Pattern Energy Group Inc.
Pattern Energy Group Inc. (Form: 8-K, Received: 03/09/2018 17:11:01)

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM 8-K

 

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of Earliest Event Reported): March 5, 2018

 

 

 

PATTERN ENERGY GROUP INC.

(Exact name of registrant as specified in its charter)

 

Delaware 001-36087 90-0893251
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)

 

Pier 1, Bay 3

San Francisco, CA 94111

(Address and zip code of principal executive offices)

 

(415) 283-4000

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address, if changed since last report)

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act (17 CFR 230.405) or Rule 12b-2 of the Exchange Act (17 CFR 240.12b-2).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

Amendment No. 1 to Second Amended and Restated Credit and Guaranty Agreement

 

On March 5, 2018, certain of the subsidiaries of Pattern Energy Group Inc. (“ Pattern Energy ”) entered into Amendment No. 1 (the “ Amendment ”) to the Second Amended and Restated Credit and Guaranty Agreement dated as of November 21, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Credit Agreement ”) among Pattern US Finance Company LLC (“ US Borrower ”), Pattern Canada Finance Company ULC (together with US Borrower, the “ Borrowers ”), Royal Bank of Canada (acting through its New York Branch), as Administrative Agent, and the other parties party thereto.

 

As a result of the Amendment, the Credit Agreement has been amended to permit the designation of hedge agreements with counterparties that are lenders (or affiliates of lenders) as Secured Hedging Obligations (as defined in the Credit Agreement). Secured Hedging Obligations will receive pari passu treatment with the loan obligations under the Credit Agreement. The Amendment also contains a series of modifications to address the acquisition and ownership of certain Japanese subsidiaries.

 

A copy of the Amendment is attached hereto as Exhibit 10.1, and is incorporated by reference herein. The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

Item 2.01. Completion of Acquisition.

 

Tsugaru PEG LP Purchase and Sale Agreement and Tsugaru GPI Purchase and Sale Agreement

 

On March 7, 2018 (the “ Closing Date ”), Pattern Energy consummated the transactions contemplated by the Purchase and Sale Agreement (the “ Tsugaru PEG LP PSA ,” incorporated by reference herein as Exhibit 10.2) with Pattern Energy Group LP, a Delaware limited partnership (“ PEG LP ”), and the Purchase and Sale Agreement (incorporated by reference herein as Exhibit 10.3, together with the Tsugaru PEG LP PSA, the “ Tsugaru PSAs ”) with Green Power Investment Corporation, a Japanese corporation and controlled affiliate of PEG LP as of the time the transactions contemplated under such Purchase and Sale Agreement were consummated (“ GPI ”).

 

Green Power Tsugaru GK, a Japanese godo kaisha (the “ Tsugaru Project Company ”) is currently constructing the Tsugaru wind project located in Aomori Prefecture, Japan, with an expected name plate capacity of 122 MW, which is expected to commence commercial operations in mid-2020.

 

Pursuant to and in accordance with the terms of the Tsugaru PSAs, on the Closing Date, Pattern Energy purchased (i) 95% of the equity interests in the Tsugaru Project Company from a wholly owned subsidiary of PEG LP and (ii) 5% of the equity interests in the Tsugaru Project Company directly from GPI (together, the “ Tsugaru Transactions ”). Pattern Energy paid to PEG LP and GPI $48.4 million in the aggregate as consideration in the Tsugaru Transactions. Shortly after the Closing Date, Pattern Energy intends to contribute an additional approximately $31.3 million of equity into the Tsugaru Project Company (resulting in total payments of approximately $79.7 million). Following the date on which the construction loan is converted into a term loan, or if such conversion does not occur, the date on which commercial operations of the Tsugaru wind project commences, approximately ¥12.567 billion (subject to certain adjustments), in the aggregate, shall be paid to PEG LP and GPI. After giving effect to the Tsugaru Transactions, Pattern Energy currently owns 100% of the equity interests in the Tsugaru Project Company.

 

Kanagi, Ohorayama and Futtsu PEG LP Purchase and Sale Agreement and Kanagi, Ohorayama and Otsuki GPI Purchase and Sale Agreement

 

On March 7, 2018, Pattern Energy consummated the transactions contemplated by the Purchase and Sale Agreement (the “ Kanagi, Ohorayama and Futtsu PEG LP PSA ,” incorporated by reference herein as Exhibit 10.4) with PEG LP related to the purchase of interests in GK Green Power Kanagi, a Japanese godo kaisha (the “ Kanagi Project Company ”), GK Green Power Otsuki, a Japanese godo kaisha (the “ Ohorayama Project Company ”) and GK Green Power Futtsu, a Japanese godo kaisha (the “ Futtsu Project Company ”), in each case, from wholly owned subsidiaries of PEG LP. Also on March 7, 2018, Pattern Energy consummated the transactions contemplated by the Purchase and Sale Agreement (incorporated by reference herein as Exhibit 10.5, together with the Kanagi, Ohorayama and Futtsu PEG LP PSA, the “ 84 MW PSAs ”) with GPI related to the purchase of interests in the Kanagi Project Company, the Ohorayama Project Company and Otsuki Wind Power Corporation, a Japanese kabushiki kaisha (the “ Otsuki Project Company ”), in each case, directly from GPI.

 

 

 

The Kanagi Project Company is operating the Kanagi solar project located in Shimane Prefecture, Japan, with a name plate capacity of 10MW. The Ohorayama Project Company is currently constructing the Ohorayama wind project located in Kochi Prefecture, Japan, with a name plate capacity of 33MW, which is expected to commence commercial operations in March 2018. The Futtsu Project Company is operating the Futtsu solar project located in Chiba Prefecture, Japan, with a name plate capacity of 29MW. The Otsuki Project Company is operating the Otsuki wind project located in Kochi Prefecture, Japan, with a name plate capacity of 12MW.

 

Pursuant to and in accordance with the 84 MW PSAs, on the Closing Date, Pattern Energy purchased, in the aggregate: (i) from a wholly owned subsidiary of PEG LP and directly from GPI, 100% of the equity interests in the Kanagi Project Company, (ii) from a wholly owned subsidiary of PEG LP and directly from GPI, 100% of the equity interests in the Ohorayama Project Company, (iii) from a wholly owned subsidiary of PEG LP, 47.69% of the equity interests in the Futtsu Project Company and the right to purchase an additional 47.69% of the equity interests in the Futtsu Project Company from EFS Japan B.V. and (iv) from GPI, 100% of the equity interests in the Otsuki Project Company (collectively, the “ 84 MW Transactions ”) for an aggregate purchase price of approximately $131.5 million, comprised of approximately $111.5 million, which was paid to PEG LP at the closing of the 84 MW Transactions and an additional $20.0 million, which was paid to EFS Japan B.V. upon Pattern Energy’s exercise of the option to purchase the additional 47.69% of the equity interests in the Futtsu Project Company. After giving effect to the consummation of the 84 MW Transactions and Pattern Energy’s exercise of its option to purchase an additional 47.69% of the equity interests in the Futtsu Project Company from EFS Japan B.V., (A) Pattern Energy currently owns 100% of the Class B equity interests in the Futtsu Project Company, which entitles Pattern Energy to 95.38% of the voting rights and approximately 75% of the distributions paid by the Futtsu Project Company, and (B) GPI currently owns 100% of the Class A equity interests in the Futtsu Project Company, which entitles GPI to 4.62% of the voting rights and approximately 25% of the distributions paid by the Futtsu Project Company.

 

Each of the Tsugaru PSAs, the 84 MW PSAs and all of the transactions contemplated thereby were previously recommended by the Conflicts Committee of Pattern Energy’s Board of Directors, which is comprised solely of independent directors, for approval by Pattern Energy’s Board of Directors, and approved by the Board of Directors.

 

Item 8.01. Other Events .

 

Foreign Exchange Rate Hedge

 

Pattern Energy has entered into a 12 year Japanese Yen / U.S. Dollar foreign exchange swap agreement in connection with cash flows related to the projects underlying the 84 MW Transactions.

 

Item 9.01. Financial Statements and Exhibits.

 

This 8-K includes as an exhibit the consent of Ernst & Young LLP (the “ E&Y Consent ”) to the incorporation by reference in the Registration Statement on Form S-3 (No. 333-219970) and Registration Statement on Form S-8 (No. 333-191641), in each case, of Pattern Energy, of reports prepared by Ernst & Young LLP relating to certain financial statements. The E&Y Consent fixes a typographical error that appeared in the consent of Ernst & Young LLP included in Pattern Energy’s Annual Report on Form 10-K for the year ended December 31, 2017 (the “ 2017 Annual Report ”).

 

This 8-K includes as an exhibit the consent of PricewaterhouseCoopers LLP (the “ PwC Consent ”) to the incorporation by reference in the Registration Statements on Form S-3 (No. 333-219970) and Registration Statement on Form S-8 (No. 333-191641), in each case, of Pattern Energy, of reports prepared by PricewaterhouseCoopers LLP relating to certain financial statements. The PwC Consent fixes a typographical error that appeared in the consent of PricewaterhouseCoopers LLP included in the 2017 Annual Report.

 

 

 

EXPLANATORY NOTE

 

On January 2, 2018, the Securities and Exchange Commission, pursuant to its authority under Rule 3-13 of Regulation S-X, granted Pattern Energy a waiver from the requirements to file the financial information called for by Item 9.01(a) and pro forma financial information called for by Item 9.01(b) for the acquisitions under the Tsugaru PSAs and 84 MW PSAs (the “ Japanese Transactions ”) that was otherwise required under Rule 3-05 of Regulation S-X. Pattern Energy had submitted such request for a waiver from the requirements of Rule 3-05 of Regulation S-X for the Japanese Transactions because (among other things) it believed the acquisitions of certain acquired businesses (including the Japanese Transactions) when viewed in the aggregate were not significant to the overall operation of Pattern Energy. Accordingly, such Item 9.01(a) and Item 9.01(b) financial information is omitted from this 8-K.

 

Exhibit Number Description
10.1 Amendment No. 1 to Second Amended and Restated Credit and Guaranty Agreement dated November 21, 2017.
10.2 Purchase and Sale Agreement by and between Pattern Energy Group Inc. and Pattern Energy Group LP dated as of February 26, 2018 related to interests in Green Power Tsugaru GK (incorporated by reference to Exhibit 10.1 to Pattern Energy’s Current Report on Form 8-K filed February 27, 2018).
10.3 Purchase and Sale Agreement by and between Pattern Energy Group Inc. and Green Power Investment Corporation dated as of February 26, 2018 related to interests in Green Power Tsugaru GK (incorporated by reference to Exhibit 10.2 to Pattern Energy’s Current Report on Form 8-K filed February 27, 2018).
10.4 Purchase and Sale Agreement by and between Pattern Energy Group Inc. and Pattern Energy Group LP dated as of February 26, 2018 related to interests in GK Green Power Kanagi, GK Green Power Otsuki and GK Green Power Futtsu (incorporated by reference to Exhibit 10.3 to Pattern Energy’s Current Report on Form 8-K filed February 27, 2018).
10.5 Purchase and Sale Agreement by and between Pattern Energy Group Inc. and Green Power Investment Corporation dated as of February 26, 2018 related to interests in GK Green Power Kanagi, GK Green Power Otsuki and Otsuki Wind Power Corporation (incorporated by reference to Exhibit 10.4 to Pattern Energy’s Current Report on Form 8-K filed February 27, 2018).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.

 

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, Pattern Energy Group Inc. has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: March 9, 2018

 

  PATTERN ENERGY GROUP INC.
   
   
  By: /s/ Kim H. Liou
    Name: Kim H. Liou  
    Title: Secretary  

 

 

EXHIBIT 10.1

 

EXECUTION VERSION

 

AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT AND SECOND AMENDED

AND RESTATED PLEDGE AND SECURITY AGREEMENT

 

AMENDMENT NO. 1 (the “ Amendment ”), dated as of March 5, 2018, to (i) the Second Amended and Restated Credit and Guaranty Agreement dated as of November 21, 2017 (the “ Credit Agreement ”) among Pattern US Finance Company LLC (“ US Borrower ”), Pattern Canada Finance Company ULC (“ Canada Borrower ” and, together with US Borrower, the “ Borrowers ”), the Guarantors party thereto (the “ Guarantors ”), Royal Bank of Canada (acting through its New York Branch), as Administrative Agent (the “ Agent ”) and the other parties party thereto, (ii) the Second Amended and Restated Pledge and Security Agreement, dated as of November 21, 2017 (the “ US Security Agreement ”) among US Borrower, the Agent, and the other Grantors party thereto and (iii) the Second Amended and Restated Canada Pledge and Security Agreement, dated as of November 21, 2017 (the “ Canadian Security Agreement ”) among Canada Borrower, the Agent and the other Grantors party thereto.

 

W I T N E S S E T H :

 

WHEREAS the parties hereto have agreed to make certain changes to the terms of the Credit Agreement and the Security Agreement;

 

NOW, THEREFORE, the parties hereto agree as follows:

 

Section 1. Defined Terms; References . Unless otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement and Security Agreement shall, after this Amendment becomes effective, refer to the Credit Agreement and Security Agreement as amended hereby.

 

Section 2 .  Amendments .

 

(a)    The Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the conformed copy of the Credit Agreement attached as Annex A hereto.

 

(b)    The US Security Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example:

 

 

stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the conformed copy of the US Security Agreement attached as Annex B hereto.

 

(c)    The Canadian Security Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the conformed copy of the Canadian Security Agreement attached as Annex C hereto.

 

(d)  The US Pledge Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the conformed copy of the US Pledge Agreement attached as Annex D hereto.

 

(e)  The Canada Pledge Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the conformed copy of the Canada Pledge Agreement attached as Annex E hereto.

 

Section 3 . Limited Effect . The foregoing amendments are limited in effect and, except as specifically set forth above, shall apply only as expressly set forth in this Amendment and shall not constitute a consent, waiver, modification, approval or amendment of any other provision of the Credit Agreement, Security Agreement or the other Financing Documents. The Credit Agreement and Security Agreement are modified only by the express provisions of this Amendment, and shall, as so modified, remain in full force and effect and is hereby ratified and confirmed by Borrowers and the Guarantors in all respects. Except as expressly provided herein, nothing herein shall limit in any way the rights and remedies of the Agents, the Lenders and the Issuing Banks under the Credit Agreement, Security Agreement and the other Financing Documents.

 

Section 4 . Representations of Borrowers . The Borrowers represent and warrant, as of the date hereof, that (i) the representations and warranties of the Borrowers set forth in Section 4 of the Credit Agreement, Section 4 of the Security Agreement and in the other Credit Documents are true and correct in all material aspects on and as of the date hereof (including, for the avoidance of doubt, as such representations and warranties relate to this Amendment and the execution and performance of this Amendment); provided that (x) to the extent that such representations and warranties specifically refer to an earlier date, they were true and correct in all material respects as of such earlier date and (y) in each case such materiality qualifier shall not be applicable to any representations and warranties that are already qualified by “materiality”, “Material Adverse Effect”

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

or any similar qualifier, in the text thereof and (ii) no Event of Default exists and no Default or Event of Default shall exist after giving effect to this Amendment.

 

Section 5 . Governing Law, Etc . Sections 10.15, 10.16 and 10.17 of the Credit Agreement are hereby incorporated by reference as if fully set forth in this Amendment mutatis mutandis (except that any references to “Agreement” shall mean this Amendment).

 

Section 6 . Counterparts . This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

Section 7 . Effectiveness . This Amendment shall be effective as of the date first written above.

 

[Signature Pages Follow]

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.

 

 

Pattern US FINANCE COMPANY LLC ,  

as US Borrower

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Pattern Canada FINANCE COMPANY ULC ,

  as Canada Borrower

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Pattern Gulf Wind Equity LLC ,  

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Hatchet Ridge Holdings LLC ,

as Guarantor and US Restricted Holding 

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

 

 

Nevada Wind Holdings LLC,  

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Santa Isabel Holdings LLC ,

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Ocotillo WIND HOLDINGS LLC ,  

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

PANHANDLE WIND HOLDINGS LLC ,

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

PANHANDLE B MEMBER 2 LLC ,

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

 

 

Lost Creek Wind Finco, LLC ,

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Lincoln County Wind Project Holdco, LLC ,  

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Logan’s Gap B Member LLC ,  

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Fowler Ridge IV B Member LLC ,

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

 

Broadview Finco Pledgor LLC ,

as Guarantor and US Restricted Holding

Company Subsidiary

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

 

  PATTERN US OPERATIONS

HOLDINGS LLC , as Pledgor

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

  PATTERN CANADA OPERATIONS HOLDINGS

ULC , Limited Recourse Guarantee and Pledgor

 
         
         
  By: /s/ Dyann Blaine  
    Name: Dyann Blaine  
    Title: Vice President  

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

ROYAL BANK OF CANADA,

ACTING THROUGH ITS NEW YORK BRANCH,

as Administrative Agent and Collateral Agent

 

 

By: /s/ Yvonne Brazier 
Name: Yvonne Brazier
Title: Manager, Agency Services

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

ROYAL BANK OF CANADA,

as Lender

 

 

By: /s/ Frank Lambrinos
Name: Frank Lambrinos
Title: Authorized Signatory

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

Wells Fargo Bank, N.A.,

as Lender

 

 

By: /s/ Yann Blindert
Name: Yann Blindert
Title: Director

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

KEYBANK NATIONAL ASSOCIATION,

as Lender

 

 

By: /s/ Sukanya V. Raj
Name: Yann Blindert
Title: Senior Vice President

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

Morgan Stanley Bank N.A.,

as Lender

 

 

By: /s/ Jack Kuhns
Name: Jack Kuhns
Title: Authorized Signatory

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

Citibank, N.A.,

as Lender

 

 

By: /s/ Carl Cho
Name: Carl Cho
Title: Vice President

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

Bank of Montreal, Chicago Branch,

as Lender

 

 

By: /s/ Paul Heikkila
Name: Paul Heikkila
Title: Director

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

Bank of America, N.A.,

as Lender

 

 

By: /s/ Maggie Halleland
Name: Maggie Halleland
Title: Vice President

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

MUFG Union Bank, N.A.,

as Lender

 

  

By: /s/ Jeffrey Flagg____ _______________

Name: Jeffrey Flagg

Title: Director

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

SOCIETE GENERALE,

as Lender

 

 

By: /s/ Richard Bernal
Name: Richard Bernal
Title: Managing Director

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

GOLDMAN SACHS BANK USA,

as Lender

 

 

By: /s/ Chris Lam
Name: Chris Lam
Title: Authorized Signatory

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

ACKNOWLEDGED AND AGREED:

 

Sumitomo Mitsui Banking Corporation,

as Lender

 

 

By: /s/ Juan Kreutz
Name: Juan Kreutz
Title: Managing Director

 

 

[SIGNATURE PAGE TO AMENDMENT NO. 1]

 

 

 

 

 

 

 

 

ANNEX A

 

(separately attached)

 

 

 

 

 

 

 

 

 

 

SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

 

dated as of November 21, 2017

 

among

 

PATTERN US FINANCE COMPANY LLC

 

PATTERN CANADA FINANCE COMPANY ULC

 

CERTAIN SUBSIDIARIES OF PATTERN US FINANCE COMPANY LLC

 

CERTAIN SUBSIDIARIES OF PATTERN CANADA FINANCE COMPANY ULC

 

THE LENDERS FROM TIME TO TIME PARTY HERETO

 

ROYAL BANK OF CANADA

 

(ACTING THROUGH ITS NEW YORK BRANCH)

 

as Swingline Lender

 

ROYAL BANK OF CANADA

 

(ACTING THROUGH ITS NEW YORK BRANCH)
as Administrative Agent

 

ROYAL BANK OF CANADA

 

(ACTING THROUGH ITS NEW YORK BRANCH)
as Collateral Agent

 

and

 

ROYAL BANK OF CANADA, ACTING THROUGH ITS NEW YORK BRANCH, BANK OF MONTREAL , CHICAGO BRANCH , MORGAN STANLEY BANK, N.A., CITIBANK, N.A. AND BANK OF AMERICA, N.A.
each as LC Issuing Bank

 

________________________________________________________

 

$440 , 000 , 000 Revolving Credit Facilities

________________________________________________________

 

BANK OF MONTREAL, CHICAGO BRANCH

 

as Syndication Agent

 

CITIBANK, N.A.

 

as Documentation Agent

 

ROYAL BANK OF CANADA, ACTING THROUGH ITS NEW YORK BRANCH, BANK OF MONTREAL, CHICAGO BRANCH, MORGAN STANLEY SENIOR FUNDING, INC., CITIBANK, N.A., BANK OF AMERICA, N.A., KEYBANK NATIONAL ASSOCIATION, MUFG UNION BANK, N.A., SUMITOMO MITSUI BANKING CORPORATION, SOCIÉTÉ GÉNÉRALE, GOLDMAN SACHS BANK USA AND WELLS FARGO SECURITIES, LLA
as Joint Bookrunners

 

 

 

TABLE OF CONTENTS

 

Page

 

Section 1. DEFINITIONS AND INTERPRETATION 2
     
1.1 Definitions 2
1.2 Accounting Terms 44 45
1.3 Terms Generally 45 46
1.4 Exchange Rates; Currency Equivalents 45 47
1.5 Letter of Credit Amounts 46 47
1.6 Calculations 46 47
1.7 Limited Conditionality 46 47
1.8 Alternative Currencies. 47 48
     
Section 2. LOANS AND LETTERS OF CREDIT 48 49
     
2.1 Revolving Loans 48 49
2.2 Swingline Loans 50 51
2.3 Letters of Credit 52 53
2.4 Pro Rata Shares 62 63
2.5 Use of Proceeds 62 63
2.6 Evidence of Debt; Lenders’ Books and Records; Notes 62 64
2.7 Interest on Loans 63 64
2.8 Conversion/Continuation 65 66
2.9 Default Interest 66 67
2.10 Fees 66 67
2.11 Voluntary Prepayments/Commitment Reductions 67 68
2.12 Mandatory Prepayments 69 70
2.13 Application of Prepayments 71 72
2.14 General Provisions Regarding Payments 72 73
2.15 Ratable Sharing 75 76
2.16 Making or Maintaining Eurodollar Rate Loans or CDOR Loans 76 77
2.17 Increased Costs; Capital or Liquidity Adequacy 78 79
2.18 Taxes; Withholding, Etc 79 80
2.19 Obligation to Mitigate 84 85
2.20 Defaulting Lenders 84 85
2.21 Removal or Replacement of a Lender 88 89
2.22 Additional Indebtedness 89 90
2.23 Extensions of Loan Terms 92 93
2.24 Refinancing Facilities 95 96
     
Section 3. CONDITIONS PRECEDENT 98 99
     
3.1 Closing Date 98 99
3.2 Conditions to Each Credit Extension 100 101
     
Section 4. REPRESENTATIONS AND WARRANTIES 101 102

  i CREDIT AGREEMENT (PATTERN REVOLVER)

 

 
4.1 Organization; Requisite Power and Authority; Qualification 101 102
4.2 Subsidiaries; Capital Stock and Ownership 102 103
4.3 Due Authorization 102 103
4.4 No Conflict 102 103
4.5 Governmental Authorizations 103 104
4.6 Binding Obligation 103 104
4.7 Historical Financial Statements 104 105
4.8 Projections 104 105
4.9 Adverse Proceedings, Etc 104 105
4.10 Payment of Taxes 104 105
4.11 Properties 104 105
4.12 Environmental Matters 105 106
4.13 No Defaults 105 106
4.14 Liens 106 107
4.15 Compliance with Laws 106 107
4.16 Governmental Regulation 106 107
4.17 Margin Stock 106 107
4.18 Employee Matters 106 107
4.19 Solvency 106 107
4.20 Disclosure 106 107
4.21 Sanctions, Patriot Act, FCPA 107 108
4.22 OFAC 107 108
4.23 Canadian Pension and Benefit Plans 107 108
     
Section 5. AFFIRMATIVE COVENANTS 108 109
     
5.1 Financial Statements and Other Reports 108 109
5.2 Existence 110 111
5.3 Payment of Indebtedness, Taxes and Claims 111 112
5.4 Maintenance of Properties and Assets 111 112
5.5 Insurance 111 112
5.6 Books and Records; Inspections 111 112
5.7 Compliance with Laws 112 113
5.8 Environmental 112 113
5.9 Subsidiaries 112 113
5.10 Non-Wholly Owned Subsidiaries; Other Restricted Subsidiaries 113 114
5.11 Maintenance of Liens; Further Assurances 114 115
5.12 Separateness 114 115
5.13 [Reserved.] 114 115
     
Section 6. NEGATIVE COVENANTS 114 115
     
6.1 Indebtedness 114 115
6.2 Liens 117 118
6.3 Burdensome Agreements 120 121
6.4 Restricted Payments 120 121
6.5 Investments 121 122

  ii CREDIT AGREEMENT (PATTERN REVOLVER)

 

 
6.6 Financial Covenants 123 124
6.7 Disposition of Assets 124 125
6.8 Transactions with Affiliates 125 126
6.9 Conduct of Business 125 126
6.10 Amendments of Organizational Documents; Accounting Changes 125 126
6.11 Fundamental Changes 126 127
6.12 Hedge Agreements . 126 127
6.13 Sanctions 126 127
6.14 No Employees 126 127
6.15 [Reserved.] 127 128
6.16 Disqualified Stock 127 128
6.17 Project Financing Documents 127 128
6.18 Subsidiaries 127 128
     
Section 7. GUARANTY 127 128
     
7.1 Guaranty of the Obligations 127 128
7.2 Payment by Guarantors 127 128
7.3 Liability of Guarantors Absolute 128 129
7.4 Waivers by Guarantors 129 130
7.5 Guarantors’ Rights of Subrogation, Contribution, Etc 130 131
7.6 Subordination of Other Obligations 131 132
7.7 Continuing Guaranty 131 132
7.8 Authority of Guarantors or Borrowers 131 132
7.9 Financial Condition of Borrowers 131 132
7.10 Bankruptcy, Etc 132 133
7.11 Guarantors, Defined; Discharge of Guaranty 132 133
     
Section 8. EVENTS OF DEFAULT 133 134
     
8.1 Events of Default 133 134
8.2 Right to Cure 138 139
     
Section 9. AGENTS 139 140
     
9.1 Appointment of Agents 139 140
9.2 Powers and Duties 139 140
9.3 General Immunity 140 141
9.4 Agents Entitled to Act as Lender 141 142
9.5 Lenders’ Representations, Warranties and Acknowledgment 142 143
9.6 Resignation of Administrative Agent 142 143
9.7 Collateral Documents and Guaranty 143 144
9.8 No Other Duties, Etc 145 146
9.9 Secured Hedging Obligations 146
     
Section 10. MISCELLANEOUS 145 146
     
10.1 Notices 145 146

  iii CREDIT AGREEMENT (PATTERN REVOLVER)

 

 
10.2 Expenses 146 147
10.3 Indemnity 147 148
10.4 Set-Off 149 150
10.5 Amendments and Waivers 149 150
10.6 Successors and Assigns; Participations; Sale and Transfer Limitations 152 153
10.7 Independence of Covenants 156 157
10.8 Survival of Representations, Warranties and Agreements 156 157
10.9 No Waiver; Remedies Cumulative 157 158
10.10 Marshalling; Payments Set Aside 157 158
10.11 Severability 158 159
10.12 Obligations Several; Independent Nature of Lenders’ Rights 158 159
10.13 No Advisory or Fiduciary Responsibility 158 159
10.14 Headings 159 160
10.15 APPLICABLE LAW 159 160
10.16 CONSENT TO JURISDICTION 159 160
10.17 WAIVER OF JURY TRIAL 159 160
10.18 Usury Savings Clause 160 161
10.19 Counterparts 161 162
10.20 Effectiveness 161 162
10.21 Patriot Act 161 162
10.22 Canadian AML Legislation 161 162
10.23 Electronic Execution of Assignments 162 163
10.24 Judgment Currency 162 163
10.25 ENTIRE AGREEMENT 163 164
10.26 No Recourse to Sponsor or Pledgors 163 164
10.27 Disclaimer 163 164
10.28 Treatment of Certain Information; Confidentiality 163 164
10.29 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 164 165
10.30 Amendment and Restatement. 165 166
10.31 Keepwell 167

  iv CREDIT AGREEMENT (PATTERN REVOLVER)

 

 
APPENDICES: A Revolving Commitments
  B Notice Addresses
SCHEDULES: 1.1(a) Existing Letters of Credit
  1.1(b) Closing Date Management
  1.1(c) Projects
  1.1(d) Project PPAs
  2.1(a)(i) Existing Closing Date Loans
  3.1(e) UCC or PPSA Financing Statements To Be Terminated
  4.1 Jurisdictions of Organization
  4.2 Subsidiaries; Capital Stock and Ownership
  4.8 Base Case Model
  5.12 Separateness
  6.1(d) Form of Subordination Agreement
  6.3 Burdensome Agreements
  6.8 Affiliate Transactions
     
EXHIBITS: A-1 Borrowing Notice And Certificate
  A-2 Conversion/Continuation Notice
  A-3 Notice of LC Activity and Certificate
  B-1 US Dollar Denominated Revolving Loan Note
  B-2 Canadian Dollar Denominated Revolving Loan Note
  C-1 Closing Date Certificate
  C-2 Compliance Certificate
  D-1 Opinion of Davis Polk & Wardwell LLP
  D-2 Opinion of Blake, Cassels & Graydon LLP
  D-3 Opinion of McInnes Cooper LLP
  D-4 Opinion of Morris, Nichols, Arsht & Tunnell LLP
  E Assignment and Assumption Agreement
  F-1-F-4 US Tax Compliance Certificates
  G Solvency Certificate
  H Counterpart Agreement
  I-1 US Pledge and Security Agreement
  I-2 US Pledge Agreement
  I-3 Canada Pledge and Security Agreement
  I-4 Canada Pledge Agreement
  K Subsidiaries

  

  v CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

 

This SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT , dated as of November 21, 2017, is entered into by and among PATTERN US FINANCE COMPANY LLC , a Delaware limited liability company (“ US Borrower ”), PATTERN CANADA FINANCE COMPANY ULC , a Nova Scotia unlimited company (“ Canada Borrower ”; and together with US Borrower, “ Borrowers ”), CERTAIN SUBSIDIARIES OF BORROWERS , THE LENDERS PARTY HERETO FROM TIME TO TIME , ROYAL BANK OF CANADA ( Royal Bank ), acting through its New York Branch , as swingline lender (together with its permitted successors in such capacity, the “ Swingline Lender ”), ROYAL BANK OF CANADA, acting through its New York Branch , as Administrative Agent (together with its permitted successors in such capacity, “ Administrative Agent ”), ROYAL BANK OF CANADA, acting through its New York Branch , as Collateral Agent (together with its permitted successors in such capacity, the “ Collateral Agent ”) and ROYAL BANK OF CANADA, acting through its New York Branch , BANK OF MONTREAL, Chicago Branch, MORGAN STANLEY BANK, N.A., CITIBANK, N.A., AND BANK OF AMERICA, N.A., each together with its permitted successors in such capacity, as LC Issuing Bank.

