of the July 1, 2011, among the Borrower, each Subsidiary Guarantor, the Collateral Trustee and the other parties thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

Collateral Trustee” shall mean Deutsche Bank Trust Company Americas, acting as collateral trustee under the Collateral Trust Agreement, or its successors appointed in accordance with the terms thereof.

 

Commitment” shall mean, with respect to any Lender and as of any date of determination, such Lender’s Tranche A Revolving Commitment, Tranche B Revolving Commitment, New Revolving Commitment, Refinancing Revolving Commitment, Term Commitment, New Term Commitment, Refinancing Term Commitment or Swingline Commitment as of such date.

 

Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).

 

Commodity Hedging Agreements” shall mean the Existing Commodity Hedging Agreements and any other agreement (including each confirmation or transaction entered into or consummated pursuant to any Master Agreement) providing for swaps, caps, collars, puts, calls, floors, futures, options, spots, forwards, any physical or financial commodity contracts or agreements, power purchase, sale or exchange agreements, fuel purchase, sale, exchange or tolling agreements, emissions and other environmental credit purchase or sales agreements, power transmission agreements, fuel transportation agreements, fuel storage agreements, netting agreements, commercial or trading agreements, capacity agreements, weather derivatives agreements, each with respect to, or involving the purchase, exchange (including an option to purchase or exchange), transmission, distribution, sale, lease, transportation, storage, processing or hedge of (whether physical, financial, or a combination thereof), any Covered Commodity, service or risk, price or price indices for any such Covered Commodities, services or risks or any other similar agreements, any renewable energy credits, emission, carbon and other environmental credits and any other credits, assets or attributes, howsoever entitled or designated, including related to any “cap and trade”, renewable portfolio standard or similar program with an economic value and any other similar agreements, in each case, entered into by the Borrower or any Restricted Subsidiary.

 

Commodity Hedging Obligations” shall mean, with respect to any specified Person, the obligations of such Person under a Commodity Hedging Agreement.

 

Communications” shall mean each notice, demand, communication, information, document and other material provided for hereunder or under any other Loan Document or otherwise transmitted between the parties hereto relating this Agreement, the other Loan Documents, any Loan Party or its Affiliates, or the transactions contemplated by this Agreement or the other Loan Documents including all Approved Electronic Communications.

 

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Concurrent Cash Distributions” shall have the meaning assigned to such term in the definition of “Investments.”

 

Consolidated Cash Flow” shall mean, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

 

(a)                an amount equal to any extraordinary loss (including any loss on the extinguishment or conversion of Indebtedness); plus

 

(b)                any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale (without giving effect of the threshold provided in the definition thereof), to the extent such losses were deducted in computing such Consolidated Net Income; plus

 

(c)                provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

 

(d)                the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

 

(e)                any expenses or charges related to any equity offering, Permitted Investment, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred under this Agreement including a refinancing thereof (whether or not successful), including such fees, expenses or charges related to the offering of the Senior Notes, the Senior Secured Notes and this Agreement, and deducted in computing Consolidated Net Income; plus

 

(f)                 any professional and underwriting fees related to any equity offering, Permitted Investment, acquisition, recapitalization or Indebtedness permitted to be incurred under this Agreement and, in each case, deducted in such period in computing Consolidated Net Income; plus

 

(g)                the amount of any minority interest expense deducted in calculating Consolidated Net Income (less the amount of any cash dividends paid to the holders of such minority interests); plus

 

(h)                any non cash gain or loss attributable to Mark-to-Market Adjustments in connection with Hedging Obligations; plus

 

(i)                 without duplication, any writeoffs, writedowns or other non-cash charges reducing Consolidated Net Income for such period, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period, plus

 

(j)                 all items classified as infrequent, unusual or nonrecurring non-cash losses or charges (including severance, relocation and other restructuring costs), and related tax effects according to GAAP to the extent such non-cash charges or losses were deducted in computing such Consolidated Net Income; plus

 

(k)                depreciation, depletion, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash charges and expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such

 

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period to the extent that such depreciation, depletion, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; minus

 

(l)                 non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business; in each case, on a consolidated basis and determined in accordance with GAAP; minus

 

(m)              interest income for such period;

 

provided, however, that Consolidated Cash Flow of the Borrower will exclude the Consolidated Cash Flow attributable to (i) Excluded Subsidiaries to the extent that the declaration or payment of dividends or similar distributions by the Excluded Subsidiary of that Consolidated Cash Flow is not, as a result of an Excluded Subsidiary Debt Default, then permitted by operation of the terms of the relevant Excluded Subsidiary Debt Agreement (provided that the Consolidated Cash Flow of the Excluded Subsidiary will only be so excluded for that portion of the period during which the condition described in the preceding proviso has occurred and is continuing), (ii) for purposes of Section 6.06 only, Excluded Project Subsidiaries, except to the extent of any dividends, distributions or other returns in respect of any Investments in any Excluded Project Subsidiary, in each case, paid in cash to the Borrower or a Restricted Subsidiary that is not an Excluded Project Subsidiary and (iii) for purposes of Sections 6.11 and 6.12 only, Excluded Subsidiaries and Unrestricted Subsidiaries, except to the extent (and solely to the extent) actually distributed in cash to the Borrower or any Subsidiary Guarantor.

 

Consolidated First Lien Leverage Ratio” shall mean, on any date (for purposes of this definition, the “Calculation Date”), the ratio of (a) Total First Lien Debt on such date to (b) Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to such date. For purposes of making the computation referred to above:

 

(i)                 Investments and acquisitions that have been made by the Borrower or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the Borrower or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect (in accordance with Regulation S-X, but including all Pro Forma Cost Savings) as if they had occurred on the first day of the four-quarter reference period;

 

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

 

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

 

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

 

Consolidated Interest Coverage Ratio” shall mean, on any date (for purposes of this definition, the “Calculation Date”), the ratio of (a) Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to such date to

 

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(b) Consolidated Interest Expense for the period of four consecutive fiscal quarters most recently ended on or prior to such date. For purposes of making the computation referred to above:

 

(i)                 Investments and acquisitions that have been made by the Borrower or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the Borrower or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect (in accordance with Regulation S-X, but including all Pro Forma Cost Savings) as if they had occurred on the first day of the four-quarter reference period;

 

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

 

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

 

any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter reference period.

 

Consolidated Interest Expense” shall mean, for any period, the consolidated cash interest expense of the Borrower and its Restricted Subsidiaries (other than Excluded Project Subsidiaries) for such period, whether paid or accrued (including the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net payments (if any) pursuant to interest rate Hedging Obligations, but not including amortization of original issue discount and other non-cash interest payments), net of cash interest income; provided, however, that Consolidated Interest Expense of the Borrower and its Restricted Subsidiaries will, for purposes of Section 6.11 only, exclude, (a) in the case of the Funded L/C SPV only, (i) cash interest expense (including all commissions, discounts and other fees and charges owed by the Funded L/C SPV with respect to letters of credit and bankers’ acceptance financing) attributable to Cash Collateralized Letter of Credit Facilities and (ii) cash interest expense attributable to the aggregate amount on deposit at any time in the Funded L/C Collateral Accounts, and (b) any periodic premium, fee or similar payments made by the Borrower or any Restricted Subsidiary to any L/C Securities Issuer. For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by the Borrower or any Restricted Subsidiary (other than an Excluded Project Subsidiary and, for purposes of Section 6.11 only, the Funded L/C SPV) with respect to any interest rate hedging agreements.

 

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

 

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

 

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(b)                for purposes of Sections 6.06, 6.11 and 6.12 only, the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

 

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

 

(d)                any net after-tax non-recurring or unusual gains, losses (less all fees and expenses relating thereto) or other charges or revenue or expenses (including relating to severance, relocation and one-time compensation charges) shall be excluded;

 

(e)                any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights to officers, directors or employees shall be excluded, whether under Financial Accounting Standards Board Statement No. 123R, “Accounting for Stock-Based Compensation” or otherwise;

 

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

 

(g)                any gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions (other than asset dispositions in the ordinary course of business) shall be excluded; and

 

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

 

Consolidated Net Tangible Assets” shall mean the total consolidated assets of the Borrower and its Restricted Subsidiaries, less the sum of goodwill and other intangible assets, in each case determined on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Borrower.

 

“Consolidated Total Net Leverage Ratio” shall mean, on any date (for purposes of this definition, the “Calculation Date”), the ratio of (a) Total Net Debt on such date to (b) Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to such date. For purposes of making the computation referred to above:

 

(i)                 Investments and acquisitions that have been made by the Borrower or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the Borrower or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect (in accordance with Regulation S-X, but including all Pro Forma Cost Savings) as if they had occurred on the first day of the four-quarter reference period;

 

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

 

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

 

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

 

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

 

Contribution Indebtedness” shall mean Indebtedness of the Borrower in an aggregate principal amount not to exceed two times the aggregate amount of cash received by the Borrower after the Issue Date from the sale of its Equity Interests (other than Disqualified Stock) or as a contribution to its common equity capital (in each case, other than to or from a Subsidiary); provided that such Indebtedness (a) is incurred within 180 days after the sale of such Equity Interests or the making of such capital contribution and (b) is designated as “Contribution Indebtedness” pursuant to an Officers’ Certificate on the date of its incurrence. Any sale of Equity Interests or capital contribution that forms the basis for an incurrence of Contribution Indebtedness will not be considered to be a sale of Qualifying Equity Interests and will be disregarded for purposes of Section 6.06.

 

Control Agreement” shall mean each Control Agreement to be executed and delivered by each Loan Party and the other parties thereto, as required by the applicable Loan Documents as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.

 

Counterparty Account” shall mean any Deposit Account, Securities Account or Commodities Account (and all cash, Cash Equivalents and other securities or investments substantially comparable to Cash Equivalents therein) pledged to or deposited with the Borrower or any Restricted Subsidiary as cash collateral posted or deposited by a contract counterparty (including a counterparty in respect of Commodity Hedging Obligations) to or for the benefit of the Borrower or any Restricted Subsidiary, in each case, only for so long as such account (and amounts therein) represents a security interest (including as a result of an escrow arrangement) in favor (and not an ownership interest in the amounts therein) of the Borrower or the applicable Restricted Subsidiary.

 

Covered Commodity” shall mean any energy, electricity, generation capacity, power, heat rate, congestion, natural gas, nuclear fuel (including enrichment and conversion), diesel fuel, fuel oil, other petroleum-based liquids, coal, lignite, weather, emissions and other environmental credits, assets or attributes, waste by-products, renewable energy credit, or other energy related commodity or service (including ancillary services and related risks (such as location basis or other commercial risks)).

 

Covered Entity” shall mean any of the following:

 

(i)                 a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

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(ii)               a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii)             a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Credit Event” shall have the meaning assigned to such term in Section 4.01.

 

Credit Facilities” shall mean (a) one or more debt facilities (including the debt facilities provided under this Agreement) or commercial paper facilities, in each case with banks or other institutional lenders providing for revolving credit loans, term loans, credit-linked deposits (or similar deposits) receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit and (b) debt securities sold to institutional investors, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.

 

CS” shall have the meaning assigned to such term in the preamble.

 

Cure Amount” shall have the meaning provided in Article VII.

 

Cure Right” shall have the meaning provided in Article VII.

 

DB” shall have the meaning assigned to such term in the preamble.

 

Debt to Cash Flow Ratio” shall mean, as of any date of determination (for purposes of this definition, the “Calculation Date”), the ratio of (a) the Indenture Total Debt of the Borrower as of such date to (b) the Consolidated Cash Flow of the Borrower for the four most recent full fiscal quarters ending immediately prior to such date for which financial statements are publicly available. For purposes of making the computation referred to above:

 

(i)                 Investments and acquisitions that have been made by the Borrower or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the Borrower or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect (in accordance with Regulation S-X, but including all Pro Forma Cost Savings) as if they had occurred on the first day of the four-quarter reference period;

 

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

 

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

 

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

 

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(v)                the Consolidated Cash Flow attributable to Excluded Project Subsidiaries will be excluded for purposes of all calculations required by this definition.

 

Default” shall mean any event or condition which upon notice, lapse of time (pursuant to Article VII) or both would constitute an Event of Default.

 

Defaulting Lender” shall mean, at any time, subject to the last paragraph of Section 2.26, any Lender that, at such time, has (a) failed to (i) pay any amount required to be paid by such Lender to any Issuing Bank under this Agreement (beyond any applicable cure period), (ii) fund any portion of its Loans (unless 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, if available to such Lender, supported by reasonable background information provided by such Lender) has not been satisfied), its participations in Letters of Credit or Swingline Loans or (iii) pay over to the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder, (b) notified the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender, 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 to funding (specifically identified and, if available to such Lender, supported by reasonable background information provided by such Lender) a Loan cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the Administrative Agent, any Issuing Bank or the Swingline Lender, 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 or Swingline Loans, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt by the Administrative Agent, such Issuing Bank or the Swingline Lender of such written certification, or (d) (i) taken any action or become the subject of a Lender Insolvency Event with respect to such Lender or its Parent Company or (ii) has, or has a Parent Company that has, become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender pursuant to this clause (d) solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its Parent Company by a Governmental Authority or agency thereof; provided, further, that none of the reallocation of funding obligations provided for in Section 2.26 as a result of a Lender’s being a Defaulting Lender, the performance by the other Lenders of such reallocated funding obligations or the cash collateralization of a Defaulting Lender’s Revolving L/C Exposure provided for in Section 2.26 will by itself cause the relevant Defaulting Lender to cease to be a Defaulting Lender. A determination, if any, by the Administrative Agent (it being understood and agreed that (A) the Administrative Agent may, but shall be under no obligation to, make any such determination and (B) a determination by the Administrative Agent shall not be required for a Lender to become a Defaulting Lender if the requirements of this definition are otherwise satisfied) that a Lender is a Defaulting Lender under any of clauses (a) through and including (d) above will be conclusive and binding absent manifest error, and, if any such a determination is made, such Lender shall be deemed to be a Defaulting Lender (subject to the last paragraph of Section 2.26) upon notification of such determination by the Administrative Agent to the Borrower, the Issuing Bank, the Swingline Lender and the Lenders.

 

Default Right” shall have the meaning assigned to such term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

Deposit Account” shall have the meaning assigned to such term in the UCC.

 

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

 

Discount Range” shall have the meaning assigned to such term in Section 2.12(e)(ii).

 

Discounted Purchase Option Notice” shall have the meaning assigned to such term in Section 2.12(e)(ii).

 

Discounted Voluntary Purchase” shall have the meaning assigned to such term in Section 2.12(e)(i).

 

Discounted Voluntary Purchase Notice” shall have the meaning assigned to such term in Section 2.12(e)(v).

 

Disqualified Stock” shall mean any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date of all Classes of Loans or Commitments. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 6.06. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

 

dollars” or “$” shall mean lawful money of the United States of America, except when expressly used in reference to the lawful money of another country.

 

Dollar Equivalent” shall mean, on the applicable Valuation Date, (a) with respect to any amount denominated in dollars, such amount and (b) with respect to any amount denominated in an Alternative Currency, the equivalent in dollars of such amount, determined by the Administrative Agent pursuant to Section 1.04 using the applicable Exchange Rate with respect to such Alternative Currency at the time in effect on the Valuation Date under the provisions of such Section 1.04.

 

Domestic Subsidiary” shall mean any Restricted Subsidiary that was formed under the laws of the United States of America or any state of the United States of America or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of the Borrower.

 

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Dragon Acquisition Closing Date” shall mean the date of consummation of the acquisition of Direct Energy, the North American energy supply, services and trading business of Centrica plc, pursuant to the terms of the Dragon Purchase Agreement.

 

Dragon Outside Date” shall mean July 24, 2021, as such date may be extended as contemplated by Section 10.01(b)(i) of the Dragon Purchase Agreement (as in effect on the Fifth Amendment Effective Date).

 

Dragon Purchase Agreement” shall mean that certain Purchase Agreement, dated as of July 24, 2020, among the Borrower, Centrica plc, a public limited company organized under the laws of England and Wales and certain other parties party thereto.

 

Easement” shall have the meaning assigned to such term in Section 3.07.

 

EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;

 

EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

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

 

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

 

Environmental Laws” shall mean all former, current and future Federal, state, local and foreign laws (including common law), treaties, regulations, rules, ordinances and codes, and legally binding decrees, judgments, directives and orders (including consent orders), in each case, relating to protection of the environment, natural resources, occupational health and safety, climate change or the presence, Release of, or exposure to, hazardous materials, substances or wastes, or the generation, manufacture, processing, distribution, use, treatment, storage, disposal, transport, recycling or handling of, or the arrangement for such activities with respect to, hazardous materials, substances or wastes.

 

Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) non-compliance with any Environmental Law, (b) the generation, manufacture, processing, distribution, recycling, use, handling, transportation, storage, treatment or disposal of, or the arrangement of such activities with respect to, any Hazardous Materials,

 

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(c) exposure to any Hazardous Materials, (d) the Release of any Hazardous Materials at or from any location or (e) any contract or agreement pursuant to which liability is assumed, imposed or covered by an indemnity with respect to any of the foregoing.

 

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

 

ERCOT” shall mean the Electric Reliability Council of Texas or any other entity succeeding thereto.

 

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

ERISA Affiliate” shall mean 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 Tax Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Tax Code, is treated as a single employer under Section 414 of the Tax Code.

 

ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Benefit Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Benefit Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Tax Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Tax Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Benefit Plan; (d) the incurrence by the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Benefit Plan or the withdrawal or partial withdrawal of the Borrower or any ERISA Affiliate from any Benefit Plan or Multiemployer Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to the intention to terminate any Benefit Plan or to appoint a trustee to administer any Benefit Plan; (f) the adoption of any amendment to a Benefit Plan that would require the provision of security pursuant to Section 401(a)(29) of the Tax Code or Section 307 of ERISA; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

Eurodollar”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

Event of Default” shall have the meaning assigned to such term in Article VII.

 

Excess Proceeds” shall have the meaning assigned to such term in Section 6.04(e).

 

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

Exchange Rate” shall mean on any day, with respect to any Alternative Currency, the rate at which such Alternative Currency may be exchanged into dollars, as set forth at approximately 11:00 a.m. (London time) on such day on the Bloomberg Key Cross-Currency Rates Page for such Alternative Currency. In the event that such rate does not appear on any Bloomberg Key Cross-Currency Rates Page, the Exchange Rate shall be determined by reference to such other publicly

 

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available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such Alternative Currency are then being conducted, at or about 10:00 a.m. (London time) on such date for the purchase of dollars for delivery two Business Days later; provided that, if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with the Borrower, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.

 

Excluded Assets” shall mean:

 

(i)               (a) any lease, license, contract, property right or agreement to which any Loan Party is a party or any of such Loan Party’s rights or interests thereunder if and only for so long as the grant of a security interest therein under the Security Documents shall constitute or result in a breach, termination or default or invalidity under any such lease, license, contract, property right or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law or principles of equity); provided that such lease, license, contract, property right or agreement shall be an Excluded Asset only to the extent and for so long as the consequences specified above shall exist and shall cease to be an Excluded Asset and shall become subject to the security interest granted under the Security Documents, immediately and automatically, at such time as such consequences shall no longer exist and/or (b) any property if and only for so long as the grant of a security interest therein under the Security Documents shall be prohibited or rendered ineffective under any Applicable Law adopted, issued, promulgated, implemented or enacted, in each case, after the Closing Date (other than to the extent any such Applicable Law would be rendered ineffective pursuant to Section 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law or principles of equity); provided that such property shall be an Excluded Asset only to the extent and for so long as the prohibition specified above shall exist and shall cease to be an Excluded Asset and shall become subject to the security interest granted under the Security Documents, immediately and automatically, at such time as such prohibition shall no longer exist;

 

(ii)             any interests in real property owned or leased by any Loan Party only for so long as such interest represents an Excluded Perfection Asset;

 

(iii)             any Equity Interests in, and any assets of, any Excluded Project Subsidiary and any voting Equity Interests in excess of 66% (or, in the case of NRGenerating International BV, 65%) of the total outstanding voting Equity Interests in any Excluded Foreign Subsidiary; provided that, notwithstanding anything herein to the contrary, the Equity Interests in the Funded L/C SPV that are owned directly or indirectly by the Borrower shall not be Excluded Assets;

 

(iv)            any Deposit Account, Securities Account or Commodities Account (and all cash, Cash Equivalents and other securities or investments substantially comparable to Cash Equivalents and Commodity Contracts (as defined in the UCC) held therein) if and only for so long as such Deposit Account, Securities Account or Commodities Account is subject to a Lien permitted under clause (b) of the definition of “Permitted Liens” other than any such permitted Lien held by the Collateral Trustee pursuant to and in accordance with the Collateral Trust Agreement; provided that, for the avoidance of doubt and notwithstanding anything in the Loan Documents to the contrary, the Funded L/C

 

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Collateral Accounts and all cash, Cash Equivalents, other securities or investments substantially comparable to Cash Equivalents and other funds and investments held therein and the proceeds thereof shall be Excluded Assets for all purposes under the Loan Documents;

 

(v)             [reserved];

 

(vi)            [reserved];

 

(vii)           the Equity Interests in, and all properties and assets of, NRG Latin America Inc.;

 

(viii)          any Equity Interest of a Person or Project Interest held by any Loan Party if and for so long as the pledge thereof under the Security Documents shall constitute or result in a breach, termination or default under any joint venture, stockholder, membership, limited liability company, partnership, owners, participation, shared facility or other similar agreement between such Loan Party and one or more other holders of Equity Interests of such Person or Project Interest (other than any such other holder who is the Borrower or a Subsidiary thereof); provided that such Equity Interest shall be an Excluded Asset only to the extent and for so long as the consequences specified above shall exist and shall cease to be an Excluded Asset and shall become subject to the security interest granted under the Security Documents, immediately and automatically, at such time as such consequences shall no longer exist;

 

(ix)             any Counterparty Account, and any cash, Cash Equivalents and/or other securities or investments substantially comparable to Cash Equivalents, and other funds and investments held therein and the proceeds thereof, received from a contract counterparty (including a counterparty in respect of Commodity Hedging Obligations) (collectively, the “Counterparty Cash”) but only to the extent that any agreements governing the underlying transactions with a contract counterparty (including a counterparty in respect of Commodity Hedging Obligations) pursuant to which any such Counterparty Cash was received provide that the pledging of, or other granting of any Lien in, the relevant Counterparty Cash as collateral for the Obligations of the Borrower or a Subsidiary Guarantor under the Loan Documents shall constitute or result in a breach, termination, default or invalidity under any such agreement, provided, however, that such Counterparty Cash shall be an Excluded Asset only to the extent and for so long as the consequences specified above shall exist, and shall cease to be an Excluded Asset and shall become subject to the security interest granted under the Security Documents, immediately and automatically, at such time as such consequences shall no longer exist; and provided, further, that any Lien the Borrower or any Subsidiary Guarantor may have in any such Counterparty Cash shall not be deemed to be an Excluded Asset under this clause (ix) and such Lien shall follow and be treated as part of the underlying agreement (including any Commodity Hedging Obligations) which agreement (including any Commodity Hedging Obligations) shall (to the extent applicable) be subject to the terms and conditions of clause (i) of this definition;

 

(x)              any Account of NRG Power Marketing solely to the extent that (a) such Account relates to the sale by NRG Power Marketing of power or capacity that was purchased by NRG Power Marketing from an Excluded Project Subsidiary or from a third party for the benefit of an Excluded Project Subsidiary and (b) the grant of a security interest in such Account under the Security Documents shall constitute or result in a breach,

 

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termination or default under any agreement or instrument governing the applicable Non-Recourse Debt of such Subsidiary;

 