 

RECITALS:

 

WHEREAS , capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof.

 

WHEREAS, the Borrowers, certain lenders, certain letter of credit issuing banks, the Administrative Agent and the Collateral Agent are party to that certain Amended and Restated Credit and Guaranty Agreement, dated as of December 17, 2014 (as amended prior to the date hereof, the “ Existing Credit Agreement ”), which amended and restated that certain Credit and Guaranty Agreement, dated as of November 15, 2012, as amended prior to the date of the Existing Credit Agreement, and pursuant to which such lenders made revolving loans and other extensions of credit to the Borrower pursuant to the terms thereof.

 

WHEREAS , the parties hereto wish to amend and restate the Existing Credit Agreement on the terms and subject to the conditions set forth herein, and to increase the revolving credit facilities to be made available pursuant to this Agreement to four hundred and forty million Dollars ($440,000,000).

 

WHEREAS , Borrowers and certain Restricted Holding Company Subsidiaries have agreed to secure all of the Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien in accordance with the Collateral Documents, on certain of their respective assets as described therein.

 

WHEREAS , subject to the limitations set forth herein, Guarantors have agreed to guarantee the obligations of Borrowers hereunder and to secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on certain of their respective assets as described herein and in the Collateral Documents.

 

 

 

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

 

Section 1.   DEFINITIONS AND INTERPRETATION

 

1.1    Definitions . The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:

 

Abandonment ” means any willful and voluntary suspension or cessation of the operations of one or more Projects owned by one or more Restricted Operating Company Subsidiaries, but only to the extent that each such suspension or cessation (a) is expected to be permanent and (b) has continued for a period of more than sixty (60) consecutive days (other than force majeure and excluding any period of forced outage or scheduled outage, maintenance or repair to such Project).

 

Acceptable Bank ” means any bank, trust company or other financial institution that has a tangible net worth of at least five hundred million Dollars ($500,000,000) and has outstanding unguaranteed and unsecured long-term indebtedness which is rated “A-” or better by S&P, “A3” or better by Moody’s or “A-” or better by Fitch.

 

Act ” as defined in Section 4.21 .

 

Administrative Agent ” as defined in the preamble hereto.

 

Adverse Proceeding ” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of an Authorized Representative of any Credit Party, threatened in writing against or affecting a Credit Party, any Restricted Operating Company Subsidiary or any Project.

 

Affected Lender ” as defined in Section 2.16(b) .

 

Affected Loans ” as defined in Section 2.16(b) .

 

Affiliate ” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.

 

Agent ” means each of Administrative Agent and Collateral Agent.

 

Aggregate Amounts Due ” as defined in Section 2.15 .

 

  - 2 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Agreement ” means this Second Amended and Restated Credit and Guaranty Agreement, dated as of November 21, 2017 as it may be amended, restated, supplemented or otherwise modified from time to time.

 

Agreement Currency ” as defined in Section 10.24 .

 

Applicable Margin ” means, in respect of (x) Revolving Loans (including pursuant to any Increased Commitment), the percentage per annum determined by reference to the Leverage Ratio in effect from time to time as set forth below and (y) any Incremental Term Loans, the applicable percentages per annum set forth in the relevant Incremental Amendment.

 

Pricing Level Leverage Ratio Applicable Margin for Eurodollar Rate/CDOR Loans and Letter of Credit Fees Applicable Margin for Base Rate/Canadian Prime Rate Loans
1 < 3.50:1.00 1.625% 0.625%
2

≥ 3.50:1.00 but

< 4.50:1.00 

1.75% 0.75%
3 ≥ 4.50:1.00 1.875% 0.875%

 

Any increase or decrease in the Applicable Margin resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.1(c) ; provided , however , that (i) if a Compliance Certificate is not delivered when due in accordance with Section 5.1(c) or (ii) while any Event of Default exists, then in each case, upon the request of the Required Revolving Lenders with notice to the Borrowers from the Administrative Agent, Pricing Level 3 shall apply in respect of clause (x) above (in the case of clause (i), as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered, and such Pricing Level shall remain in effect until the date on which such Compliance Certificate is delivered).

 

For purposes of the foregoing, the Leverage Ratio shall be determined as of the end of each Fiscal Quarter based upon the Borrowers’ financial statements delivered pursuant to Section 5.1(a) or (b) (as applicable), or, until such financial statements have been delivered hereunder, based upon the Borrowers’ financial statements delivered pursuant to Section 5.1(a) or (b) (as applicable) of the Existing Credit Agreement. The calculation of Leverage Ratio shall be subject in all respects to Section 1.6 .

 

For the avoidance of doubt, on the Closing Date, the Pricing Level shall be Pricing Level 1.

 

Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Asset Sale ” means a sale, lease or sub-lease (as lessor or sublessor), or other Transfer, of all or any part of Borrowers’ or the Restricted Subsidiaries’ assets or properties of any kind,

 

  - 3 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, including the Capital Stock of any of the Restricted Subsidiaries, other than sales, leases, sub-leases, sale and leasebacks, Transfers and other transactions permitted by or otherwise provided for in Section 6.7 , but in the case of Transfers made pursuant to Section 6.7(d) only to the extent the Net Asset Sale Proceeds received by the Credit Parties do not exceed the thresholds set forth in clause (iii) thereof.

 

Assignee ” as defined in Section 10.6(d)(i) .

 

Assignment Agreement ” means an Assignment and Assumption Agreement substantially in the form of Exhibit E , with such amendments or modifications as may be approved by Administrative Agent and Borrowers.

 

Assignment Effective Date ” as defined in Section 10.6(d)(i) .

 

Authorized Representative ” means, as applied to any Person, any authorized signatory or officer appointed or designated in accordance with such Person’s Organizational Documents.

 

Auto-Extension Letters of Credit ” as defined in Section 2.3(b)(iv) .

 

Available Cash ” means, for any specified period and without duplication, Internally Generated Cash and Qualifying Cash actually received by a Borrower or any Restricted Holding Company Subsidiary from any Restricted Operating Company Subsidiary or any Permitted Minority Investment Company (and including for such purposes, cash received pursuant to any related Hedge Agreement (but without duplication of any Internally Generated Cash or Qualifying Cash denominated in a currency hedged pursuant to such Hedge Agreement)) as and when deposited into a Deposit Account (which Deposit Account shall be in the name of a Credit Party and fully pledged to Collateral Agent for the benefit of the Secured Parties); provided that, notwithstanding the foregoing, for purposes of calculating Borrower Cash Flow from non-U.S. and non-Canada Restricted Operating Company Subsidiaries (or non-U.S. and non-Canada Permitted Minority Investment Companies), “Available Cash” shall mean Internally Generated Cash and Qualifying Cash permitted to be distributed pursuant to the applicable Project Financing Documents and available for distribution (and without counting any such Cash actually received by a Borrower or any Restricted Holding Company Subsidiary), net of all withholding taxes and other applicable taxes that would be payable (at then-applicable rates) if such amounts were distributed to a Borrower or Restricted Holding Company Subsidiary (including pursuant to a Hedge Agreement (but without duplication of any Internally Generated Cash or Qualifying Cash denominated in a currency hedged pursuant to such Hedge Agreement)) , as reasonably determined by the US Borrower. Without limiting the foregoing, Available Cash shall exclude, with respect to such period, such net Cash proceeds received from (a) payments in respect of federal, state, provincial or local cash grants (or payments in lieu of tax credits), (b) Net Asset Sale Proceeds that constitute extraordinary receipts, (c) disbursements from Project or Permitted Minority Investment Project reserve accounts of Cash replaced with Letters of Credit, (d) the Transfer of any Restricted Operating Company Subsidiary or Permitted Minority Investment Company by a Borrower or any Restricted Holding Company Subsidiary, (e) Net Insurance/Condemnation Proceeds (excluding, for the avoidance of doubt, proceeds received from business interruption insurance) received by the Borrower or a Restricted Holding

 

  - 4 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Company Subsidiary, but only to the extent such Net Insurance/Condemnation Proceeds are remuneration received by such Borrower or Restricted Holding Company Subsidiary for the diminished cash generating capacity of a Restricted Operating Company Subsidiary’s or Permitted Minority Investment Company’s assets, (f) any incurrence of Indebtedness by any Restricted Operating Company Subsidiary or Permitted Minority Investment Company, (g) any issuance of Capital Stock by any Restricted Subsidiary or Permitted Minority Investment Company, or (h) any capital contribution to any Restricted Subsidiary or Permitted Minority Investment Company.

 

Available Incremental Amount ” as defined in Section 2.22(a) .

 

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

 

Bail-In Legislation ” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

 

Base Case Model ” as defined in Section 4.8 .

 

Base Rate ” means, for any day, the rate of interest per annum equal to the greater of (i) the rate determined by the Administrative Agent from time to time as its prime commercial lending rate for U.S. Dollar loans in the United States for such day (such rate is not necessarily the lowest rate that the Administrative Agent is charging any corporate customer (any change in the prime rate determined by the Administrative Agent shall take effect at the opening of business on the date of such determination)); (ii) 0.5% per annum above the Federal Funds Rate; and (iii) 1% per annum above the LIBOR Rate having a term of one (1) month.  Each interest rate based upon the Base Rate shall be adjusted simultaneously with any change in the Base Rate.

 

Base Rate Loan ” means a Loan bearing interest at a rate determined by reference to the Base Rate.

 

Beneficiary ” means each Agent, LC Issuing Bank and Lender, and shall include all former Agents, LC Issuing Banks and Lenders to the extent that any Obligations owing to such Persons were incurred while such Persons were Agents, LC Issuing Banks or Lenders and such Obligations have not been paid or satisfied in full. For purposes of the guarantee and collateral provisions of this Agreement and the other Credit Documents, “Beneficiary” shall also include each counterparty to a Hedge Agreement that is a Secured Hedging Obligation.

 

Borrower Cash Flow ” means, for any period, an amount equal to (a) Available Cash during such period, minus (b) the sum, without duplication, of: (i) the aggregate amount of expenditures actually made by the Credit Parties in Cash during such period and (ii) the amount

 

  - 5 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

of Cash taxes actually paid by the Credit Parties during such period. For the avoidance of doubt, the foregoing calculation is subject to the adjustments described in Section 6.6(c) .

 

Borrower Debt ” means, as of any date of determination, the aggregate stated balance sheet amount of all Indebtedness and other amounts that , (in each case) in accordance with GAAP , would be classified as indebtedness on a stand-alone balance sheet of each Borrower (including all L/C Obligations but excluding (i) any unused Revolving Commitments and , (ii) any Permitted Subordinated Indebtedness or (iii) Indebtedness of US Borrower owed to a Japanese Subsidiary of US Borrower to the extent permitted pursuant to Section 6.1(m) ). For the avoidance of doubt, “Borrower Debt” shall not include any Permitted Project Debt (including any guarantees or indemnities with respect to such Permitted Project Debt) for which there is no recourse to either Borrower (other than recourse limited to pledges of Capital Stock or intercompany debt) .

 

Borrower Interest Expense ” means, (a) the sum of (i) total cash interest expense of each Borrower on a stand-alone basis with respect to all outstanding Borrower Debt and (ii) all Transaction Costs (excluding any upfront or other amounts payable only on the Closing Date); less (b) any cash interest income received by either Borrower on a stand-alone basis, in the case of each of (a) and (b), during the relevant measurement period.

 

Borrowing ” means the borrowing of the same Type of Revolving Loans by the applicable Borrower (or resulting from a conversion or conversions on such date), having in the case of Eurodollar Rate Loans or CDOR Loans, the same Interest Period.

 

Borrowing Notice And Certificate ” means a notice substantially in the form of Exhibit A-1 .

 

Business Day ” means (a) any day excluding Saturday, Sunday and any day which is a legal holiday under the Governmental Rules of the State of New York or is a day on which banking institutions located in such state are authorized or required by Governmental Rules to close, (b) with respect to all notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar Rate Loans, the term “ Business Day ” means any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market, (c) with respect to all notices and determinations in connection with, and issuances, payments of principal and interest on or with respect to, Canadian Dollar Denominated Letters of Credit, Canadian Dollar Denominated Loans or the CDOR Rate or Canadian Prime Rate, any day which is a Business Day described in clauses (a) and (b) and which is also a day which is not a legal holiday under the Governmental Rules of Canada or is a day on which banking institutions are not authorized or required by Governmental Rules to close in Toronto, Canada.

 

Canada Borrower ” as defined in the preamble hereto.

 

Canada Pledge and Security Agreement ” means that certain Second Amended and Restated Canada Limited Recourse Guarantee and Pledge Agreement, dated as of the date hereof, by and between Canada Borrower and Collateral Agent, as it may be amended, restated, supplemented or otherwise modified from time to time.

 

  - 6 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Canada Pledge Agreement ” means that certain Amended and Restated Canada Limited Recourse Guarantee and Pledge Agreement, dated as of December 17, 2014, by and between Canada Pledgor and Collateral Agent, as it may be amended, restated, supplemented or otherwise modified from time to time.

 

Canada Pledgor ” means Pattern Canada Operations Holdings ULC.

 

Canada Restricted Holding Company Subsidiary ” means any Restricted Holding Company Subsidiary that is a Canadian Subsidiary.

 

Canada Restricted Operating Company Subsidiary ” means any Restricted Operating Company Subsidiary that is a Canadian Subsidiary.

 

Canadian AML Legislation ” as defined in Section 10.22 .

 

Canadian Benefit Plans ” means all employee benefit plans of any nature or kind whatsoever including all plans or arrangements which provide or promise post-employment health, dental or any other benefits (other than of any Borrower Canadian Pension Plans and any statutory plans with which any Borrower or Subsidiary is required to comply, including the Canada/Quebec Pension Plan and plans administered pursuant to applicable provincial health tax, workers’ compensation and workers’ safety and employment insurance legislation) that are governed by Governmental Rules of Canada and are maintained or contributed to by any Borrower or Subsidiary of any Borrower or for which any Borrower or Subsidiary of any Borrower has any obligations, rights or liabilities, contingent or otherwise.

 

Canadian Dollar Denominated Letter of Credit ” means each Letter of Credit denominated in Canadian Dollars at the time of issuance thereof.

 

Canadian Dollar Denominated Loans ” means Revolving Loans denominated in Canadian Dollars at the time of the incurrence thereof.

 

Canadian Dollar Denominated Revolving Loan Note ” means a promissory note in the form of Exhibit B-2 , as it may be amended, restated, supplemented or otherwise modified from time to time.

 

Canadian Dollar Equivalent ” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Canadian Dollars as determined by Administrative Agent or the applicable LC Issuing Bank, as the case may be, using the Spot Rate at such time for the purchase of such Canadian Dollars with Dollars.

 

Canadian Dollars ” means freely transferable lawful money of Canada (expressed in Canadian Dollars).

 

Canadian Insolvency Legislation ” means any bankruptcy or insolvency Governmental Rules of Canada now or hereafter in effect, including the Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada) and the Winding-Up and Restructuring Act (Canada).

 

  - 7 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Canadian Multiemployer Pension Plan ” means any multiemployer pension plan as defined under applicable Governmental Rules of Canada for which any Borrower or Subsidiary of any Borrower has any rights, obligations or liabilities, contingent or otherwise.

 

Canadian Pension Plans ” means all Canadian defined benefit or defined contribution pension plans that are considered to be pension plans for the purposes of, and are required to be registered under, the ITA or any applicable pension benefits standards or Governmental Rules in Canada and that are established, maintained or contributed to by any Borrower or Subsidiary of any Borrower or for which any Borrower or Subsidiary of any Borrower has any rights, obligations or liabilities, contingent or otherwise.

 

Canadian Prime Rate ” means for any day a fluctuating rate per annum equal to the greater of (a) the per annum rate of interest quoted or established as the Canadian Dollar “prime rate” of the Administrative Agent which it quotes or establishes for such day as its reference rate of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian borrowers; and (b) the average CDOR Rate for a 30-day term plus ½ of 1% per annum adjusted automatically with each quoted or established change in either such rate, all without the necessity of any notice to any Borrower or any other Person.  The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change.

 

Canadian Prime Rate Loan ” means each Loan bearing interest at the rate determined by reference to the Canadian Prime Rate that is designated or deemed designated as such by Canada Borrower at the time of the incurrence thereof or conversion thereto.

 

Canadian Subsidiary ” means any Subsidiary of a Borrower organized under the Governmental Rules of Canada or any province or territory thereof.

 

Capital Lease ” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

 

Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent voting and economic ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing from the issuer thereof; provided that “Capital Stock” shall not include any tax equity financing.

 

Cash ” means money, currency or a credit balance in any demand or Deposit Account.

 

Cash Collateralize ” means, in respect of an Obligation, to provide and pledge (as a first priority perfected security interest) Cash or deposit account balances, at a location and pursuant to documentation (including an acceptable Control Agreement) in form and substance satisfactory to Administrative Agent and the applicable LC Issuing Bank (and “ Cash

 

  - 8 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Collateralization ” has a corresponding meaning). “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support. Obligations in Dollars shall be Cash Collateralized in Dollars and Obligations in Canadian Dollars shall be Cash Collateralized in Canadian Dollars.

 

Cash Equivalents ” means, as at any date of determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States or Canada or (ii) issued by any agency of the United States or Canada the obligations of which are backed by the full faith and credit of the United States or Canada, in each case maturing within one (1) year after such date; (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one (1) year after such date and having, at the time of the acquisition thereof, a rating of at least “A-1” from S&P, at least “P-1” from Moody’s or “A-1” from Fitch; (c) commercial paper maturing no more than one (1) year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least “A-1” from S&P, at least “P-1” from Moody’s or “A-1” from Fitch; (d) certificates of deposit, bankers acceptances and other “money market instruments” issued by any bank having capital and surplus in an aggregate amount of not less than five hundred million Dollars ($500,000,000) and rated “A” or better by S&P, “A2” or better by Moody’s or “A-1” or better by Fitch, and, in each case, maturing or being due or payable in full not more than one (1) year after such date (or, in the case of any investments using Cash Collateral to be posted hereunder, three (3) months after such date); (e) tax exempt short-term securities rated “A” or better by S&P or “Prime” or better by Moody’s or tax exempt long-term securities rated “A” or better by S&P, “A2” or better by Moody’s or “A-1” or better by Fitch, in each case, maturing or being due or payable in full not more than one (1) year after such date (or, in the case of any investments using Cash Collateral to be posted hereunder, three (3) months after such date); (f) money market funds comprised of at least 95% of the assets which constitute the types of investments referred to in clauses (a) through (e) above; and (g) instruments equivalent to those referred to in clauses (a) through (f) above denominated in any currency, other than Dollars or Canadian Dollars, comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States and Canada to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction or controlling other Restricted Subsidiaries organized in such jurisdiction.

 

CDOR Loan ” means each Loan bearing interest at the rate determined by reference to the CDOR Rate, designated as such by Canada Borrower at the time of incurrence thereof or conversion thereto.

 

CDOR Rate ” means, on any day, the annual rate of interest determined by the Administrative Agent which is equal to the average of the yield rates per annum (calculated on the basis of a year of 365 days) applicable to Canadian Dollar bankers’ acceptances having, where applicable, identical issue and comparable maturity dates as the Bankers’ Acceptances proposed to be issued by the Borrower displayed and identified as such on the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service at approximately 10:00 a.m. (Toronto time) on that day or, if that day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Administrative Agent after 10:00 a.m.

 

  - 9 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

(Toronto time) to reflect any error in a posted rate of interest or in the posted average annual rate of interest); provided, however, if those rates do not appear on that CDOR Page, then the CDOR Rate shall be the discount rate (expressed as a rate per annum on the basis of a year of 365 day) applicable to those Canadian Dollar bankers’ acceptances in a comparable amount to the Bankers’ Acceptances proposed to be issued by the Borrower quoted by the Administrative Agent as of 10:00 a.m. (Toronto time) on that day or, if that day is not a Business Day, then on the immediately preceding Business Day; and further provided that if any such rate is below zero, the CDOR Rate will be deemed to be zero. Each determination of the CDOR Rate by the Administrative Agent shall be conclusive and binding, absent manifest error.

 

CFC ” means a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code.

 

Change in Law ” means the becoming effective, after the date of this Agreement, of any of the following: (a) any Governmental Rule, (b) any change in any Governmental Rule or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Change of Control ” means an event or series of events by which:

 

(a)    any Person or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of any Borrower or its Restricted Subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than PEG LP or PEG LP II, acquires or otherwise obtains Control, directly or indirectly, of at least 35% of the equity securities of Sponsor entitled to vote for members of the board of directors or equivalent governing body of Sponsor on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right); or

 

(b)    PEG LP or PEG LP II, holds, acquires or otherwise obtains Control, directly or indirectly, of greater than 40% of the equity securities of Sponsor entitled to vote for members of the board of directors or equivalent governing body of Sponsor on a fully-diluted basis (and taking into account all such securities that Pattern Development has the right to acquire pursuant to any option right), at a time when none of (together or individually) (i) Riverstone, by itself or through funds managed by it, (ii) direct investors in PEG LP II that are otherwise investors in Riverstone or its affiliated funds, (iii) investors (other than the investors set forth in clause (ii) of this definition) in PEG LP II on the Closing Date or (iv) Management, Control PEG LP or PEG LP II (as applicable); or

 

(c)    Sponsor shall cease to, directly or indirectly, own and Control legally and

 

  - 10 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

beneficially all of the equity interests in the Pledgors; or

 

(d)    the Pledgors shall cease to directly own and Control legally and beneficially all of the equity interests in the US Borrower or the Canada Borrower, as applicable (other than in connection with any transaction whereby any such Pledgor shall be dissolved or merged with or into the Sponsor as the surviving entity; provided that, in each such case, the Sponsor shall have acceded to Pledgors’ role(s) and shall have expressly and unconditionally assumed Pledgors’ obligations under the Credit Documents).

 

Class ” means (i) with respect to Revolving Lenders, Revolving Lenders with Revolving Commitments and Revolving Loans that expire on the same maturity date, (ii) with respect to Incremental Term Loan Lenders, Incremental Term Loan Lenders with Incremental Term Loan Commitments and Incremental Term Loans that expire on the same maturity date, (iii) with respect to the Lenders under any Extended Facility, Lenders with (x) Extended Revolving Commitments and Extended Revolving Loans that expire on the same maturity date or (y) Extended Incremental Term Loan Commitments and Extended Incremental Loans that expire on the same maturity date, (iv) with respect to Refinancing Lenders, Refinancing Lenders with Refinancing Loans that expire on the same maturity date, (v) with respect to Revolving Commitments and Revolving Loans, respectively, Revolving Commitments and Revolving Loans (as applicable) that mature on the same maturity date, (vi) with respect to Incremental Term Loan Commitments and Incremental Term Loans, respectively, Incremental Term Loan Commitments and Incremental Term Loans (as applicable) that mature on the same maturity date, (vii) with respect to Extended Revolving Commitments and Extended Revolving Loans, respectively, Extended Revolving Commitments and Extended Revolving Loans (as applicable) that mature on the same maturity date, (viii) with respect to Extended Incremental Term Loan Commitments and Extended Incremental Term Loans, respectively, Extended Incremental Term Loan Commitments and Extended Incremental Term Loans (as applicable) that mature on the same maturity date and (ix) with respect to Refinancing Loans, Refinancing Loans that mature on the same maturity date.

 

Closing Date ” means the date on which the Revolving Commitments become available, which date shall be November 21, 2017.

 

Closing Date Certificate ” means a Closing Date Certificate executed and delivered by an Authorized Representative of Borrowers substantially in the form of Exhibit C-1 .

 

Collateral ” means, collectively, all of the personal and mixed property (including Capital Stock) of the Credit Parties in which Liens are granted pursuant to the Collateral Documents as security for the Obligations.

 

Collateral Agent ” as defined in the preamble hereto.

 

Collateral Documents ” means the Pledge Agreements, Control Agreements and all other instruments, documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.

 

  - 11 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Commitment ” means a Revolving Commitment, an Increased Commitment, an Extended Commitment or an Incremental Term Loan Commitment, as the context may require.

 

Commitment Fee Rate ” means the percentage per annum determined by reference to the Leverage Ratio in effect from time to time as set forth below.

 

Commitment Fee Level Leverage Ratio Commitment Fee Rate
1 < 3.50:1.00 0.30%
2

≥ 3.50:1.00 but

< 4.50:1.00 

0.40%
3 ≥ 4.50:1.00 0.50%

 

Any increase or decrease in the Commitment Fee Rate resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.1(c) ; provided , however , that (i) if a Compliance Certificate is not delivered when due in accordance with Section 5.1(c) or (ii) while any Event of Default exists, then in each case, upon the request of the Required Revolving Lenders with notice to the Borrowers from the Administrative Agent, Commitment Fee Level 3 shall apply (in the case of clause (i), as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered, and such Commitment Fee Level shall remain in effect until the date on which such Compliance Certificate is delivered).

 

For purposes of the foregoing, the Leverage Ratio shall be determined as of the end of each Fiscal Quarter based upon the Borrowers’ financial statements delivered pursuant to Section 5.1(a) or (b) (as applicable), or, until such financial statements have been delivered hereunder, based upon the Borrowers’ financial statements delivered pursuant to Section 5.1(a) or (b) (as applicable) of the Existing Credit Agreement. The calculation of Leverage Ratio shall be subject in all respects to Section 1.6 .

 

For the avoidance of doubt, on the Closing Date, the Commitment Fee Level shall be Commitment Fee Level 1.

 

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

Compliance Certificate ” means a Compliance Certificate executed and delivered by an Authorized Representative of Borrowers substantially in the form of Exhibit C-2 , with such amendments or modifications as may be approved by Administrative Agent and Borrowers.

 

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

 

Contractual Obligation ” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

 

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Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.

 

Conversion/Continuation Date ” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.

 

Conversion/Continuation Notice ” means, as the context may require, a Conversion/Continuation Notice substantially in the form of Exhibit A-2-A or Exhibit A-2-B .

 

Counterpart Agreement ” means a Counterpart Agreement substantially in the form of Exhibit H delivered by a Restricted Subsidiary of a Borrower pursuant to Section 5.9 .

 

Covered Parties ” as defined in Section 10.28 .

 

Credit Date ” means the date of a Credit Extension.

 

Credit Document ” means any of this Agreement, the Notes, (if any), the Subordination Agreements (if any), the Collateral Documents, any Letter of Credit Applications or reimbursement agreements or other documents or certificates requested by an LC Issuing Bank executed by Borrowers in favor of an LC Issuing Bank relating to Letters of Credit, and all other certificates, instruments or agreements executed and delivered by a Credit Party for the benefit of any Agent, any LC Issuing Bank or any Lender in connection herewith.

 

Credit Extension ” means (a) the making (but not the conversion or continuation) of a Revolving Loan, Swingline Loan or Incremental Term Loan, (b) the issuance, amendment, extension or renewal of a Letter of Credit (other than Auto-Extension Letters of Credit that renew in accordance with their terms) or (c) any increase in the Revolving Commitments.

 

Credit Facility ” means a Revolving Credit Facility, an Incremental Term Loan Facility, an Extended Facility or a Refinancing Facility, as the context may require.

 

Credit Party ” means Borrowers, each Restricted Holding Company Subsidiary and each Guarantor.

 

Cure Amount ” as defined in Section 8.2 .

 

Cure Period ” as defined in Section 8.2 .

 

Cure Right ” as defined in Section 8.2 .

 

Debtor Relief Laws ” means the Bankruptcy Code, the Canadian Insolvency Legislation and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Governmental Rules of the United States, Canada or other applicable jurisdictions from time to time in effect.

 

  - 13 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Default ” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

 

Defaulting Lender ” means, as of a specified date and subject to Section 2.20(b) , any Lender that (a) has failed to (i) fund all or any portion of its Revolving Loans within two (2) Business Days of the date such Revolving Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, any LC Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified (without having subsequently withdrawn such notice) Borrowers, Administrative Agent, any LC Issuing Bank or any other Lender in writing that it does not intend to comply with its funding obligations hereunder (unless such notice relates to such Lenders’ obligation to fund a Revolving Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default shall be specifically identified in such writing or public statement) has not been satisfied), (c) has (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state, provincial or federal regulatory authority acting in such a capacity, or (iii) taken any action in furtherance of, or indicating its consent to or acquiescence in, any such proceeding or appointment, (d) (i) admits in writing its inability to pay its debts as they become due, or (ii) makes a general assignment for the benefit of its creditors, or (e) becomes (or any parent company thereof has become) the subject of a Bail-In Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement to which such Lender is a party. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.20(b) ) upon delivery of written notice of such determination to Borrowers, each LC Issuing Bank and each Lender.

 

Default Rate ” means (a) with respect to the principal of a Loan, an interest rate equal to (i) the Base Rate, Canadian Prime Rate, CDOR Rate or the Eurodollar Rate (as applicable to such Loan), plus (ii) the Applicable Margin applicable to such Loan, plus (iii) 2.00% and (b) with respect to any Obligation not referred to in clause (a), (i) the Base Rate or Canadian Prime Rate (as applicable), plus (ii) the Applicable Margin applicable to Base Rate Loans or Canadian Prime Rate Loans (as applicable), plus (iii) 2.00%.

 

  - 14 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Deposit Account ” means any demand, time, savings, passbook or like account, which if owned by a Grantor is in compliance with the terms of the applicable Collateral Document with respect to perfection of the Collateral Agent security interest therein.

 

Designated Jurisdiction ” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.

 

Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event: (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise prior to the 91st date prior to the latest Revolving Loan Termination Date in effect at such time of issuance; (b) is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of either Borrower or convertible into or exchangeable for Qualified Stock) on or prior to the 91st date prior to the latest Revolving Loan Termination Date in effect at such time of issuance; (c) is redeemable at the option of the holder of the Capital Stock in whole or in part on or prior to the 91st date prior to the latest Revolving Loan Termination Date in effect at such time of issuance (excluding customary put rights upon a change of control) or (d) requires the payment of any cash dividend or any other scheduled payment constituting a return of capital (other than payments solely consisting of Qualified Stock) on or prior to the 91st date prior to the latest Revolving Loan Termination Date in effect at such time of issuance.

 

Disregarded US Subsidiary ” means any US Subsidiary (a) that has no material assets other than Capital Stock or Indebtedness of one or more Subsidiaries that are Japan Subsidiaries and other incidental assets related thereto (including other interests in Japanese Projects) or (b) that has no material assets other than Capital Stock or Indebtedness of one or more Subsidiaries that are Japan Subsidiaries or one or more Disregarded US Subsidiaries and other incidental assets related thereto (including other interests in Japanese Projects).

 

Documentation Agent ” as defined in the preamble hereto.

 

Dollar Equivalent ” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Canadian Dollars, the equivalent amount thereof in Dollars as determined by Administrative Agent or an LC Issuing Bank, as the case may be, using the Spot Rate at such time for the purchase of Dollars with Canadian Dollars.

 

Dollars ” and the sign “ $ ” mean the lawful money of the United States of America.

 

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

 

EEA Member Country ” means any of the member states of the European Union,

 

  - 15 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Iceland, Liechtenstein and Norway.

 

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

 

Eligible Assignee ” means (a) any Lender, Affiliate of any Lender or Approved Fund; provided that, in the case of an Approved Fund, for purposes of the assignment or establishment of Revolving Loans or Revolving Commitments, (i) the Revolving Commitments have expired or been terminated, and (ii) all Letters of Credit have been cancelled or have expired or have been Cash Collateralized in a maximum amount equal to not less than one hundred two percent (102%) of the face amount of such Letter of Credit on such date, (b) any Acceptable Bank that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course; provided such Person extends credit on a revolving basis as one of its businesses, (c) any other lender approved in writing by the Borrowers or (d) (i) with respect to Assignments executed in accordance with section 10.6(c), at any time when an Event of Default pursuant to Sections 8.1(a) has occurred and is continuing, or (ii) with respect to Participations executed in accordance with section 10.6(f), at any time when an Event of Default pursuant to Sections 8.1(a), (f) or (g) has occurred and is continuing, any bank, trust company or other financial institution; provided, further, that no natural person, Defaulting Lender, Borrower, Pledgor, Sponsor nor any Affiliate of Borrowers shall be an Eligible Assignee (including a participant) of Revolving Loans.

 

Employee Benefit Plan ” means any “employee benefit plan” as defined in Section 3(3) of ERISA that is sponsored, maintained or contributed to by, or required to be contributed to by, Borrowers or any of their Subsidiaries.

 

Energy Project ” means a wind, natural gas, solar (including distributed residential, commercial and industrial), transmission, energy storage or other similar power asset or project.

 

Engagement Letter ” means that certain Senior Secured Credit Facility Engagement Letter by and among the Borrowers and Royal Bank dated as of October 7, 2014.

 

Environmental Claim ” means any notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive by or before any Governmental Authority or in written form by any other Person arising (a) pursuant to or in connection with any actual or alleged violation of or failure to comply with any Environmental Law; (b) in connection with any Release or threatened Release of, or exposure to, Hazardous Material; (c) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources, wildlife or the environment; or (d) otherwise in connection with any Environmental Liability.

 

Environmental Laws ” means any and all current or future foreign or domestic, federal, regional, provincial, state or local (or any subdivision of either of them) Governmental Rules relating to (a) environmental matters, including those relating to pollution or any Release or threatened Release of Hazardous Materials; (b) the generation, use, storage, transportation, treatment, processing, removal, remediation or disposal of, or exposure to, Hazardous Materials;

 

  - 16 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

or (c) the protection of natural resources, wildlife or the environment, in any manner applicable to Borrowers or any of their Subsidiaries or any Project.

 

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of Borrowers or any of their Subsidiaries directly or indirectly resulting from or based upon (a) any violation of or failure to comply with any Environmental Law; (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials; (c) exposure to any Hazardous Materials; (d) the Release or threatened Release of any Hazardous Materials; (e) any actual or alleged damage, injury, threat or harm to natural resources, wildlife or the environment or (f) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

 

ERISA Affiliate ” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member. Any former ERISA Affiliate of Borrowers or any of their Subsidiaries shall continue to be considered an ERISA Affiliate of Borrowers or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Borrowers or such Subsidiary and with respect to liabilities arising after such period for which Borrowers or such Subsidiary could be liable under the Internal Revenue Code or ERISA.

 

ERISA Event ” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty (30) day notice to the PBGC has been waived by regulation); (b) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code or Section 302 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Borrowers, any of their Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition

 

  - 17 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

of liability on Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan, if there is any potential material liability therefor, or the receipt by Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4042 of ERISA; (h) the occurrence of an act or omission which could give rise to the imposition on Borrowers or any of their Subsidiaries of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (i) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Borrowers, any of their Subsidiaries in connection with any Employee Benefit Plan; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan (or any other Employee Benefit Plan) to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; (k) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan; or (l) the determination that any Pension Plan is considered an at-risk plan or any Multiemployer Plan is in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA.

 

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

 

Eurodollar Rate ” means, with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum equal to (a) the rate per annum equal to the rate determined by Administrative Agent to be the London interbank offered rate administered by the ICE Benchmark Administration (or any other person which takes over the administration of that rate) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars displayed on the ICE LIBOR USD page of the Reuters Screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters, determined as of approximately 11:00 a.m. (London, England time) on the applicable Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or services or if such page or services shall cease to be available, the rate per annum determined by Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by Administrative Agent’s London Branch to major banks in the London interbank Eurodollar market at their request on such Interest Rate Determination Date; provided that if the rate determined above shall ever be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. If at any time the Required Lenders determine (which determination

 

  - 18 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

shall be conclusive absent manifest error) that the Eurodollar Rate shall cease to exist, then the Required Lenders and the Borrower shall endeavor to establish an alternate rate of interest to the Eurodollar Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable.

 

Eurodollar Rate Loan ” means a Loan bearing interest at a rate determined by reference to the Eurodollar Rate. Eurodollar Rate Loans may be denominated in Dollars only.

 

Event of Abandonment ” means an Abandonment with respect to Projects accounting for thirty percent (30%) or more of Available Cash during the most recently completed Measurement Period.

 

Event of Default ” means each of the conditions or events set forth in Section 8.1 .

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

 

Excluded Swap Obligation ” means, with respect to any applicable Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to Section ‎10.31 of this Agreement and any other “keepwell”, support or other agreement for the benefit of such Credit Party) at the time the Guaranty of such Credit Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.

 

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Beneficiary or required to be withheld or deducted from a payment to a Beneficiary, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and Taxes on branch profits and similar Taxes, in each case, (i) imposed as a result of such Beneficiary being organized under the Governmental Rules of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) withholding Taxes imposed on amounts payable to or for the account of such Beneficiary pursuant to a Governmental Rule in effect on the date on which (i) such Beneficiary becomes a party hereto (or in the case of a Lender, acquires the applicable interest in a Loan or Commitment) (other than pursuant to an assignment request by any Borrower under Section 2.21 ) or (ii) in the case of a Lender, such Lender changes its lending office, except in each case with respect to a Lender to the extent that, pursuant to Section 2.18 , amounts with respect to such Taxes were payable either

 

  - 19 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Beneficiary’s failure to comply with Section 2.18(g) or (d) any withholding Taxes imposed pursuant to FATCA.

 

Existing Class ” as defined in Section 2.23(a) .

 

Existing Credit Agreement ” as defined in the recitals.

 

Existing Commitments ” means, as applicable, any Existing Revolving Commitments or Existing Incremental Term Loan Commitments.

 

Existing Incremental Term Loans ” as defined in Section 2.23(c)(i) .

 

Existing Incremental Term Loan Commitments ” as defined in Section 2.23(c)(i) .

 

Existing Letters of Credit ” means the Letters of Credit listed on Schedule 1.1(a) hereto.

 

Existing Loans ” means, as applicable, any Existing Revolving Loans or Existing Incremental Term Loans.

 

Existing Revolving Commitments ” as defined in Section 2.23(c)(i) .

 

Existing Revolving Loans ” as defined in Section 2.23(c)(i) .

 

Extended Commitments ” means, as applicable, any Extended Revolving Commitments or Extended Incremental Term Loan Commitments.

 

Extended Facility ” means, at any time, as the context may require, the aggregate amount of the Lenders’ Extended Commitments of Extended Loans of a given Class at such time and, in each case, but without duplication, the Credit Extensions made thereunder.

 

Extended Incremental Term Loans ” as defined in Section 2.23(c)(i) .

 

Extended Incremental Term Loan Commitments ” as defined in Section 2.23(c)(i) .

 

Extended Loans ” means, as applicable, any Extended Revolving Loans or Extended Incremental Term Loans.

 

Extended Maturity Date ” as defined in Section 2.23(a) .

 

Extended Revolving Commitments ” as defined in Section 2.23(c)(i) .

 

Extended Revolving Loans ” as defined in Section 2.23(c)(i) .

 

Extension ” as defined in Section 2.23(a) .

 

Extension Amendments ” as defined in Section 2.23(d) .

 

  - 20 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Extension Offer ” as defined in Section 2.23(a) .

 

Facility ” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Borrowers or their Restricted Subsidiaries or any of their respective predecessors or Affiliates.

 

FATCA ” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future Treasury Regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreements entered into in connection with the implementation of such current Sections of the Internal Revenue Code (or any such amended or successor version described above), and any laws, fiscal or regulatory legislation, rules, guidance notes and practices adopted to implement the foregoing.

 

Federal Funds Effective Rate ” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of  one percent (0.01%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average (rounded upwards, if necessary, to a whole multiple of 1/100 of  one percent (0.01%)) charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.

 

Fee Letter ” means that certain Senior Secured Credit Facility Fee Letter by and among the Borrowers and Royal Bank dated as of October 7, 2014.

 

First Priority ” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that no other Liens, except Permitted Liens or except to the extent provided by Governmental Rules (other than common law), are senior in right of payment or priority to such Liens.

 

Fiscal Quarter ” means a fiscal quarter of any Fiscal Year.

 

Fiscal Year ” means the fiscal year of Borrowers and their respective Restricted Subsidiaries, which as of the Closing Date ends on December 31 of each calendar year. Borrowers and their respective Restricted Subsidiaries may change any Fiscal Year at any time; provided that they furnish annual financial statements pursuant to Section 5.1(b) at least one time per twelve (12) month period and, in the initial annual financial statements delivered in the year following the change in Fiscal Year, reconciliation statements provided for in Section 5.1(d) .

 

Fitch ” means Fitch Investor’s Service, Inc. and any successor thereto.

 

Foreign Subsidiary ” means a Subsidiary of a Borrower that is neither a Canadian Subsidiary nor a US Subsidiary.

 

  - 21 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Fronting Exposure ” means (a) with respect to any LC Issuing Bank, the Defaulting Lender’s Pro Rata Share of all L/C Obligations with respect to any Letters of Credit issued by such LC Issuing Bank (except in such cases where the LC Issuing Bank or an Affiliate of such LC Issuing Bank is also a Defaulting Lender with respect to Letters of Credit it issues hereunder) other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, the Defaulting Lender’s Pro Rata Share of outstanding Swingline Loans made by the Swingline Lender, other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.

 

FSHCO ” means any Subsidiary, in the good faith determination of the Sponsor, substantially all of the assets of which constitute the equity or indebtedness of CFCs (or other FSHCOs).

 

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

 

GAAP ” means, subject to the limitations on the application thereof and requirement to consolidate in GAAP applicable in the United States as set forth in Section 1.2 , (a) in respect of any Person organized under the Governmental Rules of the United States or a state thereof, Canada Borrower and the Canada Restricted Holding Company Subsidiaries, United States generally accepted accounting principles in effect as of the date of determination thereof (“ US GAAP ”), (b) except for Canada Borrower and the Canada Restricted Holding Company Subsidiaries, in respect of any Person organized under the Governmental Rules of Canada or a province or territory thereof generally accepted accounting principles in effect from time to time in Canada, being those accounting principles set forth in the CPA Canada Handbook or other official record of accounting principles in Canada from time to time published by the Institute of Chartered Accountants in Canada, including International Financial Reporting Standards (IFRS) then in effect and generally accepted in Canada and adopted or required to have been adopted, as consistently applied, and (c) in respect of any Person organized under the Governmental Rules of a jurisdiction other than as provided in clauses (a) and (b), generally accepted accounting principles in the jurisdiction of such Person’s organization.

 

Governmental Authority ” means any foreign or domestic, federal, regional, provincial, state, municipal, local, national or other government, governmental ministry or department, commission, board, bureau, court, agency or instrumentality, political subdivision or any entity or officer thereof exercising executive, legislative, judicial, taxing, regulatory or administrative functions of any government or any court.

 

Governmental Authorization ” means any permit, license, authorization, certification, approval, registration, plan, directive, consent order or consent decree of, from or issued by any Governmental Authority.

 

Governmental Rule ” means any applicable statute, law (including Environmental Law), regulation, by-law, ordinance, rule, treaty, judgment, order, decree, Governmental Authorization, concession, grant, franchise, agreement, requirement of, or other governmental

 

  - 22 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

restriction or any binding decision of or determination by, or any binding interpretation or administration of any of the foregoing by, any Governmental Authority, including all common law, whether now or hereafter in effect.

 

Grantor ” as defined in the US Pledge and Security Agreement or the Canada Pledge and Security Agreement, as the case may be.

 

Guaranteed Obligations ” as defined in Section 7.1 .

 

Guarantor ” as defined in Section 7.11 .

 

Guaranty ” means the guaranty of each Guarantor set forth in Section 7.

 

Hazardous Materials ” means any explosive, radioactive, hazardous or toxic chemicals, materials, substances or wastes, contaminants or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other materials, substances or wastes of any nature prohibited, limited or regulated by any Governmental Authority due to their actual or potential adverse impact to the indoor or outdoor environment.

 

Hedge Agreements ” means all interest rate or currency swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements providing for protection against fluctuations in interest rates, currency exchange rates, commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies.

 

Hedging Obligations ” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.

 

Highest Lawful Rate ” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the Governmental Rules applicable to any Lender which are presently in effect or, to the extent allowed by Governmental Rules, under such applicable Governmental Rules which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable Governmental Rules now allow.

 

Historical Financial Statements ” means as of the Closing Date, and to the extent available (a)  the audited financial statements of Sponsor for the Fiscal Years 2015 and 2016, the Borrowers, for the Fiscal Years 2015 and 2016, in each case consisting of balance sheet and the related statements of income, stockholders’ equity and cash flows for such Fiscal Years and (b) the unaudited financial statements of the Sponsor and the Borrowers, as at the most recently ended Fiscal Quarter ending after the date of the most recent financial statements referenced in clause (a) hereof and more than forty-five (45) days prior to the Closing Date, consisting of a balance sheet and the related statements of income, stockholders’ equity and cash flows for the three-(3), six-(6) or nine-(9) month period, as applicable, ending on such date.

 

Honor Date ” as defined in Section 2.3(c)(i) .

 

  - 23 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Increased Amount Date ” as defined in Section 2.22(a) .

 

Increased Commitments ” as defined in Section 2.22(a) .

 

Increased Commitment Lender ” as defined in Section 2.22(b) .

 

Increased - Cost Lender ” as defined in Section 2.21 .

 

Incremental Amendment ” means an amendment to this Agreement, executed by the Borrower and each Incremental Term Loan Lender or Increased Commitment Lender (as applicable) providing Incremental Term Loan Commitments or Increased Commitments (as applicable), and the Administrative Agent.

 

Incremental Equivalent Debt ” as defined in Section 6.1(f) .

 

Incremental Facilities ” as defined in Section 2.22(a) .

 

Incremental Term Loan ” as defined in Section 2.22(e) .

 

Incremental Term Loan Commitments ” as defined in Section 2.22(a) .

 

Incremental Term Loan Exposure ” means, with respect to any Incremental Term Loan Lender, as of any date of determination, without duplication, the sum of (i) the aggregate amount of such Incremental Term Loan Lender’s Incremental Term Loan Commitments (to the extent not terminated) and (ii) the aggregate principal amount outstanding of such Incremental Term Loan Lender’s Incremental Term Loans.

 

Incremental Term Loan Facility ” means, at any time, the aggregate amount of the Incremental Term Loan Lenders’ Incremental Term Loan Commitments of a given Series at such time.

 

Incremental Term Loan Lender ” as defined in Section 2.22(b) .

 

Indebtedness ” means, as applied to any Person, without duplication, (a) all indebtedness for borrowed money; (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding trade payables incurred in the ordinary course of business, having a term of less than ninety (90) days and paid in accordance with customary trade practices); (e) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (f) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings (but only to the extent such Letter of Credit has not been Cash Collateralized); and (g) the direct or indirect payment or performance guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another with

 

  - 24 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

respect to indebtedness set out in clauses (a) through (f) above; provided that the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness (or such lesser amount of maximum liability as is expressly provided for under the documentation pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such Person in good faith.

 

Indemnified Liabilities ” means, collectively, any and all liabilities (including Environmental Liabilities), obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), reasonable out-of-pocket costs (including costs related to any Remedial Action), and reasonable out-of-pocket expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign Governmental Rules or equitable cause or on contract or otherwise, that may be imposed on or incurred by any such Indemnitee, in any manner relating to or arising out of (a) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make the Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); (b) any Revolving Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an LC Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not comply with the terms of such Letter of Credit); (c) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Credit Party, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; or (d) any Environmental Claim, any Environmental Liability or any actual or alleged presence or Release or threatened Release of Hazardous Materials, in each case of this clause (d) related in any way to any Facility or to Borrowers or any of their Affiliates, including those arising from any past or present activity, operation, land ownership, or practice of Borrowers or any of their Affiliates.

 

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

 

Indemnitee ” as defined in Section 10.3(a) .

 

Information ” as defined in Section 10.28 .

 

Interest Coverage Ratio ” means, for any Measurement Period, the ratio of (a) Borrower Cash Flow for such Measurement Period to (b) Borrower Interest Expense for such Measurement Period.

 

  - 25 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Interest Payment Date ” means with respect to (a) any Base Rate Loan or Canadian Prime Rate Loan, each March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to occur after the Closing Date and the final maturity date of such Loan; and (b) any Eurodollar Rate Loan or CDOR Loan, the last day of each Interest Period applicable to such Loan and the final maturity date of such Loan; provided , in the case of each Interest Period of longer than three (3) months “Interest Payment Date” shall also include each date that is three (3) months, or an integral multiple thereof, after the commencement of such Interest Period.

 

Interest Period ” means, in connection with a Eurodollar Rate Loan or CDOR Loan, an interest period of one- (1), two- (2), three- (3) or six- (6) months, as selected by Borrowers in the applicable Borrowing Notice And Certificate or Conversion/Continuation Notice, (a) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided (1) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (2) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (3) of this definition, end on the last Business Day of a calendar month; and (3) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date. Notwithstanding the foregoing, Borrowers may request irregular Interest Periods with a duration other than a one- (1), two- (2), three- (3) or six- (6) month Interest Period in order to consolidate outstanding Interest Periods and payment dates. Upon receipt of a Borrowing Notice And Certificate or Conversion/Continuation Notice from Borrowers which includes a request for such an irregular Interest Period, the Administrative Agent and Lenders shall use commercially reasonable efforts to provide Borrowers with such irregular Interest Period as long as such Interest Period does not exceed the Revolving Commitment Termination Date and is available to Lenders in the applicable interbank market, in the reasonable judgment of the Administrative Agent and the Lenders.

 

Interest Rate Determination Date ” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.

 

Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended to the Closing Date and from time to time thereafter, and any successor statute.

 

Internally Generated Cash ” means Cash that is recurring or reasonably expected to recur and generated in the ordinary course of operations or business of a Restricted Operating Company Subsidiary or Permitted Minority Investment Company.

 

Intralinks ” means the online digital workspace owned by Intralinks, Inc., which provides for the exchange of documents and other information over the internet and to which the Secured Parties are granted access (and any other service performing substantially the same function which is reasonably satisfactory to Administrative Agent and, so long as no Default or

 

  - 26 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Event of Default shall have occurred and be continuing, the Borrowers and agreed to be treated as “Intralinks” for purposes of this Agreement).

 

Investment ” means (a) any direct or indirect purchase or other acquisition by Borrowers or any of their Restricted Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person (other than Borrowers or another Restricted Subsidiary); (b) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Restricted Subsidiary or Borrowers from any Person (other than Borrowers or any Restricted Subsidiary), of any Capital Stock of such Person; and (c) any direct or indirect loan, advance (other than advances to employees for moving, relocation, business, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by Borrowers or any of their Restricted Subsidiaries to any other Person (other than Borrowers or any Restricted Subsidiary), including Permitted Project Acquisitions and all Indebtedness and accounts receivable from that other Person but only to the extent that the same are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

 

IRS ” means the United States Internal Revenue Service.

 

ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

ITA ” means the Income Tax Act (Canada), as amended from time to time and any successor thereto.

 

Japan Japanese Subsidiary ” means a Subsidiary of a Borrower organized under the laws of the Governmental Rules of Japan.

 

Joint Bookrunners ” means Royal Bank Of Canada, Acting Through Its New York Branch, Bank of Montreal, Chicago Branch, Morgan Stanley Senior Funding, Inc., Citibank, N.A., Bank of America, N.A., Keybank National Association, MUFG Union Bank, N.A., Sumitomo Mitsui Banking Corporation, Société Générale, Goldman Sachs Bank USA and Wells Fargo Securities, LLA.

 

Joint Venture ” means a joint venture, partnership or other similar arrangement, whether in partnership or other legal form.

 

Judgment Currency ” as defined in Section 10.24 .

 

Latest Maturity Date ” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Revolving Commitment hereunder at such time.

 

L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share. L/C Advances shall be denominated in Dollars or Canadian Dollars (as applicable).

 

  - 27 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan. All L/C Borrowings shall be denominated in Dollars or Canadian Dollars, as applicable.

 

L/C Obligation ” means, as of any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit as of such date of determination plus the aggregate of all Reimbursement Amounts as of such date of determination. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.5 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

L/C Sublimit ” means no more than the Revolving Commitments based upon the Dollar Equivalent for the stated amount of all Letters of Credit issued and outstanding at such time.

 

LC Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any LC Issuing Bank and US Borrower or in favor of such LC Issuing Bank and relating to such Letter of Credit.

 

LC Issuing Banks ” means, collectively, the (i) banks or financial institutions listed as such on Appendix A or in the applicable Assignment Agreement (as such Appendix A may be amended from time to time) (together with their respective permitted successors and assigns in such capacity) and (ii) the issuing banks or financial institutions with respect to all Existing Letters of Credit. As of the Closing Date, each of Royal Bank, Bank of Montreal, Chicago Branch, Morgan Stanley Bank, N.A., Bank of America, N.A. and Citibank, N.A. shall be an LC Issuing Bank.

 

Lender ” means each financial institution with a Revolving Commitment listed on the signature pages hereto as a Lender and any other Person that becomes a party hereto pursuant to an Assignment Agreement, an Incremental Amendment or a Refinancing Amendment. Unless the context otherwise requires, the term “Lender” includes the Swingline Lender.

 

Lender Sublimit ” means, with respect to each Lender, the amount obtained by multiplying (a) such Lender’s Pro Rata Share by (b) the aggregate Revolving Commitments of all Lenders then in effect (after giving effect to any availability limitation as of the date of determination).

 

Letter of Credit ” means a standby letter of credit in substantially the form attached to Exhibit A-3 (or as otherwise agreed by US Borrower and the applicable LC Issuing Bank) issued or to be issued by an LC Issuing Bank pursuant to Section 2.3 of this Agreement and shall include each Existing Letter of Credit. Letters of Credit may be issued in Dollars or Canadian Dollars, subject to the L/C Sublimit.

 

Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by an LC Issuing Bank.

 

  - 28 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Letter of Credit Expiration Date ” means the day that is five (5) Business Days prior to the Revolving Commitment Termination Date.

 

Letter of Credit Fees ” as defined in Section 2.10(b)(ii) .

 

Leverage Ratio ” means, as of any date of determination, the ratio of (a) Borrower Debt as of such date of determination (and giving effect to any Credit Extension to Borrowers on such date) to (b) Borrower Cash Flow for the Measurement Period ending immediately prior to such date of determination.

 

Lien ” means any lien, mortgage, pledge, collateral assignment, security interest, hypothec, debenture, statutory deemed trust, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing.

 

Limited Conditionality Transaction ” means any acquisition or Investment not prohibited hereunder by a Borrower or any Restricted Subsidiary of any assets, business or Person that such Borrower or Restricted Subsidiary is contractually committed (in the good faith determination of the Borrowers) to consummate (it being understood that such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with the terms of the applicable agreement).

 

Limited Recourse Collateral ” as defined in Section 7.11(a) .