(xi)              the working capital account of Camas Power Boiler Inc. and any trust, fiduciary, cash collateral or regulatory or contractually restricted deposit or securities account of Energy Protection Insurance Company (Vermont) but only to the extent that any agreements governing such deposit or securities account provide that the pledging of, or other granting of any Lien in, the relevant deposit or securities account, and any cash, Cash Equivalents and/or other securities or investments substantially comparable to Cash Equivalents, and other funds and investments held therein and the proceeds thereof, as collateral for the Obligations of the Borrower or a Subsidiary Guarantor under the Loan Documents shall constitute or result in a breach, termination, default or invalidity under any such agreement, provided, however, that such deposit or securities account shall be an Excluded Asset only to the extent and for so long as the consequences specified above shall exist, and shall cease to be an Excluded Asset pursuant to this clause (xi) and shall become subject to the security interest granted under the Security Documents, immediately and automatically, at such time as such consequences shall no longer exist (unless otherwise constituting an Excluded Asset); and provided, further, that any Lien the Borrower or any Subsidiary Guarantor may have in any such deposit or securities account shall not be deemed to be an Excluded Asset under this clause (xi) and such Lien shall follow and be treated as part of the underlying agreement which agreement shall (to the extent applicable) be subject to the terms and conditions of clause (i) of this definition;

 

(xii)            all properties and assets of the Borrower or any of its Restricted Subsidiaries (other than Equity Interests) secured by Indebtedness permitted by Section 6.01(b)(iv) or, at the election of the Borrower pursuant to an Officer’s Certificate delivered to the Administrative Agent and the Collateral Trustee, Indebtedness with respect to Tax-Exempt Bonds permitted under Section 6.01 in an aggregate principal amount at any time outstanding not to exceed $500,000,000 that is secured by a Permitted Lien only on the Facility with respect to which such Tax-Exempt Bonds shall relate (and related assets of the obligor thereunder) and not by any Collateral, in each case, so long as the granting of a Lien in favor of the Secured Parties would constitute or result in a breach, termination or default under any agreement or instrument governing such applicable Indebtedness permitted by Section 6.01(b)(iv) or such Indebtedness with respect to Tax-Exempt Bonds permitted under Section 6.01, as the case may be, and such properties or assets shall cease to be Excluded Assets once such prohibition ceases to exist and shall immediately and automatically become subject to the security interest granted under the Security Documents;

 

(xiii)          any other property and assets (a) that have been designated as Excluded Assets in reliance on this clause (xiii) prior to the Fourth Amendment Effective Date and/or (b) designated as Excluded Assets to the Administrative Agent in writing by the Borrower on or after the Fourth Amendment Effective Date which shall not have, when taken together with all other property and assets that constitute Excluded Assets at the relevant time of determination by virtue of the operation of this clause (xiii), (b) a Fair Market Value determined as of the date of such designation as an Excluded Asset exceeding $750,000,000 in the aggregate at any time outstanding (the “General Excluded Assets Basket”) (it being understood, however, that for the avoidance of doubt, in respect of any Excluded Asset designated as such prior to such date of determination, the Fair Market Value of such previously designated Excluded Assets shall be the same as the Fair Market Value initially assigned to such assets) (and, to the extent that the Fair Market Value thereof shall exceed $750,000,000 in the aggregate, such property or assets shall cease to be an

 

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Excluded Asset to the extent of such excess Fair Market Value and shall become subject to the security interest granted under the Security Documents, immediately and automatically, at such time as such amount is exceeded); for the avoidance of doubt, at any time the Borrower elects to have an Excluded Asset become part of the Collateral and cease to be an Excluded Asset, or at any time an Excluded Asset becomes an asset of an Unrestricted Subsidiary, an Excluded Project Subsidiary or an Excluded Foreign Subsidiary, or is sold or otherwise disposed of to a third party that is not a Subsidiary in accordance with the terms hereof, the Fair Market Value (as determined as of the date of such designation as an Excluded Asset) of any such asset shall not be taken into account for purposes of determining compliance with the General Excluded Assets Basket and an amount equal to the Fair Market Value of such asset (as determined as of the date of such designation as an Excluded Asset) will become available under the General Excluded Assets Basket for use by the Borrower pursuant to this clause (xiii);

 

(xiv)          any Intellectual Property (as defined in the Guarantee and Collateral Agreement) if and to the extent a grant of a security interest therein will result in the loss, abandonment or termination of any material right, title or interest in or to such Intellectual Property (including United States intent-to-use trademark or service mark applications); provided, however, that such Intellectual Property shall be an Excluded Asset only to the extent and for so long as the consequences specified above shall exist and shall cease to be an Excluded Asset and shall become subject to the security interest granted under the Security Documents, immediately and automatically, at such time as such consequences shall no longer exist;

 

(xv)            upon the sale of such assets to a Securitization Vehicle in accordance with the provisions of this Agreement, the Securitization Assets and, in the event that the pledge of any Sellers’ Retained Interest in respect of any such Securitization Vehicle shall be prohibited by the governing documentation with respect to the applicable Securitization or any other Permitted Securitization Indebtedness and/or any Sellers’ Retained Interest are pledged to secure any other Permitted Securitization Indebtedness, such Sellers’ Retained Interest;

 

(xvi)          payments in respect of Securitization Assets, while such amounts are in a lockbox, collateral account or similar account established pursuant to a Securitization to receive collections of Securitization Assets; and

 

(xvii)        unless otherwise elected by the Borrower in its discretion and designated by the Borrower to the Administrative Agent in writing, (a) the Equity Interests owned by the Borrower or any of its Restricted Subsidiaries in and all properties and assets of each of the following Subsidiaries: (1) NRG Harrisburg Cooling LLC and (2) Camas Power Boiler Limited Partnership and (b)(1) the leasehold interest of Middletown Power LLC to GenConn Middletown LLC and (2) the leasehold interest of Devon Power LLC to GenConn Devon LLC.

 

Excluded Foreign Subsidiary” shall mean, at any time, any Foreign Subsidiary that is a Restricted Subsidiary and that is (or is treated as) for United States federal income tax purposes either (a) a corporation or (b) a pass-through entity owned directly or indirectly by another Foreign Subsidiary that is (or is treated as) a corporation. The Excluded Foreign Subsidiaries on the Fifth Amendment Effective Date are set forth on Schedule 1.01(a).

 

Excluded Information” shall have the meaning assigned to such term in Section 2.12(e).

 

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Excluded Perfection Assets” shall mean any property or assets that (i) do not have a Fair Market Value at any time exceeding $50,000,000 (or, if such property or asset is a Deposit Account or Securities Account, $10,000,000) individually or $100,000,000 in the aggregate in which a security interest cannot be perfected by the filing of a financing statement under the UCC of the relevant jurisdiction or, in the case of Equity Interests, either the filing of a financing statement under the UCC of the relevant jurisdiction or the possession of certificates representing such Equity Interests, (ii) constitute leasehold interests of the Borrower or any of its Restricted Subsidiaries in real property (other than any real property constituting a Facility), (iii) constitute any Deposit Account that is a “zero-balance” account (as long as (x) the balance in such “zero balance” account does not exceed at any time the applicable threshold described in clause (i) above for a period of 24 consecutive hours or more (except during days that are not Business Days) and (y) all amounts in such “zero-balance” account shall either be swept on a daily basis (except on days that are not Business Days) into another Deposit Account that does not constitute an Excluded Perfection Asset or used for third party payments in the ordinary course of business), (iv) constitute motor vehicles and other assets subject to certificates of title to the extent a Lien thereupon cannot be perfected by the filing of a UCC financing statement and (v) constitute Intellectual Property over which a Lien is required to be perfected by actions in any jurisdiction other than the United States. To the extent that the Fair Market Value of any such property or asset exceeds $50,000,000 (or, if such property or asset is a Deposit Account or Securities Account, $10,000,000) individually, such property or asset shall cease to be an Excluded Perfection Asset and, to the extent that the Fair Market Value of such property or assets shall exceed $100,000,000 in the aggregate at any time, such property or assets shall cease to be Excluded Perfection Assets to the extent of such excess Fair Market Value.

 

Excluded Proceeds” shall mean (a) any Net Proceeds of an Asset Sale involving (i) the sale of up to $300,000,000 in the aggregate received since the Closing Date from one or more Asset Sales of Equity Interests in, or property or assets of, any Foreign Subsidiaries or any Foreign Subsidiary Holding Company and (ii) the sale of up to $50,000,000 of assets per year, in either event if and to the extent such Net Proceeds are designated by a Responsible Officer of the Borrower as Excluded Proceeds and (b) any Net Proceeds of a Specified Asset Sale.

 

Excluded Project Subsidiary” shall mean, at any time, any Restricted Subsidiary that (a) is an obligor (or, in the case of a Restricted Subsidiary of an Excluded Project Subsidiary that is such an obligor and is in a business that is related to the business of such Excluded Project Subsidiary that is such an obligor, is otherwise bound, or its property is subject to one or more covenants and other terms of any Non-Recourse Debt outstanding at such time, regardless of whether such Restricted Subsidiary is a party to the agreement evidencing the Non-Recourse Debt (unless otherwise expressly elected by the Borrower in its sole discretion with respect to any such Subsidiaries)) with respect to any Non-Recourse Debt outstanding at such time, in each case if and for so long as the grant of a security interest in the property or assets of such Subsidiary, or the guarantee by such Subsidiary of the Obligations, or the pledge of the Equity Interests of such Subsidiary, in each case in favor of the Collateral Trustee, for the benefit of the Secured Parties, shall constitute or result in a breach, termination or default under the agreement or instrument governing the applicable Non-Recourse Debt; provided that such Subsidiary shall be an Excluded Project Subsidiary only to the extent that and for so long as the requirements and consequences above shall exist; or (b) is not an obligor with respect to any such Non-Recourse Debt as described in clause (a), but is designated by the Borrower as an Excluded Project Subsidiary under and in accordance with this Agreement; and provided, further, that the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Excluded Project Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the provisions of Section 6.06 or under one or more clauses of the definition of Permitted Investments,

 

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as determined by the Borrower. The Excluded Project Subsidiaries on the Fifth Amendment Effective Date are set forth on Schedule 1.01(b).

 

Excluded Subsidiary” shall mean (a) an Excluded Foreign Subsidiary, (b) an Excluded Project Subsidiary, (c) any other Subsidiary all of whose assets constitute Excluded Assets pursuant to clause (xiii) of the definition of “Excluded Assets”, (d) the Funded L/C SPV, (e) any captive insurance Subsidiary, (f) any not-for-profit Subsidiary, (g) any Immaterial Subsidiary or (h) any special purpose vehicle, including any Securitization Vehicle. For the avoidance of doubt, it is understood and agreed that all assets of an Excluded Subsidiary acquired after the designation as such pursuant to clause (c) above, and for as long as such designation remains effective, shall be Excluded Assets.

 

Excluded Subsidiary Debt Agreement” shall mean the agreement or documents governing the relevant Indebtedness referred to in the definition of “Excluded Subsidiary Debt Default.”

 

Excluded Subsidiary Debt Default” shall mean, with respect to any Excluded Subsidiary, the failure of such Excluded Subsidiary to pay any principal or interest or other amounts due in respect of any Indebtedness, when and as the same shall become due and payable, or the occurrence of any other event or condition that results in any Indebtedness of such Excluded Subsidiary becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, lapse of time or both) the holder or holders of such Indebtedness or any trustee or agent on its or their behalf to cause such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity.

 

Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, the Issuing Banks and any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured in whole or in part by) each such Person’s net income by the United States of America (or any political subdivision thereof), or as a result of a present or former connection between such recipient and the jurisdiction imposing such tax (or any political subdivision thereof), other than any such connection arising solely from such recipient having executed, delivered or performed its obligations or received a payment under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, this Agreement or any other Loan Document, or sold or assigned any interest in any Loan Document, (b) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 2.21(a)), any United States federal withholding tax that is imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.20(a) (it being understood and agreed, for the avoidance of doubt, that any withholding tax imposed on a Lender as a result of a Change in Law occurring after the time such Lender became a party to this Agreement shall not be an Excluded Tax), (c) any withholding Taxes attributable to such Recipient’s failure to comply with paragraphs (d) and (e) of Section 2.20 and (d) any United States federal withholding Taxes imposed under FATCA.

 

Exempt Subsidiaries” shall mean, collectively, (i) the Excluded Project Subsidiaries and (ii) each of NRG Ilion LP LLC, NRG Ilion Limited Partnership, Meriden Gas Turbine LLC, LSP-Nelson Energy LLC, NRG Nelson Turbines LLC, NRG McClain LLC, NRG Audrain Holding LLC, NRG Audrain Generating LLC, NRG Peaker Finance Company LLC, NRG Rockford LLC, NRG Rockford Acquisition LLC, NRG SunCap LLC and its direct and indirect subsidiaries and NRG Bluewater Holdings LLC and its direct and indirect subsidiaries.

 

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Existing Commodity Hedging Agreements” shall mean (a) the Master Power Purchase and Sale Agreement and Cover Sheet dated as of July 21, 2004, the Confirmation thereunder dated as of July 21, 2004 and the Confirmation thereunder dated as of November 30, 2004, each between J. Aron & Company and NRG Texas Power LLC (as successor by merger), and any additional confirmations thereunder (as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with the terms hereof and thereof, the “Goldman Sachs Hedge Agreement”) and (b) any other master agreement listed on Schedule 1.01(c), and any confirmations thereunder, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.

 

Existing Credit Agreement” shall have the meaning assigned to such term in the preamble.

 

Existing Guarantee and Collateral Agreement” shall mean the Amended and Restated Guarantee and Collateral Agreement, dated as of July 1, 2011, among the Borrower, each Subsidiary Guarantor, Deutsche Bank Trust Company Americas, as collateral trustee, and the other parties thereto, as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date.

 

Existing Indebtedness” shall mean Indebtedness of the Borrower and its Subsidiaries (other than the Indebtedness under the Senior Notes Documents) (a) in existence on the Closing Date and set forth on Schedule 6.01 and (b) in respect of the Existing Tax-Exempt Bonds, in each case, until such amounts are repaid.

 

Existing Letter of Credit” shall have the meaning assigned to such term in Section 2.23(a).

 

Existing Tax-Exempt Bonds” shall mean (a) the Industrial Development Revenue Bonds (NRG Energy, Inc. Project) Series 2012 issued by the City of Texas City Industrial Development Corporation, (b) the Exempt Facilities Revenue Refunding Bonds (NRG Energy Project) Series 2020 (Non-AMT) issued by the County of Chautauqua Industrial Development Agency, (c) the Industrial Development Revenue Bonds (NRG Energy, Inc. Project) Series 2012 issued by the Fort Bend County Industrial Development Corporation, (d) the Industrial Development Revenue Bonds (NRG Energy, Inc. Project) Series 2012B issued by the Fort Bend County Industrial Development Corporation, (e) the Exempt Facility Revenue Bonds (Indian River Power LLC Project) Series 2010 issued by the Delaware Economic Development Authority and (f) the Recovery Zone Facility Bonds (Indian River Power LLC Project) issued by Sussex County, Delaware. The aggregate principal amount of the Existing Tax-Exempt Bonds as of the Fifth Amendment Effective Date is $465,487,000.

 

Facility” shall mean a power or energy related facility.

 

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

 

FATCA” shall mean Sections 1471 through 1474 of the Tax Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any Treasury Regulation promulgated thereunder, any published administrative guidance implementing such Sections or any agreement entered into pursuant to Section 1471(b)(1) of the Tax Code.

 

Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published

 

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on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it; provided that, if negative, the Federal Funds Effective Rate shall be deemed to be 0.00%.

 

Fees” shall mean the Commitment Fees, the Administrative Agent’s Fees, the L/C Participation Fees, the Issuing Bank Fees and any fees payable pursuant to Section 2.12(d).

 

FERC” shall mean the Federal Energy Regulatory Commission or its successor.

 

Fifth Amendment” shall mean the Fifth Amendment to Credit Agreement and Third Amendment to Collateral Trust Agreement, dated as of August 20, 2020, among the Borrower, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent, the Collateral Trustee and the Lenders party thereto.

 

Fifth Amendment Effective Date” shall have the meaning assigned to the term “Amendment Effective Date” in the Fifth Amendment.

 

Fifth Amendment Tranche A Revolving Commitments” shall have the meaning assigned to the term “New Tranche A Revolving Commitments” in the Fifth Amendment.

 

Financial Officer” of any Person shall mean any of the chief executive officer, chief financial officer or treasurer (or if no individual shall have such designation, the Person charged by the Board of Directors of such Person (or a committee thereof) with such powers and duties as are customarily bestowed upon the individual with such designation) or the audit or finance committee of the Board of Directors of such Person.

 

First Amendment” shall mean the First Amendment Agreement, dated as of January 24, 2017, among the Borrower, each Subsidiary Guarantor, the Administrative Agent and the Lenders party thereto.

 

First Amendment Effective Date” shall have the meaning assigned to such term in the First Amendment.

 

Fitch” means Fitch Ratings Inc. or any successor entity.

 

Fixed Charge Coverage Ratio” shall mean with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person paid or payable in cash for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (for purposes of this definition, the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.

 

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

 

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(a)                Investments and acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect (in accordance with Regulation S-X, but including all Pro Forma Cost Savings) as if they had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period will be calculated on the same pro forma basis;

 

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

 

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

 

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

 

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

 

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

 

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

 

Fixed Charges” shall mean, with respect to any specified Person for any period, the sum, without duplication, of (a) the consolidated interest expense of such Person and its Restricted Subsidiaries (other than interest expense of any Excluded Subsidiary the Consolidated Cash Flow of which is excluded from the Consolidated Cash Flow of such Person pursuant to the definition of Consolidated Cash Flow hereof) for such period, whether paid or accrued, including amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus (b) the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period, plus (c) any interest accruing on Indebtedness of another Person that is

 

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Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; provided that in no event shall any commissions, discounts, fees or charges in respect of, any Indebtedness of any L/C Securities Issuer be included in this clause (c), plus (d) the product of (i) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable in Equity Interests of the Borrower (other than Disqualified Stock) or to the Borrower or a Restricted Subsidiary, times (ii) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP, minus (e) interest income for such period.

 

Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is incorporated or organized. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

Foreign Subsidiary” shall mean any Restricted Subsidiary that is (a) not a Domestic Subsidiary or (b) a Foreign Subsidiary Holding Company.

 

Foreign Subsidiary Holding Company” shall mean any Domestic Subsidiary that is a direct parent of one or more Foreign Subsidiaries and holds, directly or indirectly, no other assets other than Equity Interests (or Equity Interests and Indebtedness) of Foreign Subsidiaries and other de minimis assets related thereto.

 

Fourth Amendment” shall mean the Fourth Amendment Agreement, dated as of May 28, 2019, among the Borrower, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

Fourth Amendment Effective Date” shall have the meaning assigned to the term “Amendment Effective Date” in the Fourth Amendment.

 

FPA” shall mean the Federal Power Act and the rules and regulations promulgated thereunder, as amended from time to time.

 

FPA-Jurisdictional Subsidiary Guarantor” shall have the meaning assigned to such term in Section 3.23(b).

 

FPA MBR Authorizations, Exemptions and Waivers” shall have the meaning assigned to such term in Section 3.23(b).

 

Funded L/C Collateral Accounts” shall mean, collectively, one or more operating, certificates of deposits, securities accounts and/or investment accounts of, and established by, one or more LC Issuers (at the request of the Funded L/C SPV), which shall be blocked accounts in the name of the Funded L/C SPV and subject to the control of such applicable LC Issuer, in each case that shall cash collateralize obligations in respect of Cash Collateralized Letter of Credit Facilities.

 

Funded L/C SPV” shall mean NRG LC Facility Company LLC, a Delaware limited liability company and a Subsidiary whose Equity Interests, other than any preferred interests owned by any LC Issuer or other Persons on behalf of, or at the request of, any LC Issuer in connection with Cash Collateralized Letter of Credit Facilities, are owned directly or indirectly by the

 

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Borrower or a newly established Domestic Subsidiary designated in writing by the Borrower as the successor thereto.

 

Funded L/C SPV Contribution” shall mean each contribution by the Borrower of the cash proceeds of Revolving Loans, New Term Loans, Refinancing Term Loans, Incremental Equivalent Debt or Indebtedness permitted under Section 6.01(b)(xxiv) made to the Borrower at any time after the Closing Date to the Funded L/C SPV as a contribution to the common Equity Interests of the Funded L/C SPV (or in exchange for common Equity Interests of the Funded L/C SPV), and the deposit by the Funded L/C SPV of such cash proceeds in one or more Funded L/C Collateral Accounts for the sole purpose of cash collateralizing the Funded L/C SPV’s obligations to one or more LC Issuers pursuant to and in accordance with the terms and provisions of Cash Collateralized Letter of Credit Facilities.

 

Funded L/C SPV Guarantee” shall mean, in respect of any Cash Collateralized Letter of Credit Facility, the unsecured limited recourse Guarantee by the Borrower of the obligations of the Funded L/C SPV thereunder, which Guarantee shall be limited at all times to an aggregate amount not to exceed 15% of the aggregate amount of such Cash Collateralized Letter of Credit Facility.

 

GAAP” shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided, however, that if any operating lease would be considered a capital lease due to changes in the accounting treatment of leases under GAAP since the Closing Date (whether or not such lease was in effect on the Closing Date), then solely with respect to the accounting treatment of any such lease, GAAP shall be interpreted as it was in effect on the Closing Date and such lease shall not be considered a capital lease or otherwise constitute Indebtedness hereunder.

 

General Excluded Assets Basket” shall have the meaning assigned to such term in the definition of Excluded Assets.

 

GHG Protocol” shall mean the World Resources Institute/World Business Council for Sustainable Development Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition.

 

Goldman Sachs Hedge Agreement” shall have the meaning given to such term in clause (a) of the definition of “Existing Commodity Hedging Agreements.”

 

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

 

Granting Lender” shall have the meaning assigned to such term in Section 9.04(j).

 

Greenhouse Gas Emission Amount” shall mean the total annual carbon dioxide equivalents (CO2e) consisting of carbon dioxide (CO2), methane (CH4) and nitrous oxide (N2O), that constitute Scope 1 emissions (as defined in the GHG Protocol) from fuel combustion in boilers, turbines and engines used for the production of wholesale electric power at facilities owned or

 

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controlled by the Borrower and its Subsidiaries, measured in millions of metric tons (mTCO2 e), as certified by the Borrower in the applicable Pricing Certificate.

 

Guarantee” shall mean a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner, including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

 

Guarantee and Collateral Agreement” shall mean the Second Amended and Restated Guarantee and Collateral Agreement, dated as of the Closing Date, among the Borrower, each Subsidiary Guarantor, the Collateral Trustee and the other parties thereto, as may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

Guaranteed Obligations” shall mean the Credit Agreement Borrower Obligations and the Guarantor Obligations in respect thereof, in each case as such terms are defined in the Guarantee and Collateral Agreement.

 

Hazardous Materials” shall mean (a) any petroleum products or byproducts, coal ash, coal combustion by-products or waste, boiler slag, scrubber residue, flue desulfurization material, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radioactive materials, radioactive waste or radioactive byproducts, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical, material, substance or waste that is prohibited, limited or regulated by or pursuant to any Environmental Law.