 

Loans ” means the loans made by (i) the Revolving Lenders to any Borrower pursuant to this Agreement and any Incremental Amendment in the form of a Revolving Loan, (ii) the Swingline Lender to any Borrower pursuant to this Agreement in the form of a Swingline Loan and (iii) the Incremental Term Loan Lenders to any Borrower pursuant to this Agreement and any Incremental Amendment in the form of an Incremental Term Loan.

 

Management ” means (a) as of the Closing Date, the individuals who are listed on Schedule 1.1(b) together with their titles and roles, or (b) after the Closing Date, at least 4 of such individuals; provided that, at all times, the roles listed on Schedule 1.1(b) are filled with qualified individuals employed or engaged in the ordinary course of business.

 

Margin Stock ” as defined in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.

 

Material Adverse Effect ” means a material adverse effect on (a) the business, operations, assets, liabilities or condition (financial or otherwise) of the Credit Parties, taken as a whole, (b) the ability of the Credit Parties, taken as a whole, to fully and timely perform their respective Obligations, or (c) the material rights, remedies, benefits and the enforceability and priority of security available to, or conferred upon, the Secured Parties under the Credit Documents.

 

Measurement Period ” means, with respect to any date, the period of the most recently completed four Fiscal Quarters of the Borrowers ended on or prior to such date.

 

  - 29 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Moody’s ” means Moody’s Investor Services, Inc. and any successor thereto.

 

Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Borrowers or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

Multiple Employer Plan ” means a “single employer plan” as defined in Section 4001(a)(15) of ERISA, which has two or more contributing sponsors (including Borrowers or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

Net Asset Sale Proceeds ” means, with respect to any Asset Sale, an amount equal to: (a) Cash payments (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by Borrowers or any of the Restricted Holding Company Subsidiaries from such Asset Sale, minus (b) any reasonable costs, fees, commissions, premiums and expenses incurred in connection with such Asset Sale (or if such costs have not then been incurred or invoiced, Borrowers’ good faith estimate thereof), including (i) income taxes, stamp taxes, other taxes, duties or gains taxes payable or reasonably estimated to be payable by the seller or by any entity whose tax return includes the results of such sale either because the seller is a flow-through entity for tax purposes or because the seller is included in a consolidated tax filing by an upper tier affiliate, as a result of any gain recognized in connection with such Asset Sale, (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest, breakage costs or other amounts payable on any Indebtedness (other than the Revolving Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, (iii) other taxes actually payable upon or in connection with the closing of such Asset Sale (including any transfer taxes or taxes on gross receipts), (iv) any taxes payable or reasonably estimated to be payable in connection with any transactions effected (or deemed effected) to make prepayments (e.g., taxes payable upon repatriation of funds to Borrowers), and (v) actual, reasonable and documented out-of-pocket fees and expenses (including legal fees, fees to advisors and severance costs that are due (pursuant to a Contractual Obligation) paid to Persons other than Borrowers and the Restricted Holding Company Subsidiaries and their respective Affiliates in connection with such Asset Sale (including fees necessary to obtain any required consents of such Persons to such Asset Sale).

 

Net Cash Proceeds ” means, in connection with any incurrence or issuance of Indebtedness by Borrowers or any Restricted Holding Company Subsidiary (other than any incurrence or issuance of Permitted Indebtedness), the cash proceeds received from any such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions or other similar payments, and other direct reasonable fees, costs, commissions, stamp taxes, duties, premiums and expenses actually incurred in connection therewith; provided that if any such commissions, costs or expenses have not been incurred or invoiced at such time, Borrowers may deduct its good faith estimate thereof to the extent subsequently paid.

 

Net Insurance/Condemnation Proceeds ” means an amount equal to: (a) any Cash

 

  - 30 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

payments or proceeds received by Borrowers or any Restricted Holding Company Subsidiary (i) under any insurance policy (to the extent constituting compensation for the loss of assets or property associated with the Projects) occurring after the Closing Date (but excluding any such amounts used for restoration or repair and excluding any such payments or proceeds received from business interruption insurance) or (ii) as a result of the taking of any assets of Borrowers or the Restricted Holding Company Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking (but excluding any such amounts used for restoration or repair and any such payments or proceeds received from business interruption insurance), minus (b) (i) any actual and reasonable costs incurred by Borrowers or the Restricted Holding Company Subsidiaries in connection with the adjustment or settlement of any claims of Borrowers or such Restricted Subsidiary in respect thereof, (ii) any reasonable costs, fees, commissions, premiums and expenses incurred in connection with any adjustment or settlement or any such sale as referred to in clause (a)(ii) of this definition, including taxes payable as a result of any gain recognized in connection therewith and any actual, reasonable and documented out-of-pocket fees and expenses (including legal fees, fees to advisors and severance costs that are due to Persons other than Borrowers and the Restricted Holding Company Subsidiaries and their respective Affiliates in connection with such event, and (iii) payment of the outstanding principal amount of, premium or penalty, if any, and interest, to the extent such Indebtedness is required to be repaid as a result of a loss of assets or property or a taking of assets referred to in clause (a)(i) or (a)(ii) of this definition, breakage cost or other amounts payable on any Indebtedness that is secured by a Lien; provided that if any costs, fees or expenses that may be deducted under this clause (ii) have not been incurred or invoiced at the time of any determination of Net Insurance/Condemnation Proceeds, Borrowers may deduct its good faith estimate thereof to the extent actually subsequently so paid.

 

New Restricted Holding Company Subsidiaries ” means each Restricted Holding Company Subsidiary identified as such in Exhibit K .

 

Non-Consenting Lender ” as defined in Section 2.21 .

 

Non - Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

Non-Extending Lender ” as defined in Section 2.21 .

 

Non-Extension Notice Date ” as defined in Section 2.3(b)(iv) .

 

Non-Recourse Parties ” as defined in Section 10.26 .

 

Non-Refinanced Commitments ” as defined in Section 2.24 .

 

Non-Refinanced Loans ” as defined in Section 2.24 .

 

Non-US Agent ” means each Agent that is not a US Person.

 

Non - US Lender ” means each Lender and each LC Issuing Bank that is not a US Person.

 

  - 31 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Non-Wholly Owned Subsidiary ” means any Subsidiary that is not a Wholly-Owned Subsidiary.

 

Note ” means a Revolving Loan Note.

 

Notice ” means a Borrowing Notice And Certificate, an Notice of LC Activity and Certificate, or a Conversion/Continuation Notice.

 

Notice of LC Activity and Certificate ” means a notice substantially in the form of Exhibit A-3 .

 

Obligations ” means all obligations of every nature of each Credit Party from time to time owed to the Agents (including former Agents), the Lenders or any of them, the Swingline Lender and the LC Issuing Banks under any Credit Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, and payments for fees (including fees related to unused Revolving Commitments and issued but undrawn Letters of Credit), expenses, indemnification or otherwise. Solely for purposes of the collateral and guarantee provisions of this Agreement and the other Credit Documents, “Obligations” shall also include Secured Hedging Obligations (other than with respect to any Credit Party’s obligations that constitute Excluded Swap Obligations solely with respect to such Credit Party).

 

Obligee Guarantor ” as defined in Section 7.6 .

 

OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

Organizational Documents ” means (a) with respect to any corporation, its certificate or articles of incorporation, organization or amalgamation, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, (d) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended, and (e) with respect to any unlimited company, its memorandum of association, as amended, and its articles of association, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

 

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

 

  - 32 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.21 ).

 

Overnight Rate ” means, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by Administrative Agent or the LC Issuing Banks, in accordance with banking industry rules on interbank compensation.

 

Panhandle B Member 2 Pledge Agreement” means that certain Pledge Agreement, dated as of December 20, 2013, by and among Panhandle B Member 2 LLC, a Delaware limited liability company, Pattern Panhandle Wind 2 LLC, a Delaware limited liability company, and Morgan Stanley Capital Group Inc.

 

Participant Register ” as defined in Section 10.6(f) .

 

PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

 

PEG LP ” means Pattern Energy Group, LP, a Delaware limited partnership (and any successor thereof).

 

PEG LP II ” means Pattern Energy Group Holdings 2 LP, a Delaware limited partnership (and any successor thereof).

 

Pension Plan ” means any employee benefit plan (including a Multiple Employer Plan, but not including a Multiemployer Plan) which is subject to Title IV of ERISA, Section 412 of the Internal Revenue Code or Section 302 of ERISA which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates.

 

Permitted Indebtedness ” as defined in Section 6.1 .

 

Permitted Investments ” means investments in Cash and Cash Equivalents.

 

Permitted Liens ” means each of the Liens permitted pursuant to Section 6.2 .

 

Permitted Minority Investment ” means any Investment permitted pursuant to the terms of Section 6.5 pursuant to which a Borrower or Restricted Subsidiary acquires less than the total amount of Capital Stock or other ownership interests in any Person and after giving effect such Investment, such Person is not a “Subsidiary” of such Borrower or Restricted Subsidiary.

 

Permitted Minority Investment Company ” means a Person in which a Borrower or Restricted Subsidiary has made a Permitted Minority Investment.

 

Permitted Minority Investment Project ” means an Energy Project owned by a Permitted Minority Investment Company.

 

  - 33 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Permitted Project Acquisitions ” as defined in Section 6.5(i) .

 

Permitted Project Debt ” means (a) all Indebtedness incurred, or permitted to be incurred, by any Restricted Operating Company Subsidiary or any other Restricted Subsidiary or any Borrower (but, in the case of a Borrower (except as otherwise permitted by Section 6.1(e) ) or a Restricted Subsidiary that is not (x) a Restricted Operating Company Subsidiary or (y) the general partner of a Restricted Operating Company Subsidiary that was created for the purpose of being such Restricted Operating Company Subsidiary’s general partner, the recourse of such Indebtedness against assets of such Borrower or such Restricted Subsidiary shall be limited solely to any pledge by such Borrower or such Restricted Subsidiary of (i) Capital Stock (including tax equity interests) in a Restricted Operating Company Subsidiary (or other Restricted Subsidiary that is (A) solely in the case of such pledging Restricted Subsidiary, a direct or indirect parent company or (B) in the case of such Borrower or such pledging Restricted Subsidiary, the general partner of such Restricted Operating Company Subsidiary) or Permitted Minority Investment Company (or the general partner of such Permitted Minority Investment Company), and any proceeds thereof, or (ii) intercompany debt) pursuant to a Project Financing Document, (b) the incurrence or issuance, as applicable, by any Restricted Subsidiary or Restricted Subsidiaries of Indebtedness or Disqualified Stock (which may include the incurrence by the Borrower of such Indebtedness, so long as the recourse of such Indebtedness against assets of the Borrower is limited to a pledge of Capital Stock (including tax equity interests) or intercompany debt, in each case with respect to the applicable Restricted Subsidiaries or Permitted Minority Investment Companies) to finance a dividend, distribution, return of capital or loan to, Investment in or acquisition or ownership of, a Borrower or any Restricted Subsidiary (or Person that upon completion of an acquisition, will become a Restricted Subsidiary); provided that such amounts are not used (at the time of the incurrence establishment of such Indebtedness, the making of such dividend, distribution, return of capital, loan or , Investment , or at any other time Acquisition ) to make Restricted Payments or an extension of credit (in the form of Permitted Subordinated Indebtedness or otherwise) to the Sponsor or a Pledgor, and (c) Permitted Refinancings of Permitted Project Debt set forth in clauses (a) and (b) of this definition.

 

Permitted Project Liens ” means the Liens securing the Permitted Project Debt and any other Liens permitted under the Project Financing Documents, including the Panhandle B Member 2 Pledge Agreement.

 

Permitted Refinancing ” means, with respect to any Person, any refinancing, replacement, refunding, renewal or extension of any Indebtedness of such Person in whole or in part; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so refinanced, replaced, renewed or extended except by an amount equal to the sum of any reasonable and customary transaction costs and fees and any premium on the Indebtedness required to be paid in connection with such refinancing, replacement, renewal or extension unless the increase in the principal amount of such Indebtedness is permitted under Section 6.1 ; provided that, such refinancing shall not exceed one hundred percent (100%) of the Indebtedness so refinanced, plus any applicable premiums, transaction costs, expenses, fees and interest, plus other amounts to the extent independently permitted to be incurred pursuant to exceptions to Section 6.1 (which shall count as usage thereof), (b) the maturity date for such refinancing, replacement, renewal or

 

  - 34 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

extension must not be set at a date that, the good faith judgment of the Borrowers, would impair the ability of the Borrowers to repay the Revolving Loans based on updated pro forma projections prepared by the Borrowers and supplied to the Administrative Agent, (c) such refinancing, replacement, renewal or extension is incurred solely by the Person(s) who is an obligor under the Indebtedness being refinanced, replaced, refunded, renewed or extended and no other Person is an obligor thereunder, and (d) following such refinancing, replacement, renewal or extension of any Indebtedness, the terms of such refinanced, replaced, renewed or extended Indebtedness shall not preclude the Lenders from foreclosing or otherwise exercising remedies pursuant to the Credit Documents, except with respect to any preclusion that existed prior to the effectiveness of such refinanced, replaced, renewed or extended Indebtedness.

 

Permitted Subordinated Indebtedness ” means all unsecured Indebtedness of Borrowers or the Restricted Subsidiaries (a) that is incurred pursuant to Section 6.1(d) and subordinated pursuant to the Subordination Agreement (or another subordination agreement reasonably acceptable to the Administrative Agent), (b) the maturity date of which shall be later by at least ninety (90) days than the Latest Maturity Date (as determined on the date of incurrence of such intercompany Indebtedness), (c) that has no rights of acceleration at any time prior to the earlier of (x) such Latest Maturity Date (in effect at such time of issuance) and (y) the termination of the Revolving Commitments or the acceleration of the Obligations in accordance with Section 8.1 (in which case the payment priority set forth in Section 4(a) of the Subordination Agreement shall apply), (d) that shall at all times be held by Sponsor, a Pledgor, a Borrower or a Restricted Subsidiary, as the case may be, and (e) that subject to the first proviso to Section 6.1(d) , to the extent owed to any Pledgor, Borrower or Restricted Subsidiary that is a party to a Pledge Agreement, are pledged to the Collateral Agent (for the benefit of the Secured Parties) in accordance with the applicable Pledge Agreement (but subject to any limitations and exclusions contained therein).

 

Permitted Swingline Use ” means any legally permissible use by the Borrowers and their Restricted Subsidiaries (including to make Restricted Payments in accordance with this Agreement).

 

Permitted Uses ” means any legally permissible use by the Borrowers and their Restricted Subsidiaries, including to fund general working capital and expenses of Borrowers and their Restricted Subsidiaries, the issuance of Letters of Credit (subject to the terms and conditions of this Agreement) and draws made thereunder, the Cash Collateralization of any Letter of Credit, Transaction Costs, reserves (whether required by any Credit Document or the Project Financing Documents), Investments in Restricted Operating Company Subsidiaries (as determined in the sole discretion of Borrowers), Permitted Project Acquisitions, distributions to Pledgors and Sponsor (including issuing Letters of Credit on behalf of a Pledgor, Sponsor or any of their Affiliates, subject to the terms and conditions of this Agreement regarding Restricted Payments and Letters of Credit), and other general and lawful business purposes of Borrowers.

 

Person ” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, unlimited liability companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.

 

  - 35 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Personal Information ” as defined in Section 10.22 .

 

Pledge Agreements ” means the US Pledge and Security Agreement, the US Pledge Agreement, the Canada Pledge and Security Agreement, the Canada Pledge Agreement, and after the Closing Date, any other pledge or security agreement entered into pursuant to Section 5.9 .

 

Pledgor s” means the US Pledgor and the Canada Pledgor.

 

PPSA ” means the Personal Property Security Act (Ontario), as amended from time to time, together with all regulations made thereunder; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by (a) personal property security legislation as in effect in a Canadian jurisdiction other than Ontario, or (b) the Civil Code of Quebec, “PPSA” means the personal property security or corresponding legislation as in effect from time to time in such other jurisdiction or the Civil Code of Quebec, as applicable, for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority in such Collateral.

 

Principal Office ” means, for each of Administrative Agent and the LC Issuing Banks, such Person’s “Principal Office” as set forth on Appendix B , or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to Borrowers, Administrative Agent and each Lender.

 

Project ” means any of the Energy Projects owned by the Restricted Operating Company Subsidiaries, including all of the real, personal and mixed property related thereto. Subject to the terms of this Agreement and the other Credit Documents, a Project shall cease to be a Project at such time that Borrowers and any of their Restricted Subsidiaries cease to have any existing or future interests, rights or obligations (whether direct or indirect, contingent or matured) associated therewith. Schedule 1.1(c) sets forth the Projects as of the Closing Date as such Schedule may be amended and modified by the Lenders and the Borrower as appropriate.

 

Project Financing Documents ” means any credit agreement, loan or credit document, indenture, letter of credit reimbursement agreement, promissory note, letter of credit, security agreement, pledge agreement, collateral assignment, consent and agreement, guaranty, financing statement, indemnity agreement, formation document, Organizational Document, letter agreement or other document, agreement, or instrument entered into or executed by any Restricted Operating Company Subsidiary or any other Restricted Subsidiary or any Borrower or Permitted Minority Investment Company, in connection with any Indebtedness, any tax equity, lease financing or joint venture, in each case incurred to finance or govern the construction, acquisition, development, expansion, operation, ownership or maintenance of a Project (or Projects) or Permitted Minority Investment Project (or Permitted Minority Investment Projects) .

 

Project-Level Default ” means either (a) the failure of a Restricted Operating Company Subsidiary to pay when due any principal of, or interest on, or regularly occurring fees in respect of, one or more items under the Project Financing Documents or any termination payments owing under interest rate hedge agreements entered into in connection with the Project Financing Documents, in each case beyond the grace period, if any, provided therefor, or (b) the default by

 

  - 36 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

a Restricted Operating Company Subsidiary in the performance of, or compliance with, any term contained in any Project Financing Document (other than any such term referred to clause (a) of this definition) and such default or noncompliance shall remain unremedied beyond the grace period, if any, provided therefor.

 

Project Non- Payment Acceleration ” as defined in Section 8.1(b)(ii) .

 

Project Payment Default ” as defined in Section 8.1(b)(ii) .

 

Project PPA ” means each of the agreements listed in Schedule 1.1(d) and any replacement thereof entered into pursuant to the applicable Project Financing Documents.

 

Projections ” as defined in Section 4.8 .

 

Pro Rata Share ” means, at any time,  with respect to all payments, computations and other matters or amounts relating to the Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued, any Swingline Loans made or participations purchased therein by any Lender, the percentage obtained by dividing (a) the Revolving Commitment of that Lender at such time by (b) the aggregate Revolving Commitments of all Lenders at such time.

 

Qualified ECP Guarantor ” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell agreement under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

Qualified Stock ” means any Capital Stock that is not Disqualified Stock.

 

Qualifying Cash ” means, with respect to any Project or Permitted Minority Investment Project, Cash (other than Internally Generated Cash) distributed by the relevant Restricted Operating Company Subsidiary or Permitted Minority Investment Company to a Credit Party (or, for purposes of calculating Borrower Cash Flow from non-U.S. and non-Canada Restricted Operating Company Subsidiaries (or non-U.S. and non-Canada Permitted Minority Investment Companies), permitted and available for distribution as provided in the definition of Available Cash) during the Ramp-up Phase for such Project or Permitted Minority Investment Project that is not excluded pursuant to clauses (a) through (h) of the final sentence of the definition of Available Cash and that does not exceed $5,000,000 in the aggregate in respect of such Project or Permitted Minority Investment Project.

 

Ramp-up Phase ” means, with respect to any Project or Permitted Minority Investment Project, the twelve (12) month period commencing on the later of (i) the month in which such Project or Permitted Minority Investment Project has reached commercial operation and (ii) the month in which the initial distribution of Cash is made by the relevant Restricted Operating Company Subsidiary or Permitted Minority Investment Company to a Credit Party following commercial operation.

 

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Refinancing Amendment ” as defined in Section 2.24(c) .

 

Refinancing Commitments ” as defined Section 2.24 .

 

Refinancing Effective Date ” as defined in Section 2.24 .

 

Refinancing Facility ” means, at any time, as the context may require, the aggregate amount of the Refinancing Lenders’ Refinancing Loans at such time and, in each case, but without duplication, the Credit Extensions made thereunder.

 

Refinancing Lender ” as defined in Section 2.24(b) .

 

Refinancing Loans ” as defined in Section 2.24(a) .

 

Register ” as defined in Section 10.6(b) .

 

Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

Reimbursement Amount ” as defined in Section 2.3(c)(i) .

 

Reimbursement Date ” as defined in Section 2.3(c)(i) .

 

Related Parties ” means, with respect to any Person, such Person’s Affiliates and the Representatives of such Person and of such Person’s Affiliates.

 

Release ” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.

 

Remedial Action ” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, investigate, study, sample, test or abate, or in any other way perform a response action or otherwise address, the presence or Release of Hazardous Materials in the environment; (b) in connection with the presence or Release of Hazardous Materials in the environment, perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (c) any “response” as defined by 42 U.S.C. 9601(25) or any similar terms as defined by equivalent state law.

 

Removal Effective Date ” as defined in Section 9.6(b) .

 

Replacement Lender ” as defined in Section 2.21 .

 

Representative ” means, as to any Person, its officers, directors, managers, employees, partners, members, stockholders, counsel, accountants, advisors, engineers, consultants, agents, trustees, administrators, and any other representatives.

 

  - 38 - CREDIT AGREEMENT (PATTERN REVOLVER)

 

 

Required Incremental Term Loan Lenders ” means, as of any date of determination, with respect to each Series of Incremental Term Loans, Incremental Term Loan Lenders holding more than 50% of such Series on such date; provided that the portion of such Series of Incremental Term Loans held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Incremental Term Loan Lenders.

 

Required Lenders ” means Lenders having more than fifty percent (50%) of the aggregate Total Exposure of all Lenders; provided that such amount shall be determined with respect to any Defaulting Lender by disregarding the Revolving Exposure and any Incremental Term Loan Exposure of such Defaulting Lender; provided , further, that with respect to any waiver or amendment of the conditions set forth in Section 3.2 with respect to any Revolving Loan (but not with respect to any waiver, consent or amendment with respect to any other provision hereof, including any covenant, Default or Event of Default), “Required Lenders” shall mean only the “Required Revolving Lenders.”

 

Required Revolving Lenders ” means, as of any date of determination, with Revolving Lenders and Increased Commitment Lenders holding more than fifty percent (50%) of the sum of the (a) Total Utilization of Revolving Commitments (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and in Swingline Loans, as applicable, being deemed “held” by such Revolving Lender for purposes of this definition) and (b) aggregate unused Revolving Commitments and Increased Commitments; provided that the unused Revolving Commitments of, and the portion of the Total Utilization of Revolving Commitments or Increased Commitments (as applicable) held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

 

Resignation Effective Date ” as defined in Section 9.6(a) .

 

RCRA ” as defined in Section 4.12 .

 

Restricted Holding Company Subsidiaries ” means each Subsidiary of a Borrower that is identified as a “Restricted Holding Company Subsidiary” on Exhibit K (as it may be amended, restated, supplemented or otherwise modified from time to time as provided under Section 5.9 ).

 

Restricted Operating Company Subsidiaries ” means each Subsidiary of a Borrower that is identified as a “Restricted Operating Company Subsidiary” on Exhibit K (as it may be amended, restated, supplemented or otherwise modified from time to time as provided under Section 5.9 ).

 

Restricted Payment ” means (a) any dividend or other distribution, direct or indirect, on account of any shares of any Capital Stock of a Borrower or a Restricted Subsidiary, as applicable, now or hereafter outstanding; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any Capital Stock of a Borrower or a Restricted Subsidiary, as applicable, now or hereafter outstanding; (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any Capital Stock of a Borrower or a Restricted Subsidiary, as applicable, now or hereafter outstanding; (d) management or similar fees payable to a Pledgor,

 

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Sponsor or any of their Affiliates; (e) repayment of principal or interest in respect of any Permitted Subordinated Indebtedness; or (f) any issuance of a Letter of Credit issued to any beneficiary that is an Affiliate of a Borrower that is not a Subsidiary of a Borrower.

 

Restricted Subsidiaries ” means, collectively, the Restricted Operating Company Subsidiaries, the Restricted Holding Company Subsidiaries and all other direct or indirect Subsidiaries of a Borrower identified as a Restricted Subsidiary on Exhibit K (as it may be amended, restated, supplemented or otherwise modified from time to time as provided under Section 5.9 ).

 

Revaluation Date ” means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of a Canadian Dollar Denominated Loan, (ii) each date of continuation of a CDOR Loan that is a Canadian Dollar Denominated Loan and (iii) the last Business Day of each Fiscal Quarter if there is a Canadian Dollar Denominated Loan outstanding; (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Canadian Dollar Denominated Letter of Credit, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the applicable LC Issuing Bank under any Canadian Dollar Denominated Letter of Credit and (iv) the last Business Day of each Fiscal Quarter if there is a Canadian Dollar Denominated Letter of Credit outstanding, in each case for purposes of determining whether such outstanding Canadian Dollar Denominated Loan or outstanding Canadian Dollar Denominated Letter of Credit causes the Revolving Commitment to be exceeded as of such date; and (c) with respect to any Canadian Dollar Denominated Loan and any Canadian Dollar Denominated Letter of Credit, each date on which an Event of Default has occurred or is continuing.

 

Revolving Commitment ” means the commitment of a Lender to make or otherwise fund any Revolving Loan pursuant to Section 2.1(a) or acquire participations in Swingline Loans pursuant to Section 2.2(e) or in Letters of Credit pursuant to Section 2.3(c) , and the commitment of the Swingline Lender to make Swingline Loans pursuant to Section 2.2(a) . “ Revolving Commitments ” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any availability limitation as of the date of determination or other adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Revolving Commitments as of November 21, 2017 is four hundred and forty million Dollars ($440,000,000), which amount may be adjusted pursuant to Sections 2.11(b) or increased pursuant to Section 2.22 .

 

Revolving Commitment Period ” means the period from the Closing Date to but excluding the Revolving Commitment Termination Date.

 

Revolving Commitment Termination Date ” means the earliest to occur of (a) the fifth anniversary of the Closing Date, (b) the date the Revolving Commitments are permanently reduced to zero in accordance with the Revolving Commitment reduction provisions set forth in this Agreement, and (c) the date of the termination of the Revolving Commitments pursuant to Section 8.1 .

 

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Revolving Credit Facility” means at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.

 

Revolving Exposure ” means, with respect to any Lender as of any date of determination, without duplication, (a) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (b) after the termination of the Revolving Commitments, the sum of (i) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (ii) in the case of an LC Issuing Bank, the aggregate L/C Obligation in respect of all Letters of Credit issued by that LC Issuing Bank (net of any participations by Lenders in such Letters of Credit), and (iii) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or Swingline Loan or any Unreimbursed Amount under any Letter of Credit.

 

Revolving Lender ” means each financial institution that has made a Revolving Commitment pursuant to Section 2.1(a) , listed on the signature pages hereto as a Lender.

 

Revolving Loan ” means a loan made by a Lender to Borrowers pursuant to Section 2.1(a) or any Increased Commitment.

 

Revolving Loan Note ” means a Canadian Dollar Denominated Revolving Note or a US Dollar Denominated Revolving Note.

 

Riverstone ” means Riverstone Holdings LLC (or any of its Affiliates, affiliated funds or funds managed by it).

 

Royal Bank ” as defined in the preamble hereto.

 

Sanction(s) ” means any international economic sanction administered or enforced by OFAC, the U.S. Department of State or the Department of Foreign Affairs and International Trade (Canada).

 

S&P ” means Standard & Poor’s, a Division of The McGraw Hill Companies, Inc., and any successor thereto.

 

Secured Hedging Obligations ” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that are entered into after the Closing Date between any Borrower or Guarantor and any counterparty that is (or is an Affiliate of) the Administrative Agent or any Revolving Lender at the time such Hedge Agreement is entered into, for which such Borrower agrees to provide security and in each case that has been designated to the Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Credit Documents, it being understood that each counterparty thereto shall be deemed to appoint the Administrative Agent as its agent under the applicable Loan Documents. For the avoidance of doubt, Secured Hedging Obligations shall not be considered Indebtedness and the Hedge Agreements with respect to such Secured Hedging Obligations shall not constitute Credit Documents.

 

Secured Parties ” means the Agents, LC Issuing Banks, the Swingline Lender, the other Lenders and any other Persons the Obligations owing to which are purported to be secured by the

 

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Collateral under the Collateral Documents , and each counterparty to a Hedge Agreement that is a Secured Hedging Obligation .

 

Securities ” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of Indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

 

Securities Act ” means the Securities Act of 1933, as amended from time to time, and any successor statute.

 

SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Series ” as defined in Section 2.22(b) .