 

Hedging Obligations” shall mean, with respect to any specified Person, (a) all Interest Rate/Currency Hedging Obligations, (b) all Commodity Hedging Obligations, (c) the Obligations and other obligations under any and all other rate swap transactions, basis swaps, credit derivative transactions, forward transactions, equity or equity index swaps or options, bond or bond price or bond index swaps or options, cap transactions, floor transactions, collar transactions or any other similar transactions or any combination of any of the foregoing (including any options to enter into the foregoing), whether or not such transaction is governed by or subject to any Master Agreement, and (d) the Obligations and other obligations under any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc. (or any successor thereof), any International Foreign Exchange Master Agreement or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

Immaterial Subsidiary” shall mean, at any time, any Restricted Subsidiary that is designated by the Borrower as an “Immaterial Subsidiary” if and for so long as such Restricted Subsidiary, together with all other Immaterial Subsidiaries, has (a) total assets at such time not exceeding 5.00% of the Borrower’s consolidated assets as of the most recent fiscal quarter for which balance sheet information is available and (b) total revenues and operating income for the most recent 12-month period for which income statement information is available not exceeding 5.00% of the Borrower’s consolidated revenues and operating income, respectively; provided that such Restricted Subsidiary shall be an Immaterial Subsidiary only to the extent that and for so long as all of the above requirements are satisfied.

 

Increased Amount Date” shall have the meaning provided in Section 2.24(a).

 

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Incremental Equivalent Debt” shall have the meaning provided in Section 6.01(b)(xxiii).

 

incur” shall have the meaning assigned to such term in Section 6.01.

 

Indebtedness” shall mean, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables except as provided in clause (e) below), whether or not contingent (a) in respect of borrowed money; (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (c) in respect of banker’s acceptances; (d) representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions; (e) representing the balance deferred and unpaid of the purchase price of any property (including trade payables) or services due more than six months after such property is acquired or such services are completed; or (f) representing the net amount owing under any Hedging Obligations, if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person; provided that the amount of such Indebtedness shall be deemed not to exceed the lesser of the amount secured by such Lien and the value of the Person’s property securing such Lien.

 

Indebtedness Obligations” shall mean any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

 

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

 

Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).

 

Indenture Total Debt” shall mean, as of any date of determination, the aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries (other than Excluded Project Subsidiaries) outstanding on such date, determined on a consolidated basis in accordance with GAAP, net of any cash and Cash Equivalents on deposit in a blocked account with one or more financial institutions as collateral to secure outstanding Indebtedness (including letters of credit) of the Borrower or its Restricted Subsidiaries, which account is subject to the control of the lender (including any letter of credit issuer) of such Indebtedness or its affiliates or any agent or trustee with respect to such Indebtedness; provided that (a) Indenture Total Debt will include only the amount of payments that the Borrower or any of its Restricted Subsidiaries (other than Excluded Project Subsidiaries) would be required to make, on the date the Indenture Total Debt is being determined, in the event of any early termination or similar event on such date of determination and (b) for the avoidance of doubt, Indenture Total Debt will not include the undrawn amount of any outstanding letters of credit.

 

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

 

Information” shall have the meaning assigned to such term in Section 9.16.

 

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Intellectual Property Collateral” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

 

Intellectual Property Security Agreement” shall mean all Intellectual Property Security Agreements executed and delivered by the Loan Parties, each substantially in the applicable form required by the Guarantee and Collateral Agreement, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.

 

Interest Payment Date” shall mean (a) with respect to any ABR Loan (other than a Swingline Loan), the last Business Day of each March, June, September and December (beginning with September 30, 2016), (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 that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing, and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid.

 

Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending seven days thereafter or on the numerically corresponding day in the calendar month that is 1, 2, 3 or 6 months thereafter (or 12 months thereafter if, at the time of the relevant Borrowing, an interest period of such duration is available to all Lenders participating therein), as the Borrower may elect; provided, however, that (i) 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 and (ii) any Interest Period (other than an Interest Period of seven days) 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. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

Interest Rate/Currency Hedging Agreement” shall mean any agreement of the type described in the definition of “Interest Rate/Currency Hedging Obligations.”

 

Interest Rate/Currency Hedging Obligations” shall mean, with respect to any specified Person, the obligations of such Person under (a) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements, interest rate collar agreements, interest rate floor transactions or any other similar transactions or any combination of the foregoing (including any options to enter into the foregoing), (b) any other agreements or arrangements designed to manage interest rates or interest rate risk and (c) any agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates, including currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, forward foreign exchange transactions or any combination of any of the foregoing (including any options to enter into the foregoing), whether or not such transaction is governed by or subject to any Master Agreement, in each case under clauses (a), (b) and (c), entered into by such Person and not for speculative purposes.

 

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Interpolated Screen Rate” shall mean, in relation to LIBO Rate for any Loan denominated in dollars, the rate which results from interpolating on a linear basis between: (a) the rate appearing on the LIBOR01 page of ICE Benchmark Administration Limited (or on any successor or substitute page of such service) for the longest period (for which that rate is available) which is less than the Interest Period; and (b) the rate appearing on the LIBOR01 page of ICE Benchmark Administration Limited (or on any successor or substitute page of such service) for the shortest period (for which that rate is available) which exceeds the Interest Period each as of approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

 

Investment Grade Rating” shall mean, as applicable, a rating (a) Baa3 or better by Moody’s, (b) BBB- or better by S&P, (c) BBB- or better by Fitch, (d) the equivalent of such rating by such organization or (e) if another Rating Agency has been selected by the Borrower, the equivalent of such rating by such other Rating Agency.

 

Investments” shall mean, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Borrower or any Subsidiary sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary, the Borrower will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Borrower’s Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of Section 6.06(b). The acquisition by the Borrower or any Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Borrower or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 6.06(b). Except as otherwise provided in this Agreement, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value; provided that, to the extent, if any, that a Guarantee and/or credit support results in an Investment, the amount of such Investment will be (x) the fair market value thereof determined first as of the time such Investment is made and thereafter on an annual basis, (y) zero upon such Guarantee and/or credit support being released or terminated and (z) the fair market value of such Guarantee and/or credit support determined as of the time of any modification thereof, if modified or amended.

 

Notwithstanding anything to the contrary herein, in the case of any Investment made by the Borrower or a Restricted Subsidiary in a Person substantially concurrently with a cash distribution by such Person to the Borrower or a Subsidiary Guarantor (a “Concurrent Cash Distribution”), then (a) the Concurrent Cash Distribution shall be deemed to be Net Proceeds received in connection with an Asset Sale and applied as set forth above under Sections 2.13(b) and 6.04 and (b) the amount of such Investment shall be deemed to be the Fair Market Value of the Investment, less the amount of the Concurrent Cash Distribution.

 

Issue Date” shall mean May 24, 2011.

 

Issuing Bank” shall mean, as the context may require, each of (a) BANA, Barclays, BNPP, CNA, CS, DB, JPM, MSB, Natixis, Bank of Montreal, Chicago Branch, and/or any of their respective affiliates, each in its capacity as the issuer of Letters of Credit issued by it hereunder, and (b) any other Lender that may become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k),

 

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with respect to Letters of Credit issued by such Lender. Unless otherwise specified, in respect of any Letters of Credit, “Issuing Bank” shall refer to the applicable Issuing Bank which has issued such Letter of Credit. 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.

 

Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.05(c).

 

Joinder Agreement” shall mean an agreement substantially in the form of Exhibit D.

 

JPM” shall have the meaning assigned to such term in the preamble.

 

Judgment Currency” shall have the meaning assigned to such term in Section 9.27(a).

 

Judgment Currency Conversion Date” shall have the meaning assigned to such term in Section 9.27(a).

 

KPI Metrics” shall mean the Greenhouse Gas Emission Amount and the Revenue Carbon Intensity.

 

KPI Metric Auditor” shall mean KPMG LLP or other independent public accountants of recognized national standing, in each case acting in its capacity as an independent auditor of the Borrower, designated from time to time by the Borrower, provided that such replacement KPI Metric Auditor shall be reasonably acceptable to the Sustainability Structuring Agent and shall apply substantially the same auditing standards and methodology used in the 2018 Baseline Sustainability Report.

 

L/C Commitment” shall mean the commitment of each Issuing Bank to issue Letters of Credit pursuant to Section 2.23.

 

L/C Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a Letter of Credit.

 

L/C Fee Payment Date” shall have the meaning assigned to such term in Section 2.05(c).

 

L/C Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).

 

L/C Securities Financing” shall mean any financing arrangement involving the issuance by any L/C Securities Issuer of securities to institutional investors and consummated for the purposes of providing letters or credit or other credit support on behalf of the Borrower or any Subsidiary or otherwise as a source of liquidity for the Borrower and its Subsidiaries.

 

L/C Securities Issuer” shall mean any Person formed for the purposes of issuing securities pursuant to any L/C Securities Financing.

 

Latest Maturity Date” shall mean, at any date of determination, the latest maturity date applicable to any Class of Loans or Commitments with respect to such Class of Loans or Commitments at such time, including, for the avoidance of doubt, the latest maturity date of any Refinancing Term Loan, Refinancing Term Commitment, Refinancing Revolving Loan or Refinancing Revolving Commitment, in each case as extended from time to time in accordance with this Agreement.

 

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LC Issuer” shall mean any bank or other financial institution from time to time party to a Cash Collateralized Letter of Credit Facility in its capacity as an issuer of letters of credit thereunder.

 

LCT Election” shall have the meaning assigned to such term in Section 1.05.

 

Lender Insolvency Event” shall mean that (a) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (b) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been publicly appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment.

 

Lender Participation Notice” shall have the meaning assigned to such term in Section 2.12(e)(iii).

 

Lenders” shall have the meaning assigned to such term in the preamble; provided that such term shall also include (a) the Persons that become a party hereto pursuant to a Joinder Agreement and (b) any Person that has become a party hereto pursuant to an Assignment and Assumption (other than in each case any such Person that has ceased to be a party hereto pursuant to an Assignment and Assumption). Unless the context otherwise requires, the term “Lenders” shall include the Swingline Lender and the Issuing Banks.

 

Letter of Credit” shall mean, at any time, any letter of credit or bankers’ acceptance issued in dollars or an Alternative Currency pursuant to and in accordance with the terms and provisions of Section 2.23.

 

LIBO Rate” shall mean with respect to any Eurodollar Borrowing denominated in dollars for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the commencement of such Interest Period by reference to the London Interbank Offered Rate as published by ICE Benchmark Administration Limited or any successor rates thereto if ICE Benchmark Administration Limited is no longer making such rates available for deposits in the currency of such Borrowing (as reflected on the applicable Reuters screen page), for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the Interpolated Screen Rate, two Business Days before the commencement of such Interest Period.

 

LIBOR Successor Rate” shall have the meaning assigned to such term in Section 2.08(b).

 

LIBOR Successor Rate Conforming Changes” shall mean, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of ABR, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, as agreed between the Administrative Agent and the Borrower, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent in consultation with the Borrower determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines with the consent of the Borrower). For the avoidance of doubt,

 

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any amendment effectuating any LIBOR Successor Rate Conforming Changes shall be subject to the Borrower’s approval.

 

Lien” shall mean, with respect to any asset (a) any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge, hypothecation, encumbrance, restriction, collateral assignment, charge or security interest in, on or of such asset; (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; and (c) in the case of Equity Interests or debt securities, any purchase option, call or similar right of a third party with respect to such Equity Interests or debt securities. For the avoidance of doubt, “Lien” shall not be deemed to include licenses of intellectual property.

 

Limited Condition Transaction” shall mean, any permitted acquisition or Investment (and, to the extent required to consummate such acquisition or Investment, any Restricted Payment, Asset Sale, fundamental change or the designation as Restricted Subsidiary, Unrestricted Subsidiary or Excluded Subsidiary) by the Borrower or one or more of its Restricted Subsidiaries permitted pursuant to this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

 

Liquidity Facility” shall mean (a) any bilateral letter of credit facility, (b) any secured or unsecured letter of credit facility linked to credit default swaps or similar instruments or (c) any other alternative liquidity facility used to provide, support or cash collateralize letters of credit issued on behalf of the Borrower or any Restricted Subsidiary.

 

Loan Documents” shall mean this Agreement, any promissory note delivered pursuant to Section 2.04(e), the Security Documents and each Joinder Agreement.

 

Loan Parties” shall mean the Borrower and each Subsidiary Guarantor.

 

Loans” shall mean the Revolving Loans, the Term Loans, the Swingline Loans, the New Revolving Loans, the New Term Loans, the Refinancing Revolving Loans and the Refinancing Term Loans.

 

Majority Revolving Lenders” shall mean, at any time, Lenders having Revolving Loans (excluding Swingline Loans), Revolving L/C Exposure, Swingline Exposure and unused Revolving Commitments, unused New Revolving Commitments (if any) and unused Refinancing Revolving Commitments (if any) representing greater than 50% of the sum of all Revolving Loans outstanding (excluding Swingline Loans), Revolving L/C Exposure, Swingline Exposure and all unused Revolving Commitments, unused New Revolving Commitments (if any) and unused Refinancing Revolving Commitments (if any) at such time.

 

Majority Term Lenders” shall mean, at any time, Lenders having Term Loans, New Term Loans and Refinancing Term Loans and unused Term Commitments, unused New Term Commitments and unused Refinancing Term Commitments representing greater than 50% of the sum of all Term Loans outstanding, all New Term Loans outstanding (if any), all Refinancing Term Loans outstanding (if any) and all unused Term Commitments, unused New Term Commitments (if any) and unused Refinancing Term Commitments (if any) at such time.

 

Margin Stock” shall have the meaning assigned to such term in Regulation U.

 

Mark-to-Market Adjustments” shall mean (a) any non-cash loss attributable to the mark-to-market movement in the valuation of Hedging Obligations (to the extent the cash impact

 

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resulting from such loss has not been realized) or other derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133, “Accounting for Derivative Instruments and Hedging Activities,” or any similar successor provision; plus (b) any loss relating to amounts paid in cash prior to the stated settlement date of any Hedging Obligation that has been reflected in Consolidated Net Income in the current period; plus (c) any gain relating to Hedging Obligations associated with transactions recorded in the current period that has been reflected in Consolidated Net Income in prior periods and excluded from Consolidated Cash Flow pursuant to clauses (e) and (f) below; minus (d) any non-cash gain attributable to the mark-to-market movement in the valuation of Hedging Obligations (to the extent the cash impact resulting from such gain has not been realized) or other derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133, “Accounting for Derivative Instruments and Hedging Activities,” or any similar successor provision; minus (e) any gain relating to amounts received in cash prior to the stated settlement date of any Hedging Obligation that has been reflected in Consolidated Net Income in the current period; minus (f) any loss relating to Hedging Obligations associated with transactions recorded in the current period that has been reflected in Consolidated Net Income in prior periods and excluded from Consolidated Cash Flow pursuant to clauses (b) and (c) above.

 

Master Agreement” shall have the meaning assigned to such term in the definition of “Hedging Obligations”.

 

Material Adverse Effect” shall mean a material adverse change in or material adverse effect on (i) the condition (financial or otherwise), results of operations, assets or liabilities of the Borrower and the Subsidiaries, taken as a whole, or (ii) the validity or enforceability of any Loan Document, which if such Loan Document is a Security Document, relates to Collateral having an aggregate Fair Market Value of $150,000,000 or more in the aggregate, or the material rights and remedies of the Arrangers, the Administrative Agent, the Collateral Agent, the Issuing Bank, the Collateral Trustee or the Secured Parties thereunder.

 

Material Indebtedness” shall mean Indebtedness for money borrowed (other than the Loans and Letters of Credit) and Hedging Obligations of any one or more of the Borrower or any of the Subsidiaries in an aggregate principal amount or mark-to-market adjustment value exceeding $150,000,000.

 

Maximum Incremental Amount” shall have the meaning assigned to such term in Section 2.24(a).

 

Maximum Rate” shall have the meaning assigned to such term in Section 9.09.

 

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

 

Moody’s” shall mean Moody’s Investors Service, Inc. or any successor entity.

 

Mortgaged Properties” shall mean on the Fifth Amendment Effective Date, each parcel of real property and the improvements located thereon and appurtenants thereto owned or leased by a Loan Party and specified on Schedule 1.01(d), and shall include each other parcel of real property and improvements located thereon with respect to which a Mortgage is granted pursuant to Section 5.09 or 5.10; provided, however, that any Mortgaged Property that becomes an Excluded Asset, or the rights in which are held by any Person that ceases to be a Subsidiary Guarantor pursuant to Section 6.10 hereof or as otherwise provided in the Loan Documents, shall cease to be a Mortgaged Property for all purposes under the Loan Documents and the Collateral Agent and the Collateral Trustee shall take such actions as are reasonably requested by any Loan Party at such

 

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Loan Party’s expense to terminate the Liens and security interests created by the Loan Documents in such Mortgaged Property.

 

Mortgages” shall mean the mortgages, deeds of trust, leasehold mortgages, assignments of leases and rents, modifications, amendments and restatements of the foregoing and other security documents granting a Lien on any Mortgaged Property to secure the Guaranteed Obligations, each in the form of Exhibit E with such changes as are reasonably satisfactory to the Borrower (which shall be evidenced by the signature thereof by the applicable Loan Party), the Collateral Agent and the Collateral Trustee, in each case, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

MSB” shall have the meaning assigned to such term in the preamble.

 

MSSF” shall mean Morgan Stanley Senior Funding, Inc. and its Affiliates.

 

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

 

Nationally Recognized Statistical Organization” shall mean a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act.

 

Natixis” shall have the meaning assigned to such term in the preamble.

 

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

 

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

 

Net Income” shall mean, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends or accretion, excluding, however, (a) any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with (i) any Asset Sale (without giving effect to the threshold provided for in the definition thereof) or (ii) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and (b) any infrequent, unusual or non-recurring gain or loss, together with any related provision for taxes on such infrequent, unusual or non-recurring gain or loss.

 

Net Proceeds” shall mean the aggregate cash proceeds received by the Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.

 

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New Commitments” shall have the meaning assigned to such term in Section 2.24(a).

 

New Revolving Commitments” shall have the meaning assigned to such term in Section 2.24(a).

 

New Revolving Lender” shall have the meaning assigned to such term in Section 2.24(b).

 

New Revolving Loans” shall have the meaning assigned to such term in Section 2.24(b).

 

New Term Commitments” shall have the meaning assigned to such term in Section 2.24(a).

 

New Term Lender” shall have the meaning assigned to such term in Section 2.24(c).

 

New Term Loans” shall have the meaning assigned to such term in Section 2.24(c).

 

New Term Maturity Date” shall mean the date on which a New Term Loan matures.

 

Non-Consenting Lender” shall have the meaning assigned to such term in Section 9.08(c).

 

Non-FPA-Jurisdictional Subsidiary Guarantor” shall have the meaning assigned to such term in Section 3.23(c).

 

Non-FPA Sales Authorizations” shall have the meaning assigned to such term in Section 3.23(c).

 

Non-Recourse Debt” shall mean (a) Indebtedness as to which neither the Borrower nor any of its Restricted Subsidiaries (other than an Excluded Project Subsidiary) (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) other than pursuant to a Non-Recourse Guarantee or any arrangement to provide or guarantee to provide goods and services on an arm’s length basis, or (ii) is directly or indirectly liable as a guarantor or otherwise, other than pursuant to a Non-Recourse Guarantee and (b) to the extent constituting Indebtedness, any Investments in a Subsidiary and, for the avoidance of doubt, pledges by the Borrower or any Subsidiary of the Equity Interests of any Excluded Subsidiary that are directly owned by the Borrower or any Subsidiary in favor of the agent or lenders in respect of such Excluded Subsidiary’s Non-Recourse Debt, to the extent otherwise not prohibited by this Agreement.

 

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

 

NRG Power Marketing” shall mean NRG Power Marketing LLC, a Delaware corporation that is a wholly owned Subsidiary.

 

NYPSC” shall have the meaning assigned to such term in Section 3.23(f).

 

NYPSC Subject Company” shall have the meaning assigned to such term in Section 3.23(f).

 

Obligation Currency” shall have the meaning assigned to such term in Section 9.27(a).

 

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Obligations” shall have the meaning assigned to such term in the Collateral Trust Agreement.

 

Offer Amount” shall have the meaning assigned to such term in Section 2.13(b).

 

Offered Loans” shall have the meaning assigned to such term in Section 2.12(e)(iii).

 

Offer Period” shall have the meaning assigned to such term in Section 2.13(b).

 

Officer” shall mean, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, Assistant Secretary or any Vice-President of such Person.

 

Officers’ Certificate” shall mean a certificate signed on behalf of the Borrower by two Officers of the Borrower, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Borrower, which certificate shall include: (a) a statement that each of the Officers making such certificate has read the applicable covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based, (c) a statement that, in the opinion of each such Officer, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not the applicable covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of each such Officer, the applicable condition or covenant has been complied with.

 

Original Closing Date” shall mean February 2, 2006.

 

Original Issue Date” shall mean June 5, 2009.

 

Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including interest, fines, penalties and additions to tax) arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

 

Parent Company” shall mean, with respect to a Lender, the bank holding company (as defined in Regulation Y of the Board), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

 

PATRIOT Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

 

PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

Perfection Certificate” shall mean the Pre-Closing UCC Diligence Certificate, dated as of the Closing Date, executed and delivered by the Borrower and each Subsidiary Guarantor, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

Permitted Amendments” shall mean one or more amendments providing for an extension of the final maturity date of any Loan and/or any Commitment of the Accepting Lenders (provided

 

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that such extensions may not result in having more than eight different final maturity dates under this Agreement without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed)) and, in connection therewith and subject to the limitations set forth in Section 9.19, any change in the Applicable Margin and other pricing with respect to the applicable Loans and/or Commitments of the Accepting Lenders and the payment of any fees (including prepayment premiums or fees) to the Accepting Lenders (such changes and/or payments to be in the form of cash, equity interest or other property as agreed by the Borrower and the Accepting Lenders to the extent not prohibited by this Agreement).

 

Permitted Business” shall mean the (a) business of acquiring, constructing, managing, developing, improving, maintaining, leasing, owning and operating Facilities, together with any related assets or facilities, (b) the marketing, sale, distribution and delivery of energy and other commodities, and related products and services, to residential, commercial and industrial customers and (c) any other activities reasonably related to, ancillary to, or incidental to, any of the foregoing activities (including acquiring and holding reserves), including investing in Facilities.

 

Permitted Cure Security” shall mean an equity security of the Borrower having no mandatory redemption, repurchase or similar requirements prior to 91 days after the Latest Maturity Date of all Classes of Loans or Commitments, and upon which all dividends or distributions (if any) shall be payable solely in additional shares of such equity security.

 

Permitted Debt” shall have the meaning assigned to such term in Section 6.01(b).

 

Permitted Investments” shall mean:

 

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

 

(b)                any Investment in an Immaterial Subsidiary;

 

(c)                any Investment in an Excluded Foreign Subsidiary for so long as the Excluded Foreign Subsidiaries do not collectively own more than 20% of the consolidated assets of the Borrower as of the most recent fiscal quarter end for which financial statements are publicly available;

 

(d)                any issuance of letters of credit to support the obligations of any of the Excluded Subsidiaries;

 

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

 

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

 

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

 

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

 

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(g)                any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 6.04;

 

(h)                Investments made as a result of the sale of Equity Interests of any Person that is a Subsidiary such that, after giving effect to any such sale, such Person is no longer a Subsidiary, if the sale of such Equity Interests constitutes an Asset Sale and the Net Proceeds received from such Asset Sale are applied as set forth under Section 6.04;

 

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

 

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

 

(k)                Investments represented by Hedging Obligations;

 

(l)                 loans or advances to employees;

 

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

 

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

 

(o)                negotiable instruments held for deposit or collection;

 

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

 

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

 

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

 

(s)                 any Investment in any Person engaged primarily in one or more Permitted Businesses (including Excluded Subsidiaries, Unrestricted Subsidiaries, and Persons that are not Subsidiaries) made for cash since the Issue Date;

 

(t)                 the contribution of any one or more of the Specified Facilities to a Restricted Subsidiary that is not a Subsidiary Guarantor;

 

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

 

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

 

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(w)              (i) Investment made pursuant to this clause (w) since the Closing Date and outstanding as of the Fourth Amendment Effective Date and (ii) other Investments made since the Fourth Amendment Effective Date in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), that are at the time outstanding not to exceed the greater of (A) $1,000,000,000 and (B) 3.50% of Total Assets; provided, however, that if any Investment pursuant to this clause (w) is made in any Person that is not a Restricted Subsidiary and a Subsidiary Guarantor on the date of the making of the Investment and such Person becomes a Restricted Subsidiary and a Subsidiary Guarantor after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) above, and shall cease to have been made pursuant to this clause (w);

 

(x)                Investments existing on or prior to the Closing Date;

 

(y)                Permitted Tax Equity Guarantees to the extent such Permitted Tax Equity Guarantees would have been permitted as Investments pursuant to clause (s) above if made in cash; and

 

(z)                to the extent constituting an Investment, (i) any arrangement with respect to periodic premium, fee or similar payments made by the Borrower or any Restricted Subsidiary to any L/C Securities Issuer from time to time or obligations in respect of future issuances of Indebtedness, in each case, pursuant to any L/C Securities Financing or (ii) any Standard Securitization Undertaking.

 

Permitted Liens” shall mean:

 

(a)                Liens held by the Collateral Trustee on assets of the Borrower or any Subsidiary Guarantor in accordance with the Collateral Trust Agreement securing (i) Indebtedness, Letters of Credit and other Guaranteed Obligations hereunder and under the other Loan Documents (other than Indebtedness, Letters of Credit and other Guaranteed Obligations arising from New Commitments pursuant to and in accordance with Section 2.24) and (ii) other than during a Collateral Release Period, Indebtedness and other Indebtedness Obligations under other Credit Facilities and Indebtedness, Letters of Credit and other Guaranteed Obligations arising from New Commitments pursuant to and in accordance with Section 2.24 in an aggregate principal amount not exceeding under this clause (a)(ii), on the date of the creation of such Liens, the difference between (A) the greater of (x) 30.00% of Total Assets and (y) $10,000,000,000 and (B) the aggregate principal amount outstanding on such date under clause (a)(i) above less the aggregate amount of all repayments, optional or mandatory, of the principal of any term Indebtedness under a Credit Facility that have been made by the Borrower or any of its Restricted Subsidiaries since the Issue Date with the Net Proceeds of Asset Sales (other than Excluded Proceeds) and less, without duplication, the aggregate amount of all repayments or commitment reductions with respect to any revolving credit borrowings under a Credit Facility that have been made by the Borrower or any of its Restricted Subsidiaries since the Issue Date as a result of the application of the Net Proceeds of Asset Sales (other than Excluded Proceeds) in accordance with Section 6.04 (excluding temporary reductions in revolving credit borrowings as contemplated by that covenant);

 

(b)                Liens to secure obligations with respect to (i) contracts (other than for Indebtedness) for commercial and trading activities for the purchase, transmission, distribution, sale, lease or hedge of any energy related commodity or service and (ii) Hedging Obligations (which Liens may, in each case, be held by the Collateral Trustee pursuant to and in accordance with the Collateral Trust Agreement);

 

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(c)                Liens (i) in favor of the Borrower or any of the Subsidiary Guarantors, (ii) incurred by Excluded Project Subsidiaries in favor of any other Excluded Project Subsidiary or (iii) incurred by Excluded Foreign Subsidiaries in favor of any other Excluded Foreign Subsidiary;

 

(d)                Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature;

 

(e)                Liens to secure obligations to vendors or suppliers covering the assets sold or supplied by such vendors or suppliers, including Liens to secure Indebtedness or other obligations (including Capital Lease Obligations) permitted by Sections 6.01(b)(iv), 6.01(b)(xiii), 6.01(b)(xx) and, other than during a Collateral Release Period, 6.01(b)(xxii), covering only the assets acquired with or financed by such Indebtedness;

 

(f)                 Liens existing on the Closing Date and set forth on Schedule 6.02;

 

(g)                Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

 

(h)                Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’ Liens;

 

(i)                 survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines, oil and gas and other mineral interests and leases and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

(j)                 Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Agreement; provided, however, that:

 

(i)                 the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and

 

(ii)               the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (1) the outstanding principal amount or, if greater, committed amount, of the Permitted Refinancing Indebtedness and (2) an amount necessary to pay any fees and expenses, including premiums, related to such refinancings, refunding, extension, renewal or replacement;

 

(k)                Liens incurred or deposits made in connection with workers’ compensation, unemployment insurance and other types of social security;

 

(l)                 Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Borrower or any of its Restricted Subsidiaries, including rights of offset and set-off;

 

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(m)              leases or subleases granted to others that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;

 

(n)                statutory Liens arising under ERISA;

 

(o)                Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Borrower or any Subsidiary; provided that such Liens were in existence prior to, such acquisition, and not incurred in contemplation of, such acquisition;

 

(p)                Liens arising from UCC financing statements filed on a precautionary basis in respect of operating leases intended by the parties to be true leases (other than any such leases entered into in violation of this Agreement);

 

(q)                Liens on assets and Equity Interests of a Subsidiary that is an Excluded Subsidiary;

 

(r)                 [reserved];

 

(s)                 Liens to secure Indebtedness or other obligations incurred to finance Necessary Capital Expenditures that encumber only the assets purchased, installed or otherwise acquired with the proceeds of such Indebtedness;

 

(t)                 Liens to secure Environmental CapEx Debt that encumber only the assets purchased, installed or otherwise acquired with the proceeds of such Environmental CapEx Debt;

 

(u)                Liens on assets or securities deemed to arise in connection with the execution, delivery or performance of contracts to sell such assets or stock otherwise permitted under this Agreement;

 

(v)                any Liens resulting from restrictions on any Equity Interest or undivided interests, as the case may be, of a Person providing for a breach, termination or default under any joint venture, stockholder, membership, limited liability company, partnership, owners’, participation or other similar agreement between such Person and one or more other holders of Equity Interests or undivided interests of such Person, as the case may be, if a security interest or Lien is created on such Equity Interest or undivided interest, as the case may be, as a result thereof;

 

(w)              Liens resulting from any customary provisions limiting the disposition or distribution of assets or property (including Equity Interests) or any related restrictions thereon in joint venture, partnership, membership, stockholder and limited liability company agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, including owners’, participation or similar agreements governing projects owned through an undivided interest; provided, however, that any such limitation is applicable only to the assets that are the subjects of such agreements;

 

(x)                those Liens or other exceptions to title, in either case on or in respect of any facility of the Borrower or any Subsidiary, arising as a result of any shared facility agreement entered into after the closing date with respect to such facility, except to the extent that any such Liens or exceptions, individually or in the aggregate, materially adversely affect the value of the relevant property or materially impair the use of the relevant property in the operation of the business of the Borrower or such Subsidiary;

 

(y)                Liens on cash deposits and other funds maintained with a depository institution, in each case arising in the ordinary course of business by virtue of any statutory or common law

 

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provision relating to banker’s liens, including Section 4-210 of the UCC, and/or arising from customary contractual fee provisions, the reimbursement of funds advanced by a depositary or intermediary institution (and/or its Affiliates) on account of investments made or securities purchased, indemnity, returned check and other similar provisions;

 

(z)                other than during any Collateral Release Period, any Liens on property and assets designated as Excluded Assets from time to time by the Borrower under clause (xiii) of the definition of “Excluded Assets,” which shall not have, when taken together with all other property and assets that constitute Excluded Assets pursuant to such clause at the relevant time of determination, a Fair Market Value in excess of $500,000,000 in the aggregate; provided, however, that any Lien created, incurred or assumed pursuant to this clause (z) other than during a Collateral Release Period shall be permitted to remain outstanding during any subsequent Collateral Release Period;

 

(aa)             Liens on accounts receivable, other Securitization Assets, Sellers’ Retained Interest or accounts into which collections or proceeds of Securitization Assets or Sellers’ Retained Interest are deposited, in each case arising in connection with any Permitted Securitization Indebtedness permitted under Section 6.01(b)(xxi);

 

(bb)            Liens incurred by the Borrower or any Subsidiary with respect to obligations not to exceed the sum of (i) the outstanding Indebtedness in respect of the Existing Tax-Exempt Bonds as of the Fifth Amendment Effective Date and (ii) (A) during a Collateral Release Period, 15.00% of Consolidated Net Tangible Assets and (B) at any other time, the greater of (1) $1,000,000,000 and (2) 3.50% of Total Assets, at any one time outstanding;

 

(cc)             other than during a Collateral Release Period, Liens on the Collateral securing obligations in respect of Incremental Equivalent Debt and the Senior Secured Notes.; and

 

(dd)            Liens securing Indebtedness incurred by the Borrower or any Restricted Subsidiary in respect of obligations under any Liquidity Facility in an aggregate amount not to exceed $500,000,000.

 

Permitted Refinancing Indebtedness” shall mean any Indebtedness of the Borrower or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge, other Indebtedness of the Borrower or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on such Indebtedness and the amount of all expenses and premiums incurred in connection therewith); (b) such Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (c) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Guaranteed Obligations, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Guaranteed Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (d) such Indebtedness is incurred either by the Borrower (and may be guaranteed by any Subsidiary Guarantor) or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (e)(i) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Latest Maturity Date of all Classes of Loans or Commitments, the Permitted Refinancing Indebtedness has a Stated Maturity no earlier than the

 

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Stated Maturity of the Indebtedness being refinanced or (ii) if the Stated Maturity of the Indebtedness being refinanced is later than the Latest Maturity Date of all Classes of Loans or Commitments, the Permitted Refinancing Indebtedness has a Stated Maturity at least 91 days later than the Latest Maturity Date of all Classes of Loans or Commitments.

 

Permitted Securitization Indebtedness” means any Third Party Securities issued in connection with a Securitization and any Securitization Related Indebtedness.

 

Permitted Tax Equity Financing” means a customary tax equity financing entered into solely in connection with the acquisition (or refinancing) by an Excluded Project Subsidiary of energy generating, transmission or distribution assets (and any assets related thereto).

 

Permitted Tax Equity Guarantees” means any unsecured (or secured to the extent permitted in respect of Equity Interests and Investments held in Excluded Subsidiaries) credit support and/or indemnification obligations (or similar obligations and Guarantees) made by an Excluded Project Subsidiary or a direct or indirect parent company of such Excluded Project Subsidiary that has entered into a Permitted Tax Equity Financing in favor of its Tax Equity Partner.

 

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

 

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

 

Pledged Securities” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

 

Prepayment Date” shall have the meaning assigned to such term in Section 2.13(b).

 

Pricing Certificate” means a certificate signed by a Financial Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent attaching (a) true and correct copies of the Borrower’s sustainability report for the immediately preceding fiscal year and setting forth each of the Applicable Sustainability Adjustments and, if applicable, the Pro Forma Greenhouse Gas Emission Amount, for the immediately preceding fiscal year and computations in reasonable detail and (b) a review report of the KPI Metric Auditor confirming that the KPI Metric Auditor is not aware of any material modifications that should be made to such computations in order for them to be presented in conformity with the applicable reporting criteria.

 

Prime Rate” shall mean the rate of interest per annum publicly announced from time to time by The Wall Street Journal as the “base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks” (or, if The Wall Street Journal ceases quoting a base rate of the type described, the highest per annum rate of interest published by the Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected Interest Rates” as the Bank prime loan rate or its equivalent); each change in the Prime Rate shall be effective as of the opening of business on the date such change is publicly announced as being effective. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually available.

 

Priority Lien Obligations” shall have the meaning assigned to such term in the Collateral Trust Agreement.

 

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Pro Forma Cost Savings” shall mean, without duplication, with respect to any period, reductions in costs and related adjustments that have been actually realized or are projected by the Borrower’s Chief Financial Officer in good faith to result from reasonably identifiable and factually supportable actions or events, but only if such reductions in costs and related adjustments are so projected by the Borrower to be realized during the consecutive four-quarter period commencing after the transaction giving rise to such calculation.

 

Pro Forma Greenhouse Gas Emission Amount” has the meaning specified in Section 5.04(e).

 

Pro Rata Percentage” of any Revolving Lender at any time shall mean the percentage of the Total Revolving Commitment represented by such Lender’s Revolving Commitment; provided that to the extent any participation in any Letter of Credit is allocated only to the Tranche A Revolving Lenders pursuant to the terms hereof, “Pro Rata Percentage” shall mean the percentage of the Total Tranche A Revolving Commitments represented by such Lender’s Tranche A Revolving Commitment. In the event the Revolving Commitments shall have expired or been terminated, the Pro Rata Percentages of any Revolving Lender shall be determined on the basis of the Revolving Commitments most recently in effect prior thereto. Notwithstanding the foregoing, the Fifth Amendment Tranche A Revolving Commitments and the Tranche B Revolving Commitments shall not be included in any calculation of Pro Rata Percentage until such commitments have become available on the Dragon Acquisition Closing Date.

 

Project Interest” shall mean any undivided interest in a Facility.

 

Proposed Discounted Purchase Amount” shall have the meaning assigned to such term in Section 2.12(e)(ii).

 

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

 

PUCT” shall mean the Public Utility Commission of Texas.

 

PUHCA” shall mean the Public Utility Holding Company Act of 2005 and the rules and regulations promulgated thereunder, effective February 8, 2006.

 

Purchasing Borrower Party” shall mean the Borrower or any of its Subsidiaries that makes a Discounted Voluntary Purchase pursuant to Section 2.12(e).

 

PURPA” shall mean the Public Utility Regulatory Policies Act of 1978 and the rules and regulations promulgated thereunder, as amended from time to time.

 

QF” shall mean a “qualifying facility” under PURPA.

 

QFC” shall have the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

Qualified Counterparty” shall mean, with respect to any Specified Hedging Agreement, any counterparty thereto.

 

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

 

Qualifying Lenders” shall have the meaning assigned to such term in Section 2.12(e)(iv).

 

Qualifying Loans” shall have the meaning assigned to such term in Section 2.12(e)(iv).

 

Rate” shall have the meaning set forth in the definition of Type.

 

Rating Agency” means (a) each of Moody’s, S&P and Fitch and (b) if any of Moody’s, S&P or Fitch ceases to rate the senior, unsecured, non-credit enhanced, long-term debt securities of the Borrower or fails to make such rating publicly available, a Nationally Recognized Statistical Rating Organization selected by the Borrower which shall be substituted for Moody’s, S&P or Fitch, as the case may be.

 

Reaffirmation Agreement” shall mean the Reaffirmation Agreement, dated as of the Closing Date, executed and delivered by the Borrower, each Subsidiary Guarantor, the Administrative Agent and the Collateral Trustee in form and substance reasonably acceptable to the Administrative Agent.

 

Realizable Value” of an asset means the lesser of (a) if applicable, the face value of such asset and (b) the market value of such asset as determined by the Borrower in accordance with the agreement governing the applicable Securitization Related Indebtedness, as the case may be, (or, if such agreement does not contain any related provision, as determined in good faith by management of the Borrower).

 

Refinancing Amount Date” shall have the meaning assigned to such term in Section 2.25(a).

 

Refinancing Commitments” shall have the meaning assigned to such term in Section 2.25(a).

 

Refinancing Revolving Commitments” shall have the meaning assigned to such term in Section 2.25(a).

 

Refinancing Revolving Lender” shall have the meaning assigned to such term in Section 2.25(e).

 

Refinancing Revolving Loans” shall have the meaning assigned to such term in Section 2.25(e).

 

Refinancing Series” shall have the meaning provided in Section 2.25(a).

 

Refinancing Term Commitments” shall have the meaning assigned to such term in Section 2.25(a).

 

Refinancing Term Lender” shall have the meaning assigned to such term in Section 2.25(c).

 

Refinancing Term Loan” shall have the meaning assigned to such term in Section 2.25(c).

 

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Refinancing Term Maturity Date” shall mean the date on which a Refinancing Term Loan matures.

 

Register” shall have the meaning assigned to such term in Section 9.04(e).

 

Regulation S-X” shall mean Regulation S-X under the Securities Act as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

Related Fund” shall mean, with respect to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is advised or managed by such Lender, an Affiliate of such Lender, the same investment advisor as such Lender or by an Affiliate of such investment advisor.

 

Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, trustees, employees, agents and advisors of such Person and such Person’s Affiliates.

 

Release” shall mean any release, spill, emission, leaking, pumping, injection, pouring, emptying, deposit, disposal, discharge, dispersal, dumping, escaping, leaching or migration into or through the environment or within or upon any building, structure, facility or fixture.

 

Required Lenders” shall mean, at any time, Lenders collectively constituting the Majority Revolving Lenders and, if any New Term Loans, unused New Term Loan Commitments, Refinancing Term Loans or unused Refinancing Term Commitments are outstanding, the Majority Term Lenders; provided that for purposes of, and with respect to, any exercise of rights, powers and remedies (including with respect to a Default, an Event of Default or otherwise) pursuant to and in accordance with any Security Document (including any enforcement of any Security Document, any rights, powers or remedies thereunder and any direction or instruction to or any authorization of, or other act by the Lenders requiring, the Collateral Trustee to take any action, exercise any rights, powers or remedies pursuant to and in accordance with the Collateral Trust Agreement or any other Security Document (including any amendment, modification, termination, discharge or waiver of any Security Document or any sale of or foreclosure upon any Collateral)), “Required Lenders” shall mean, at any time, Lenders having (a) in respect of the enforcement of remedies or the protections of Liens on Collateral, Loans (excluding Swingline Loans), Revolving L/C Exposure and Swingline Exposure representing greater than 50% of the sum of all Loans outstanding (excluding Swingline Loans), Revolving L/C Exposure and Swingline Exposure at such time and (b) in respect of any act other than the enforcement of remedies or the protections of Liens on Collateral, Loans (excluding Swingline Loans), Revolving L/C Exposure, Swingline Exposure, unused Revolving Commitments, unused New Revolving Commitments (if any), unused Refinancing Revolving Commitments (if any), unused Term Commitments, unused New Term Commitments (if any) and unused Refinancing Term Commitments (if any) representing greater than 50% of the sum of all Loans outstanding (excluding Swingline Loans), Revolving L/C Exposure, Swingline Exposure, unused Revolving Commitments, unused New Revolving

 

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Commitments (if any), unused Refinancing Revolving Commitments (if any), unused Term Commitments, unused New Term Commitments (if any) and unused Refinancing Term Commitments (if any) at such time.

 

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

 

Responsible Officer” of a Person shall mean the Chief Executive Officer, Chief Financial Officer, Treasurer or General Counsel of such Person.

 

Restatement Agreement” shall mean the Amendment and Restatement Agreement dated as of the Closing Date, among the Borrower, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent, the Swingline Lender, each Issuing Bank, the Collateral Trustee and the Lenders party thereto.

 

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

 

Restricted Payment” shall have the meaning assigned to such term in Section 6.06. For purposes of determining compliance with Section 6.06, no Hedging Obligation shall be deemed to be contractually subordinated to the Guaranteed Obligations.

 

Restricted Subsidiary” of a Person shall mean any subsidiary of the referent Person that is not an Unrestricted Subsidiary. Unless otherwise indicated, any reference to a “Restricted Subsidiary” shall be deemed to be a reference to a Restricted Subsidiary of the Borrower.

 

Revenue Carbon Intensity” means the Greenhouse Gas Emission Amount divided by the total operating revenue of the Borrower and its Subsidiaries (as reported in the Borrower’s audited consolidated financial statements for the applicable fiscal year), where total operating revenue is measured in millions of U.S. dollars, as certified by the Borrower in the applicable Pricing Certificate.

 

“Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.

 

Revolving Commitment” shall mean with respect to each Lender, the Tranche A Revolving Commitment, if any, and the Tranche B Revolving Commitment, if any, of such Lender.

 

Revolving Exposure” shall mean with respect to any Lender at any time, the sum of the Dollar Equivalent of (a) the aggregate principal amount at such time of all outstanding Revolving Loans of such Lender, plus (b) the aggregate amount at such time of such Lender’s Revolving L/C Exposure, plus (c) the aggregate amount at such time of such Lender’s Swingline Exposure.

 

Revolving L/C Exposure” shall mean, at any time, the sum of the Dollar Equivalent of (a) the aggregate undrawn amount of all Letters of Credit at such time and (b) the aggregate amount of all L/C Disbursements that have not been reimbursed at such time. The Revolving L/C Exposure of any Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Revolving L/C Exposure at such time.

 

Revolving Lender” shall mean a Lender with a Revolving Commitment or a Revolving Loan.

 

Revolving Loans” shall mean (a) a Loan made by the Lenders to the Borrower pursuant to Section 2.01(c), (b) any New Revolving Loans and (c) any Refinancing Revolving Loans.

 

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Revolving Maturity Date” shall mean (a) with respect to any Tranche A Revolving Commitments and Tranche A Revolving Loans, the Tranche A Revolving Maturity Date and with respect to any Tranche B Revolving Commitments and Tranche B Revolving Loans, the Tranche B Revolving Maturity Date, (b) with respect to any New Revolving Commitments and New Revolving Loans, the maturity date thereof set forth in the applicable Joinder Agreement and (c) with respect to any Refinancing Revolving Commitments and Refinancing Revolving Loans, the maturity date thereof set forth in the applicable Joinder Agreement, in each case, as it may be extended pursuant to and in accordance with this Agreement.

 

S&P” shall mean S&P Global Ratings, a division of S&P Global Inc., or any successor entity.

 

Sanctioned Country” shall mean, at any time, a country or territory that is subject to comprehensive Sanctions.

 

Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person.

 

Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

 

Scheduled Unavailability Date” shall have the meaning assigned to such term in Section 2.08(b)(ii).

 

Second Amendment” shall mean the Second Amendment Agreement, dated as of March 21, 2018, among the Borrower, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

Second Amendment Effective Date” shall have the meaning assigned to such term in the Second Amendment.

 

Secured Parties” shall mean the Arrangers, the Administrative Agent, the Collateral Agent, the Co-Managers, the Lenders, the Issuing Banks and, with respect to any Specified Hedging Agreement, any Qualified Counterparty that has agreed to be bound by the provisions of Article VIII hereof and Section 7.2 of the Guarantee and Collateral Agreement as if it were a party hereto or thereto; provided that no Qualified Counterparty shall have any rights in connection with the management or release of any Collateral or the obligations of any Subsidiary Guarantor under the Guarantee and Collateral Agreement or the Collateral Trust Agreement. For the avoidance of doubt, it is acknowledged that no LC Issuer in respect of any Cash Collateralized Letter of Credit Facilities shall be a Secured Party.

 

Securities Account” shall have the meaning assigned to such term in the UCC.

 

Securities Act” shall mean the Securities Act of 1933, as amended.

 

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Securitization” shall mean any transaction or series of transactions entered into by the Borrower or any Restricted Subsidiary pursuant to which the Borrower or such Restricted Subsidiary, as the case may be, sells, conveys, assigns, grants an interest in or otherwise transfers, from time to time, to one or more Securitization Vehicles the Securitization Assets (and/or grants a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Vehicle), and which Securitization Vehicle finances the acquisition of such Securitization Assets (i) with proceeds from the issuance by it or its subsidiary of Third Party Securities, (ii) with the issuance to the Borrower or such Restricted Subsidiary of Sellers’ Retained Interests or an increase in such Sellers’ Retained Interests, or (iii) with proceeds from the sale or collection of Securitization Assets.

 

Securitization Assets” shall mean any accounts receivable originated or expected to be originated by (and owed to) the Borrower or any Restricted Subsidiary (in each case whether now existing or arising or acquired in the future) and any ancillary assets (including contract rights) which are of the type customarily conveyed with, or in respect of which security interests are customarily granted in connection with, such accounts receivable in a securitization transaction and which are sold, transferred or otherwise conveyed by the Borrower or a Restricted Subsidiary to a Securitization Vehicle.