 

Solvency Certificate ” means a Solvency Certificate of the chief financial officer of Sponsor and Pledgors substantially in the form of Exhibit G .

 

Solvent ” means, with respect to any Person, that as of the date of determination, both (a) (i) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of the present assets of such Person and its Subsidiaries; (ii) the capital of such Person and its Subsidiaries is not unreasonably small in relation to its business as contemplated on any determination date; and (iii) such Person and its Subsidiaries have not incurred and do not intend to incur, or believe that they will incur, debts beyond their ability to pay such debts as they become due and payable (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable Governmental Rules relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).

 

Sponsor ” means Pattern Energy Group Inc., a Delaware corporation.

 

Sponsor G&A Amount ” means twenty-five million Dollars ($25,000,000).

 

Sponsor G&A Expenses ” means operating expenses of Sponsor that shall be limited to salaries, direct overhead and other general and administrative expense of Sponsor to maintain its business and which shall, for the avoidance of doubt, exclude Project-related expenses, development costs, security deposits and any other discretionary or other items.

 

Spot Rate ” means, with respect to the conversion of one currency into another currency, the spot rate of exchange for such conversion as quoted by the Bank of Canada at 4:30 p.m.

 

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(Toronto time) on the Business Day that such conversion is to be made (or, if such conversion is to be made before 4:30 p.m. (Toronto time) on such Business Day, then at approximately close of business on the immediately preceding Business Day), and, in either case, if no such rate is quoted, the spot rate of exchange quoted for wholesale transactions by the Administrative Agent on the Business Day such conversion is to be made in accordance with its normal practice.

 

Subject Transaction ” as defined in Section 6.6(c) .

 

Subordination Agreement ” means a Subordination Agreement substantially in the form of Schedule 6.1(d) , with such amendments or modifications as may be approved by Required Lenders and Borrowers.

 

Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which  fifty percent (50%) or more of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether Representatives or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided , in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Borrowers.

 

Swap Obligations ” means, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

 

Swingline Lender ” as defined in the preamble hereto.

 

Swingline Loan ” means a Loan made pursuant to Section 2.2(a) hereto.

 

Syndication Agent ” as defined in the preamble hereto.

 

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

 

Terminated Lender ” as defined in Section 2.21 .

 

Termination Date ” means the date on which (a) the Revolving Commitment Termination Date has occurred, (b) the principal amount of all Revolving Loans and all other Obligations then due and payable have been paid in full (other than contingent indemnification and reimbursement obligations for which no claim has been made) and , (c) all Letters of Credit have been cancelled or have expired or have been Cash Collateralized in a maximum amount equal to not less than one hundred two percent (102%) of the face amount of such Letter of Credit on such date or otherwise secured to the satisfaction of the LC Issuing Bank thereof , and

 

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(d) to the extent required by the applicable Hedge Agreements, any Secured Hedging Obligations then due and payable at such time have been paid in full (or otherwise addressed) in accordance with the terms of such Hedge Agreements .

 

Total Exposure ” means, as at any date of determination, the sum of (a) the Total Utilization of Revolving Commitments and (b) all outstanding Incremental Term Loans.

 

Total Utilization of Revolving Commitments ” means, as at any date of determination, the sum of (a) the aggregate principal amount of all outstanding Revolving Loans, (b) the L/C Obligation and (c) the aggregate principal amount of all outstanding Swingline Loans as of such date of determination.

 

Transaction Costs ” means the fees, costs and expenses (including any Revolving Commitment fees, original issue discount or upfront fees) payable by Borrowers in connection with the Transactions.

 

Transaction Documents ” means each Credit Document, each Project Financing Document and each Project PPA.

 

Transactions ” means entering into the Credit Documents.

 

Transfer ” means to convey, sell, lease, sub-lease, assign, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, any specified property (whether real, personal or mixed).

 

Treasury Regulations ” means the final and temporary (but not proposed) income tax regulations promulgated under the Internal Revenue Code or the ITA, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

 

Type of Loan ” means the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan, Eurodollar Rate Loan, Canadian Prime Rate Loan or CDOR Loan.

 

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

 

UCP ” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

 

Unreimbursed Amount ” as defined in Section 2.3(c)(i) .

 

US Borrower ” as defined in the preamble hereto.

 

US Dollar Denominated Revolving Loan Note ” means a promissory note in the form of Exhibit B-1 , as it may be amended, restated, supplemented or otherwise modified from time to time.

 

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US Person ” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

 

US Pledge Agreement ” means that certain Amended and Restated Pledge Agreement, dated as of December 17, 2014, by and between US Pledgor and Collateral Agent, as it may be amended, restated, supplemented or otherwise modified from time to time.

 

US Pledge and Security Agreement ” means that certain Second Amended and Restated Pledge and Security Agreement, dated as of the date hereof, by and between US Borrower, each US Restricted Holding Company Subsidiary and the Collateral Agent, as it may be amended, restated, supplemented or otherwise modified from time to time.

 

US Pledgor ” means Pattern US Operations Holdings LLC.

 

US Restricted Holding Company Subsidiary ” means any Restricted Holding Company Subsidiary that is a US Subsidiary.

 

US Restricted Operating Company Subsidiary ” means any Restricted Operating Company Subsidiary that is a US Subsidiary.

 

US Subsidiary ” means a Subsidiary of a Borrower organized under the laws of the Governmental Rules of the United States or any state thereof.

 

US Tax Compliance Certificates ” means each of the certificates substantially in the form of Exhibits F-1 through F-4 , as applicable.

 

Weighted Average Life to Maturity ” means, 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 thereof, 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.

 

Wholly-Owned Subsidiary ” means from time to time, with respect to any Person, (i) any corporation in which such Person or one or more Wholly-Owned Subsidiaries of such Person owns one hundred percent (100%) of the Capital Stock at such time and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person or one or more Wholly-Owned Subsidiaries of such Person owns one hundred percent (100%) of the Capital Stock at such time.

 

Withholding Agent ” means any Credit Party and Administrative Agent.

 

Write-Down and Conversion Powers ” means, 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.

 

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1.2    Accounting Terms . Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Borrowers to Lenders pursuant to Sections 5.1(a) and  5.1(b ) shall be prepared in accordance with GAAP as in effect at the time of such preparation and, where financial statements are required to be consolidated, GAAP applicable in the United States shall apply. Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions used in Section 6.6 hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and Borrowers or Administrative Agent shall so request, Administrative Agent and Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Required Lenders), provided that until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and Borrowers shall provide to Administrative Agent and Lenders reconciliation statements provided for in Section 5.1(d) . Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of Borrowers or any Restricted Subsidiary of any Borrower at “fair value”, as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) in a manner such that any obligations relating to a lease that was accounted for by a Person as an operating (or equivalent) lease as of the date of this Agreement and any similar lease entered into after the date of this Agreement by such Person shall be accounted for as obligations relating to an operating lease and not as obligations relating to a Capital Lease or other financing lease on the balance sheet of such Person. Furthermore, notwithstanding anything to the contrary contained herein or in the definition of “Capital Lease”, in the event of an accounting change or a change in the application of GAAP requiring all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable Person, unless the Borrowers elect otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capital Leases (including leases that are classified as “financing leases” for purposes of GAAP) in conformity with GAAP on the date hereof shall be considered Capital Leases, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.

 

1.3    Terms Generally . Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. References to “or” shall be deemed to be disjunctive but not necessarily exclusive (i.e., unless the context dictates otherwise, “or” shall be interpreted to mean “and/or” rather than “either/or”).

 

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The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not no limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The use herein of the word “issue” or “issuance” with respect to any Letter of Credit shall be deemed to include any amendment, extension or renewal thereof. Unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person consolidated with its Subsidiaries. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.

 

1.4    Exchange Rates; Currency Equivalents

 

(a)    Administrative Agent or the applicable LC Issuing Bank, as applicable, shall determine the applicable Spot Rate to be used for calculating Dollar Equivalent and Canadian Dollar Equivalent amounts. Except for purposes of financial statements delivered by Credit Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such Dollar Equivalent amount as so determined by Administrative Agent or the applicable LC Issuing Bank, as applicable.

 

(b)    Wherever in this Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, then with respect to Canadian Dollar Denominated Letters of Credit, such amount shall be the relevant Canadian Dollars Equivalent of such Dollar amount, as determined by Administrative Agent or the applicable LC Issuing Bank, as the case may be.

 

1.5    Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time in Dollar Equivalents; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any LC Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit for purposes of determining the L/C Obligation at any specified time shall be equal to the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. In the event of any conflict between the terms hereof and the terms of any LC Issuer Document, the terms in this Agreement shall control.

 

1.6    Calculations . For purposes of all ratio and other calculations hereunder, including in connection with calculating the Applicable Margin, covering periods for which financial statements have not been delivered pursuant to Section 5.1(a) or (b) hereof, and are instead or also to be based upon information contained in the financial statements delivered pursuant to the equivalent provisions of the Existing Credit Agreement, such calculations shall be made on further pro forma basis taking into account all Restricted Subsidiaries and Collateral with respect to the Revolving Loans hereunder that do not provide credit support for the obligations (or are

 

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not “Restricted Subsidiaries”) under the Existing Credit Agreement. Notwithstanding anything herein to the contrary, in respect of any event for which a calculation hereunder is to be made with reference to financial statements delivered pursuant to Section 5.1(b) , where such calculation is to be made during the period following the end of the Fiscal Quarter ended December 31 of any Fiscal Year, but prior to the delivery of audited financial statements pursuant to Section 5.1(b) with respect to such Fiscal Year, the Borrowers may include such Fiscal Quarter ended December 31 in such calculation; provided that, prior to so doing, the Borrowers shall have delivered to the Agent unaudited financial statements covering such Fiscal Quarter that would otherwise satisfy the requirements of Section 5.1(a) (without regard to any deadlines for delivery set forth in Section 5.1(a) ).

 

1.7    Limited Conditionality . Notwithstanding anything to the contrary herein (including in connection with any calculation made on a pro forma basis), if the terms of this Agreement require (i) compliance with any financial ratio or financial test (including, Section 6.6 hereof, any Leverage Ratio test or any Interest Coverage Ratio test) or any cap expressed as a percentage or multiple of Borrower Cash Flow, (ii) accuracy of any representation or warranty or the absence of a Default or Event of Default (or any type of default or event of default) or (iii) compliance with any basket or other condition, as a condition to (1) the consummation of any Limited Conditionality Transaction (including in connection with any acquisition or similar Investment or the assumption or incurrence of Indebtedness that is a Limited Conditionality Transaction) or (2) the making of any Restricted Payment solely for purposes of consummating a Limited Conditionality Transaction, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, (A) in the case of any Limited Conditionality Transaction, at the time of (or on the basis of the financial statements for the most recently ended Measurement Period at the time of) either (x) the execution of the definitive agreement with respect to such Limited Conditionality Transaction or (y) the consummation of such Limited Conditionality Transaction and (B) in the case of any Restricted Payment solely for purposes of consummating a Limited Conditionality Transaction, at the time of (or on the basis of the financial statements for the most recently ended Measurement Period at the time of) (x) the declaration of such related Restricted Payment or (y) the making of such related Restricted Payment, in each case, after giving effect to the relevant Limited Conditionality Transaction or such related Restricted Payment on a pro forma basis (including, in each case, after giving effect to the relevant transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and after giving pro forma effect to other Limited Conditionality Transactions entered into in connection with such Limited Conditionality Transaction for which definitive agreements have been executed, and no Default or Event of Default shall be deemed to have occurred solely as a result of an adverse change in such financial ratio or test occurring after the time such election is made (but any subsequent improvement in the applicable financial ratio or test may be utilized by the Borrowers or any Restricted Subsidiary). For the avoidance of doubt, if the Borrowers shall have elected the option set forth in clause (x) of any of the preceding clauses (1), (2) or (3) in respect of any transaction, then (X) the Borrower shall be permitted to consummate such Limited Conditionality Transaction or such related Restricted Payment even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s election of such option and (Y) in connection with any subsequent transaction or event that requires compliance with any financial ratio, financial test, basket or other condition, the accuracy of a representation or warranty or the absence of a Default or Event of Default following the date of such election and prior to the earlier of (i) the date on which such Limited Condition Transaction

 

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is consummated or such related Restricted Payment is made or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, the compliance with any such financial ratio, financial test, basket or other condition, accuracy of a representation or warranty or the absence of a Default or Event of Default shall be calculated or determined on a pro forma basis assuming such Limited Condition Transaction or such related Restricted Payment (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated until such time as such Limited Condition Transaction has been consummated or the definitive agreement with respect thereto has been terminated or expires or such related Restricted Payment (or a determination not to make such related Restricted Payment) has been made. The provisions of this Section 1.7 shall also apply in respect of the incurrence of any Incremental Facility. Subject to the preceding sentences in this Section 1.7, for purposes of determining whether any Indebtedness can be incurred pursuant to Section 2.22 or Section 6.1 (including any applicable defined terms), in the event of an incurrence of “revolving” Indebtedness, such Indebtedness shall be measured at the time it is initially established (assuming such revolving facility to be fully drawn) for purposes of determining whether such Indebtedness may be incurred (and not tested for purposes of incurrence at the time of each subsequent drawing). For the avoidance of doubt, the preceding sentence shall not act to ignore subsequent drawings of any such revolving facility for purposes of (i) the incurrence of other Indebtedness hereunder, (ii) calculation of the Applicable Margin or any fees hereunder or (iii) compliance with Section 6.6.

 

1.8    Alternative Currencies .

 

(a)    Borrowers may from time to time request that Revolving Loans be made in a currency other than Dollars or Canadian Dollars or Letters of Credit be issued in a currency other than Dollars or Canadian Dollars; provided that such requested currency is a lawful currency that is readily available and freely transferable and convertible into Dollars. Such request shall be subject to the approval of all Revolving Lenders and, in the case of any such request with respect to the issuance of Letters of Credit denominated in any such other currency, such request shall be subject to the approval of the applicable LC Issuing Banks, in each case as set forth in Section 10.5(c)(ii) .

 

(b)    Any such request shall be made to the Administrative Agent not later than 11:00 a.m., fifteen (15) Business Days prior to the requested date of the making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the Administrative Agent (acting at the direction of all Revolving Lenders) and, in the case of any such request pertaining to the issuance of Letters of Credit, the applicable Issuing Banks, in its or their sole discretion). In the case of any such request pertaining to Revolving Loans, the Administrative Agent shall promptly notify each Revolving Lender and, in the case of any such request pertaining to the issuance of Letters of Credit, the applicable LC Issuing Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to Revolving Loans) and each applicable LC Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m. (New York City time), ten (10) Business Days after receipt of such request whether it consents (and which consent it shall be entitled to withhold in its sole discretion) to the making of Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

 

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(c)    Any failure by a Revolving Lender or LC Issuing Bank, as the case may be, to respond to such request within the time period specified in the preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all Revolving Lenders consent to making Revolving Loans or the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrowers, and the Borrowers and the Revolving Lenders shall amend this Agreement and the other Credit Documents solely to the extent necessary to accommodate such Borrowings or Letters of Credit (as applicable), in accordance with Section 10.5(c)(ii) . If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.8 , the Administrative Agent shall promptly so notify the Borrowers.

 

Section 2 .   LOANS AND LETTERS OF CREDIT

 

2.1    Revolving Loans

 

(a)    Revolving Commitments .

 

(i)    On the Closing Date, the Revolving Loans of each Lender outstanding under the Existing Credit Facility (each as defined therein) on the Closing Date (immediately prior to the occurrence thereof), as set forth as “ Existing Closing Date Loans ” in Schedule 2.1(a)(i) , shall be continued (on a cashless basis), and shall constitute and remain outstanding as Revolving Loans hereunder. The continuations of such Revolving Loans shall not be subject to any breakage or similar costs that might otherwise be payable pursuant to Section 2.16(c) or the equivalent provision of the Existing Credit Agreement. In furtherance of the foregoing, on the Closing Date, the initial Lenders hereunder shall make and receive payments among themselves, in a manner acceptable to and approved by the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are, on (and immediately after the occurrence of) the Closing Date, held ratably by the Revolving Lenders in accordance with the respective Revolving Commitments of the Revolving Lenders on the Closing Date.

 

(ii)    During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender severally agrees to make Revolving Loans, which will be made in Dollars or Canadian Dollars, to Borrowers in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided that after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.

 

(b)    Borrowing Mechanics for Revolving Loans .

 

(i)    Revolving Loans shall be made in an aggregate minimum amount of five hundred thousand Dollars ($500,000) or Canadian Dollars (CAD $500,000) and

 

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integral multiples of fifty thousand Dollars ($50,000) or Canadian Dollars (CAD $50,000) in excess of that amount.

 

(ii)    Whenever any Borrower desires that Lenders make Revolving Loans, such Borrower shall deliver to Administrative Agent a fully executed and delivered Borrowing Notice And Certificate no later than (x) 1:00 p.m. (New York City time) at least three (3) Business Days in advance of the proposed Credit Date in the case of a Revolving Loan that is a Eurodollar Rate Loan or CDOR Loan, (y) 12:00 p.m. (New York City time) on the proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan and (z) 1:00 p.m. (New York City time) at least one (1) Business Day in advance of the proposed Credit Date in the case of a Revolving Loan that is a Canadian Prime Rate Loan. A Borrowing Notice And Certificate for a Revolving Loan that is a Eurodollar Rate Loan or CDOR Loan shall be revocable on and after the related Interest Rate Determination Date; provided that such Borrower shall be bound to make a borrowing in accordance therewith unless such Borrower compensates Lenders in accordance with Section 2.16(c) . Each Lender may, at its option, make any Revolving Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Revolving Loan; provided that any exercise of such option shall not affect in any manner the obligation of the Borrowers to repay such Revolving Loan in accordance with the terms of this Agreement.

 

(iii)    Notice of receipt of each Borrowing Notice And Certificate in respect of Revolving Loans, together with the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by Administrative Agent to each applicable Lender by telefacsimile facsimile or electronic transmission means with reasonable promptness, but ( provided Administrative Agent shall have received such notice by 1:00 p.m. (New York City time)) not later than 1:30 p.m. (New York City time) on the same day as Administrative Agent’s receipt of such Notice from Borrowers.

 

(iv)    Subject to Section 2.14(b) , each Lender shall make the amount of its Revolving Loan (in the applicable currency) available to Administrative Agent not later than 1:00 p.m. (New York City time) on the applicable Credit Date (or 2:30 p.m. on the Credit Date for same day Base Rate Borrowings) by wire transfer of same day funds, at the Principal Office designated by Administrative Agent. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of such Revolving Loans available to Borrowers (in the applicable currency) by no later than 2:00 p.m. on the applicable Credit Date (or 3:00 p.m. on the Credit Date for same day Base Rate Borrowings) by causing an amount of same day funds in the requested currency equal to the proceeds of all such Revolving Loans received by Administrative Agent from Lenders to be credited to the account of Borrowers as may be designated in writing to Administrative Agent by Borrowers.

 

(c)    Right to Repay and Reborrow . Subject to the terms and conditions of this Agreement, Borrowers may borrow, repay and reborrow under the Revolving Commitment during the Revolving Commitment Period.

 

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2.2    Swingline Loans

 

(a)    Agreement to Make Swingline Loans . Subject to the terms and conditions set forth herein, Swingline Lender agrees to make Swingline Loans to Borrowers from time to time during the Revolving Commitment Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding twenty-five million Dollars ($25,000,000) or Canadian Dollars (CAD $25,000,000) or (ii) the Total Utilization of Revolving Commitments exceeding the Revolving Commitments then in effect; provided that Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Swingline Lender may, at its option, make any Swingline Loan by causing any domestic or foreign branch or Affiliate of the Swingline Lender to make such Swingline Loan; provided that any exercise of such option shall not affect in any manner the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement. Within the foregoing limits and subject to the terms and conditions set forth herein, Borrowers may borrow, prepay, and reborrow Swingline Loans.

 

(b)    Notice of Swingline Loans by Borrowers . To request a Swingline Loan, Borrowers shall notify Swingline Lender of such request in writing, not later than 2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be revocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan, and shall be deemed to be a reaffirmation that the conditions set forth in Section 3.2 are satisfied as of the date of the last Borrowing Notice And Certificate or Notice of LC Activity and Certificate, whichever was most recently delivered to the Administrative Agent. If limitations set forth in the first sentence of Section 2.2(a) are satisfied and no Event of Default has occurred and is continuing, (i) Administrative Agent will promptly advise Swingline Lender of any such notice received from Borrowers and (ii) the Swingline Lender shall make each Swingline Loan available to Borrowers to an account of the applicable Borrower specified in the request by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.

 

(c)    Repayment of Swingline Loan . Each Borrower, jointly and severally, hereby unconditionally promises to pay to Swingline Lender the then unpaid principal amount of each Swingline Loan upon the earlier of (i) the Termination Date and (ii) on or prior to the date that is fifteen (15) Business Days after the making of the relevant Swingline Loan; provided , however , that upon the relevant Borrower’s tendering of the applicable Conversion/Continuation Notice received by the Swingline Lender and the Administrative Agent no later than 11 a.m. (New York City time) on the date of the expiration of (but during) such fifteen (15) Business Day period, and limited to the amount of the unutilized portion of the Revolving Commitments, the relevant Borrower may elect to have such Swingline Loan converted into a Revolving Loan on such date, so long as the conditions precedent set forth in Section 3.2 are met as of the date of such conversion. Upon effectiveness of such conversion, the provisions of Section 2.3(c) shall apply mutatis mutandis as though the Swingline Loan converted into a Revolving Loan were a Letter of Credit as referred to therein.

 

(d)    Payments Directly to Swingline Lender . Except as otherwise provided in Section 2.2(e) , Borrowers shall make all payments of principal and interest in respect of the Swingline Loans directly to Swingline Lender.

 

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(e)    Participations by Lenders in Swingline Loans . The Swingline Lender may, by written notice given to Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Lenders to acquire participations in all or a portion of the Swingline Loans outstanding. Such notice to Administrative Agent shall specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, Administrative Agent will give notice thereof to each Lender, specifying in such notice each Lender’s Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, within one Business Day after receipt of notice as provided in this Section 2.2(c) , to pay to Administrative Agent, for the account of Swingline Lender, such Lender’s Pro Rata Share of such Swingline Loan or Loans (and to the extent such amounts are paid, such Swingline Loan shall be deemed to be a Revolving Loan (and not a Swingline Loan) for purposes of this Agreement). Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this Section 2.2(e) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuation of a Default or Event of Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, counterclaim, defense, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this Section 2.2(e) by wire transfer of immediately available funds, in the same manner as provided in Section 2.1(b)(iv) with respect to Loans made by such Lender (and Section 2.1(b)(iv) shall apply, mutatis mutandis , to the payment obligations of the Lenders), and Administrative Agent shall promptly pay to Swingline Lender the amounts so received by it from the Lenders. Administrative Agent shall notify Borrowers of any participation in any Swingline Loan acquired pursuant to this Section 2.2(e) , and thereafter payments in respect of such Swingline Loan shall be made to Administrative Agent and not to Swingline Lender. Any amounts received by Swingline Lender from Borrowers (or other party on behalf of Borrowers) in respect of a Swingline Loan after receipt by Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to Administrative Agent; any such amounts received by Administrative Agent shall be promptly remitted by Administrative Agent to the Lenders that shall have made their payments pursuant to this Section 2.2(e) and to Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this Section 2.2(e) shall not relieve Borrowers of any default in the payment thereof.

 

2.3    Letters of Credit

 

(a)    Letters of Credit .

 

(i)    Subject to the terms and conditions set forth herein, (A) on the Closing Date, each Existing Letter of Credit shall remain outstanding, in accordance with its terms, and shall constitute a Letter of Credit hereunder; (B) each LC Issuing Bank agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.3 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in Canadian Dollars (subject to the limitations set forth below) for the account of US Borrower, Canada Borrower or their respective Affiliates in an aggregate stated amount not to exceed such LC Issuing Bank’s “Revolving Loan and Letter of Credit Commitment” set forth on Appendix A, and to amend or extend Letters of Credit

 

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previously issued by it, in accordance with Section 2.3(b) below and the applicable LC Issuing Banks shall continue any Existing Letters of Credit, and (2) to honor drawings under the Letters of Credit; and (C) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of US Borrower or Canada Borrower or their respective Affiliates and any drawings thereunder; provided that, in the case of clause (B)(1) above, after giving effect to any Credit Extension with respect to any Letter of Credit, (w) solely with respect to Letters of Credit issued in support of obligations of Affiliates of the US Borrower or Canada Borrower that are not Credit Parties or Restricted Subsidiaries, the requirements of Section 6.4(c) shall have been satisfied as of the date of such issuance, (x) the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect and (y) the L/C Obligations shall not exceed the L/C Sublimit then in effect. Each request by US Borrower or Canada Borrower for the issuance, amendment or extension of a Letter of Credit shall be deemed to be a representation by US Borrower or Canada Borrower (as applicable) that the Credit Extension so requested complies with the conditions set forth in clauses (x) and (y). Within the foregoing limits, and subject to the terms and conditions hereof, US Borrower’s and Canada Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly US Borrower and Canada Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Subject to the L/C Sublimit, the US Borrower or Canada Borrower, and any Revolving Lender, may agree to and amend Appendix A to establish or increase (as the case may be) a commitment to issue Letters of Credit by such Revolving Lender, which, for the avoidance of doubt, shall not require the consent of any other Person.

 

(ii)    No LC Issuing Bank shall issue, amend or extend any Letter of Credit, if:

 

(1)    subject to Section 2.3(b) , the expiry date of the requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless such LC Issuing Bank has approved such expiry date; provided that any such Letter of Credit may provide for the renewal thereof in accordance with Section 2.3(b) ; or

 

(2)    the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless such Letter of Credit will be Cash Collateralized on or prior to the Letter of Credit Expiration Date in an amount equal to at least 102% of the face amount of such Letter of Credit;

 

provided that, the terms of each Letter of Credit may, if requested by the US Borrower or Canada Borrower prior to issuance, amendment or extension, as applicable, of such Letter of Credit, (A) require the LC Issuing Bank to give the beneficiary named in such Letter of Credit notice of any notice of termination or non-renewal and (B) permit such beneficiary, upon receipt of such notice, to draw under such Letter of

 

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Credit prior to the date such Letter of Credit otherwise would have been terminated or not renewed.

 

(iii)    No LC Issuing Bank shall be under any obligation to issue, amend or extend any Letter of Credit if:

 

(1)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such LC Issuing Bank from issuing the Letter of Credit, or any Governmental Rule applicable to such LC Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such LC Issuing Bank shall (A) prohibit, or request that such LC Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular, (B) impose upon such LC Issuing Bank with respect to the Letter of Credit any Change in Law or Governmental Rule regarding required capital adequacy or liquidity (for which such LC Issuing Bank is not compensated under Section 2.17 ) which was not in effect or applicable to such LC Issuing Bank on the Closing Date, or (C) impose upon such LC Issuing Bank any unreimbursed loss, cost or expense (for which such LC Issuing Bank is not compensated under Section 2.17 or otherwise to the satisfaction of the LC Issuing Bank, at the Borrowers’ election) which was not applicable on the Closing Date and which such LC Issuing Bank in good faith, and in its sole discretion, deems material to it;

 

(2)    the issuance of the Letter of Credit would violate one or more policies of the applicable LC Issuing Bank applicable to letters of credit generally applied to such LC Issuing Bank’s similarly situated customers, including a policy not to issue Letters of Credit in the requested currency;

 

(3)    except as otherwise agreed by Administrative Agent and the applicable LC Issuing Bank (such consent not to be unreasonably withheld), the Letter of Credit is in an initial stated amount less than twenty-five thousand Dollars ($25,000) or Canadian Dollars (CAD $25,000); or

 

(4)    any Revolving Lender is at that time a Defaulting Lender, unless the applicable LC Issuing Bank in good faith, and in its sole discretion, is satisfied that (x) the participations in any existing Letters of Credit as well as the new, amended or extended Letter of Credit has been or will be fully allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.20(a)(iii) or (y) such Defaulting Lender shall not participate therein except to the extent such Defaulting Lender’s participation has been or will be fully Cash Collateralized in accordance with Section 2.20(c) .

 

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(iv)    Each LC Issuing Bank shall agree to amend or extend any Letter of Credit if (1) such LC Issuing Bank would have any obligation at such time to issue the Letter of Credit in its amended or extended form under the terms hereof, and (2) the beneficiary of the Letter of Credit accepts the proposed amendment or extension to the Letter of Credit.

 

(v)    Each LC Issuing Bank shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each LC Issuing Bank shall have all of the benefits and immunities (1) provided to Administrative Agent in Section 9 with respect to any acts taken or omissions suffered by such LC Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and LC Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 9 included the LC Issuing Banks with respect to such acts or omissions, and (2) as additionally provided herein with respect to the LC Issuing Banks.