 

Securitization Related Indebtedness” shall mean any financing arrangement of any kind other than a Securitization, with a financial institution or other lender or purchaser, in each case to finance the purchase, origination, pooling, funding or carrying of Securitization Assets or Seller’s Retained Interest by the Borrower or any Restricted Subsidiary that is secured solely by such Securitization Assets or Seller’s Retained Interest and with respect to which the holder may have contractual recourse to the Borrower or its Restricted Subsidiaries to the extent of the amount of the financing arrangement that exceeds the Realizable Value of the Securitization Assets and Seller’s Retained Interest related thereto.

 

Securitization Vehicle” shall mean a Person that is a direct wholly owned Subsidiary of the Borrower or of any Restricted Subsidiary or of another Securitization Vehicle (a) formed for the purpose of effecting a Securitization, (b) to which the Borrower and/or any Restricted Subsidiary and/or another Securitization Vehicle transfers Securitization Assets and (c) which, in connection therewith, issues (or has a subsidiary that is a Securitization Vehicle that issues) Third Party Securities; provided that (i) such Securitization Vehicle shall engage in no business other than the purchase of Securitization Assets pursuant to the Securitization permitted by Section 6.04, the sale of Securitization Assets to another Securitization Vehicle permitted by Section 6.04, the issuance of Third Party Securities or other funding of such Securitization and any activities reasonably related thereto and (ii) such Securitization Vehicle shall either issue Third Party Securities in a manner permitted under Section 6.01(b)(xxi) (or have a subsidiary that is a Securitization Vehicle that issues such Third Party Securities) or be an Unrestricted Subsidiary under this Agreement and an “Unrestricted Subsidiary” under the Senior Notes Documents and the documents relating to the Senior Secured Notes.

 

Security Documents” shall mean the Guarantee and Collateral Agreement, the Mortgages, the Control Agreements, the Intellectual Property Security Agreements, the Collateral Trust Agreement, the Reaffirmation Agreement and each of the other security agreements, pledges, mortgages, assignments (collateral or otherwise), consents and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.09 or 5.10.

 

Sellers’ Retained Interests” means the debt and/or equity interests (including any intercompany notes) held by the Borrower or any Restricted Subsidiary in a Securitization Vehicle to which Securitization Assets have been transferred in a Securitization permitted by Section 6.04,

 

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including any such debt or equity received as consideration for, or as a portion of, the purchase price for the Securitization Assets transferred, and any other instrument through which the Borrower or any Restricted Subsidiary has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets.

 

Senior Notes” shall mean the Borrower’s 7.250% Senior Notes due 2026, 6.625% Senior Notes due 2027, 5.750% Senior Notes due 2028, 5.250% Senior Notes due 2029 and 2.750% Convertible Senior Notes due 2048.

 

Senior Notes Documents” shall mean the indentures under which the Senior Notes are issued and all other instruments, agreements and other documents evidencing or governing the Senior Notes or providing for any Guarantee or other right in respect thereof, in each case as the same may be amended or supplemented from time to time in accordance with the terms hereof and thereof.

 

Senior Secured Notes” shall mean the Borrower’s 3.750% Senior Secured First Lien Notes due 2024 and 4.450% Senior Secured First Lien Notes due 2029.

 

Series” shall have the meaning provided in Section 2.24(a).

 

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

 

SPC” shall have the meaning assigned to such term in Section 9.04(j).

 

Specified Asset Sale” shall mean Asset Sales consummated by the Borrower or any of its Subsidiaries prior to the Fourth Amendment Effective Date.

 

Specified Facility” shall mean each of the following Facilities, or any part thereof and/or any other assets set forth below: (a) the Facilities held on the Closing Date by Vienna Power LLC, Meriden Gas Turbine LLC, Norwalk Power LLC, Connecticut Jet Power LLC (excluding the assets located at the Cos Cob site), Devon Power LLC, Montville Power LLC (including the Capital Stock of the entities owning such Facilities provided that such entities do not hold material assets other than the Facilities held on the Closing Date); (b) the following Facilities, or any part thereof: P.H. Robinson, H.O. Clarke, Webster, Unit 3 at Cedar Bayou, Unit 2 at T.H. Wharton and Greens Bayou; (c) the Capital Stock of the following Subsidiaries if such Subsidiary holds no assets other than the Capital Stock of a Foreign Subsidiary of the Borrower: NRG Latin America, Inc., NRG International LLC, NRG Asia Pacific, Ltd., NRG International II Inc. and NRG International III Inc.; and (d) the Equity Interests issued by, and any assets (including any Facilities), of Long Beach Generation LLC and Middletown Power LLC.

 

Specified Hedging Agreement” shall mean any Interest Rate/Currency Hedging Agreement entered into by the Borrower or any Subsidiary Guarantor and any Qualified Counterparty.

 

Standard Securitization Undertaking” shall mean any representations, warranties, covenants, repurchase obligations and indemnities made by or entered into by the Borrower or any Restricted Subsidiary of the Borrower in connection with a permitted Securitization which the Borrower has determined in good faith to be customary in a Securitization, including, without limitation, any obligation of a seller of Securitization Assets in a Securitization to repurchase, indemnify or pay deemed collections of Securitization Assets arising as a result of a breach of a

 

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representation, warranty or covenant, and any other undertaking relating to the origination, sale or servicing of the Securitization Assets and other assets of an entity engaging in any Securitization (including any special purpose parent of any entity engaging in such Securitization).

 

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

 

Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

subsidiary” shall mean, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

Subsidiary” shall mean any subsidiary (direct or indirect) of the Borrower. In no event will any L/C Securities Issuer constitute a subsidiary (direct or indirect) of the Borrower.

 

Subsidiary Guarantor” shall mean on the Fifth Amendment Effective Date, each Restricted Subsidiary specified on Schedule 1.01(f) and, at any time thereafter, shall include each other Restricted Subsidiary that is not an Excluded Subsidiary; provided that if at any time any Subsidiary Guarantor is designated as (i) an Unrestricted Subsidiary or Excluded Project Subsidiary pursuant to and in accordance with Section 6.10 or (ii) an Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof, thereafter, such Person shall not be deemed a Subsidiary Guarantor. For the avoidance of doubt, the Funded L/C SPV shall not be a Subsidiary Guarantor for all purposes under this Agreement and the other Loan Documents.

 

Sustainability Pricing Adjustment Date” has the meaning specified in the definition of “Applicable Margin”.

 

Sustainability Structuring Agent” shall have the meaning assigned to such term in the preamble.

 

Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans pursuant to Section 2.22, as the same may be reduced from time to time pursuant to Section 2.09.

 

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Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.

 

Swingline Lender” shall mean (i) with respect to Swingline Loans denominated in dollars, CNA, (ii) with respect to Swingline loans denominated in Canadian Dollars, Citibank, N.A., Canadian Branch or (iii) any other Revolving Lender that becomes the Administrative Agent pursuant to and in accordance with this Agreement or agrees, with the approval of the Administrative Agent and the Borrower, to act as the Swingline Lender hereunder, in each case, acting through any domestic or foreign branch or affiliate, in its capacity as lender of Swingline Loans hereunder.

 

Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section 2.22.

 

Tax Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

 

Tax Equity Partner” means any tax equity partner that has entered into a joint venture agreement, limited liability company agreement or similar arrangement with an Excluded Project Subsidiary in connection with the consummation of a Permitted Tax Equity Financing.

 

Tax-Exempt Bonds” shall mean any bonds or other securities issued by a Governmental Authority (including any quasi-governmental agencies) for the direct or indirect benefit of the Borrower or any Subsidiary Guarantor or, if permitted by Applicable Law, by the Borrower or any Subsidiary Guarantor, the payment of interest on which is exempt from applicable federal, state and/or local taxes.

 

Tax Group” shall have the meaning assigned to such term in Section 6.06(b)(xii).

 

Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges, liabilities or withholdings (including interest, fines, penalties or additions to tax) imposed by any Governmental Authority.

 

Term Borrowing” shall mean a Borrowing comprised of a Class of Term Loans, New Term Loans or Refinancing Term Loans.

 

Term Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Term Loans hereunder as set forth on Schedule 1.01(g) or in the Assignment and Assumption or Joinder Agreement pursuant to which such Lender assumed its Term Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The aggregate principal amount of the Term Commitments on the Closing Date is $1,900,000,000.

 

Term Lender” shall mean a Lender with a Term Commitment or an outstanding Term Loan.

 

Term Loans” shall mean the Loan made by the Lenders to the Borrower on the Closing Date pursuant to Section 2.01(a).

 

Texas Genco Retirement Plan” shall mean a non-contributory defined benefit pension plan maintained for participation by eligible Texas-based employees of the Borrower.

 

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Third Amendment” shall mean the Third Amendment Agreement, dated as of May 7, 2018, among the Borrower, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent and the Revolving Lenders party thereto.

 

Third Amendment Effective Date” shall have the meaning assigned to such term in the Third Amendment.

 

Third Party Securities” shall mean, with respect to any Securitization, notes, bonds or other debt instruments, beneficial interests in a trust, undivided ownership interests in receivables or other securities issued for cash consideration by the relevant Securitization Vehicle to banks, financing conduits, investors or other financing sources (other than the Borrower or any Subsidiary except in respect of the Sellers’ Retained Interest) the proceeds of which are used to finance, in whole or in part, the purchase by such Securitization Vehicle of Securitization Assets in a Securitization. The amount of any Third Party Securities shall be deemed to equal the aggregate principal, stated or invested amount of such Third Party Securities which are outstanding at such time.

 

Total Assets” shall mean the total consolidated assets of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Borrower.

 

Total First Lien Debt” shall mean, at any time, the aggregate amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding at such time that is subject to a first priority Lien (subject to Permitted Liens), in the amount that would be reflected on a balance sheet prepared at such time on a consolidated basis in accordance with GAAP; provided, however, that (a) Total First Lien Debt will exclude all Indebtedness of Excluded Subsidiaries (but, for the avoidance of doubt, not Guarantees of such Indebtedness by the Loan Parties), (b) with respect to Hedging Obligations of the Borrower or any Restricted Subsidiary, Total First Lien Debt will include only the amount of payments that any such Person is required to make, on the date Total First Lien Debt is being determined, as a result of an early termination or similar event in respect of outstanding Hedging Obligations of such Person, (c) for the avoidance of doubt, the undrawn amount of all outstanding letters of credit (including Letters of Credit) shall not be included in Total First Lien Debt and (d) Total First Lien Debt shall not include the amount of funds on deposit in the Funded L/C Collateral Accounts at such time.

 

Total Net Debt” shall mean, at any time, (a) the aggregate amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding at such time, in the amount that would be reflected on a balance sheet prepared at such time on a consolidated basis in accordance with GAAP; provided, however, that (i) Total Net Debt will exclude all Indebtedness of Excluded Subsidiaries (but, for the avoidance of doubt, not Guarantees of such Indebtedness by the Loan Parties), (ii) with respect to Hedging Obligations of the Borrower or any Restricted Subsidiary, Total Net Debt will include only the amount of payments that any such Person is required to make, on the date Total Net Debt is being determined, as a result of an early termination or similar event in respect of outstanding Hedging Obligations of such Person, (iii) for the avoidance of doubt, the undrawn amount of all outstanding letters of credit (including Letters of Credit) shall not be included in Total Net Debt and (iv) Total Net Debt shall not include the amount of funds on deposit in the Funded L/C Collateral Accounts at such time, minus (b) the aggregate amount of all Unrestricted Cash.

 

Total Revolving Commitment” shall mean, at any time, the aggregate amount of the Revolving Commitments, as in effect at such time. The Total Revolving Commitment on the Fifth Amendment Effective Date is $3,637,300,000; provided that the Fifth Amendment Tranche A

 

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Revolving Commitments and the Tranche B Revolving Commitments shall not be available to be borrowed until the Dragon Acquisition Closing Date.

 

Tranche A Revolving Commitment” shall mean, with respect to any Lender, the commitment, if any, of such Lender to make Tranche A Revolving Loans (and to acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on Schedule 1.01(e) (as such schedule may be restated pursuant to Section 2.01(d)) or in the Assignment and Assumption or Joinder Agreement, pursuant to which such Lender assumed its Tranche A Revolving Commitment as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender in accordance with Section 9.04. The Borrower and the Tranche A Revolving Lenders acknowledge and agree that the Tranche A Revolving Commitments of the Tranche A Revolving Lenders aggregate $3,379,100,000 as of the Fifth Amendment Effective Date, provided that the Fifth Amendment Tranche A Revolving Commitments shall not be available to be borrowed until the Dragon Acquisition Closing Date.

 

Tranche A Revolving Exposure” shall mean, with respect to any Tranche A Revolving Lender at any time, the sum of the Dollar Equivalent of the (a) the aggregate principal amount at such time of all outstanding Tranche A Revolving Loans of such Tranche A Revolving Lender, plus (b) the aggregate amount at such time of such Tranche A Revolving Lender’s Tranche A Revolving L/C Exposure, plus (c) the aggregate amount at such time of such Tranche A Revolving Lender’s Swingline Exposure allocable to the Tranche A Revolving Commitments.

 

Tranche A Revolving L/C Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all Letters of Credit of each Tranche A Revolving Lender at such time and (b) the aggregate amount of all L/C Disbursements of each Tranche A Revolving Lender that have not been reimbursed at such time. The Tranche A Revolving L/C Exposure of any Tranche A Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Tranche A Revolving L/C Exposure at such time.

 

Tranche A Revolving Lender” shall mean any Lender with a Tranche A Revolving Commitment or a Tranche A Revolving Loan.

 

Tranche A Revolving Loan” shall mean any Revolving Loans made pursuant to Tranche A Revolving Commitments.

 

Tranche A Revolving Maturity Date” shall mean May 28, 2024.

 

Tranche B Extension Request” shall have the meaning provided in Section 9.19(a).

 

Tranche B Revolving Commitment” shall mean, with respect to any Lender, the commitment, if any, of such Lender to make Tranche B Revolving Loans (and to acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on Schedule 1.01(e) (as such schedule may be restated pursuant to Section 2.01(d)) or in the Assignment and Assumption or Joinder Agreement, pursuant to which such Lender assumed its Tranche B Revolving Commitment as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender in accordance with Section 9.04. The Borrower and the Tranche B Revolving Lenders acknowledge and agree that the Tranche B Revolving Credit Commitments of the Tranche B Revolving Lenders aggregate $258,200,000 as of the Fifth Amendment Effective Date, provided that the Tranche B Revolving Commitments shall not be available to be borrowed until the Dragon Acquisition Closing Date.

 

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Tranche B Revolving Exposure” shall mean, with respect to any Tranche B Revolving Lender at any time, the sum of the Dollar Equivalent of the (a) the aggregate principal amount at such time of all outstanding Tranche B Revolving Loans of such Tranche B Revolving Lender, plus (b) the aggregate amount at such time of such Tranche B Revolving Lender’s Tranche B Revolving L/C Exposure, plus (c) the aggregate amount at such time of such Tranche B Revolving Lender’s Swingline Exposure allocable to the Tranche B Revolving Commitments.

 

Tranche B Revolving L/C Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all Letters of Credit of each Tranche B Revolving Lender at such time and (b) the aggregate amount of all L/C Disbursements of each Tranche B Revolving Lender that have not been reimbursed at such time. The Tranche B Revolving L/C Exposure of any Tranche B Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Tranche B Revolving L/C Exposure at such time.

 

Tranche B Revolving Lender” shall mean any Lender with a Tranche B Revolving Commitment or a Tranche B Revolving Loan.

 

Tranche B Revolving Loan” shall mean any Revolving Loans made pursuant to Tranche B Revolving Commitments.

 

Tranche B Revolving Maturity Date” shall mean the earlier of (x) the date that is 30 months after the Dragon Acquisition Closing Date (as such date may be extended pursuant to Section 9.19(a)) and (y) May 28, 2024.

 

Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party, (b) the borrowings hereunder, the issuance of Letters of Credit and the use of proceeds of each of the foregoing, (c) the granting of Liens pursuant to the Security Documents, (d) the re-evidencing in full of all Term Loans (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement, (e) the replacement of the revolving credit facility (including the letter of credit facility and the swingline loan facility thereunder) under the Existing Credit Agreement with the revolving credit facility (including the letter of credit facility and swingline loan facility thereunder) under this Agreement, (f) [reserved], (g) any other transactions related to or entered into in connection with any of the foregoing and (h) the payment of fees, costs and expenses incurred in connection with the foregoing.

 

Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate, the Alternate Base Rate and the Canadian Base Rate.

 

UCC” shall mean the Uniform Commercial Code as in effect in the State of New York or any other applicable jurisdiction.

 

UK Financial Institution” shall mean 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.

 

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

 

Uniform Customs” shall have the meaning assigned to such term in Section 9.07.

 

Unrestricted Cash” shall mean, without duplication, on any date, (a) all cash and Cash Equivalents included in the cash and Cash Equivalents accounts listed on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as at such date (other than any such amounts listed as “restricted cash” thereon) and (b) all margin deposits related to commodity positions listed as assets on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.

 

Unrestricted Subsidiary” shall mean any Subsidiary (other than the Funded L/C SPV) that is designated by the Borrower as an Unrestricted Subsidiary pursuant to a certificate executed by a Responsible Officer of the Borrower, but only to the extent that such Subsidiary (a) has no Indebtedness other than Non-Recourse Debt; (b) except as permitted by Section 6.07, is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower; (c) is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results except as otherwise permitted by this Agreement; and (d) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower or any of its Restricted Subsidiaries except as otherwise permitted by this Agreement. Any designation of a Subsidiary as an Unrestricted Subsidiary will be evidenced to the Administrative Agent by delivering to the Administrative Agent a certified copy of the certificate executed by a Responsible Officer of the Borrower giving effect to such designation and certifying that such designation complied with the conditions described under Section 6.10 and was permitted by Section 6.04. If, at any time, any Unrestricted Subsidiary fails to meet the requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and (A) any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 6.01, the Borrower will be in default of such covenant and (B) any assets of such Subsidiary will be deemed to be held by a Restricted Subsidiary as of such date. The Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 6.01, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period and (2) no Default or Event of Default would be in existence following such designation. The Unrestricted Subsidiaries on the Fifth Amendment Effective Date are set forth on Schedule 1.01(h).

 

Valuation Date” means (i) in connection with borrowing any Revolving Loan, the date two Business Days prior to the making, continuing or converting of any Revolving Loan, (ii) in connection with any Letter of Credit not denominated in dollars, as of (x) the date on or about the date on which the applicable Issuing Bank receives a request from the Borrower for the issuance of such Letter of Credit and (y) each subsequent date on which Letter of Credit shall be renewed or extended or the stated amount of such Letters of Credit shall be increased, (iii) in connection with any reimbursement obligations with respect to any L/C Disbursement pursuant to Section 2.02(f) or Section 2.23(d)(ii), the date on which the applicable payment is required and (iv) in

 

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connection with any other determination of the Dollar Equivalent of any amount, the date of such determination.

 

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

 

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

 

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

 

Write-Down and Conversion Powers” shall mean (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 power 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.             Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including”, and words of similar import, shall not be limiting and 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 words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all rights and interests in tangible and intangible assets and properties of any kind whatsoever, whether real, personal or mixed, including cash, securities, Equity Interests, accounts and contract rights. The word “control”, when used in connection with the Collateral Trustee’s rights with respect to, or security interest in, any Collateral, shall have the meaning specified in the UCC with respect to that type of Collateral. 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 of this Agreement unless the context shall otherwise require. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, (a) any definition of, or reference to, any Loan Document or any other agreement, instrument or document in this Agreement shall mean such Loan Document or other agreement, instrument or document as amended, restated, amended and restated, supplemented or otherwise modified from time to time (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein) and (b) all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes

 

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to amend any covenant in Article VI or any related definition to eliminate the effect of any change in GAAP occurring after the Closing Date on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI or any related definition for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders.

 

Section 1.03.             Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”, “Tranche A Revolving Loans” or “Tranche B 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 Borrowing”).

 

Section 1.04.             Exchange Rates and Conversion of Foreign Currencies 

 

(a)                Compliance under Article VI. For purposes of determining compliance under Article VI with respect to any amount in a foreign currency, the U.S. dollar-equivalent amount thereof will be calculated based on the relevant currency exchange rate in effect at the time of such incurrence. The maximum amount of Indebtedness, Liens, Investments and other basket amounts that the Borrower and its Subsidiaries may incur under Article VI shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, Liens, Investments and other basket amounts, solely as a result of fluctuations in the exchange rate of currencies, if as of the initial date of calculation the Borrower determined that each such maximum amount had not been exceeded. When calculating capacity for the incurrence of additional Indebtedness, Liens, Investments and other basket amounts by the Borrower and its Subsidiaries under Article VI the exchange rate of currencies shall be measured as of the date of calculation.

 

(b)                Dollar Equivalents. The Administrative Agent shall determine the Dollar Equivalent of any amount as of each Valuation Date (whether to determine compliance with any covenants specified herein or otherwise), and a determination thereof by the Administrative Agent shall be conclusive absent manifest error. Such determination shall become effective as of such Valuation Date. The Administrative Agent may, but shall not be obligated to, rely on any determination made by any Loan Party in any document delivered to the Administrative Agent. The Administrative Agent may determine or redetermine the Dollar Equivalent of any amount on any date either in its reasonable discretion or upon the reasonable request of the Required Lenders.

 

(c)                Rounding-Off. The Administrative Agent may set up appropriate rounding off mechanisms or otherwise round-off amounts hereunder to the nearest higher or lower amount in whole dollar or cent to ensure amounts owing by any party hereunder or that otherwise need to be calculated or converted hereunder are expressed in whole dollars or in whole cents, as may be necessary or appropriate.

 

Section 1.05.             Limited Condition Transactions. Notwithstanding anything to the contrary herein or in any other Loan Document, in connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:

 

(a)                determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including the Consolidated Interest Coverage Ratio, Consolidated First Lien Leverage Ratio, Consolidated Total Net Leverage Ratio, Debt to Cash Flow

 

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Ratio and Fixed Charge Coverage Ratio, or requires the absence of any Default or Event of Default or the making of representations and warranties; or

 

(b)                testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Total Assets or Consolidated Cash Flow);

 

in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof, the granting of any Liens and the making of any Restricted Payment) on a pro forma basis as if they had occurred at the beginning of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Sections 5.04(a) or 5.04(b), as the case may be, have been or were required to have been delivered ending prior to the LCT Test Date, the Borrower would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, or any requirement relating to the absence of any Default or Event of Default and the making of representations and warranties, such ratio, test or basket or requirement shall be deemed to have been complied with; provided, that if the Borrower has made an LCT Election for any Limited Condition Transaction, then (x) in connection with any subsequent calculation of any financial ratio or basket availability with respect to any Restricted Payments on or following such date of the execution of the definitive agreement and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the applicable definitive agreement is terminated or expires without consummation of such Limited Condition Transaction, any such financial ratio or basket shall be calculated (and tested) on a pro forma basis assuming that such Limited Condition Transaction had been consummated and also calculated (and tested) on a pro forma basis assuming that such Limited Condition Transaction had not been consummated and (y) in connection with any other purposes (other than the testing of compliance with Section 6.11 or 6.12, but including testing pro forma compliance with such financial covenants), any such financial ratio or basket shall be calculated (and tested) on a pro forma basis assuming that such Limited Condition Transaction had been consummated. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated Cash Flow or Total Assets at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations.

 

Section 1.06.             Divisions.

 

Any reference herein to a merger, transfer, amalgamation, consolidation, assignment, sale or disposition, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such division or allocation), as if it were a merger, transfer, amalgamation, consolidation, assignment, sale or disposition, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

 

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ARTICLE II.

 

The Credits

 

Section 2.01.             Commitments. Subject to the terms and conditions hereof and relying upon the representations and warranties set forth herein:

 

(a)                on the Closing Date, in accordance with and upon the terms and conditions set forth in the Restatement Agreement, (i) each Exchanging Term Lender (as defined in the Restatement Agreement) agrees to exchange all of its Existing Term Loans (as defined in the Restatement Agreement) with Term Loans hereunder in an equal principal amount and (ii) each Additional Term Lender (as defined in the Restatement Agreement) agrees to make Term Loans in the form of Additional Term Loans (as defined in the Restatement Agreement) in dollars to the Borrower in an amount notified to such Additional Term Lender by the Administrative Agent;

 

(b)                [reserved];

 

(c)                each Revolving Lender agrees, severally and not jointly, to fund Revolving Loans in dollars or an Alternative Currency to the Borrower, at any time and from time to time on or after the Fifth Amendment Effective Date and until the earlier of the Revolving Maturity Date for the applicable Class of Revolving Commitments and the termination of the applicable Revolving Commitment of such Revolving Lender in accordance with the terms hereof in an aggregate principal amount at any time outstanding that will not result in the Dollar Equivalent of such Revolving Lender’s (x) Revolving Exposure exceeding such Revolving Lender’s Revolving Commitment, (y) Tranche A Revolving Exposure exceeding such Revolving Lender’s Tranche A Revolving Commitment or (z) Tranche B Revolving Exposure exceeding such Revolving Lender’s Tranche B Revolving Commitment; and

 

(d)                on or prior to the earlier of (x) date that is 30 days after the Fifth Amendment Effective Date (or such longer period as consented to by the Administrative Agent in its sole discretion) and (y) the Dragon Acquisition Closing Date, one or more existing Revolving Lenders (any such Lender, a “Post-Amendment Increasing Lender”) shall be permitted to provide additional Fifth Amendment Tranche A Revolving Commitments and/or additional Tranche B Revolving Commitments to the Borrower by delivering to the Administrative Agent a duly executed signature page to the Fifth Amendment in the capacity as an Increasing Revolving Lender. Upon execution and delivery of such signature page, the Administrative Agent shall be permitted to restate Schedule 1.01(e) (Revolving Commitments) to reflect the Fifth Amendment Tranche A Revolving Commitments and Tranche B Revolving Commitments of such Post-Amendment Increasing Lender(s). It is understood and agreed that the Fifth Amendment Tranche A Revolving Commitments and/or Tranche B Revolving Commitments provided by any Post-Amendment Increasing Lender pursuant to this Section 2.01(d) shall not reduce the Maximum Incremental Amount set out in Section 2.24.

 

Within the limits set forth in clause (c) above and subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans, New Term Loans or Refinancing Term Loans may not be reborrowed.

 

Section 2.02.             Loans. (a)  Each Loan (other than Swingline Loans) 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 Commitments (provided that the Fifth Amendment Tranche A Revolving Commitments and the Tranche B Revolving Commitments shall not be included in any

 

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such determination until the Dragon Acquisition Closing Date) of the applicable Class; provided that any Borrowing of Revolving Loans after the Dragon Acquisition Closing Date and until the Tranche B Revolving Maturity Date shall be made ratably with respect to the aggregate Tranche A Revolving Commitments and the aggregate Tranche B Revolving Commitments; provided, further, that the failure of any Lender to make any Loan required to be made by it shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant to Section 2.02(f) or Section 2.02(g) subject to Section 2.22 relating to Swingline Loans, the Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of the Dollar Equivalent of $1,000,000 and not less than the Dollar Equivalent of $5,000,000 or (ii) equal to the remaining available balance of the applicable Commitments. Notwithstanding anything herein to the contrary, the Fifth Amendment Tranche A Revolving Commitments and the Tranche B Revolving Commitments shall not be available, and no Loans shall be required to be made pursuant thereto, until the Dragon Acquisition Closing Date.

 

(b)                Subject to Section 2.08 or Section 2.15, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall (i) not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) not result in increased costs for the Borrower pursuant to Sections 2.14, 2.15, 2.16 or 2.20 and (iii) take into account the obligations of each Lender to mitigate increased costs pursuant to Section 2.21 hereof. Borrowings of more than one Type may be outstanding at the same time; provided, however, that the Borrower shall not be entitled to request any Borrowing that, if made, would result in more than 16 Eurodollar Borrowings outstanding hereunder at any time. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

 

(c)                Except with respect to Loans made pursuant to Section 2.02(f)or Section 2.02(g), as otherwise set forth in Section 2.01(a) with respect to Term Loans and subject to Section 2.22 relating to Swingline Loans, each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate not later than 11:00 a.m., New York City time, and the Administrative Agent shall promptly credit the amounts so received to an account designated by the Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, return the amounts so received to the respective Lenders.

 

(d)                Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.02(c) and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower to but excluding the date such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing (in lieu of interest which would otherwise become due to such Lender pursuant to

 

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Section 2.06) or (ii) in the case of such Lender, a rate determined by the Administrative Agent to represent its cost of overnight or short-term funds (which determination shall be conclusive absent clearly demonstrable error). If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.

 

(e)                Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request any Revolving Borrowing which is a Eurodollar Borrowing if the Interest Period requested with respect thereto would end after the latest applicable Revolving Maturity Date at such time with respect to which the aggregate amount of Revolving Commitments maturing on or after such Revolving Maturity Date shall equal or exceed the amount of such Revolving Borrowing.

 

(f)                 If the Issuing Bank shall not have received from the Borrower the payment required to be made by Section 2.23(e) with respect to a Letter of Credit within the time specified in such Section, the Issuing Bank will promptly notify the Administrative Agent of the L/C Disbursement and the Administrative Agent will promptly notify each Revolving Lender of such L/C Disbursement and its Pro Rata Percentage thereof. Each Revolving Lender shall pay by wire transfer of immediately available funds in dollars to the Administrative Agent not later than 5:00 p.m., New York City time, on such date (or, if such Revolving Lender shall have received such notice later than 3:00 p.m., New York City time, on any day, not later than 10:00 a.m., New York City time, on the immediately following Business Day), an amount equal to such Lender’s Pro Rata Percentage of the Dollar Equivalent of such L/C Disbursement (it being understood that such amount shall be deemed to constitute an ABR Revolving Loan of such Lender and such payment shall be deemed to have reduced the Revolving L/C Exposure), and the Administrative Agent will promptly pay to the Issuing Bank amounts so received by it from the Revolving Lenders. The Administrative Agent will promptly pay to the Issuing Bank any amounts received by it from the Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Lender makes any payment pursuant to this Section 2.02(f); any such amounts received by the Administrative Agent thereafter will be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made such payments and to the Issuing Bank, as their interests may appear. If any Revolving Lender shall not have made its Pro Rata Percentage of such L/C Disbursement available to the Administrative Agent as provided above, such Lender and the Borrower severally agree to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with this Section 2.02(f) to but excluding the date such amount is paid, to the Administrative Agent for the account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable to Revolving Loans pursuant to Section 2.06(a) (in lieu of interest which would otherwise become due to such Lender pursuant to Section 2.06), and (ii) in the case of such Lender, for the first such day, the Federal Funds Effective Rate, and for each day thereafter, the Alternate Base Rate; and provided, further, that under no circumstances shall such Lender be entitled to seek indemnity from any Loan Party in respect of any interest so accrued or paid.

 

(g)                If, on the Dragon Acquisition Closing Date, there are any Revolving Loans outstanding, such Revolving Loans shall be deemed to be automatically prepaid to the Lenders thereof from the proceeds of new Revolving Loans made under this Agreement ratably in accordance with the aggregate Revolving Commitments in effect on such date, including all Tranche A Revolving Commitments (including, for the avoidance of doubt, the Fifth Amendment Tranche A Revolving Commitments) and the Tranche B Revolving Commitments. Such prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and costs incurred by any Lender in accordance with Section 2.16.

 

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Section 2.03.             Borrowing Procedure. In order to request a Borrowing (other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.01(a) or Section 2.02(f), as to which this Section 2.03 shall not apply), the Borrower shall notify the Administrative Agent by telephone (promptly confirmed by electronic communication) or shall hand deliver or send by electronic communication to the Administrative Agent a duly completed Borrowing Request (a) in the case of a Eurodollar Borrowing, whether denominated in dollars or in an Alternative Currency, not later than 12:00 (noon), New York City time, three Business Days before a proposed Borrowing, and (b) in the case of an ABR Borrowing, not later than 12:00 (noon), New York City time, one Business Day before a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be signed by or on behalf of the Borrower and shall specify the following information: (i) whether the Borrowing then being requested is to be a Term Borrowing or a Revolving Borrowing, and whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a Business Day); (iii) the number and location of the account to which funds are to be disbursed; (iv) the amount of such Borrowing; and (v) for Revolving Loans, the currency of such Borrowing (provided that each ABR Borrowing shall be denominated in dollars) if such Borrowing is to be a Eurodollar Borrowing, the initial Interest Period with respect thereto and the Class of Loans to which such initial Interest Period will apply; provided, however, that, notwithstanding any contrary specification in any Borrowing Request, each requested Borrowing shall comply with the requirements set forth in Section 2.02. If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be an ABR Borrowing. If no currency is specified with respect to the requested Borrowing, then the Borrower shall be deemed to have selected dollars. If no Interest Period with respect to any Eurodollar Borrowing is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly advise the applicable Lenders of any notice given in accordance with this Section 2.03 (and the contents thereof), and of each Lender’s portion of the requested Borrowing.

 

Section 2.04.             Repayment of Loans; Evidence of Debt. (a)  The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender (i) the principal amount of each New Term Loan and Refinancing Term Loan of such Lender made to the Borrower as provided in Section 2.11, and (ii) the then unpaid principal amount of each Revolving Loan of such Revolving Lender made to the Borrower on the applicable Revolving Maturity Date with respect to such Revolving Loan of such Revolving Lender. The Borrower hereby unconditionally promises to pay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the latest Revolving Maturity Date at such time and the first date after such Swingline Loan is made that is the 15th day or the last day of a calendar month and is at least three Business Days after such Swingline Loan is made. Each Loan shall be repaid in the currency in which it was made.

 

(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 to the Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement, and shall provide copies of such accounts to the Borrower upon its reasonable request (at the Borrower’s sole cost and expense).

 

(c)                The Administrative Agent shall maintain accounts in which it will 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 from the Borrower or any Subsidiary Guarantor and each Lender’s

 

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share thereof, and shall provide copies of such accounts to the Borrower upon its reasonable request (at the Borrower’s sole cost and expense).

 

(d)                The entries made in the accounts maintained pursuant to Sections 2.04(b) and 2.04(c) shall be conclusive evidence of the existence and amounts of the obligations therein recorded absent clearly demonstrable error; provided, however, 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 obligations 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 hereunder be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns (i) in the form of Exhibit F, if such promissory note relates to Revolving Borrowings or (ii) in the form of Exhibit G, if such promissory note relates to Term Loans or, in any such case, any other form reasonably acceptable to the Administrative Agent. Notwithstanding any other provision of this Agreement, in the event any Lender shall request and receive such a promissory note, the interests represented by such note shall at all times (including after any assignment of all or part of such interests pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named therein or its registered assigns.

 

Section 2.05.             Fees. (a)  The Borrower agrees to pay to each Lender, through the Administrative Agent, no later than 30 Business Days after the last day of March, June, September and December in each year and on each date on which any Revolving Commitment of such Lender shall expire or be terminated as provided herein, a commitment fee (a “Commitment Fee”) equal to 0.50% per annum on the average daily unused amount of the Revolving Commitments of such Lender (other than the Swingline Commitment) during the preceding quarter (or shorter or longer period commencing with the Closing Date and ending with the applicable Revolving Maturity Date with respect to the Commitments of such Lender or the date on which the applicable Commitments of such Lender shall expire or be terminated); provided that if the Consolidated Total Net Leverage Ratio as of the end of any quarter shall be equal to or less than 3:00 to 1:00, the Commitment Fee payable in respect of such quarter shall be equal to 0.375% per annum. All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The Commitment Fee due to each Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the Commitment of such Lender shall expire or be terminated as provided herein. For purposes of calculating Commitment Fees with respect to Revolving Commitments only, no portion of the Revolving Commitments shall be deemed utilized under Section 2.22 as a result of outstanding Swingline Loans. For the avoidance of doubt, from the Fifth Amendment Effective Date until the Dragon Acquisition Closing Date, no Commitment Fee shall be payable with respect to the Fifth Amendment Tranche A Revolving Commitments or the Tranche B Revolving Commitments.

 

(b)                Unless previously paid, the Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times from time to time agreed to in writing by the Borrower and the Administrative Agent, including pursuant to that certain fee letter, dated as of May 4, 2011, between the Borrower and Citigroup Global Markets Inc., as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof (the “Administrative Agent Fees”).

 

(c)                The Borrower agrees to pay (i) to each Revolving Lender, through the Administrative Agent, no later than 30 Business Days after the last day of March, June, September and December of each year and on the date on which the Revolving Commitment of such

 

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Revolving Lender shall be terminated as provided herein (each, an “L/C Fee Payment Date”) a fee (an “L/C Participation Fee”) calculated on such Revolving Lender’s Pro Rata Percentage of the daily aggregate Revolving L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C Disbursements which are earning interim interest pursuant to Section 2.23(h)) during the preceding quarter (or shorter or longer period commencing with the Closing Date and ending with the Revolving Maturity Date with respect to the Revolving Commitment of such Revolving Lender or the date on which all Letters of Credit have been canceled or have expired and the Revolving Commitments of all Revolving Lenders shall have been terminated) at a rate per annum equal to the Applicable Margin used to determine the interest rate on Revolving Borrowings comprised of Eurodollar Loans pursuant to Section 2.06 and (ii) to the Issuing Bank with respect to each outstanding Letter of Credit issued at the request of the Borrower a fronting fee, which shall accrue at such rate as shall be separately agreed upon between the Borrower and the Issuing Bank, on the Dollar Equivalent of the drawable amount of such Letter of Credit, payable quarterly in arrears on each L/C Fee Payment Date after the issuance date of such Letter of Credit (or as otherwise separately agreed upon between the Borrower and the applicable Issuing Bank), as well as the Issuing Bank’s customary documentary and processing charges with respect to the issuance, amendment, renewal or extension of any Letter of Credit issued at the request of the Borrower or processing of drawings thereunder (the fees in this clause (ii), collectively, the “Issuing Bank Fees”). All L/C Participation Fees and Issuing Bank Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days.

 

(d)                All Fees shall be paid on the dates due, in immediately available funds in dollars, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that the Issuing Bank Fees shall be paid directly to the Issuing Bank. Once paid, none of the Fees actually owed and due shall be refundable under any circumstances.

 

(e)                Notwithstanding anything herein to the contrary, during such period as a Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to Section 2.05(a) or 2.05(c)(i) (without prejudice to the rights of the non-Defaulting Lenders in respect of such fees), provided that (i) to the extent that all or a portion of such Defaulting Lender’s Pro Rata Percentage of any Revolving L/C Exposure or Swingline Exposure is reallocated to the non-Defaulting Lenders pursuant to Section 2.26, such fees that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such non-Defaulting Lenders, pro rata in accordance with their respective Revolving Commitments, and (ii) to the extent that all or any portion of such Defaulting Lender’s Pro Rata Percentage of any Revolving L/C Exposure or Swingline Exposure cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the Issuing Bank and the Swingline Lender (and the pro rata payment provisions of Section 2.17 will automatically be deemed adjusted to reflect the provisions of this Section 2.05(e)).

 

Section 2.06.             Interest on Loans. (a)  Subject to the provisions of Section 2.07, (x) the outstanding Loans comprising each ABR Borrowing, including each Swingline Loan denominated in dollars, shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate is determined by reference to the Prime Rate and over a year of 360 days at all other times) at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin and (y) the outstanding Swingline Loans denominated in Canadian Dollars shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a rate per annum equal to the Canadian Base Rate plus the Applicable Margin.

 

(b)                Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a

 

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year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.

 

(c)                Interest on each Loan shall be payable on the Interest Payment Dates applicable to such Loan except as otherwise provided in this Agreement. Subject to Section 2.08, the applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period, as the case may be, shall be determined by the Administrative Agent, and such determination shall, absent clearly demonstrable error, be final and conclusive and binding on all parties hereto. Interest on Loans denominated in dollars shall be payable in dollars, and interest on Loans denominated in an Alternative Currency shall be payable in such Alternative Currency.

 

Section 2.07.             Default Interest. If the Borrower shall default in the payment of the principal of or interest on any Loan or any other amount becoming due and payable hereunder or under any other Loan Document, by acceleration or otherwise, the Borrower shall on demand from time to time pay interest, to the extent permitted by law, on such defaulted amount to but excluding the date of actual payment (after as well as before judgment) (a) in the case of overdue principal, at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases, at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when determined by reference to the Prime Rate and over a year of 360 days at all other times) equal to the rate that would be applicable to an ABR Revolving Loan (or, with respect to any Obligation denominated in an Alternative Currency, the Adjusted LIBO Rate for a one month Interest Period) plus 2.00%.

 

Section 2.08.             Alternate Rate of Interest(a) In the event, and on each occasion, that prior to the commencement of any Interest Period for a Eurodollar Borrowing in any currency (a) the Administrative Agent shall have determined that adequate and reasonable means do not exist for determining the applicable Adjusted LIBO Rate for such Interest Period or (b) the Administrative Agent is advised by (i) if and to the extent such Eurodollar Borrowing consists of Revolving Loans, the Majority Revolving Lenders and/or (ii) if and to the extent such Eurodollar Borrowing consists of Term Loans, New Term Loans or Refinancing Term Loans, the Majority Term Lenders, as applicable, in each case, reasonably and in good faith that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing, for such Interest Period, then the Administrative Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to the Borrower and the Lenders. In the event of any such notice, until the Administrative Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such written or fax notice no longer exist, (A) any request by the Borrower for a Eurodollar Borrowing in such currency pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing in dollars (or in the case of any applicable Loan in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof) and (B) any Interest Period election that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective

 

(b)                Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the Administrative Agent determines in good faith (which determination shall be conclusive absent manifest error), or the Borrower or the Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or the Required Lenders, as applicable, have determined, that:

 

(i)                 adequate and reasonable means do not exist for ascertaining the LIBO Rate or the CDOR Rate for any requested Interest Period, including, without limitation, because

 

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the applicable screen rate is not available or published on a current basis, and such circumstances are unlikely to be temporary; or

 

(ii)               the supervisor for the administrator of the LIBO Rate or the CDOR Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate or the CDOR Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”).

 

then, after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate or the CDOR Rate, as applicable, with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in the United States in lieu of the LIBO Rate or CDOR Rate, as applicable (any such proposed rate, a “LIBOR Successor Rate”), provided that at no time shall the LIBOR Successor Rate be less than zero for purposes of this Agreement, together with any proposed LIBOR Successor Rate Conforming Changes and, notwithstanding anything to the contrary in Section 9.08, any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent notice that such Required Lenders do not accept such amendment.

 

(c)                If no LIBOR Successor Rate has been determined and the circumstances under clause (b)(i) above exist, the obligation of the Lenders to make or maintain Eurodollar Loans in the affected currency shall be suspended, (to the extent of the affected Eurodollar Loans or Interest Periods). Upon receipt of such notice, the Borrower may revoke any pending request for a Eurodollar Loan Borrowing of, conversion to or continuation of Eurodollar Loans (to the extent of the affected Eurodollar Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans in the amount specified therein (or in the case of any applicable Loan in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof).

 

Section 2.09.             Termination and Reduction of Commitments. (a)  Unless previously terminated in accordance with the terms hereof, (i) the Term Commitments shall automatically terminate at 5:00 p.m., New York City time, on the Closing Date, (ii) the Fifth Amendment Tranche A Revolving Commitments and the Tranche B Revolving Commitments shall automatically terminate on the Dragon Outside Date if the Dragon Acquisition Closing Date has not occurred on or prior to such date and (iii) subject to preceding clause (ii), the Revolving Commitments, the Swingline Commitment and the L/C Commitment shall automatically terminate on the Revolving Maturity Date with respect to such Revolving Commitments (provided that, notwithstanding anything else herein to the contrary, the Revolving Maturity Date applicable to the L/C Commitment and the Swingline Commitment shall be the Tranche A Revolving Maturity Date (as defined on the Fifth Amendment Effective Date) unless such date is extended with the prior written consent of, in the case of the L/C Commitment, the Issuing Banks or, in the case of the Swingline Commitment, the Swingline Lender). If any Letter of Credit remains outstanding on the Revolving Maturity Date with respect to the Revolving Commitments applicable to such Letter of Credit (and, at the time thereof, after giving effect to the reallocations of Letter of Credit participations provided for in Section 2.23(d)(iii) and the repayment of the applicable Revolving Loans at such time, the Revolving Exposure of the applicable Revolving Lenders exceeds the available Revolving Commitments of such Revolving Lenders), the Borrower shall deposit with the Administrative Agent an amount in cash equal to 103% of the aggregate undrawn amount of such Letter of Credit

 

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to secure the full obligations with respect to any drawings that may occur thereunder, which amount shall be promptly returned to the Borrower upon each such Letter of Credit being terminated or cancelled.

 

(b)                Upon at least three Business Days’ prior irrevocable written or fax notice to the Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to time in part permanently reduce, in each case without premium or penalty, the Revolving Commitments or the Swingline Commitment; provided, however, that (i) each partial reduction of the Revolving Commitments or the Swingline Commitment shall be in an integral multiple of $1,000,000 and in a minimum amount of $5,000,000 and (ii) the Total Revolving Commitment shall not be reduced to an amount that is less than the Aggregate Revolving Exposure then in effect; provided, further, that a notice of termination may state that such termination is conditioned upon the effectiveness of other credit facilities or any other event, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified termination date) if such condition is not satisfied.

 

(c)                Each reduction in the Revolving Commitments or the Swingline Commitment hereunder shall be made, at the Borrower’s option, to either (i) on a pro rata basis all Classes of Revolving Commitments outstanding on such date or (ii) the Classes of Revolving Commitments outstanding on such date in the order of the maturity date thereof, in each case, ratably among the applicable Lenders in accordance with their Pro Rata Percentages; provided, however, that (i) to the extent applicable, the Tranche A Revolving Commitments may not be reduced to an amount less than the sum of the aggregate principal amount of Tranche A Revolving Loans, Swingline Loans allocable to the Tranche A Revolving Commitments and the Tranche A Revolving L/C Exposure then outstanding and (iii) to the extent applicable, the Tranche B Revolving Commitments may not be reduced to an amount less than the sum of the aggregate principal amount of Tranche B Revolving Loans, Swingline Loans allocable to the Tranche B Revolving Commitments and the Tranche B Revolving L/C Exposure then outstanding. The Borrower shall pay to the Administrative Agent for the account of the applicable Lenders, on the date of each termination or reduction, the Commitment Fees on the amount of the Dollar Equivalent of the Commitments so terminated or reduced accrued to but excluding the date of such termination or reduction.

 

(d)                The Borrower may terminate the unused amount of the Commitment of a Defaulting Lender upon not less than ten Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof), and in such event the provisions of Section 2.26(e) shall apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender may have against such Defaulting Lender.