 

(b)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

 

(i)    Subject to Section 3.2(a) , each Letter of Credit shall be issued or amended, as the case may be, upon the request of the US Borrower or Canada Borrower and delivered to the applicable LC Issuing Bank (with a copy to Administrative Agent) in the form of a Notice of LC Activity and Certificate and Letter of Credit Application, appropriately completed and signed by an Authorized Representative of US Borrower or Canada Borrower (as applicant for such Letter of Credit, as applicable); provided , however , that amendments not expressly contemplated by such Notice of LC Activity and Certificate shall be as reasonably agreed and coordinated by the LC Issuing Bank and the US Borrower or Canada Borrower (as applicable). Such Notice of LC Activity and Certificate and Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable LC Issuing Bank, by personal delivery or by any other means acceptable to such LC Issuing Bank. Such Notice of LC Activity and Certificate and Letter of Credit Application must be received by the applicable LC Issuing Bank and Administrative Agent not later than 1:00 p.m. (New York City time) at least three (3) Business Days (or such later date and time as Administrative Agent, such LC Issuing Bank and US Borrower or Canada Borrower may agree in a particular instance in their reasonable discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable LC Issuing Bank: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof (Dollars or Canadian Dollars); (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as such LC Issuing Bank may reasonably require in accordance with its customary practice, as applied to similarly-situated customers. In the case of a request

 

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for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable LC Issuing Bank (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment (including, in the case of an extension of such Letter of Credit, the extended expiry date, which shall be subject to Section 2.3(a)(ii)) ; and (4) such other matters as such LC Issuing Bank may reasonably require in accordance with its customary practice, as applied to similarly-situated customers. Additionally, US Borrower or Canada Borrower (as applicable) shall furnish to the applicable LC Issuing Bank (with a copy to the Administrative Agent) such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any LC Issuer Documents, as such LC Issuing Bank may reasonably require in accordance with its customary practice, as applied to similarly-situated customers.

 

(ii)    Promptly after receipt of any Notice of LC Activity and Certificate and Letter of Credit Application, the applicable LC Issuing Bank will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has received a copy of such Notice of LC Activity and Certificate and Letter of Credit Application from US Borrower or Canada Borrower (as applicable) and, if not, the applicable LC Issuing Bank will provide Administrative Agent with a copy thereof. Unless the applicable LC Issuing Bank has received written notice from any Lender, Administrative Agent or any Credit Party, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 3.2 shall not then be satisfied, then, subject to the terms and conditions hereof, such LC Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of US Borrower or Canada Borrower or their respective Affiliates (as applicable) or enter into the applicable amendment, as the case may be, in each case in accordance with such LC Issuing Bank’s usual and customary business practices and, if requested, its standard Letter of Credit Application. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such LC Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Lender’s Pro Rata Share of the Revolving Commitments times the amount of such Letter of Credit.

 

(iii)    If US Borrower or Canada Borrower so requests in any applicable Notice of LC Activity and Certificate or Letter of Credit Application, the applicable LC Issuing Bank may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit such LC Issuing Bank to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior written notice to the beneficiary thereof at least sixty (60) days prior to the then scheduled expiry thereof (the “ Non-Extension Notice Date ”). US Borrower or Canada Borrower shall not be required to make a specific request to such LC Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) such LC Issuing Bank to permit the extension of such

 

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Letter of Credit at any time prior to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that such LC Issuing Bank shall not permit any such extension if (A) such LC Issuing Bank has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of Section 2.3(a)(ii) or (iii) , Section 3.2 (other than Section 3.2(a)(i) and (v) ) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from Administrative Agent, any Lender or US Borrower or Canada Borrower (as applicable) that one or more of the conditions specified in Section 3.2 (other than Section 3.2(a)(i) and (v) ), the satisfaction of which would be required to issue such Letter of Credit in its revised form (as extended), is not then satisfied, and in each such case directing such LC Issuing Bank not to permit such extension; provided further that, the beneficiary of any such Letter of Credit shall be permitted to draw upon such Letter of Credit at any time prior to its scheduled expiry date.

 

(iv)    Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable LC Issuing Bank will also deliver to US Borrower or Canada Borrower (as applicable) and Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

(v)    The Existing Letters of Credit shall remain in place as if issued under this Section 2.3(b) on the Closing Date and shall constitute Letters of Credit under this Agreement for all purposes, including determining usage of the Revolving Commitment, accrual and payment of fees in respect of such Letters of Credit, the obligations of the applicable Borrower to reimburse each LC Issuing Bank for any drawings under Existing Letters of Credit, the deemed borrowing of any Revolving Loans in respect of any Unreimbursed Amounts, and otherwise.

 

(c)    Drawings and Reimbursements; Funding of Participations .

 

(i)    Upon any payment by an LC Issuing Bank under any Letter of Credit against presentation of the drafts or other documents or certificates required for a beneficiary to draw under such Letter of Credit (the date of each such payment, a “ Honor Date ”), the relevant LC Issuing Bank that issued such Letter of Credit shall notify promptly US Borrower or Canada Borrower (as applicable) and Administrative Agent thereof. Not later than 3:00 p.m. (New York City time) on the third Business Day following the date of any payment by any LC Issuing Bank under a Letter of Credit (each such date, a “ Reimbursement Date ”), the applicable Borrower (that was the applicant with respect to such Letter of Credit) shall reimburse such LC Issuing Bank in an amount equal to the amount of such drawing together with interest (if any) on such amount calculated with respect to Letters of Credit at the Base Rate or Canadian Prime Rate (as applicable) (the “ Reimbursement Amount ”). Unless the applicable Borrower shall have notified Administrative Agent and such LC Issuing Bank prior to 11:00 a.m. (New York City time) on the Reimbursement Date that such Borrower intends to reimburse such LC Issuing Bank for the Reimbursement Amount with funds other than the proceeds of

 

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Revolving Loans, such Borrower (for its account) shall be deemed to have given a timely Borrowing Notice And Certificate to Administrative Agent (as described in the next sentence) and Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the Reimbursement Amount (expressed in Dollars or Canadian Dollars (as applicable)) (the “ Unreimbursed Amount ”), and the amount of such Revolving Lender’s Pro Rata Share thereof. In such event, so long as no Event of Default has occurred and is continuing, the applicable Borrower shall be deemed to have requested a borrowing (by such Borrower) of a Revolving Loan that is a Eurodollar Rate Loan or CDOR Loan (as applicable) to be disbursed on the Reimbursement Date in an amount equal to the Reimbursement Amount, without regard to the minimum and multiples specified in Section 2.1 for the principal amount of Revolving Loans, but subject to the amount of the unutilized portion of the Revolving Commitments. Any notice given by such LC Issuing Bank or Administrative Agent pursuant to this Section 2.3(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)    Each Revolving Lender shall upon any notice pursuant to Section 2.3(c)(i) make (or cause any domestic or foreign branch or Affiliate of such Revolving Lender to make) funds available (and Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable LC Issuing Bank, in Dollars or Canadian Dollars (as applicable), at Administrative Agent’s Principal Office for Dollar or Canadian Dollar denominated payments (as applicable with respect to such Letter of Credit) in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.3(c)(iii) , each Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Eurodollar Rate Loan or CDOR Loan to US Borrower or Canada Borrower (as applicable) in such amount. Administrative Agent shall remit the funds so received to the applicable LC Issuing Bank in Dollars or Canadian Dollars (as applicable).

 

(iii)    With respect to any Unreimbursed Amount that is not fully refinanced by a borrowing of Revolving Loans because an Event of Default has occurred and is continuing, US Borrower or Canada Borrower (as applicable with respect to such Letter of Credit) shall be deemed to have incurred from the applicable LC Issuing Bank an L/C Borrowing in the amount of the Reimbursement Amount that is not so refinanced, which L/C Borrowing shall be due and payable by such Borrower on demand (together with interest) and shall bear interest at the Default Rate from and after the date such L/C Borrowing is deemed to have occurred. In such event, each payment by a Revolving Lender (or by such Revolving Lender’s domestic or foreign branch or Affiliate) to Administrative Agent for the account of the applicable LC Issuing Bank pursuant to Section 2.3(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Revolving Lender in satisfaction of its participation obligation under this Section 2.3 .

 

(iv)    Unless and until a Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.3(c) to reimburse the applicable LC Issuing Bank

 

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for any amount drawn under any Letter of Credit, interest in respect of such Revolving Lender’s Pro Rata Share of such amount shall be solely for the account of such LC Issuing Bank.

 

(v)    Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the applicable LC Issuing Bank for amounts drawn under Letters of Credit, as contemplated by this Section 2.3(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Revolving Lender may have against such LC Issuing Bank, US Borrower, Canada Borrower, any Restricted Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that no Revolving Lender will be obligated to make Revolving Loans pursuant to this Section 2.3(c) if an Event of Default has occurred and is continuing. No such making of an L/C Advance shall relieve or otherwise impair the obligation of US Borrower or Canada Borrower (with respect to Letters of Credit issued at its request) to reimburse the applicable LC Issuing Bank for the amount of any payment made by such LC Issuing Bank under any Letter of Credit, together with interest as provided herein.

 

(vi)    If any Revolving Lender fails to make available to Administrative Agent for the account of the applicable LC Issuing Bank any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.3(c) by the time specified in Section 2.3(c)(ii) , then, without limiting the other provisions of this Agreement, the applicable LC Issuing Bank shall be entitled to recover from such Revolving Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the applicable LC Issuing Bank at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the LC Issuing Bank in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Revolving Loan included in the relevant borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable LC Issuing Bank submitted to any Revolving Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

(d)    Repayment of Participations .

 

(i)    At any time after the applicable LC Issuing Bank has made a payment under any Letter of Credit and has received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of such payment in accordance with Section 2.3(c) , if Administrative Agent receives for the account of the applicable LC Issuing Bank any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from US Borrower or Canada Borrower (as applicable) or otherwise, including proceeds of Cash Collateral applied thereto by Administrative Agent), Administrative Agent will distribute to such Revolving Lender its Pro Rata Share thereof

 

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in Dollars, Canadian Dollars or in the same funds as those received by Administrative Agent.

 

(ii)    If any payment received by Administrative Agent for the account of the applicable LC Issuing Bank pursuant to Section 2.3(c)(i) is required to be returned under any of the circumstances described in Section 10.10 (including pursuant to any settlement entered into by such LC Issuing Bank in its discretion), each Revolving Lender shall pay to Administrative Agent for the account of the applicable LC Issuing Bank its Pro Rata Share thereof on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)    Obligations Absolute . The obligation of US Borrower or Canada Borrower (as applicable) to reimburse an LC Issuing Bank for each L/C Borrowing (requested or deemed requested by it) under each Letter of Credit and to repay each L/C Borrowing (as further set forth herein) shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

(i)    any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Credit Document;

 

(ii)    the existence of any claim, counterclaim, setoff, defense or other right that Borrowers or any Affiliate may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such LC Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

(iii)    any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

(iv)    waiver by such LC Issuing Bank of any requirement that exists for such LC Issuing Bank’s protection and not the protection of US Borrower or Canada Borrower or any waiver by such LC Issuing Bank which does not in fact materially prejudice US Borrower or Canada Borrower (as applicable);

 

(v)    honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

 

(vi)    any payment made by such LC Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;

 

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(vii)    any payment by such LC Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such LC Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

 

(viii)    any adverse change in the relevant exchange rates or in the availability of Canadian Dollars to US Borrower or Canada Borrower or any of their respective Affiliates or in the relevant currency markets generally; or

 

(ix)    any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, US Borrower or Canada Borrower or any of their respective Affiliates.

 

US Borrower or Canada Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with US Borrower’s or Canada Borrower’s instructions or other irregularity, US Borrower or Canada Borrower (as applicable) will promptly notify the applicable LC Issuing Bank. US Borrower or Canada Borrower (as applicable) shall be conclusively deemed to have waived any such claim against the applicable LC Issuing Bank and its correspondents unless such notice is given as aforesaid.

 

(f)    Role of LC Issuing Bank . In paying any drawing under a Letter of Credit, each LC Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the LC Issuing Banks, Administrative Agent, any of their respective Related Parties nor any participant or assignee of the LC Issuing Banks shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or LC Issuer Document. Each of US Borrower and Canada Borrower (as applicable) hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude US Borrower or Canada Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the LC Issuing Banks, Administrative Agent, any of their respective Related Parties nor any participant or assignee of the LC Issuing Banks shall be liable or responsible for any of the matters described in clauses (i) through (ix) of Section 2.3(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, US Borrower or Canada Borrower (as applicable) may have a claim against the LC Issuing Banks, and the LC Issuing Bank may be liable to US Borrower or Canada Borrower (as applicable), to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered

 

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by either US Borrower or Canada Borrower which US Borrower or Canada Borrower proves were caused by such LC Issuing Bank’s willful misconduct or gross negligence. In furtherance and not in limitation of the foregoing, such LC Issuing Bank may, in its sole discretion, accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such LC Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The LC Issuing Banks may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (known as “ SWIFT ”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

 

(g)    Applicability of ISP and UCP; Limitation of Liability . Unless otherwise expressly agreed by an LC Issuing Bank and US Borrower or Canada Borrower (as applicable) when a Letter of Credit is issued, the rules of the ISP or UCP shall apply to each Letter of Credit. Notwithstanding the foregoing, the LC Issuing Banks shall not be responsible to US Borrower or Canada Borrower for, and such LC Issuing Bank’s rights and remedies against US Borrower or Canada Borrower (as applicable) shall not be impaired by, any action or inaction of such LC Issuing Bank required or permitted under any Governmental Rule that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Governmental Rules of a jurisdiction where such LC Issuing Bank or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

 

(h)    Reporting of Letter of Credit Information . For so long as any Letter of Credit issued by an LC Issuing Bank other than Administrative Agent is outstanding, such LC Issuing Bank shall deliver to Administrative Agent and US Borrower or Canada Borrower on the last Business Day of each calendar month, and on each date that an Credit Extension occurs with respect to any such Letter of Credit, a report in the form satisfactory to Administrative Agent, appropriately completed with the information for every outstanding Letter of Credit issued by such LC Issuing Bank. Administrative Agent shall deliver to the Lenders on a monthly basis a report of all outstanding Letters of Credit.

 

(i)    Letters of Credit Issued for Affiliates . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Operating Company Subsidiary or any other Affiliate of a Borrower, US Borrower or Canada Borrower (as applicable) (as applicant with respect to such Letter of Credit) shall be obligated to reimburse the applicable LC Issuing Bank hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby acknowledge that the issuance of Letters of Credit for the account of any Restricted Operating Company Subsidiary or any other Affiliate of such Borrower inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such parties.

 

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(j)    Limitations . Notwithstanding anything to the contrary herein, for avoidance of doubt, any Letter of Credit requested by US Borrower (and all obligations of reimbursement with respect thereto, including on account of any L/C Borrowing) shall not be (or be deemed) guaranteed by Canada Borrower or subject to reimbursement by Canada Borrower in excess of the limitations set forth in Section 7.11 .

 

2.4    Pro Rata Shares . All Revolving Loans shall be made, and all participations in Letters of Credit and Swingline Loans shall be purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that the obligations of the Lenders hereunder are separate, no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Revolving Loan requested hereunder or purchase such participation required hereby nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Revolving Loan requested hereunder or purchase such participation required hereby.

 

2.5    Use of Proceeds . The proceeds of the Revolving Loans and the issuance of Letters of Credit shall be applied by Borrowers for Permitted Uses. The proceeds of a Swingline Loan shall be applied by Borrowers for Permitted Swingline Uses. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit Extension or the application of such proceeds to violate Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.

 

2.6    Evidence of Debt; Lenders’ Books and Records; Notes

 

(a)    Lenders’ Evidence of Debt . Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Borrowers to such Lender, including the amounts of the Revolving Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Borrowers, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or Borrowers’ Obligations in respect of any applicable Loans; and provided further , in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

 

(b)    Notes . If so requested by any Lender by written notice to Borrowers (with a copy to Administrative Agent) at least five (5) Business Days prior to the Closing Date, or at any time thereafter, to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Loans owing to, or to be made by, such Lender, the Borrowers shall execute and deliver to such Lender (or, if applicable and if so specified in such notice, to any Person who is a permitted assignee of such Lender pursuant to Section 10.6 ) on the Closing Date (or, if such notice is delivered after the date that is five (5) Business Days prior to the Closing Date, promptly after Borrowers’ receipt of such notice) a Note or Notes to evidence such Lender’s Loan, as the case may be (and, if applicable, prior to its receipt of any such new Note or Notes, such Lender shall surrender any previously issued Notes to Administrative Agent for cancellation).

 

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(c)    Booking of Loans. Any Lender may make, carry or transfer Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.

 

2.7    Interest on Loans

 

(a)    Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows: (i) if a Base Rate Loan, at the Base Rate plus the Applicable Margin for Base Rate Loans; (ii) if a Eurodollar Rate Loan, at the Eurodollar Rate plus the Applicable Margin for Eurodollar Rate Loans; (iii) if a Canadian Prime Rate Loan, at the Canadian Prime Rate plus the Applicable Margin for Canadian Prime Rate Loans; and (iv) if a CDOR Loan, at the CDOR Rate plus the Applicable Margin for CDOR Loans.

 

(b)    The basis for determining the rate of interest with respect to any Revolving Loan, and the Interest Period with respect to any Eurodollar Rate Loan or CDOR Loan, shall be selected by Borrowers and notified to Administrative Agent pursuant to the applicable Borrowing Notice And Certificate or Conversion/Continuation Notice, as the case may be. If on any day a Revolving Loan is outstanding with respect to which a Borrowing Notice And Certificate or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Revolving Loan shall be a Base Rate Loan or Canadian Prime Rate Loan (as applicable). Each Swingline Loan shall be a Base Rate Loan or Canadian Prime Rate Loan (as applicable).

 

(c)    In connection with Eurodollar Rate Loans and CDOR Loans (in the aggregate) there shall be no more than eighteen (18) Interest Periods outstanding at any time. In the event Borrowers fail to specify between a Base Rate Loan or a Eurodollar Rate Loan (or a Canadian Prime Rate Loan or a CDOR Loan, as applicable) in the applicable Borrowing Notice And Certificate or Conversion/Continuation Notice, such Revolving Loan (if outstanding as a Eurodollar Rate Loan or CDOR Loan) will be automatically converted into a Base Rate Loan or Canadian Prime Rate Loan on the last day of the then-current Interest Period for such Revolving Loan (or if outstanding as a Base Rate Loan or Canadian Prime Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan or Canadian Prime Rate Loan). In the event Borrowers fail to specify an Interest Period for any Eurodollar Rate Loan or CDOR Loan in the applicable Borrowing Notice And Certificate or Conversion/Continuation Notice, Borrowers shall be deemed to have selected an Interest Period of one (1) month. Administrative Agent shall promptly notify Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans or CDOR Loans upon determination of such interest rate. At any time that Base Rate Loans or Canadian Prime Rate Loans are outstanding, Administrative Agent shall notify Borrowers and the Lenders of any change in Administrative Agent’s prime rate used in determining the Base Rate or Canadian Prime Rate promptly following the public announcement of such change.

 

(d)    Interest payable pursuant to Section 2.7(a) shall be computed (i) in the case of CDOR Loans and in the case of Base Rate Loans or Canadian Prime Rate Loans bearing interest at a rate determined by reference to a Base Rate or Canadian Prime Rate (as applicable) calculated pursuant to clause (a) of the definition of Base Rate or Canadian Prime Rate (as

 

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applicable), on the basis of a 365- day or 366-day year, as the case may be, and (ii) in the case of all other Base Rate Loans, Canadian Prime Rate Loans and Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Revolving Loan, the date of the making of such Revolving Loan or the first day of an Interest Period applicable to such Revolving Loan or, with respect to a Base Rate Loan or Canadian Prime Rate Loans being converted from a Eurodollar Rate Loan or CDOR Loan (as applicable), the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan (or Canadian Prime Rate Loan to CDOR Loan), as the case may be, shall be included, and the date of payment of such Revolving Loan or the expiration date of an Interest Period applicable to such Revolving Loan or, with respect to a Base Rate Loan or Canadian Prime Rate Loan being converted to a Eurodollar Rate Loan or CDOR Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan (or Canadian Prime Rate Loan to CDOR Loan), as the case may be, shall be excluded; provided , if a Revolving Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Revolving Loan.

 

(e)    Except as otherwise set forth herein, interest on each Revolving Loan (i) shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Revolving Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Revolving Loans, including final maturity of the Revolving Loans.

 

(f)    US Borrower agrees to pay to the Administrative Agent (for the benefit of each LC Issuing Bank), with respect to drawings honored under any Letter of Credit issued by an LC Issuing Bank, interest on the amount paid by such LC Issuing Bank in respect of each such honored drawing, at a rate equal to (i) for the period from the Honor Date to but excluding the Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans or Canadian Prime Rate Loans, and (ii) thereafter, the Default Rate in respect of any Unreimbursed Amounts that have not been refinanced in accordance with Section 2.3(c)(i) . For the period of time between the Honor Date and the Reimbursement Date (or such later date such amount is reimbursed on behalf of US Borrower), the interest accruing on such amounts will be for the account of the applicable LC Issuing Bank until reimbursed for all amounts other than the LC Issuing Bank’s Pro Rata Share thereof.

 

(g)    Interest payable pursuant to Sections 2.7(f) shall be computed on the basis of a 365/366-day year for the actual number of days elapsed in the period during which it accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full. Promptly upon receipt by the Administrative Agent of any payment of interest pursuant to Section 2.7(f) , the Administrative Agent shall distribute to each Revolving Lender, out of the interest received by the Administrative Agent in respect of the period from the date such drawing is honored to but excluding the date on which the applicable LC Issuing Bank is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Revolving Lender would have been entitled to receive in respect of the Letter of Credit Fees that would have been payable in respect of such Letter of Credit for such period if no drawing had been honored under such Letter of Credit.

 

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(h)    Canada Interest Act . For the purposes of the Interest Act (Canada) and disclosure under such act, whenever interest to be paid under this Agreement is to be calculated on the basis of a year of 360 or 365 days or any other period of time that is less than a calendar year, the yearly rate of interest to which the rate used pursuant to such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by either 360 or 365 or such other period of time, as the case may be.

 

2.8    Conversion/Continuation

 

(a)    Subject to Section 2.16 and (with respect to continuations of, or conversions into, Eurodollar Rate Loans or CDOR Loans) so long as no Event of Default shall have occurred and then be continuing, Borrowers shall have the option:

 

(i)    to convert at any time all or any part of any Revolving Loan in a minimum amount equal to five hundred thousand Dollars ($500,000) or Canadian Dollars (CAD $500,000) and integral multiples of fifty thousand Dollars ($50,000) or Canadian Dollars (CAD $50,000) in excess of that amount or, if different, the entire amount of the Revolving Loan being converted, from one Type of Loan to another Type of Loan; provided , a Eurodollar Rate Loan or CDOR Loan may only be converted on the expiration of the Interest Period applicable to such Eurodollar Rate Loan or CDOR Loan unless Borrowers shall pay all amounts due under Section 2.16 in connection with any such conversion; or

 

(ii)    upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan or CDOR Loan, to continue all or any portion of such Revolving Loan in a minimum amount equal to five hundred thousand Dollars ($500,000) or Canadian Dollars (CAD $500,000) and integral multiples of fifty thousand Dollars ($50,000) or Canadian Dollars (CAD $50,000) in excess of that amount or, if different, the entire amount of the Revolving Loan being continued, as a Eurodollar Rate Loan or CDOR Loan.

 

(b)    Borrowers shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 11:00 a.m. (New York City time) on the date of the proposed Conversion/Continuation Date (in the case of a conversion to, or continuation of, a Base Rate Loan or Canadian Prime Rate Loan) and at least three (3) Business Days in advance of the proposed Conversion/Continuation Date (in the case of a conversion to an Eurodollar Rate Loan or CDOR Loan). Subject to the foregoing, in the event that the applicable Borrower shall not deliver a Conversion/Continuation Notice with respect to any Eurodollar Rate Loan or CDOR Loan as provided above, such Eurodollar Rate Loan or CDOR Loan (unless repaid) shall automatically be continued as a Eurodollar Rate Loan or CDOR Loan (as applicable) with a one month Interest Period at the expiration of the then current Interest Period. A Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loan or CDOR Loan (or telephonic notice in lieu thereof) shall be revocable on and after the related Interest Rate Determination Date; provided that the applicable Borrower shall be bound to effect a conversion or continuation in accordance therewith unless such Borrower compensates Lenders in accordance with Section 2.16(c) .

 

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2.9    Default Interest . During such periods that an Event of Default has occurred and is continuing, all outstanding Obligations shall bear interest at a rate per annum equal to the Default Rate from the date such payment was due to but excluding the date such Event of Default is remedied or waived. Interest payable at the Default Rate shall be payable from time to time on demand.

 

2.10    Fees

 

(a)    Borrowers agree to pay to Administrative Agent for the ratable benefit of each Lender having Revolving Commitment fees equal to (1) the average of the daily difference between (A) the Revolving Commitments (regardless of any availability limitation as of the date of determination), and (B) the Total Utilization of Revolving Commitments (excluding, except with respect to the calculation of fees payable to the Swingline Lender, the outstanding principal amount of the Swingline Loans), times (2) the applicable Commitment Fee Rate for the applicable period.

 

(b)    US Borrower agrees to pay the following fees or cause the following fees to be paid to:

 

(i)    each LC Issuing Bank for its own account, a fronting fee equal to one eighth of one percent (0.125%) per annum of the average aggregate daily maximum amount available to be drawn under all Letters of Credit issued by such LC Issuing Bank (determined as of the close of business on any date of determination); and

 

(ii)    Administrative Agent for the ratable benefit of each Lender participating in each Letter of Credit, letter of credit fees (“ Letter of Credit Fees ”) equal to (1) the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans or CDOR Loans (as applicable), times (2)  the average aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination).

 

(iii)    each LC Issuing Bank for its own account, such documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with such LC Issuing Bank’s standard schedule for such charges and as in effect (and delivered to US Borrower) at the time of such issuance, amendment, transfer or payment, as the case may be.

 

(c)    All fees referred to in Sections 2.10(a) and (b)(ii) shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof.

 

(d)    All fees referred to in Sections 2.10(a) and (b) shall be calculated on the basis of a 360-day year and the actual number of days elapsed. All fees referred to in Sections 2.10(a) and (b) shall be payable by Borrowers quarterly in arrears on March 31, June 30, September 30 and December 31 of each year during the Revolving Commitment Period commencing on the first such date to occur after the Closing Date, and on the Revolving Commitment Termination Date; provided , however, that any fronting fees pursuant to Section

 

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2.10(b)(i) shall be payable three (3) Business Days after receipt by US Borrower of an invoice from the applicable LC Issuing Bank with respect thereto.

 

(e)    In addition to any of the foregoing fees, each Borrower agrees to pay to Agents and Lenders such other fees in the amounts and at the times separately agreed upon in fee letters.

 

(f)    No Revolving Commitment fees shall be payable with respect to any unused portion of the Revolving Commitment to the extent irrevocably cancelled by Borrowers.

 

2.11    Voluntary Prepayments/Commitment Reductions

 

(a)    Voluntary Prepayments .

 

(i)    At any time and from time to time:

 

(1)    with respect to Base Rate Loans or Canadian Prime Rate Loans, Borrowers may prepay any such Loans on any Business Day in whole or in part; and

 

(2)    with respect to Eurodollar Rate Loans or CDOR Loans, Borrowers may prepay any such Loans on any Business Day in whole or in part.

 

(ii)    All such prepayments shall be made:

 

(1)    without premium or penalty (except as provided in Section 2.16(c) );

 

(2)    together with accrued interest on the principal amount being prepaid;

 

(3)    (i) in respect of Eurodollar Rate Loans or CDOR Loans, in a principal amount of $500,000 (Dollars or Canadian Dollars) or a whole multiple of $50,000 (Dollars or Canadian Dollars) in excess thereof; and (ii) in respect of Base Rate Loans or Canadian Prime Rate Loans, in a principal amount of $500,000 (Dollars or Canadian Dollars) or a whole multiple of $50,000 (Dollars or Canadian Dollars) in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding

 

(4)    upon written or telephonic notice received on the same day or any Business Day prior thereto, in the case of Base Rate Loans or Canadian Prime Rate Loans; and

 

(5)    upon not less than two (2) Business Days’ prior written or telephonic notice in the case of Eurodollar Rate Loans or CDOR Loans;

 

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in each case given to Administrative Agent, as the case may be, by 1:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or original notice for Loans by telefacsimile or telephone to each applicable Lender). Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein; provided that a notice of prepayment may state that it is contingent upon the effectiveness of other transactions, in which case such notice of prepayment may be revoked by the applicable Borrower on or prior to the specified effective date. Any such voluntary prepayment shall be applied as specified in Section 2.12(a).