 

Section 2.10.             Conversion and Continuation of Borrowings. The Borrower shall have the right at any time upon prior irrevocable notice to the Administrative Agent (a)  not later than 12:00 (noon), New York City time, one Business Day prior to conversion, to convert any Eurodollar Borrowing of the Borrower into an ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three Business Days prior to conversion or continuation, to convert any ABR Borrowing of the Borrower denominated in dollars into a Eurodollar Borrowing or to continue any Eurodollar Borrowing of the Borrower denominated in dollars as a Eurodollar Borrowing for an additional Interest Period, and (c) not later than 12:00 (noon), New York City time, three Business Days prior to conversion or continuation, to convert or continue the Interest Period with respect to any Eurodollar Borrowing of the Borrower, whether denominated in dollars or an Alternative

 

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Currency, to another permissible Interest Period or an additional Interest Period, as applicable, subject in each case to the following:

 

(i)                 each conversion or continuation shall be made pro rata among the Lenders in accordance with the respective principal amounts of the Loans comprising the converted or continued Borrowing;

 

(ii)               if less than all the outstanding principal amount of any Borrowing shall be converted or continued, then each resulting Borrowing shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum number of Borrowings of the relevant Type;

 

(iii)             each conversion shall be effected by each Lender and the Administrative Agent by recording for the account of such Lender the new Loan of such Lender resulting from such conversion and reducing the Loan (or portion thereof) of such Lender being converted by an equivalent principal amount; accrued and unpaid interest on any Eurodollar Loan (or portion thereof) being converted shall be paid by the Borrower at the time of conversion;

 

(iv)              if any Eurodollar Borrowing is converted at a time other than the end of the Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to the Lenders pursuant to Section 2.16;

 

(v)                any portion of a Borrowing maturing or required to be repaid in less than one month may not be converted into or continued as a Eurodollar Borrowing;

 

(vi)              any portion of a Eurodollar Borrowing that cannot be converted into or continued as a Eurodollar Borrowing by reason of the immediately preceding clause shall be automatically converted at the end of the Interest Period in effect for such Borrowing into an ABR Borrowing;

 

(vii)            no Interest Period may be selected for any Eurodollar Term Borrowing that would end later than any applicable scheduled principal payment date for a Term Borrowing occurring on or after the first day of such Interest Period if, after giving effect to such selection, the aggregate outstanding amount of the sum of (A) the applicable Eurodollar Term Borrowings with Interest Periods ending on or prior to such payment date and (B) the applicable ABR Term Borrowings would not be at least equal to the principal amount of applicable Term Borrowings to be paid on such payment date; and

 

(viii)          after the occurrence and during the continuance of an Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar Loan.

 

Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this Agreement and specify (A) the identity, amount and currency of the Borrowing that the Borrower requests be converted or continued, (B) whether such Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR Borrowing, (C) if such notice requests a conversion, the date of such conversion (which shall be a Business Day) and (D) if such Borrowing is to be converted to or continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest Period is specified in any such notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall advise the Lenders of any notice given pursuant to this Section 2.10 and of each Lender’s portion of any converted or continued Borrowing. If the

 

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Borrower shall not have given notice in accordance with this Section 2.10 to continue any Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be converted or continued into (x) in the case of Loans denominated in dollars, an ABR Borrowing and (y) in the case of Loans denominated in an Alternative Currency, a Eurodollar Borrowing with an Interest Period of one month.

 

Section 2.11.             Repayment of Term Loans, New Term Loans and Refinancing Term Loans. (a)  All Term Loans and New Term Loans outstanding on the Fourth Amendment Effective Date have been repaid in full.

 

(b)                In the event and on each occasion that any Term Commitments, New Term Commitments or Refinancing Term Commitments shall be reduced or shall expire or terminate other than as a result of the making of a Term Loan, a New Term Loan or a Refinancing Term Loan the installments payable on each applicable repayment date, as applicable, shall be reduced pro rata by an aggregate amount equal to the amount of such reduction, expiration or termination.

 

(c)                [reserved].

 

(d)                On the dates (if any) set forth in the applicable Joinder Agreement, or if any such date is not a Business Day, on the next preceding Business Day, the Borrower shall pay to the Administrative Agent, for the account of the Lenders holding New Term Loans and/or Refinancing Term Loans, a principal amount of such New Term Loans and/or Refinancing Term Loans (in each case, as adjusted from time to time pursuant to Sections 2.11(b), 2.12 and 2.13(b)) in the aggregate amounts set forth in the applicable Joinder Agreement, together, in each case, with accrued and unpaid interest and Fees on the amount to be paid to but excluding the date of such payment.

 

(e)                All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall otherwise be without premium or penalty.

 

Section 2.12.             Prepayment. (a)  The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the provisions of Section 2.12(d) below, upon at least three Business Days’ prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR Loans, to the Administrative Agent before 11:00 a.m., New York City time; provided, however, that each partial prepayment shall be in an amount that is an integral multiple of the Dollar Equivalent of $1,000,000 and not less than the Dollar Equivalent of $5,000,000; provided, further, that partial prepayments may be made in respect of Tranche B Revolving Loans on the Tranche B Revolving Maturity Date without a pro rata payment of any Tranche A Revolving Loans that constitute the same Borrowing.

 

(b)                Except as otherwise set forth in Section 2.12(e) below, optional prepayments of Term Loans, New Term Loans and Refinancing Term Loans shall be applied, at the Borrower’s option, either (i) on a pro rata basis to all Classes of Term Loans, New Term Loans and Refinancing Term Loans in accordance with their respective aggregate principal amount or (ii) to the Classes of Term Loans, New Term Loans and Refinancing Term Loans in the order of the maturity date of each such Class (and, within any such Class, on a pro rata basis to the applicable Lenders); provided that with respect to any such prepayment of any Class of Term Loans, New Term Loans and Refinancing Term Loans such prepayment shall be applied against the remaining scheduled installments of principal due in respect of such Class as directed by the Borrower.

 

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(c)                Each notice of prepayment shall be substantially in the form of Exhibit H, shall be irrevocable and shall commit the Borrower to prepay such Borrowing by the amount stated therein on the date stated therein; provided that a notice of prepayment may state that such prepayment is conditioned upon the effectiveness of other credit facilities or any other event, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied. All prepayments and failures to prepay under this Section 2.12 shall be subject to Section 2.16. All prepayments under this Section 2.12 shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.

 

(d)                Any (i) amendment, amendment and restatement or other modification of this Agreement consummated after the Second Amendment Effective Date but on or prior to the date that is six months after the Second Amendment Effective Date or (ii) voluntary prepayment of all but not less than all of the Term Loans then outstanding consummated after the Second Amendment Effective Date but on or prior to the date that is six months after the Second Amendment Effective Date with the proceeds of a substantially concurrent issuance or incurrence of new bank loans (which voluntary prepayment shall be deemed to have occurred even if a portion of the Term Loans then outstanding are replaced, converted or re-evidenced with, into or by such new loans so long as all but not less than all of the Term Loans then outstanding are so prepaid) the primary purpose of which, in the case of either clause (i) or clause (ii), is to decrease the Applicable Margin with respect to the Term Loans then outstanding shall be accompanied by a fee payable to the Lenders holding the Term Loans then outstanding (which shall include any Non-Consenting Lender that is repaid in connection with any such amendment or amendment and restatement), in an amount equal to 1.00% of the aggregate principal amount of the Term Loans then outstanding only if such amendment, amendment and restatement, other modification or prepayment is not otherwise undertaken in connection with another material transaction or series of related material transactions.

 

(e)                (i)  Notwithstanding anything to the contrary in this Agreement (including but not limited to Sections 2.12(a), 2.12(b), 2.17, 2.18 and 2.19 (which provisions shall not be applicable to this Section 2.12(e)) or any other Loan Document, any Purchasing Borrower Party shall have the right at any time and from time to time prior to the Latest Maturity Date in respect to any Term Borrowing to purchase Loans under such Term Borrowing from the applicable Lenders at a discount to the par value of such Loans (each, a “Discounted Voluntary Purchase”) pursuant to and in accordance with this Section 2.12(e). Each Discounted Voluntary Purchase shall be subject to each of the following conditions: (A) no Discounted Voluntary Purchase shall be made, directly or indirectly, with the proceeds of any Loan, (B) any Discounted Voluntary Purchase may, at the election of the Purchasing Borrower Party, be offered in respect of one or more Classes of Term Loans, but shall be offered pro rata to all Term Lenders within the Classes of Term Loans selected by the Purchasing Borrower Party, (C) such Purchasing Borrower Party shall deliver to the Administrative Agent a certificate stating that (1) no Default or Event of Default has occurred and is continuing or would result from the Discounted Voluntary Purchase (after giving effect to any related waivers, supplements or amendments obtained in connection with such Discounted Voluntary Purchase) and (2) each of the conditions to such Discounted Voluntary Purchase contained in this Section 2.12(e) has been satisfied, (D) no Discounted Voluntary Purchase shall be deemed to be a prepayment pursuant to this Section 2.12 and (E) any Term Loans repurchased in any Discounted Voluntary Purchase by any Purchasing Borrower Party shall, without further action by any Person, be deemed cancelled and no longer outstanding (and may not be resold by any Purchasing Borrower Party) for all purposes of this Agreement and all other Loan Documents, including (x) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (y) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (z) the determination of Required Lenders, Majority Term Lenders or for any similar or related purpose,

 

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under this Agreement or any other Loan Document, and the Administrative Agent is hereby authorized to make appropriate entries in the Register to reflect any such cancellation.

 

(ii)               To the extent that a Purchasing Borrower Party seeks to make a Discounted Voluntary Purchase, such Purchasing Borrower Party will deliver to the Administrative Agent written notice substantially in the form of Exhibit I and with such changes as agreed to by the Administrative Agent (each, a “Discounted Purchase Option Notice”) not later than 11:00 a.m., New York City time, at least ten Business Days prior to the proposed Acceptance Date that such Purchasing Borrower Party desires to purchase Term Loans in an aggregate principal amount specified therein by the Purchasing Borrower Party (each, a “Proposed Discounted Purchase Amount”), in each case at a discount to the par value of such Term Loans as specified below. The Proposed Discounted Purchase Amount of Term Loans shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000. The Discounted Purchase Option Notice shall further specify with respect to the proposed Discounted Voluntary Purchase: (A) the Proposed Discounted Purchase Amount of Term Loans, (B) a discount range (which may be a single percentage) selected by the Purchasing Borrower Party with respect to such proposed Discounted Voluntary Purchase (representing the percentage of par of the principal amount of Term Loans to be prepaid) (the “Discount Range”) and (C) the date by which Term Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Purchase which shall be at least five Business Days following the date of the Discounted Purchase Option Notice (the “Acceptance Date”); provided that any Term Lender offered or approached to participate in any Discounted Voluntary Purchase (x) may elect or decline, in its sole discretion, to participate in such Discounted Voluntary Purchase, (y) shall make its own decision on whether to sell any of its Term Loans and, if it decides to do so, the principal amount of and price to be sought for such Term Loans and (z) shall, in its sole discretion, consult its own attorney, business advisor or tax advisor as to legal, business, tax and related matters concerning such Discounted Voluntary Purchase.

 

(iii)             Upon receipt of a Discounted Purchase Option Notice in accordance with Section 2.12(e)(ii), the Administrative Agent shall promptly notify each Term Lender thereof. On or prior to the Acceptance Date, each such Term Lender may, in its discretion, specify, by delivering a written notice substantially in the form of Exhibit J and with such changes as agreed to by the Administrative Agent (each, a “Lender Participation Notice”) to the Administrative Agent, (A) a minimum price (the “Acceptable Price”) within the Discount Range (for example, 80.0% of the par value of the Term Loans to be prepaid) and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of Term Loans with respect to which such Term Lender is willing to permit a Discounted Voluntary Purchase at the Acceptable Price (“Offered Loans”). Based on the Acceptable Prices and principal amounts of Term Loans specified by the Term Lenders in the applicable Lender Participation Notice, the Administrative Agent, in consultation with the Purchasing Borrower Party, shall determine the applicable discount for Term Loans (the “Applicable Discount”), which Applicable Discount shall be (x) the percentage specified by the Purchasing Borrower Party if the Purchasing Borrower Party has selected a single percentage pursuant to Section 2.12(e)(ii) for the Discounted Voluntary Purchase or (y) otherwise, the lowest Acceptable Price at which the Purchasing Borrower Party can pay the Proposed Discounted Purchase Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the lowest Acceptable Price); provided, however, that in the event that such Proposed Discounted Purchase Amount cannot be paid in full at any Acceptable Price, the Applicable Discount shall be the highest Acceptable Price specified by the Term Lenders that is within the Discount Range. The Applicable Discount shall be applicable to all Term Lenders who

 

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have offered to participate in the Discounted Voluntary Purchase and hold Qualifying Loans. Any Term Lender with outstanding Term Loans whose Lender Participation Notice is not received by the Administrative Agent on or prior to the Acceptance Date shall be deemed to have declined to participate in a Discounted Voluntary Purchase of any of its Term Loans at any discount to their par value within the Applicable Discount.

 

(iv)              The Purchasing Borrower Party shall make a Discounted Voluntary Purchase by prepaying at the Applicable Discount those Term Loans (or the respective portions thereof) offered by the Term Lenders (the “Qualifying Lenders”) that specify an Acceptable Price that is equal to or lower than the Applicable Discount (the “Qualifying Loans”); provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest and other amounts due and payable with respect thereto at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Purchase Amount, calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest and other amounts due and payable with respect thereto at such time) would be less than the amount of the aggregate proceeds required to prepay the Proposed Discounted Purchase Amount, calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay all Qualifying Loans.

 

(v)                Each Discounted Voluntary Purchase shall be made within four Business Days of the Acceptance Date (or such other date as the Administrative Agent may reasonably agree to, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (but subject to the provisions of Section 2.12(d)), upon irrevocable notice substantially in the form of Exhibit K and with such changes as agreed to by the Administrative Agent (each a “Discounted Voluntary Purchase Notice”), delivered by the applicable Purchasing Borrower Party to the Administrative Agent no later than 11:00 a.m. (New York City time), three Business Days prior to the date of such Discounted Voluntary Purchase, which notice shall specify the date and amount of the Discounted Voluntary Purchase and the Applicable Discount determined by the Administrative Agent. Upon receipt of any Discounted Voluntary Purchase Notice, the Administrative Agent shall promptly notify each relevant Term Lender thereof. If any Discounted Voluntary Purchase Notice is given, the Purchasing Borrower Party shall pay the amount specified in such Discounted Voluntary Purchase Notice to the applicable Qualifying Lenders on the date specified therein, together with accrued and unpaid interest on the par principal amount of such applicable Qualifying Loans to but excluding the date of payment, and each such Discounted Voluntary Purchase shall be consummated pursuant to an Assignment and Assumption executed by the applicable Purchasing Borrower Party and each applicable Qualifying Lender and shall be recorded in the Register in accordance with Section 9.04(e).

 

(vi)              To the extent not expressly set forth herein, each Discounted Voluntary Purchase shall be consummated pursuant to reasonable procedures (including as to timing, rounding and calculation of Applicable Discount in accordance with Section 2.12(e)(iii) above) established by the Administrative Agent and the Borrower.

 

(vii)            Prior to the delivery of a Discounted Voluntary Purchase Notice, upon written notice to the Administrative Agent, the Purchasing Borrower Party may withdraw

 

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its offer to make a Discounted Voluntary Purchase pursuant to any Discounted Purchase Option Notice.

 

(viii)          Each of each Qualifying Lender and each Purchasing Borrower Party acknowledges and agrees that, with respect to any Discounted Voluntary Purchase, (A) it or any other party to such Discounted Voluntary Purchase may have, or come into possession of, information (collectively, the “Excluded Information”) regarding the Borrower, its Subsidiaries, their respective securities or the Loan Documents (including financial results and business plans) that is not known or available to any Agent, any Arranger, any Issuing Bank, any Loan Party or any Lender and that may be material to its or such other party’s decision to enter into such Discounted Voluntary Purchase (including material non-public information with respect to the Borrower, its Subsidiaries or their respective securities), and that it or any other party to such Discounted Voluntary Purchase may be entering into such Discounted Voluntary Purchase based on the Excluded Information, (B) it has independently and without reliance on any Agent, any Arranger, any Issuing Bank, any Loan Party or any Lender (and no, Agent, Arranger, Issuing Bank, Loan Party or Lender shall have any duty or responsibility to conduct any analysis on its behalf), and based on such information as it has deemed appropriate (including, if applicable, the Excluded Information), made its own independent analysis (including credit, legal, tax and bankruptcy analysis), consulted with its own advisors with respect thereto as it has deemed appropriate and determined to enter into such Discounted Voluntary Purchase and to consummate the transactions contemplated thereby, notwithstanding its lack of knowledge of the Excluded Information or the knowledge by any other party to such Discounted Voluntary Purchase of the Excluded Information, and (C) none of any Agent, any Arranger, any Issuing Bank, any Loan Party or any Lender shall have any liability to it with respect to the nondisclosure of the Excluded Information, and it hereby to the extent permitted by law waives and releases any claims it may have against any Agent, any Arranger, any Issuing Bank, any Loan Party or any Lender under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information; provided that the Excluded Information shall not and does not affect the truth or accuracy of any representations or warranties made by it in any documents executed by it with respect to such Discounted Voluntary Purchase or any representations or warranties made by any Loan Party under any Loan Document.

 

(ix)              None of any Agent, any Arranger, any Issuing Bank, any Lender or any of their respective affiliates assumes any responsibility for the accuracy or completeness of the information concerning the Borrower, the Loan Parties, or any of their Affiliates (whether contained in the documents with respect to any Discounted Voluntary Purchase or otherwise) or for any failure to disclose events that may have occurred and may affect the significance or accuracy of such information.

 

(x)                Solely for purposes of this Section 2.12(e), references to Term Loans and Term Lenders shall include New Term Loans, Refinancing Term Loans, Term Lenders and Refinancing Term Lenders, as applicable.

 

Section 2.13.             Mandatory Prepayments. (a)  In the event of any termination in full of all the Revolving Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Borrowings and all its outstanding Swingline Loans and replace all its outstanding Letters of Credit and/or deposit an amount equal to the Revolving L/C Exposure in cash in a cash collateral account established with the Administrative Agent for the benefit of the Revolving Lenders and the Issuing Bank. If as a result of any partial reduction of the Revolving Commitments the Aggregate Revolving Exposure would exceed the Total Revolving

 

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Commitment, after giving effect thereto, then the Borrower shall, on the date of such reduction, repay or prepay Revolving Borrowings or Swingline Loans (or a combination thereof) and/or cash collateralize Letters of Credit in an amount sufficient to eliminate such excess. Each prepayment under this Section 2.13(a) shall be made on a pro rata basis among the Revolving Commitments based on the Pro Rata Percentages of each Lender.

 

(b)                (i) In the event that, pursuant to Section 6.04, the Borrower is required to commence an Asset Sale Offer, the Borrower shall, to the extent required under the applicable Joinder, prepay the Term Loans, New Term Loans and Refinancing Term Loans then outstanding according to the procedures and in the amounts specified below. The Asset Sale Offer shall be made to all Term Lenders, New Term Lenders and Refinancing Term Lenders and, at the election of the Borrower, to other holders of other Indebtedness under Credit Facilities that is pari passu with the Guaranteed Obligations and that constitutes Priority Lien Debt (as defined in the Collateral Trust Agreement) containing provisions similar to those set forth in this Agreement with respect to offers to prepay, purchase or redeem with the proceeds of sales of assets on a pro rata basis (and within any Class on a pro rata basis to the applicable Lenders). The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by Applicable Laws (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Prepayment Date”), the Borrower shall apply all Excess Proceeds (the “Offer Amount”) to the prepayment of the Term Loans, New Term Loans and Refinancing Term Loans then outstanding with respect to which the Lenders thereof shall have elected a prepayment with such Excess Proceeds and, if applicable and at the Borrower’s election, to the prepayment or the purchase, as applicable, of such other pari passu Indebtedness under Credit Facilities (on a pro rata basis, if applicable) or, if less than the Offer Amount has been accepted in such Asset Sale Offer at the end of the applicable Offer Period, to the prepayment of the Term Loans, New Term Loans and Refinancing Term Loans then outstanding with respect to which the Lenders thereof shall have elected a prepayment with such Offer Amount. If the aggregate principal amount of Term Loans, New Term Loans, Refinancing Term Loans and such other pari passu Indebtedness accepting such Asset Sale Offer exceeds the Offer Amount, such prepayment or purchase shall be made on a pro rata basis with respect thereto.

 

(ii)               Upon the commencement of an Asset Sale Offer, the Borrower shall deliver to the Administrative Agent, on the first day of each applicable Offer Period, written or fax notice (or telephone notice promptly confirmed by written or fax notice) substantially in the form of Exhibit L, which notice shall be irrevocable and shall commit the Borrower to prepay the Term Loans, New Term Loans and Refinancing Term Loans then outstanding by the Offer Amount stated therein on the Prepayment Date stated therein. The Administrative Agent shall notify the Term Lenders, New Term Lenders and Refinancing Term Lenders promptly upon receipt of the Borrower’s notice.

 

(iii)             On the Prepayment Date, the Borrower shall (A) prepay, on a pro rata basis to the extent necessary, the Offer Amount of the Term Loans, New Term Loans and Refinancing Term Loans then outstanding or portions thereof with respect to which the Lenders thereof shall have elected a prepayment with such Excess Proceeds pursuant to the Asset Sale Offer, or, if less than the Offer Amount has been accepted in such Asset Sale Offer at the end of the applicable Offer Period, prepay the Term Loans, New Term Loans and Refinancing Term Loans then outstanding with respect to which the Lenders thereof shall have elected a prepayment with such Offer Amount, which prepayment shall, in each case, be applied on a pro rata basis against the remaining scheduled installments of principal due and the final payment on the maturity date in respect of each Class of Term Loans, New Term Loans and Refinancing Term Loans and (B) deliver to the

 

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Administrative Agent an Officers’ Certificate stating that such Term Loans, New Term Loans and Refinancing Term Loans or portions thereof were prepaid in accordance with the terms of this Section 2.13(b).

 

(c)                The Borrower shall deliver to the Administrative Agent and the Issuing Bank, at the time of each prepayment, reduction or cash collateralization required under this Section 2.13, a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment, reduction or cash collateralization. Each notice of reduction or cash collateralization shall specify the reduction or cash collateralization date, the Type and Class of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid and the amount of any reduction of Revolving Commitments. All prepayments of Borrowings or reductions of Revolving Commitments pursuant to this Section 2.13 shall be accompanied by accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment and shall be subject to Section 2.16, but shall otherwise be without premium or penalty.

 

Section 2.14.             Reserve Requirements; Change in Circumstances. (a)  Notwithstanding any other provision of this Agreement, if any Change in Law shall:

 

(i)                 impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, the Administrative Agent or the Issuing Bank,

 

(ii)               subject any Lender, the Administrative Agent or any Issuing Bank to any Taxes (other than Indemnified Taxes or Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)             impose on any Lender, the Administrative Agent or any Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit (except, in each case, any such reserve requirement which is reflected in the Adjusted LIBO Rate),

 

and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining, continuing or converting to any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to any Lender, the Administrative Agent or any Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) by an amount reasonably deemed by such Lender, the Administrative Agent or such Issuing Bank to be material, then the Borrower will pay to such Lender, the Administrative Agent or the Issuing Bank, as the case may be, promptly upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)                If any Lender, the Administrative Agent or any Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, the Administrative Agent’s or the Issuing Bank’s capital or on the capital of such Lender’s, the Administrative Agent’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit or Swingline Loans purchased by, such Lender or the Letters of Credit issued by such Issuing Bank to a level below that which such Lender, the Administrative

 

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Agent or such Issuing Bank or such Lender’s, the Administrative Agent’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s, the Administrative Agent’s or such Issuing Bank’s policies and the policies of such Lender’s, the Administrative Agent’s or such Issuing Bank’s holding company with respect to capital adequacy or liquidity) by an amount reasonably deemed by such Lender, the Administrative Agent or such Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender, the Administrative Agent or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Administrative Agent or such Issuing Bank or such Lender’s, the Administrative Agent’s or such Issuing Bank’s holding company for any such reduction suffered.