 

(b)    Commitment Reductions .

 

(i)    Borrowers may, upon not less than one (1) Business Day’s prior written or telephonic notice promptly confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile facsimile or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided , any such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of five million Dollars ($5,000,000) and integral multiples of one million Dollars $1,000,000 in excess of that amount.

 

(ii)    Borrowers’ notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in Borrowers’ notice and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof.

 

2.12    Mandatory Prepayments

 

(a)    Asset Sales . Subject to Sections 2.12(f) and 2.13(d ), no later than the tenth (10 th ) Business Day following the date of receipt by Borrowers or Restricted Holding Company Subsidiary of any Net Asset Sale Proceeds which exceed the amounts set forth in Section 6.7(d) , the applicable Borrower shall prepay the Loans as set forth in Section 2.13(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided , however that with respect to any Revolving Loans, no such prepayment shall be required to the extent that during such 10 Business Day prepayment period the Borrowers could have reborrowed Revolving Loans equal to or in excess of such prepayment amount.

 

(b)    Insurance/Condemnation Proceeds . Subject to Sections 2.12(f) and 2.13(d ), no later than the tenth (10 th ) Business Day following the date of receipt by Borrowers or any Restricted Holding Company Subsidiary of any Net Insurance/Condemnation Proceeds, the applicable Borrower shall prepay the Loans as set forth in Section 2.13(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided , however that with

 

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respect to any Revolving Loans, no such prepayment shall be required to be made to the extent that during such 10 Business Day prepayment period, the Borrowers could have reborrowed Revolving Loans equal to or in excess of such prepayment amount.

 

(c)    Issuance of Debt . No later than the tenth (10 th ) Business Day following the date of receipt by Borrowers or any Restricted Holding Company Subsidiary of any Net Cash Proceeds from the incurrence of any Indebtedness for borrowed money by Borrowers or any Restricted Holding Company Subsidiary (other than Permitted Indebtedness), Borrowers shall prepay the Loans as set forth in Section 2.13(b) in an aggregate amount equal to such proceeds.

 

(d)    Equity Cure Proceeds . Immediately following receipt by Borrowers of a Cure Amount pursuant to Section 8.12 , Borrowers shall prepay the Loans as set forth in Section 2.13(b) in an aggregate amount equal to such Cure Amount. For the avoidance of doubt this clause (d) shall not require the prepayment of any amount of any equity raised, or capital contribution received, in excess of the Cure Amount, which excess amount may be retained by the Borrowers (or any other party) to the extent otherwise permitted (or not prohibited) hereunder.

 

(e)    Revolving Loans . Borrowers shall from time to time prepay the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then in effect; provided that, for purposes of calculating the Dollar Equivalent of any Canadian Dollar Loans, the Spot Rate used to determine the Total Utilization of Revolving Commitments from time to time shall be the applicable Spot Rate on the Revaluation Date immediately preceding such determination.

 

(f)    Prepayments of Incremental Equivalent Debt . Notwithstanding Sections 2.12(a) through (d) , Borrowers may, by written notice to the Administrative Agent, elect to apply any such Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds, Indebtedness proceeds or Equity Cure proceeds on a pro rata basis (or, so long as no Event of Default shall be continuing, greater than pro rata basis with respect to Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds with respect to first lien Incremental Equivalent Debt in the form of notes or term loans) (i) in accordance with Section 2.13(b) and (ii) to prepay, or offer to repurchase, any outstanding senior secured first lien Incremental Equivalent Debt that by its terms expressly requires Borrowers to prepay (or offer to repurchase) such Incremental Equivalent Debt with such proceeds; it being understood that any such proceeds not so applied to repay or repurchase such Incremental Equivalent Debt (due to the declining of such offer to repurchase by the holders thereof or for any other reason) shall, subject to Section 2.13(d) and the limitations set forth in Sections 2.12(a) and (b) , be applied in accordance with Section 2.13(b) .

 

(g)    Prepayment Certificate . Concurrently with any prepayment of the Revolving Loans pursuant to Sections 2.12(a) through  2.12(e) , Borrowers shall deliver to Administrative Agent a certificate of an Authorized Representative demonstrating the calculation of the amount required to be prepaid. In the event that Borrowers shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrowers shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and

 

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Borrowers shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Representative demonstrating the derivation of such excess.

 

(h)    No Waiver . The acceptance by any Lender of any prepayment amount shall not constitute a consent or waiver of such Lenders’ rights with respect to any other provision set forth in the Credit Documents, including covenants related to Lenders’ consent rights with respect to Asset Sales and incurrence of Indebtedness.

 

(i)    Repatriation . Notwithstanding anything in this Section 2.12 to the contrary, (1) Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.12(a)-(c) above to the extent that the relevant Asset Sale is consummated by any Foreign Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant Indebtedness is incurred by any Foreign Subsidiary (except to the extent the relevant Indebtedness is incurred by any Foreign Subsidiary to refinance all or a portion of the Loans, as the case may be, for so long as Borrowers determine in good faith that the repatriation to the applicable Borrower of any such amount would be prohibited or delayed (beyond the time period during which such prepayment is otherwise required to be made pursuant to Section 2.12(a) , (b) or (c) above) under any requirement of law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital maintenance or similar considerations); it being understood and agreed that (i) the applicable Borrower shall take all commercially reasonable actions required by applicable requirements of law to permit such repatriation and (ii) if the repatriation of the relevant affected proceeds, as the case may be, is permitted under the applicable requirement of law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above, the relevant Foreign Subsidiary will promptly repatriate the relevant proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional Taxes payable or reserved against such proceeds, as a result thereof, in each case by any Party, such Party’s Subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the repayment of pursuant to this ‎Section 2.12 to the extent required herein (without regard to this clause ‎(i) , (2) Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections ‎2.12 to the extent that the relevant proceeds are received by any Joint Venture for so long as Borrowers determine in good faith that the distribution to the applicable Borrower of such proceeds would be prohibited under the Organizational Documents governing such Joint Venture; it being understood that if the relevant prohibition ceases to exist, the relevant Joint Venture will promptly distribute the relevant proceeds in respect of Indebtedness, as the case may be, and the proceeds, as the case may be, will be promptly (and in any event not later than ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this ‎Section 2.12 to the extent required herein (without regard to this clause ‎(i) ) and (3) if Borrowers determine in good faith that the repatriation to Borrowers of any amounts required to mandatorily prepay the Loans pursuant to Sections ‎2.12(a) , (b) or (c) above would result in material and adverse tax consequences, taking into account any foreign tax credit or benefit actually realized in

 

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connection with such repatriation (such amount, a “ Restricted Amount ”), as determined by Borrowers in good faith, the amount Borrowers shall be required to mandatorily prepay pursuant to Sections ‎2.12(a) , (b) or (c) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation of any such proceeds from the relevant Foreign Subsidiary would no longer have a material and adverse tax consequence, an amount equal to the subject proceeds in respect of any such Indebtedness, as applicable, not previously applied pursuant to this clause ‎(C) , shall be promptly applied to the repayment of the Loans and Additional Term Loans pursuant to Sections ‎2.12(a) , (b) or (c) as otherwise required above (without regard to this clause ‎(i) ).

 

2.13    Application of Prepayments

 

(a)    Application of Voluntary Prepayments by Type of Loans . Any prepayment of any Loan pursuant to Section 2.11(a) shall be applied as specified by Borrowers in the applicable notice of prepayment; provided , in the event Borrowers fail to specify the Loans to which any such prepayment shall be applied, such prepayments shall be applied to repay outstanding Loans (on a pro rata basis) to the full extent thereof, without any permanent reduction of the Revolving Commitments.

 

(b)    Application of Prepayments . Any amount required to be paid pursuant to Section 2.12 (other than Section 2.12(e) ) shall be applied as follows (without any permanent reduction of the Revolving Commitments):

 

first , unless otherwise provided in any applicable Incremental Amendment and so long as no Default or Event of Default shall be continuing, to prepay Incremental Term Loans (and any fees or interest with respect thereto) to the full extent thereof;

 

second, to prepay outstanding reimbursement obligations with respect to Letters of Credit;

 

third , to prepay any Swingline Loans to the full extent thereof;

 

fourth, subject to Section 2.12(f) , to prepay the Revolving Loans and, if a Default or Event of Default shall be continuing, any Incremental Term Loans, on a pro rata basis to the full extent thereof; and

 

fifth , if an Event of Default shall have occurred and be continuing, to provide Cash Collateral for undrawn Letters of Credit; provided that such Cash Collateral shall be subsequently released and returned to Borrower (i) at such time as such Event of Default is no longer continuing and (ii) if such Event of Default is continuing, (x) in proportion to any reductions in the maximum exposure with respect to such Letters of Credit and (y) in full upon the termination and return of such Letters of Credit undrawn; provided that, (1) in the case of a release pursuant to clause (i) above, if any Obligations set forth in priority second are outstanding at the time of such release or (2) in the case of a release pursuant to clause (ii) above, if any Obligations set forth in priorities second through fourth are outstanding, then, such Cash Collateral shall first be applied to the repayment of such Obligations, as applicable, in accordance with this Section 2.13(b) .

 

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(c)    Application of Prepayments of Revolving Loans to Base Rate Loans, Primate Rate Loans, Eurodollar Rate Loans and CDOR Loans . Considering each Type of Loan being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans or Canadian Prime Rate Loans (with respect to the applicable currency) to the full extent thereof before application to Eurodollar Rate Loans or CDOR Loans, in each case in a manner which minimizes the amount of any payments required to be made by Borrowers pursuant to Section 2.16(c) .

 

(d)    Reinvestment Rights . Notwithstanding anything to the contrary in Section 2.12 and this Section 2.13 , the Borrowers shall not be required to prepay proceeds received pursuant to Section 2.12(a) or Section 2.12(b) as long as such proceeds are not distributed to Sponsor or the Pledgors as a Restricted Payment and such proceeds are (x) used to purchase additional operating, construction, or development stage Energy Projects to the extent owned by a Restricted Operating Company Subsidiary immediately following such purchase, (y) used to expand existing Energy Projects owned by Restricted Operating Company Subsidiaries or (z) otherwise reinvested in assets accretive to the credit profile of the Borrowers, in each case within 12 months (or 18 months if a binding commitment with respect to such reinvestment is executed during such 12 month period) of receipt of such proceeds.

 

2.14    General Provisions Regarding Payments

 

(a)    All payments by Borrowers of principal, interest, fees and other Obligations shall be made in Dollars or Canadian Dollars (as applicable) in same day funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered by wire transfer to Administrative Agent not later than 2:00 p.m. (New York City time) on the date due at the Principal Office designated by Administrative Agent for the account of Lenders or to the Swingline Lender as set forth in Section 2.2(d) ; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Borrowers on the next succeeding Business Day.

 

(b)    Unless Administrative Agent shall have received notice from a Lender prior to any proposed Credit Date of Eurodollar Rate Loans or CDOR Loans (or, in the case of any borrowing of Base Rate Loans or Canadian Prime Rate Loans, prior to 1:00 p.m. (New York City time) on the date of such borrowing) that such Lender will not make available to Administrative Agent such Lender’s share of such borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2 (or, in the case of a borrowing of Base Rate Loans or Canadian Prime Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2 ) and may, in reliance upon such assumption, make available to Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable borrowing available to Administrative Agent, then the applicable Lender agrees to pay to Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to Borrowers to but excluding the date of payment to Administrative Agent, at the Overnight Rate, plus any administrative, processing or similar fees customarily charged by Administrative Agent in connection with the foregoing. If such Lender pays its share of the applicable borrowing to Administrative Agent, then the amount so paid shall constitute such Lender’s Revolving Loan

 

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included in such borrowing. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Borrowers and Borrowers shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans or Canadian Prime Rate Loans for such Type of Loan. Nothing in this Section 2.14(b) shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitments hereunder or to prejudice any rights that Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of Administrative Agent to any Lender or Borrowers with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

 

(c)    Unless Administrative Agent shall have received notice from Borrowers prior to the date on which any payment is due to Administrative Agent for the account of the Lenders or the LC Issuing Banks hereunder that Borrowers will not make such payment, Administrative Agent may assume that Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the LC Issuing Banks, as the case may be, the amount due. In such event, if Borrowers have not in fact made such payment, then each of the Lenders or the LC Issuing Banks, as the case may be, severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lender or the LC Issuing Banks, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the Overnight Rate.

 

(d)    All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Loans that are Base Rate Loans or Canadian Prime Rate Loans as provided in Section 2.11(a)(ii)(2) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest, fees, costs and expenses then due hereunder, such funds shall be applied (i)  first , towards payment of interest, fees costs and expenses then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)  second , towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.

 

(e)    Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent, pro rata in accordance with the amounts thereof then due and payable.

 

(f)    Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans or Canadian Prime Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans or CDOR Loans (as applicable), Administrative Agent shall give effect thereto in apportioning payments received thereafter.

 

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(g)    Subject to the provisos set forth in the definition of “Interest Period” as they may apply to Revolving Loans, whenever any payment to be made hereunder with respect to any Revolving Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Commitment fees hereunder.

 

(h)    Borrowers hereby authorize Administrative Agent to charge Borrowers’ accounts with Administrative Agent in order to cause timely payment to be made to Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in its accounts for that purpose).

 

(i)    Administrative Agent shall deem any payment by or on behalf of Borrowers hereunder that is not made in same day funds prior to 2:00 p.m. (New York City time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to Borrowers and each applicable Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a) . Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.9 from the date such amount was due and payable until the date such amount is paid in full.

 

(j)    If an Event of Default shall have occurred and not otherwise been cured or waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1 or pursuant to any sale of, any collection from, or other realization upon all or any part of the Collateral, all payments or proceeds received by Agents hereunder in respect of any of the Obligations, shall be applied in accordance with the application arrangements described in the US Pledge and Security Agreement.

 

(k)    The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, or to purchase its participation.

 

2.15    Ratable Sharing . Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as Cash Collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal,

 

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interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “ Aggregate Amounts Due ” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided , if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrowers or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrowers expressly consent to the foregoing arrangement and agree that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies owing by Borrowers to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.15 shall not be construed to apply to (a) any payment made by Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it or (c) any payment to an LC Issuing Bank or the Swingline Lenders of a reimbursement obligation in accordance with Section 2.3(c)(i) or Section 2.1(c) , as applicable.

 

2.16    Making or Maintaining Eurodollar Rate Loans or CDOR Loans

 

(a)    Inability to Determine Applicable Interest Rate . In the event that Administrative Agent (upon the written instruction of the Required Lenders) shall have determined in good faith (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans or CDOR Loans, that (1) by reason of circumstances affecting the applicable interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Eurodollar Rate or CDOR Rate or (2) deposits are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurodollar Rate Loan or CDOR Loan, Administrative Agent shall on such date give notice (by telefacsimile facsimile or by telephone confirmed in writing) to Borrowers and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans or CDOR Loans and (ii) in the event of a determination with respect to the Eurodollar Rate component of the Base Rate or the CDOR Rate component of the Canadian Prime Rate, the utilization of the Eurodollar Rate or CDOR Rate component in determining the Base Rate or Canadian Prime Rate shall be suspended, in each case until Administrative Agent (upon the written instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, Borrowers may revoke any pending Borrowing Notice And Certificate or Conversion/Continuation Notice of Eurodollar Rate Loans or CDOR Loans in the affected currency or currencies or, failing that, will be

 

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deemed to have converted such request into a request for a borrowing of Base Rate Loans or Canadian Prime Rate Loans in the amount specified therein.

 

(b)    Illegality or Impracticability of Eurodollar Rate Loans or CDOR Loans . In the event that on any date any Lender shall have determined in good faith (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Borrowers and Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans or CDOR Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any Governmental Rule (or would conflict with any Governmental Rule not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the Closing Date which materially and adversely affect the applicable interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “ Affected Lender ” and it shall on that day give notice (by telefacsimile facsimile or by telephone confirmed in writing) to Borrowers and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) each Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan or Canadian Prime Rate Loan (as applicable), (2) each Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans or CDOR Loans (the “ Affected Loans ”) shall be terminated at the earlier to occur of the expiration of the relevant Interest Periods then in effect with respect to the Affected Loans or when required by Governmental Rules and Borrowers shall prepay or convert such Affected Loans together with accrued interest, (3) the Affected Loans shall automatically convert into Base Rate Loans or Canadian Prime Rate Loans (as applicable) on the date of such termination and (4) if such notice asserts the illegality of any Lender making or maintaining Base Rate Loans or Canadian Prime Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate or CDOR Rate component of the Base Rate or Canadian Prime Rate (as applicable), the interest rate on which Base Rate Loans or Canadian Prime Rate Loans (as applicable) of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent pursuant to such definition without reference to the Eurodollar Rate or CDOR Rate component of the Base Rate or Canadian Prime Rate. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate Loan or CDOR Loan then being requested by Borrowers pursuant to a Borrowing Notice And Certificate or a Conversion/Continuation Notice, Borrowers shall have the option, subject to the provisions of Section 2.16(c) , to rescind such Borrowing Notice And Certificate or Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile facsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). If Borrowers do not rescind such Borrowing Notice And Certificate or Conversion/Continuation Notice, each Affected Lender’s share of such Loan shall constitute a Base Rate Loan or Canadian Prime Rate Loan (as applicable). Except as provided in the immediately preceding sentence, nothing in this Section 2.16(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans or CDOR Loans in accordance with the terms hereof.

 

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(c)    Compensation for Breakage or Non-Commencement of Interest Periods . Borrowers shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including (x) the difference between any interest paid by such Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans or CDOR Loans and the Eurodollar Rate or CDOR Rate such Lender would receive in connection with the liquidation or re-employment of such funds and (y) amounts received by such Lender in connection with the liquidation or re-employment of such funds and any expense or liability incurred in connection therewith) which such Lender may actually sustain: (i) if for any reason (other than a default by any such Lender) a borrowing of any Eurodollar Rate Loan or CDOR Loan does not occur on a date specified therefor in a Borrowing Notice And Certificate or a telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan or CDOR Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment under Sections 2.11 or 2.12 of, or any conversion of, any of its Eurodollar Rate Loans or CDOR Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; (iii) if any prepayment of any of its Eurodollar Rate Loans or CDOR Loans is not made on any date specified in a notice of prepayment given by Borrowers; and (iv) if an assignment of any Loan by a Terminated Lender pursuant to Section 2.16(c) occurs on a date prior to the last day of an Interest Period applicable to that Loan.

 

(d)    Assumptions Concerning Funding of Eurodollar Rate Loans or CDOR Loans . Calculation of all amounts payable to a Lender under Section 2.16(c) shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans or CDOR Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Eurodollar Rate or CDOR Rate in an amount equal to the amount of such Eurodollar Rate Loan or CDOR Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit or CDOR deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided , however , each Lender may fund each of its Eurodollar Rate Loans or CDOR Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under Section 2.16(c) .

 

2.17    Increased Costs; Capital or Liquidity Adequacy

 

(a)    Compensation For Increased Costs and Taxes . Subject to the provisions of Section 2.18 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender (which term shall include each LC Issuing Bank for purposes of this Section 2.17(a) ) shall determine that any Change in Law: (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or

 

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other credit extended by, or any other acquisition of funds by, any office of such Lender, or (iii) imposes any other condition, cost or expense (other than with respect to Taxes) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the applicable interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making, continuing, converting into or maintaining Revolving Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then each Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable by such Borrower hereunder; provided , Borrowers shall not be obligated to pay such Lender any compensation attributable to any period prior to the date that is one hundred eighty (180) days prior to the date on which such Lender gave notice to Borrowers of the circumstances entitling such Lender to compensation. Such Lender shall deliver to Borrowers (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.17(a) and in the calculation thereof, which statement shall be conclusive and binding upon all parties hereto absent manifest error.

 

(b)    Capital or Liquidity Adequacy Adjustment . In the event that any Lender (which term shall include each LC Issuing Bank for purposes of this Section 2.17(b) ) shall have determined that the adoption, effectiveness, phase-in or change in applicability after the Closing Date of any Governmental Rule (or any provision thereof) regarding required capital adequacy or liquidity, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its applicable lending office) with any guideline, request or directive regarding required capital adequacy or liquidity (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans, Revolving Commitments or Letters of Credit, or participations therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase-in, change in applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to required capital adequacy or liquidity), then from time to time, within five (5) Business Days after receipt by Borrowers from such Lender of the statement referred to in the next sentence, each Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation for such reduction; provided , Borrowers shall not be obligated to pay such Lender any compensation attributable to any period prior to the date that is two hundred seventy ( 270) days prior to the date on which such Lender gave notice to Borrowers of the circumstances entitling such Lender to compensation. Such Lender shall deliver to Borrowers (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.17(b) and in the calculation thereof, which statement shall be conclusive and binding upon all parties hereto absent manifest error.

 

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(c)    Additional Reserve Requirements . Each Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurodollar funds or deposits (currently known as “Eurocurrency liabilities”, as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors of the Federal Reserve System or other applicable banking regulator, additional interest on the unpaid principal amount of each Eurodollar Rate Loan or CDOR Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive) commencing on and as of the effective date of any change in the applicable reserve requirement, which shall be due and payable on each date on which interest is payable on such Loan .

 

2.18    Taxes; Withholding, Etc .

 

(a)    LC Issuing Bank . For purposes of this Section 2.18 , the term “Lender” includes any LC Issuing Bank.

 

(b)    Payments Free of Taxes . Any and all payments by or on account of any Obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable Governmental Rules. If any applicable Governmental Rules (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Governmental Rules and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.18(b) ) the applicable Beneficiary receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(c)    Payment of Other Taxes by Borrower . The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Governmental Rules, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(d)    Indemnification by Credit Parties . Without duplication of Section 2.18(b) , the relevant Credit Party shall indemnify each Beneficiary, within fifteen (15) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.18(d) ) payable or paid by such Beneficiary or required to be withheld or deducted from a payment to such Beneficiary and any reasonable and documented out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided , however , the Credit Parties shall have no obligation to indemnify any Beneficiary for any Indemnified Taxes imposed as a result of such Beneficiary’s gross negligence or willful misconduct. A certificate as to the amount of such payment or liability delivered to Borrowers by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

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(e)    Indemnification by the Lenders . Each Lender shall severally indemnify Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of any Credit Party to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(f) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this Section 2.18(e) .

 

(f)    Evidence of Payments . As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.18 , such Credit Party shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment available and reasonably satisfactory to Administrative Agent.

 

(g)    Status of Lenders .

 

(i)    Any Beneficiary that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to Borrowers and Administrative Agent, at the time or times reasonably requested by Borrowers or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrowers or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Beneficiary, if reasonably requested by Borrowers or Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrowers or Administrative Agent as will enable Borrowers or Administrative Agent to determine whether or not such Beneficiary is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.18(g)(ii)(1) , (ii)(2 ) and (ii)(4 ) below) shall not be required if in the Beneficiary’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Beneficiary.

 

(ii)    Without limiting the generality of the foregoing,

 

(1)    any Beneficiary that is a US Person shall deliver to Borrowers and Administrative Agent on or prior to the date on which such

 

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Beneficiary becomes a Beneficiary under this Agreement (and from time to time thereafter upon the reasonable request of any Borrower or Administrative Agent), executed copies of IRS Form W-9 certifying that such Beneficiary is exempt from U.S. federal backup withholding tax;

 

(2)    any Non-US Lender or Non-US Agent shall, to the extent it is legally entitled to do so, deliver to Borrowers and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-US Lender or Non-US Agent becomes a Beneficiary under this Agreement (and from time to time thereafter upon the reasonable request of any Borrower or Administrative Agent), whichever of the following is applicable:

 

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

 

b.    executed copies of IRS Form W-8ECI;

 

c.    in the case of a Non-US Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Non-US Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of either Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code and that interest payments on the Revolving Loan(s) are not effectively connected with the conduct of a trade or business within the United States of the Non-US Lender (a “ U.S. Tax Compliance Certificate ”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; or

 

d.    to the extent a Non-US Lender or Non-US Agent is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3 , IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if a Non-US Lender is a partnership and one or more direct or indirect partners of such Non-US

 

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Lender are claiming the portfolio interest exemption, such Non-US Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner;

 

(3)    any Non-US Lender or Non-US Agent shall, to the extent it is legally entitled to do so, deliver to Borrowers and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-US Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of any Borrower or Administrative Agent), executed copies of any other form prescribed by applicable Governmental Rules as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Governmental Rules to permit Borrowers or Administrative Agent to determine the withholding or deduction required to be made; and

 

(4)    each Lender shall deliver to the applicable Borrower and Administrative Agent at the time or times prescribed by Governmental Rules and at such time or times reasonably requested by the applicable Borrower or Administrative Agent such documentation prescribed by applicable Governmental Rules (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the applicable Borrower or Administrative Agent as may be necessary for the applicable Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (4), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the applicable Borrower and Administrative Agent in writing of its legal inability to do so.

 

(h)    Status of Administrative Agent . Royal Bank, as Administrative Agent, and any successor or supplemental Administrative Agent that is not a US Person, shall deliver to Borrowers two duly completed copies of IRS Form W-8IMY certifying that it is a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with Borrowers to be treated as a US Person with respect to such payments (and Borrowers and Administrative Agent agree to so treat Administrative Agent as a US Person with respect to such payments), with the effect that Borrowers can make payments to Administrative Agent without deduction or withholding of any Taxes imposed by the United States.

 

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(i)    Treatment of Certain Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.18 (including by the payment of additional amounts pursuant to this Section 2.18 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made or additional amounts paid under this Section 2.18 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 Section 2.18(i) (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 Section 2.18(i) , in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.18(i) 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 indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 2.18(i) 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.

 

(j)    Survival . Each party’s obligations under this Section 2.18 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

 

2.19    Obligation to Mitigate . Each Lender (which term shall include each LC Issuing Bank for purposes of this Section 2.19 ) agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.16 , 2.17 or 2.18, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may in good faith deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.16 , 2.17 or 2.18 would be reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans or Letters of Credit through such other office or in accordance with such other measures, as the case may be, would not otherwise materially adversely affect such Revolving Commitments, Loans or Letters of Credit or the interests of such Lender; provided , such Lender will not be obligated to utilize such other office pursuant to this Section 2.19 unless Borrowers agree to pay all reasonable incremental expenses incurred by such Lender as a result of utilizing such other office as described in clause (a) above. A certificate as to the amount of any such expenses payable by Borrowers pursuant to this Section 2.19 (setting forth in reasonable detail the basis for requesting such amount) submitted

 

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by such Lender to Borrowers (with a copy to Administrative Agent) shall be conclusive absent manifest error.

 

2.20    Defaulting Lenders . (a)   Defaulting Lender Adjustments . Anything contained herein to the contrary notwithstanding, if any Lender becomes a Defaulting Lender, then until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Governmental Rules:

 

(i)    Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “ Required Lenders ”, “ Required Revolving Lenders ”, “ Required Incremental Term Loan Lenders ” (as applicable) or Section 10.5 .

 

(ii)    Defaulting Lender Waterfall . Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 10.4 shall be applied at such time or times as may be determined by Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any LC Issuing Bank or Swingline Lender hereunder; third , to Cash Collateralize each LC Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20(c) ; fourth , as Borrowers may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth , if so determined by Administrative Agent and Borrowers, to be held in a Deposit Account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize each LC Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.20(c) ; sixth , to the payment of any amounts owing to the Lenders, the LC Issuing Banks or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the LC Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default shall have occurred and be continuing, to the payment of any amounts owing to Borrowers as a result of any judgment of a court of competent jurisdiction obtained by Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be

 

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applied solely to pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Revolving Loans and funded and unfunded participations in Letters of Credit or Swingline Loans are held by the Lenders pro rata in accordance with the applicable Revolving Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.20(a)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)    Certain Fees .

 

(1)    No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.10 for any period during which such Lender is a Defaulting Lender (and Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender); provided that such Defaulting Lender shall be entitled to receive fees for any period during which such Lender is a Defaulting Lender only to extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.20(c) .