 

(c)                A certificate of a Lender, the Administrative Agent or an Issuing Bank setting forth the amount or amounts reasonably determined by such Person to be necessary to compensate such Lender, the Administrative Agent or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section, the calculations and criteria applied to determine such amount or amounts, and other documentation or information reasonably supporting the conclusions in such certificate, shall be delivered to the Borrower and shall, absent clearly demonstrable error, be final and conclusive and binding. The Borrower shall pay such Lender, the Administrative Agent or the Issuing Bank, as the case may be, the amount or amounts shown as due on any such certificate delivered by it within 10 days after its receipt of the same.

 

(d)                Failure or delay on the part of any Lender, the Administrative Agent or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s, the Administrative Agent’s or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender, the Administrative Agent or any Issuing Bank under paragraph (a) or (b) above for increased costs or reductions with respect to any period prior to the date that is 270 days prior to such request; provided, further, that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 270-day period. The protection of this Section shall be available to each Lender, the Administrative Agent and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

 

Section 2.15.             Change in Legality. (a)  Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to the Borrower (which notice shall include documentation or information in reasonable detail supporting the conclusions in such notice) and to the Administrative Agent:

 

(i)                 such Lender may declare that Eurodollar Loans in the affected currency or currencies will not thereafter (for the duration of such unlawfulness) be made by such Lender hereunder (or be continued for additional Interest Periods and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans), whereupon any request for a Eurodollar Borrowing denominated in dollars (or to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing denominated in dollars for an additional Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn; and

 

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(ii)               such Lender may require that (x) all outstanding Eurodollar Loans denominated in dollars made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in paragraph (b) below and (y) cause the interest rate with respect to all outstanding Eurodollar Loans denominated in an Alternative Currency to be determined by an alternative rate mutually acceptable to the Borrower and the applicable Lenders.

 

In the event any Lender shall exercise its rights under (i), (ii) or (iii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans. Any such conversion of a Eurodollar Loan under (i) above shall be subject to Section 2.16.

 

(b)                For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower.

 

Section 2.16.             Indemnity. The Borrower shall indemnify each Lender against any loss or expense that such Lender may sustain or incur as a consequence of (a) any event, other than a default by such Lender in the performance of its obligations hereunder, which results in (i) such Lender receiving or being deemed to receive any amount on account of the principal of any Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with respect to any Eurodollar Loan, in each case other than on the last day of the Interest Period in effect therefor or (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made pursuant to a conversion or continuation under Section 2.10) not being made after notice of such Loan shall have been given by the Borrower hereunder (any of the events referred to in this clause (a) being called a “Breakage Event”) or (b) any default in the making of any payment or prepayment required to be made hereunder. In the case of any Breakage Event, such loss shall include, in the case of a Lender, an amount equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the Interest Period in effect (or that would have been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period. A certificate of any Lender setting forth any amount or amounts which such Lender believes it is entitled to receive pursuant to this Section 2.16, including the calculations and criteria applied to determine such amount or amounts, and other documentation or information reasonably supporting the conclusions in such certificate, shall be delivered to the Borrower and shall, absent clearly demonstrable error, be final and conclusive and binding.

 

Section 2.17.             Pro Rata Treatment Except as provided below in this Section 2.17 with respect to Swingline Loans and as required under Section 2.09(d), 2.12(a), 2.12(e), 2.13, 2.14, 2.15, 2.20, 2.21, 2.22(e), 2.23(d)(ii), 2.23(d)(iii), 2.24, 2.25, 9.04, or 9.19, each Borrowing, each payment or prepayment of principal of any Borrowing by the Borrower, each payment of reimbursement obligations, each payment of interest on the Loans, each payment of the Commitment Fees, each reduction of the Term Commitments, the New Term Commitments, the Refinancing Term Commitments or the Revolving Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type, in each case, by the Borrower, shall be allocated pro rata among the Lenders in accordance with their respective

 

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applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans). For purposes of determining the available Revolving Commitments of the Lenders at any time, each outstanding Swingline Loan shall be deemed to have utilized the Revolving Commitments of the Lenders (including those Lenders which shall not have made Swingline Loans) pro rata in accordance with such respective Revolving Commitments (provided that the Fifth Amendment Tranche A Revolving Commitments and Tranche B Revolving Commitments shall not be included in any such determination until the Dragon Acquisition Closing Date). Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.

 

Section 2.18.             Sharing of Setoffs. Each Lender agrees that if, other than as a result of any assignment of Loans pursuant to and in accordance with this Agreement (including any assignment to any Purchasing Borrower Party pursuant to and in accordance with Section 2.12(e) and any assignment by a Lender pursuant to and in accordance with Section 9.04), it shall, through the exercise of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq., as amended from time to time, or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Loan or Loans or L/C Disbursement as a result of which the unpaid principal portion of its Loans and participations in L/C Disbursements shall be proportionately less than the unpaid principal portion of the Loans and participations in L/C Disbursements of any other Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the Loans and Revolving L/C Exposure of such other Lender, so that the aggregate unpaid principal amount of the Loans and Revolving L/C Exposure and participations in Loans and Revolving L/C Exposure held by each Lender shall be in the same proportion to the aggregate unpaid principal amount of all Loans and Revolving L/C Exposure then outstanding as the principal amount of its Loans and Revolving L/C Exposure prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans and Revolving L/C Exposure outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest; provided, further, that in the event that any Defaulting Lender exercises any such right of setoff, (a) all amounts so set off will be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.26 and, pending such payment, will be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders and (b) the Defaulting Lender will provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a participation in a Loan or L/C Disbursement deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.

 

Section 2.19.             Payments. (a)  The Borrower shall make each payment (including principal of or interest on any Borrowing or any L/C Disbursement or any Fees or other amounts)

 

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hereunder and under any other Loan Document not later than 12:00 (noon) (or such other time as otherwise required by Section 2.23(e)), New York City time, on the date when due in immediately available funds, without setoff, defense or counterclaim. Each such payment (other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, (ii) principal of and interest on Swingline Loans, which shall be paid directly to the Swingline Lender except as otherwise provided in Section 2.22(e) and (iii) payments pursuant to Sections 2.14, 2.16 or 2.20, which at the election of the Borrower may be made directly to the Lender claiming the benefit of any such Sections) shall be made to the Administrative Agent at its offices at 390 Greenwich Street, New York, NY 10013 by wire transfer of immediately available funds (or as otherwise agreed by the Borrower and the Administrative Agent). The Administrative Agent shall pay to each Lender any payment received on such Lender’s behalf promptly after the Administrative Agent’s receipt of such payment. All payments hereunder and under each other Loan Document shall be made in dollars or with respect to any Borrowing or L/C Disbursement in an Alternative Currency, in the applicable Alternative Currency.

 

(b)                Except as otherwise expressly provided herein, whenever any payment (including principal of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Loan Document shall become due, or otherwise would occur, on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or Fees, if applicable.

 

Section 2.20.             Taxes. (a)  Except as otherwise provided herein, any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes; provided that if the Borrower or any other Loan Party or the Administrative Agent shall be required to deduct or withhold any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable by the Borrower or such other Loan Party shall be increased as necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section) the Administrative Agent, such Issuing Bank or such Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions and withholdings been made, (ii) the Borrower or such other Loan Party shall make (or cause to be made) such deductions and withholdings and (iii) the Borrower or such other Loan Party shall pay (or cause to be paid) the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. In addition, the Borrower or any other Loan Party hereunder shall pay (or cause to be paid) any Other Taxes imposed other than by deduction or withholding to the relevant Governmental Authority in accordance with applicable law.

 

(b)                The Borrower shall indemnify the Administrative Agent, each Issuing Bank and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Issuing Bank or such Lender, as the case may be, or any of their respective Affiliates, on or with respect to any payment by or on account of any obligation of the Borrower or any Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability shall be delivered to the Borrower by an Issuing Bank or a Lender, or by the Administrative Agent on its behalf or on behalf of an Issuing Bank or a Lender, promptly upon such party’s determination of an indemnifiable event and such certificate shall be conclusive absent clearly demonstrable error; provided that the failure to deliver such certificate shall not affect the obligations of the Borrower under this Section 2.20(b) except to the extent the

 

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Borrower is actually prejudiced thereby. Payment under this Section 2.20(b) shall be made within 15 days from the date of delivery of such certificate; provided that the Borrower shall not be obligated to make any such payment to the Administrative Agent, the Issuing Bank or the Lender (as the case may be) in respect of penalties, interest and other liabilities attributable to any Indemnified Taxes or Other Taxes if and to the extent that such penalties, interest and other liabilities are attributable to the gross negligence or willful misconduct of the Administrative Agent, such Issuing Bank or such Lender, in each case, as determined by a court of competent jurisdiction by final and nonappealable judgment, or to the failure of the Administrative Agent, an Issuing Bank or a Lender to deliver a timely certificate as to the amount of an indemnifiable liability.

 

(c)                As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or any other Loan Party to a Governmental Authority, and in any event within 60 days of such payment being due, the Borrower shall deliver to the Administrative Agent, the relevant Lender or the relevant Issuing Bank, if applicable, 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, the relevant Lender or the relevant Issuing Bank, if applicable.

 

(d)                Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the reasonable written request of the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate; provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment such completion, execution or delivery would not materially prejudice the legal position of such Lender.

 

In addition, each Foreign Lender shall (i) furnish to the Administrative Agent and the Borrower on or before it becomes a party to this Agreement, two accurate and complete copies of executed (a) U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (or successor form), (b) to the extent the Foreign Lender is not the beneficial owner, U.S. Internal Revenue Service Forms W-8IMY, accompanied by U.S. Internal Revenue Service Form W-8ECI (or successor form), U.S. Internal Revenue Service Forms W-8BEN or W-BEN-E, as applicable (or successor form), U.S. Internal Revenue Service Form W-9 (or successor form), and/or other certification documents from each beneficial owner, as applicable, or (c) U.S. Internal Revenue Service Form W-8ECI (or successor form), certifying, in each case, to such Foreign Lender’s legal entitlement to an exemption or reduction from U.S. federal withholding tax with respect to all interest payments hereunder, and (ii) provide new (a) U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (or successor form), (b) to the extent the Foreign Lender is not the beneficial owner, U.S. Internal Revenue Service Forms W-8IMY, accompanied by U.S. Internal Revenue Service Form W-8ECI (or successor form), U.S. Internal Revenue Service Forms W-8BEN or W-BEN-E, as applicable (or successor form), U.S. Internal Revenue Service Form W-9 (or successor form), and/or other certification documents from each beneficial owner, as applicable, or (c) U.S. Internal Revenue Service Form W-8ECI (or successor form), in each case, upon the expiration or obsolescence of any previously delivered form to reconfirm any complete exemption from, or any entitlement to a reduction in, U.S. federal withholding tax with respect to any interest payment hereunder; provided that any Foreign Lender that is not a “bank” within the meaning of Section 881(c)(3)(A) of the Tax Code and is relying on the so-called “portfolio interest exemption” shall also furnish a “Non-Bank Certificate” in the form of Exhibit M together with a Form W-8BEN (or W-8BEN-E or successor form). Notwithstanding any other provision of this Section 2.20(d), a

 

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Foreign Lender shall not be required to deliver any form pursuant to this Section 2.20(d) that such Foreign Lender is not legally able to deliver.

 

(e)                Any Lender that is a United States person, as defined in Section 7701(a)(30) of the Tax Code shall deliver to the Borrower (with a copy to the Administrative Agent) two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form that such person is entitled to provide at such time in order to comply with United States back-up withholding requirements.

 

(f)                 If a payment made to a Lender hereunder may be subject to U.S. federal withholding tax under FATCA, such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender has complied with such Lender’s obligations or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph (f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

(g)                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 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), 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 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 over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(h)                Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 2.20 shall survive the payment in full of all amounts due hereunder.

 

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

 

Section 2.21.             Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a)  In the event (i) any Lender or any Issuing Bank delivers a certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower is required to pay any additional amount to any Lender

 

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or any Issuing Bank or any Governmental Authority on account of any Lender or any Issuing Bank pursuant to Section 2.20 or (iv) any Lender is a Defaulting Lender, the Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 9.04(b)), upon notice to such Lender or such Issuing Bank and the Administrative Agent, require such Lender or such Issuing Bank to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights and obligations under this Agreement to an assignee that shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (A) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, (B) the Borrower shall have received the prior written consent of the Administrative Agent (and, if a Revolving Commitment is being assigned, of the Issuing Banks and the Swingline Lender), which consent shall not unreasonably be withheld or delayed, and (C) the Borrower or such assignee shall have paid to the affected Lender or Issuing Bank in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees and other amounts accrued for the account of such Lender or such Issuing Bank hereunder (including any amounts under Section 2.14 and Section 2.16); provided, further, that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s or the Issuing Bank’s claim for compensation under Section 2.14 or notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to cause such Lender or such Issuing Bank to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.15, or cease to result in amounts being payable under Section 2.20, as the case may be (including as a result of any action taken by such Lender or such Issuing Bank pursuant to paragraph (b) below), or if such Lender or such Issuing Bank shall waive its right to claim further compensation under Section 2.14 in respect of such circumstances or event or shall withdraw its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in respect of such circumstances or event, as the case may be, then such Lender or such Issuing Bank shall not thereafter be required to make any such transfer and assignment hereunder. Each of each Lender and each Issuing Bank agrees that, if the Borrower exercises its option under this Section 2.21(a), such Lender or such Issuing Bank, as applicable, shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 9.04 (including an Assignment and Assumption duly executed by such Lender or such Issuing Bank, as applicable, with respect to such assignment). In the event that a Lender or an Issuing Bank, as applicable, does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, the Borrower shall be entitled (but not obligated), and such Lender or such Issuing Bank, as applicable, authorizes, directs and grants an irrevocable power of attorney (which power is coupled with an interest) to the Borrower, to execute and deliver, on behalf of such Lender or such Issuing Bank, as applicable, as assignor, all documentation necessary to effectuate such assignment in accordance with Sections 2.21 and 9.04 (including an Assignment and Assumption) in the circumstances contemplated by this Section 2.21(a) and any documentation so executed and delivered by the Borrower shall be effective for all purposes of documenting an assignment pursuant to and in accordance with Section 9.04.

 

(b)                If (i) any Lender or any Issuing Bank shall request compensation under Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional amount to any Lender or any Issuing Bank or any Governmental Authority on account of any Lender or the Issuing Bank, pursuant to Section 2.20, then such Lender or such Issuing Bank shall use reasonable efforts (which shall not require such Lender or such Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory

 

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restrictions or suffer any disadvantage or burden reasonably deemed by it to be significant) (A) to file any certificate or document reasonably requested in writing by the Borrower or (B) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would reduce or eliminate its claims for compensation under Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would reduce or eliminate amounts payable pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any Issuing Bank in connection with any such filing or assignment, delegation and transfer.

 

Section 2.22.             Swingline Loans. (a)  Swingline Commitment. Subject to the terms and conditions hereof and relying upon the representations and warranties set forth herein, the Swingline Lender agrees to make loans in dollars or Canadian Dollars to the Borrower, at any time and from time to time after the Closing Date, and until the earlier of the latest Revolving Maturity Date at such time and the termination of the Revolving Commitments in accordance with the terms hereof (provided that the agreement of the Swingline Lender to make Swingline Loans shall not extend beyond the Tranche A Revolving Maturity Date (as defined on the Fifth Amendment Effective Date) without the prior written consent of the Swingline Lender), in an aggregate principal amount at any time outstanding that will not result in (i) the Dollar Equivalent of the aggregate principal amount of all Swingline Loans (x) denominated in dollars exceeding $100,000,000 in the aggregate and (y) denominated in Canadian Dollars exceeding $10,000,000 in the aggregate, (ii) the Swingline Loans exceeding the amount of available Revolving Commitments whose applicable Revolving Maturity Date is no more than 15 days after such Swingline Loan is (or is to be) made or (iii) the Aggregate Revolving Exposure, after giving effect to any Swingline Loan, exceeding the Total Revolving Commitment. Each Swingline Loan shall be denominated in dollars or Canadian Dollars and shall be in a principal amount that is an integral multiple of the Dollar Equivalent of $500,000. The Swingline Commitment may be terminated or reduced from time to time as provided herein. Within the foregoing limits, the Borrower may borrow, pay or prepay, without premium or penalty, and reborrow Swingline Loans hereunder, subject to the terms, conditions and limitations set forth herein.

 

(b)                Swingline Loans. The Borrower shall notify the Administrative Agent by electronic communication, or by telephone (confirmed by electronic communication), not later than 10:00 a.m., New York City time, on the day of a proposed Swingline Loan to be made to it. Such notice shall be delivered on a Business Day, shall be irrevocable and shall refer to this Agreement and shall specify the requested date (which shall be a Business Day) and amount and currency of such Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any notice received from the Borrower pursuant to this Section 2.22(b). The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender by no later than 3:00 p.m. on the date such Swingline Loan is so requested.

 

(c)                Prepayment. The Borrower shall have the right at any time and from time to time to prepay any Swingline Loan, in whole or in part, upon giving written or fax notice (or telephone notice promptly confirmed by written or fax notice) to the Swingline Lender and to the Administrative Agent before 12:00 (noon), New York City time, on the date of prepayment at the Swingline Lender’s address for notices specified in Section 9.01. All principal payments of Swingline Loans shall be accompanied by accrued interest on the principal amount being repaid to the date of payment.

 

(d)                Interest. Each Swingline Loan (x) denominated in dollars shall be an ABR Loan and, subject to the provisions of Section 2.07, shall bear interest as provided in Section 2.06(a) and

 

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(y) denominated in Canadian Dollars shall be a Canadian Base Rate Loan and, subject to the provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).

 

(e)                Participations. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time on any Business Day require the Revolving Lenders to acquire participations in all or a portion of the Swingline Loans outstanding (x) in the case of Swingline Loans denominated in dollars, on such Business Day or (y) in the case of Swingline Loans denominated in Canadian Dollars, on the following Business Day. Such notice shall specify the aggregate amount and currency of Swingline Loans in which Revolving Lenders will participate. The Administrative Agent will, promptly upon receipt of such notice, give notice to each Revolving Lender, specifying in such notice such Lender’s Pro Rata Percentage of such Swingline Loan or Loans. In furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this Section 2.22(e) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this Section 2.22(e) by wire transfer of immediately available funds, in the same manner as provided in Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Lenders under this Section) and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this Section 2.22(e) and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this Section 2.22(e) and to the Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this Section 2.22(e) shall not relieve the Borrower (or other party liable for obligations of the Borrower) of any default in the payment thereof.

 

Section 2.23.             Letters of Credit. (a)  General. Subject to the terms and conditions hereof, (i) each Issuing Bank agrees to issue, upon the Borrower’s request, a Letter of Credit denominated in dollars or an Alternative Currency in such form as may be reasonably approved from time to time by the Issuing Bank at any time and from time to time while the Revolving Commitments remain in effect for the Borrower’s account or for the account of any of the Subsidiaries (other than the Funded L/C SPV) or any Minority Investment, provided that (A) the agreement of the Issuing Bank to issue Letters of Credit shall not extend beyond the Tranche A Revolving Maturity Date (as defined on the Fifth Amendment Effective Date), without the prior written consent of the Issuing Bank, (B) if such Letter of Credit is being issued for the account of a Subsidiary (other than the Funded L/C SPV), the Borrower and such Subsidiary (other than the Funded L/C SPV), as the case may be, shall be co-applicants with respect to such Letter of Credit, (C) if such Letter of Credit is being issued for the account of a Subsidiary (other than the Funded L/C SPV) or any Minority Investment, the Issuing Bank shall have received at least three Business Days (or such shorter period of time acceptable to the Issuing Bank) prior to the proposed date of issuance of such Letter of Credit all documentation and other information reasonably requested by it with respect to such Subsidiary or Minority Investment that is required by bank regulatory

 

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authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (D) no Issuing Bank will be required to provide documentary, trade or commercial letters of credit or bankers’ acceptances of a similar nature without its prior written consent (in such Issuing Bank’s sole discretion) and (E) the Dollar Equivalent of the maximum amount of Letters of Credit at any time issued and outstanding of any Issuing Bank shall not exceed the amount set forth on Schedule 2.23(b) (as such schedule may be updated from time to time with the consent of the applicable Issuing Banks) without the prior written consent of the Borrower and the applicable Issuing Bank (it being understood and agreed that no other consent (including pursuant to Section 9.08 of this Agreement) will be required to increase or decrease such amount and only the consent of the Borrower and the applicable Issuing Bank will be required to establish, increase or decrease the maximum amount of Letters of Credit with respect to such Issuing Bank), and no Issuing Bank shall have any obligation to issue, amend, renew, increase or extend any Letter of Credit issued or to be issued by it if such issuance, amendment, renewal, increase or extension shall (after giving effect thereto) cause the Dollar Equivalent of the maximum amount of Letters of Credit issued or to be issued by it to exceed the applicable foregoing maximum amount with respect to such Issuing Bank and (ii) each letter of credit issued by an Issuing Bank and set forth on Schedule 2.23(a) (each an “Existing Letter of Credit”) shall be deemed to be a Letter of Credit under this Agreement and shall constitute a “Letter of Credit” for all purposes under this Agreement. This Section shall not be construed to impose an obligation upon any Issuing Bank to issue any Letter of Credit that is inconsistent with the terms and conditions of this Agreement.

 

Notwithstanding the foregoing, no Issuing Bank is under any obligation to issue any Letter of Credit if at the time of such issuance:

 

(i)                 any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain such Issuing Bank from issuing such Letter of Credit or any requirement of 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, the 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 or reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect with respect to such Issuing Bank on the Closing Date, or any unreimbursed loss, cost or expense which was not applicable or in effect with respect to such Issuing Bank as of the Closing Date and which such Issuing Bank reasonably and in good faith deems material to it; or

 

(ii)               such Issuing Bank shall have received from the Borrower or the Administrative Agent prior to the issuance of such Letter of Credit notice that the issuance of such Letter of Credit is not permitted under this Agreement.

 

(b)                Notice of Issuance, Amendment, Renewal, Increase, Extension; Certain Conditions. In order to request the issuance of a Letter of Credit (other than an Existing Letter of Credit) or to amend, renew, increase or extend an existing Letter of Credit, the Borrower shall hand deliver or fax or electronic communication (including through the Internet or other electronic platform) to the Issuing Bank and the Administrative Agent (no less than three Business Days (or such shorter period of time acceptable to the Issuing Bank)) in advance of the requested date of issuance, amendment, renewal, increase or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed, increased or extended, the date of issuance, amendment, renewal, increase or extension, the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) below), the amount and currency of such

 

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Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be reasonably necessary to prepare such Letter of Credit. If requested by the Issuing Bank, the Borrower shall also submit a letter of credit application on the Issuing Bank’s standard form in connection with any request for a Letter of Credit. The Issuing Bank shall promptly (i) notify the Administrative Agent in writing of the amount and expiry date of each Letter of Credit issued by it and (ii) provide a copy of such Letter of Credit (and any amendments, renewals, increases or extensions thereof) to the Administrative Agent. A Letter of Credit shall be issued, amended, renewed, increased or extended only if, and upon issuance, amendment, renewal, increase or extension of each such Letter of Credit the Borrower shall be deemed to represent and warrant that, after giving effect to such issuance, amendment, renewal, increase or extension, the Aggregate Revolving Exposure shall not exceed the Total Revolving Commitment and that the other conditions expressly set forth herein are satisfied in respect thereto.

 

(c)                Expiration Date. Each Letter of Credit shall expire at the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit and (ii) the date that is five Business Days prior to the latest applicable Revolving Maturity Date with respect to which the aggregate amount of Revolving Commitments maturing on or after such Revolving Maturity Date