 

(2)    With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (1) above, Borrowers shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each LC Issuing Bank or the Swingline Lender the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to each LC Issuing Bank’s or the Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

 

(iv)    Reallocation of Participations to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s participation in Letters of Credit and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 3.2 are satisfied at the time of such reallocation (and, unless Borrowers shall have otherwise notified Administrative Agent at such time, Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a

 

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Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(v)    Cash Collateral, Repayment of Swingline Loans . If the reallocation described in clause (iv) above cannot, or can only partially, be effected, US Borrower shall, without prejudice to any right or remedy available to it hereunder or under Governmental Rules, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize each LC Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.20(c) ; provided that US Borrower’s obligation to so prepay Swingline Loans and Cash Collateralize such LC Issuing Bank’s Fronting Exposure at any time shall be limited to the amount of excess cash flow available to be distributed under Section 6.4 at such time; provided further that, no subsequent Swingline Loans shall be required to be funded unless the Swingline Lender is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan, and no subsequent Letter of Credit may be issued under this Agreement at any time that there shall exist a Defaulting Lender, unless US Borrower shall, upon issuance of such subsequent Letter of Credit, Cash Collateralize the applicable LC Issuing Bank’s Fronting Exposure (determined after giving effect to Section 2.20(a)(iii) and any Cash Collateral provided by such Defaulting Lender).

 

(b)    Defaulting Lender Cure . If Borrowers, Administrative Agent, each LC Issuing Bank and the Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrowers while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.

 

(c)    Cash Collateral . At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of Administrative Agent or any LC Issuing Bank (with a copy to Administrative Agent) US Borrower shall Cash Collateralize such LC Issuing Bank’s Fronting Exposure (determined after giving effect to Section 2.20(a)(iv) and any Cash Collateral provided by such Defaulting Lender); provided that each Borrower’s obligation to Cash Collateralize such LC Issuing Bank’s Fronting Exposure at any time shall be limited to the amount of excess cash flow available to be distributed under Section 6.4 at such time; provided further that, no subsequent Letter of Credit may be issued under this Agreement at any time that there shall exist a Defaulting Lender, unless US Borrower shall, upon issuance of such subsequent Letter of Credit, Cash Collateralize the applicable LC Issuing Bank’s Fronting

 

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Exposure (determined after giving effect to Section 2.20(a)(iii) and any Cash Collateral provided by such Defaulting Lender).

 

(i)    Grant of Security Interest . US Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to Administrative Agent, for the benefit of each LC Issuing Bank, and agrees to maintain, a First Priority Lien in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (ii) below. If at any time Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than Administrative Agent and each LC Issuing Bank as herein provided, or that the total amount of such Cash Collateral is less than the Defaulting Lender’s Pro Rata Share of the applicable Letters of Credit, US Borrower will, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

 

(ii)    Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.20 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

 

(iii)    Termination of Requirement . Cash Collateral (or the appropriate portion thereof) provided to reduce any LC Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.20 following (x) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender) or (y) the determination by Administrative Agent and such LC Issuing Bank that there exists excess Cash Collateral; provided that subject to the other provisions of this Section 2.20 , the Person providing Cash Collateral and such LC Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.

 

2.21    Removal or Replacement of a Lender . Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “ Increased - Cost Lender ”) shall give notice to Borrowers that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.16 (other than Section 2.16(c) ), 2.17 or  2.18 , (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after Borrowers’ request for such withdrawal; (b) (i) any Lender shall become and continues to be a Defaulting Lender and (ii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender, pursuant to Section 2.20(b) , within five (5) Business Days after Borrowers’ request that it cure such default; (c) any Lender (such Lender a “ Non-Consenting Lender ”) has failed to consent to a proposed amendment, waiver, discharge or termination requiring the consent of all of the Lenders or all of the affected Lenders requested by Borrowers under or with

 

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respect to the Financing Documents, and with respect to which the Required Revolving Lenders or Required Incremental Term Loan Lenders (as applicable) shall have granted their consent, or (d) any Lender (such Lender, a “ Non-Extending Lender ”) that has not elected to participate in an Extension pursuant to Section 2.23 then, with respect to each such Increased-Cost Lender, Defaulting Lender, Non-Consenting Lender or Non-Extending Lender (the “ Terminated Lender ”), Borrowers may, subject to the consent (not to be unreasonably withheld) of the Administrative Agent and each LC Issuing Bank and by giving written notice to Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign all or any part of its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a “ Replacement Lender ”) in accordance with the provisions of Section 10.6 and, in such case, (x) the applicable Terminated Lender (except as provided in clause (y) below) shall pay any fees payable thereunder in connection with such assignment from an Increased-Cost Lender or a Defaulting Lender and (y) Borrowers shall pay any fees, costs or expenses thereunder in connection with such assignment from a Non-Consenting Lender or Non-Extending Lender; provided , (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Revolving Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10 ; (2) on the date of such assignment, Borrowers shall pay any amounts payable to such Terminated Lender pursuant to Section 2.16(c) , 2.17 or  2.18 ; (3) in the case of any such assignment resulting from a claim for compensation under Section 2.17 or payments required to be made pursuant to Section 2.18 , such assignment will result in reduction in such compensation or payments thereafter; (4) Administrative Agent shall have been paid the assignment fee (if any) specified in Section 10.6(d)(i) ; (5) such assignment does not conflict with applicable Governmental Rules and (6) no Default or Event of Default has occurred and is continuing; provided , Borrowers may not make such election with respect to any Terminated Lender that is also an LC Issuing Bank unless, prior to the effectiveness of such election, Borrowers shall have caused each outstanding Letter of Credit issued thereby to be cancelled, fully Cash Collateralized or supported by a “back-to-back” Letter of Credit reasonably satisfactory to such Terminated Lender. In connection with any such replacement, if the replaced Lender does not execute and deliver to Administrative Agent a duly completed Assignment Agreement reflecting such replacement within a period of time deemed reasonable by Administrative Agent, then such replaced Lender shall be deemed to have executed and delivered such Assignment Agreement. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided , any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply.

 

2.22    Additional Indebtedness

 

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(a)    Upon written notice to the Administrative Agent, Borrowers may from time to time request, prior to the Revolving Commitment Termination Date, an increase in the existing Revolving Commitments (the “ Increased Commitments ”) or to establish a new term loan Credit Facility (the “ Incremental Term Loan Commitments ” and, together with the Increased Commitments, the “ Incremental Facilities ”); provided that the amount of such Incremental Facilities shall be determined by Borrowers and shall not exceed the greater of $600,000,000 and 250% of Borrower Cash Flow as of the last day of the most recently ended Measurement Period, in the aggregate for all Incremental Facilities outstanding at any time (the “ Available Incremental Amount ”); provided that any such request for Incremental Facilities shall be in a minimum amount of $10,000,000.

 

(b)    Each such notice shall specify (i) the date (each, an “ Increased Amount Date ”) on which Borrowers propose that the Increased Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (unless the Administrative Agent otherwise agrees to a shorter period) and (ii) the identity of each Lender or other Person (which shall be an Eligible Assignee) (each, an “ Increased Commitment Lender ” or “ Incremental Term Loan Lender ,” as applicable) to whom Borrowers propose any portion of such Increased Commitments or Incremental Term Loan Commitments, as applicable, initially be allocated and the amounts of such allocations (and whether any such Increased Commitment Lender or its Affiliates will become an Issuing Bank and, if so, the amount of each such Person’s Lender Sublimit); provided that any existing Lender approached to provide all or a portion of the Increased Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such commitments. Any Incremental Term Loans made on an Increased Amount Date shall be designated as a separate series (a “ Series ”) of Incremental Term Loans for all purposes of this Agreement or, if made on terms identical to any existing Series of Incremental Term Loans, may constitute a part of such Series of Incremental Term Loans.

 

(c)    The Administrative Agent shall promptly notify Borrowers and the existing Lenders of (x) the Increased Commitments and the Increased Commitment Lenders or the Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable and (y) in the case of each notice to any Lender, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.22 . Each Increased Commitment Lender and Incremental Term Loan Lender shall be subject to the provisions of Section 2.18 .

 

(d)    On any Increased Amount Date on which Increased Commitments are made effective or available, subject to the satisfaction of the terms and conditions in this Section 2.22 , each of the existing Lenders shall assign to each of the Increased Commitment Lenders, and each of the Increased Commitment Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and unused Revolving Commitments will be held by existing Lenders and such Increased Commitment Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Increased Commitments to the Revolving Commitments, (i) each Increased

 

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Commitment shall be deemed for all purposes a Revolving Commitment and each Incremental Revolving Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (ii) each Increased Commitment Lender shall become a Lender with respect to the Increased Commitment and all matters relating thereto. The Increased Commitments shall become Revolving Commitments under this Agreement pursuant to an Incremental Amendment and, as appropriate, amendments to the other Credit Documents. Such amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22 .

 

(e)    On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of terms and conditions to be mutually agreed between the applicable Borrower and the Incremental Term Loan Lenders providing such Incremental Term Loans (and including the terms and conditions in this Section 2.22 ), each Incremental Term Loan Lender of such Series shall make a Loan to the applicable Borrower (an “ Incremental Term Loan ”) in an amount equal to its Incremental Term Loan Commitment of such Series and (i) each Incremental Term Loan Lender of such Series shall become a Lender hereunder with respect to its Incremental Term Loan Commitment and the Incremental Term Loans of such Series made pursuant thereto.

 

(f)    The terms and provisions of the Incremental Facilities shall be, (i) except as otherwise set forth herein, as agreed in the Incremental Amendment and, as appropriate, any necessary amendments to the other Credit Documents, executed by the Borrowers, the applicable Increased Commitment Lenders and Incremental Term Loan Lenders providing such Increased Commitments and Incremental Term Loan Commitments, respectively, and the Administrative Agent and (ii) subject to the limitations in clauses (A) and (B) below, not more restrictive, taken as a whole, to the Borrowers and the other Credit Parties than those applicable to any Revolving Credit Facility at the time of incurrence of such Incremental Facility, unless such other terms (1) apply only after the Latest Maturity Date of each such Revolving Credit Facility in effect at the time of incurrence of such Incremental Facility, (2) shall also apply to each Revolving Credit Facility at the time of incurrence of such Incremental Facility (which such application shall not require the consent of the Lenders or the Administrative Agent if so reasonably determined by the Borrowers) or (3) in the case of Incremental Term Facilities, relate to mandatory prepayments, premiums (including make-whole provisions), interest, fees or (subject to the foregoing) maturity or amortization. In any event, (A) the Weighted Average Life to Maturity of any such Incremental Term Facility shall be no shorter than 75% of the remaining time to maturity date of the Revolving Loans in effect at such time of incurrence, (B) the applicable Maturity Date for any such Increased Commitments shall be no shorter than the Latest Maturity Date for all Revolving Loans at the time of incurrence of such Incremental Facility, (C) any Increased Commitments (and the Revolving Loans made thereunder) shall have the same terms as the existing Revolving Commitments and (D) each Incremental Facility shall be secured by a pari passu or junior lien on the Collateral securing the Revolving Credit Facility pursuant to documents substantially in the form of the Collateral Documents in place on the Closing Date (or otherwise more favorable to the Borrowers in the case of any Incremental Term Loans), with such changes necessary to reflect the junior status of any junior liens. Without limiting the foregoing, any Incremental Amendment establishing or increasing Incremental Term Facilities may provide that the mandatory prepayment provisions of Section 2.12 permit such prepayments

 

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to be applied first to any Incremental Term Loans and customary provisions to permit buy-backs of term loan debt (solely below par and subject to no Default or Event of Default).

 

(g)    Each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, the Borrowers and the lenders providing the relevant Incremental Facility, to effect the provisions of this Section 2.22 (including, in the case of any Incremental Term Loans, to provide for additional mandatory prepayments not already included herein and debt buyback provisions on customary terms).

 

(h)    As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent (x) reaffirmation agreements of the Credit Parties which reaffirm the guaranty and Liens provided pursuant to the Credit Documents and (y) a certificate of each Credit Party dated as of the Increased Amount Date signed by an Authorized Representative of such Credit Party (i) certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such increase and (ii) in the case of Borrowers, certifying that, before and after giving effect to such increase, subject to Section 1.7 , (A) the representations and warranties contained in Section 4 and the other Credit Documents are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or any similar qualifier, in which case, it shall be true and correct in all respects) on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date; provided that to the extent such Incremental Facility will be used concurrently with the initial provision of such Incremental Facility to finance any Investment permitted pursuant to Section 6.5(i) , the such representations and warranties shall be limited to customary “SunGard” representations and warranties (including those with respect to the target contained in the acquisition or merger agreement to the extent failure of such representations and warranties to be true and correct permits the Borrowers or relevant Affiliates thereof not to consummate the transactions contemplated thereby, (B) as of the time of determination provided by Section 1.7 , no Event of Default exists at such time and no Event of Default would exist immediately after giving effect thereto and (C) as of the time of determination provided by Section 1.7 , Borrowers are in compliance with the financial covenants set forth in Section 6.6 (treating any such increase in the form of Increased Commitments as fully drawn for this purpose). To the extent reasonably requested by the Administrative Agent (acting in its capacity as such), Borrowers shall deliver or cause to be delivered legal opinions which are similar to those delivered on the Closing Date pursuant to Section 3.1(f) (or otherwise in form and substance reasonably satisfactory to the Administrative Agent) and any other documents, in each case as reasonably requested by the Administrative Agent in connection with any such transaction.

 

(i)    This Section 2.22 shall supersede any provisions in Section 2.15 or 10.5 to the contrary.

 

2.23    Extensions of Loan Terms

 

(a)    Borrowers may from time to time, pursuant to the provisions of this Section 2.23 , agree with one or more Lenders holding any Class (“ Existing Class ”) of (x)

 

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Revolving Loans and Revolving Commitments or (y) Incremental Term Loans and Incremental Term Loan Commitments to extend the maturity date and to provide for other terms consistent with this Section 2.23 (each such modification, an “ Extension ”) pursuant to one or more written offers (each an “ Extension Offer ”) made from time to time by the Borrowers to all Lenders under any Class that is proposed to be extended under this Section 2.23 , in each case on a pro rata basis (based on the relative outstanding Revolving Commitments or Incremental Term Loan Commitments, as applicable, of each Lender in such Class (or if no such Revolving Commitments or Incremental Term Loan Commitments, as applicable, are outstanding, the amount of Revolving Loans or Incremental Term Loans, as applicable, of each Lender in such Class)) and on the same terms to each such Lender. In connection with each Extension, Borrowers will provide notification to the Administrative Agent (for distribution to the Lenders of the applicable Class), no later than 30 days prior to the maturity of the applicable Class or Classes to be extended of the requested new maturity date for the (x) Extended Revolving Loans and Extended Revolving Commitments or (y) Extended Incremental Term Loans and Extended Incremental Term Loan Commitments of each such Class (each an “ Extended Maturity Date ”) and the due date for Lender responses. In connection with any Extension, each Lender of the applicable Class wishing to participate in such Extension shall, prior to such due date, provide the Administrative Agent with a written notice thereof in a form reasonably satisfactory to the Administrative Agent. Any Lender that does not respond to an Extension Offer by the applicable due date shall be deemed to have rejected such Extension. In connection with any Extension, Borrowers shall agree to such procedures, if any, as may be reasonably established by, or acceptable to, the Administrative Agent to accomplish the purposes of this Section 2.23 .

 

(b)    After giving effect to any Extension, the Extended Commitments shall cease to be a part of the Class that they were a part of immediately prior to the Extension and shall be a new Class hereunder; provided that at no time shall there be more than six (6) different classes of Commitments; provided further that, (i) all borrowings and all prepayments of Revolving Loans shall continue to be made on a ratable basis among all Lenders, based on the relative amounts of their Revolving Commitments, until the repayment of the Revolving Loans attributable to the non-extended Revolving Commitments on the relevant Revolving Commitment Termination Date, (ii) all prepayments of Incremental Term Loans shall continue to be made on a ratable basis among all Incremental Term Loan Lenders, based on the relative amounts of their Incremental Term Loan Commitments, until the repayment of the Incremental Term Loans attributable to the non-extended Incremental Term Loans on their respective maturity date, (iii) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit and Swingline Loans as between the Revolving Commitments of such new Class and the remaining Revolving Commitments shall be made on a ratable basis in accordance with the relative amounts thereof until the Revolving Commitment Termination Date relating to such non-extended Revolving Commitments has occurred, (iv) no termination of Extended Revolving Commitments and no repayment of Extended Revolving Loans accompanied by a corresponding permanent reduction in Extended Revolving Commitments shall be permitted unless such termination or repayment (and corresponding reduction) is accompanied by at least a pro rata termination or permanent repayment (and corresponding pro rata permanent reduction), as applicable, of all other Classes of Revolving Loans and Revolving Commitments with an earlier Revolving Commitment Termination Date (or all such Revolving Commitments and related Revolving Loans shall have otherwise been terminated and repaid in full) and (v) with respect any to Letters of Credit or Swingline Loans,

 

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the applicable Revolving Commitment Termination Date cannot be extended without the prior written consent of each such LC Issuing Bank and the Swingline Lender (as applicable), and the availability of the Revolving Commitments cannot be extended in a manner that extends the availability of the Letter of Credit facility or Swingline Loan facility without the prior written consent of each LC Issuing Bank and the Swingline Lender so extending (as applicable). If the Total Utilization of Revolving Commitments exceeds the Revolving Commitment as a result of the occurrence of the Revolving Commitment Termination Date with respect to any Class of Revolving Commitments while an extended Class of Revolving Commitments remains outstanding, the Borrower shall make such payments as are necessary in order to eliminate such excess on such Revolving Commitment Termination Date.

 

(c)    The consummation and effectiveness of each Extension shall be subject to the following both before and after giving effect thereto:

 

(i)    the Existing Commitments of any Lender extended pursuant to any Extension of (x) Revolving Commitments (“ Extended Revolving Commitments ” and the loans thereunder, “ Extended Revolving Loans ”) or (y) Incremental Term Loan Commitments (“ Extended Incremental Term Loan Commitments ” and the loans thereunder, “ Extended Incremental Term Loans ”) shall have the same terms as the Class of existing (x) Revolving Commitments (“ Existing Revolving Commitments ” and the loans thereunder, “ Existing Revolving Loans ”) or (y) Incremental Term Loan Commitments (“ Existing Incremental Term Loan Commitments ” and the loans thereunder, “ Existing Incremental Term Loans ”), as applicable, subject to the related Extension Amendment; except (A) the final maturity date of any Extended Commitments and Extended Loans of a Class to be extended pursuant to an Extension shall be later than the Maturity Date of the Class of Existing Commitments and Existing Loans subject to the related Extension Amendment, and the Weighted Average Life to Maturity of any Extended Incremental Term Loan Commitments and Extended Incremental Term Loans of a Class to be extended pursuant to an Extension shall be no shorter than the Weighted Average Life to Maturity of the Class of Existing Incremental Term Loan Commitments and Existing Incremental Term Loans subject to the related Extension Amendment; (B) the all-in pricing (including, without limitation, with respect to margins, fees and premiums) with respect to the Extended Commitments and Extended Loans may be higher or lower than the all-in pricing (including, without limitation, margins, fees and premiums) for the Existing Commitments and Existing Loans; (C) the Revolving Commitment fee rate with respect to the Extended Revolving Commitments may be higher or lower than the Revolving Commitment fee rate for Existing Revolving Commitments; (D) no repayment of any Extended Revolving Loans and no cancellation of any Extended Revolving Commitments shall be permitted unless such repayment or cancellation, as applicable, is accompanied by an at least pro rata repayment or cancellation, as applicable, of all earlier maturing Revolving Loans and Revolving Commitments (including previously extended Revolving Loans and Revolving Commitments) (or all earlier maturing Revolving Loans and Revolving Commitments (including previously extended Revolving Loans and Revolving Commitments) shall otherwise be or have been terminated and repaid in full); (E) no repayment of any Extended Incremental Term Loans shall be permitted unless such repayment is accompanied by an at least pro rata repayment of all earlier maturing Incremental Term

 

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Loans (including previously extended Incremental Term Loans); (F) the Extended Commitments may contain a “most favored nation” provision for the benefit of Lenders holding Extended Commitments; and (G) the other terms and conditions applicable to Extended Commitments and Extended Loans may be different than those with respect to the Existing Commitments and Existing Loans, so long as such terms and conditions only apply after the Latest Maturity Date with respect to Existing Loans in effect at the time of the Extension; provided further , each Extension Amendment may, without the consent of any Lender other than the applicable extending Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrowers, to give effect to the provisions of this Section 2.23 , including any amendments necessary to treat the applicable Loans or Revolving Commitments of the extending Lenders as a new “Class” of loans or commitments hereunder; provided , however , no Extension Amendment may provide for any Class of Extended Commitments and Extended Loans to be secured by any Collateral or other assets of any Credit Party that does not also secure the Existing Commitments and Existing Loans;

 

(ii)    all documentation in respect of such Extension shall be consistent with the foregoing; and

 

(iii)    a minimum amount in respect of such Extension (to be determined in the Borrowers’ discretion and specified in the relevant Extension Offer, but in no event less than $25,000,000, unless another amount is agreed to by the Administrative Agent) shall be satisfied.

 

Any Lender that does not elect to participate in an Extension shall be deemed to be a Non-Extending Lender and subject to being replaced pursuant to Sections 2.21 and 10.5 .

 

(d)    The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments (collectively, “ Extension Amendments ”) to this Agreement and the other Credit Documents as may be necessary in order to establish new Classes of Commitments and Loans created pursuant to an Extension, in each case on terms consistent with this Section 2.23 . Without limiting the foregoing, in connection with any Extension, (i) the appropriate Credit Parties shall (at their expense) amend (and the Administrative Agent is hereby directed to amend) any Credit Document that the Administrative Agent reasonably requests to be amended to reflect an Extension that has a maturity date prior to the latest Extended Maturity Date so that such maturity date is extended to the then latest Extended Maturity Date (or such later date as may be advised by counsel to the Administrative Agent) and (ii) Borrowers shall deliver (A) board resolutions, secretary’s certificates and officer’s certificates, in each case as reasonably requested by the Administrative Agent and (B) if requested by the Administrative Agent, a legal opinion, in form and substance reasonably acceptable to the Administrative Agent, as to (x) the enforceability of such Extension Amendment and (y) such other customary matters reasonably requested by the Administrative Agent.

 

(e)    Promptly following the consummation and effectiveness of any Extension, Borrowers will furnish to the Administrative Agent (who shall promptly furnish to each Lender) written notice setting forth the Extended Maturity Date and material economic terms of the

 

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Extension and the aggregate principal amount of each Class of Loans and Commitments after giving effect to the Extension and attaching a copy of the fully executed Extension Amendment.

 

(f)    This Section 2.23 shall supersede any provisions in Section 2.15 or 10.5 to the contrary.

 

2.24    Refinancing Facilities . (a) Notwithstanding anything to the contrary in this Agreement, so long as no Event of Default has occurred and is continuing (as determined pursuant to Section 1.7 ), the Borrowers may at any time and from time to time by written notice to the Administrative Agent elect to establish one or more additional Classes of Loans or Revolving Commitments under this Agreement (“ Refinancing Loans ” or “ Refinancing Commitments ”), which Refinancing Loans or Refinancing Commitments will refinance, pursuant to a voluntary prepayment in accordance with Section 2.11 , all or any portion of any Class of Loans or Revolving Commitments (as applicable) then outstanding under this Agreement (any portion thereof that is not so refinanced, the “ Non-Refinanced Loans ” or “ Non-Refinanced Commitments ”). Each such notice shall specify the date (each, a “ Refinancing Effective Date ”) on which the Borrowers propose that the Refinancing Loans or Refinancing Commitments shall be made, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent in its sole discretion); provided that:

 

(i)    at no time shall there be more than six (6) different Classes of Loans;

 

(ii)    before and after giving effect to the borrowing of such Refinancing Loans or the incurrence of such Refinancing Commitments on the Refinancing Effective Date, each of the conditions set forth in Section 3.2 shall be satisfied to the extent required by the relevant Refinancing Amendment governing such Refinancing Loans or Refinancing Commitments;

 

(iii)    the Refinancing Loans may have different amortization payments and maturity dates than the other Loans and the Refinancing Commitments; provided that the final maturity date and Weighted Average Life to Maturity of such Refinancing Loans shall not be prior to or shorter than that applicable to the Loans being refinanced thereby (or in the case of any Revolving Loans that are refinanced with term loans, shall be no shorter than 75% of the remaining time to stated maturity of such Revolving Loans being refinanced (in effect at the time of such incurrence));

 

(iv)    all other terms applicable to such Refinancing Loans (other than provisions relating to original issue discount, upfront fees and interest rates, which shall be as agreed between the Borrower and the Refinancing Lenders providing such Refinancing Loans) shall be no more restrictive, taken as a whole, to the terms applicable to the Loans being refinanced thereby (except to the extent such covenants and other terms (a) apply solely to any period after the latest final maturity of the Loans in effect on the Refinancing Effective Date immediately prior to the borrowing of such Refinancing Loans or (b) are otherwise added for the benefit of the other Lenders hereunder);

 

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(v)    at the request of the Administrative Agent, the Borrowers shall deliver or cause to be delivered legal opinions that are similar to those delivered on the Closing Date pursuant to Section 3.1(f) (or otherwise in form and substance reasonably satisfactory to the Administrative Agent) and any other customary documents reasonably requested by the Administrative Agent in connection with any such transaction;

 

(vi)    the Credit Parties and the Administrative Agent shall enter into such amendments to the Collateral Documents as may be requested by the Administrative Agent (which shall not require any consent from any Lender) in order to ensure that the Refinancing Loans and Refinancing Commitments are provided with the benefit of the applicable Collateral Documents on a pari passu basis with the other Obligations and shall deliver such other customary documents and certificates in connection therewith as may be reasonably requested by the Administrative Agent;

 

(vii)    the proceeds of Refinancing Loans shall be applied, substantially concurrently with the incurrence thereof, to the refinancing of the outstanding Loans so refinanced;

 

(viii)    the principal amount of Refinancing Loans and the Refinancing Commitment does not exceed the principal amount of Loans being refinanced thereby except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or unpaid related to such Loans being refinanced and fees and expenses incurred in connection with such refinancing (including, underwriting, commitment, syndication, legal and similar fees);

 

(ix)    there shall be no obligor in respect of such Refinancing Loans that is not a Credit Party, and Borrowers shall be the borrowers of such Refinancing Loans; and

 

(x)    Refinancing Loans that are term loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the other term loans hereunder in any prepayment hereunder and Refinancing Loans that are revolving loans shall participate on a pro rata basis with all other Revolving Loans hereunder in any prepayment hereunder.

 

(b)    The Borrowers may approach any Lender or any other Person that would be an Eligible Assignee to provide all or a portion of the Refinancing Loans or Refinancing Commitments (a “ Refinancing Lender ”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Loans or Refinancing Commitments may elect or decline, in its sole discretion, to provide a Refinancing Loan or Refinancing Commitment. Any Refinancing Loans or Refinancing Commitments with the same terms made on any Refinancing Effective Date shall be designated a Class of Refinancing Loans or Refinancing Commitments for all purposes of this Agreement; provided that any Refinancing Loans or Refinancing Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Loans or Revolving Commitment if it has the same terms as such previously established Class of Loans or Revolving Commitments in all respects.

 

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(c)    The Refinancing Loans and Refinancing Commitments shall be established pursuant to an amendment to this Agreement among the Credit Parties, the Administrative Agent and the Refinancing Lenders providing such Refinancing Loans and Refinancing Commitment (a “ Refinancing Amendment ”) which shall be consistent with the provisions set forth in this Section 2.24 (but which shall not require the consent of any other Lender).

 

(d)    The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents with the applicable Credit Parties as may be necessary or advisable in order to effectuate the transactions contemplated by this Section 2.24 . Each Refinancing Amendment shall be binding on the Lenders, the Credit Parties and the other parties hereto. In addition to any other terms and changes required or permitted by this Section 2.24 , each Refinancing Amendment establishing a Class of Refinancing Loans to refinance Incremental Term Loans shall amend the scheduled amortization payments provided under any Incremental Amendment with respect to the related Non-Refinanced Loans to reduce each scheduled installment for such Non-Refinanced Loans to an aggregate amount equal to the product of (1) the original aggregate amount of such installment with respect to the corresponding Loans being refinanced thereby, multiplied by (2) a fraction, the numerator of which is the aggregate principal amount of such related Non-Refinanced Loans and (y) the denominator of which is the aggregate principal amount of such Loans being refinanced thereby prior to the effectiveness of such Refinancing Amendment (it being understood that the amount of any installment payable with respect to any individual Non-Refinanced Loan or Non-Refinanced Commitment shall not be reduced as a result thereof without the consent of the holder of such individual Non-Refinanced Loan). This Section 2.24(d) shall supersede any provisions in Section 10.5 to the contrary.

 

Section 3.    CONDITIONS PRECEDENT

 

3.1    Closing Date . The effectiveness of the amendment and restatement of the Existing Credit Agreement provided for herein is subject to the satisfaction of the following conditions on or before the Closing Date (or waiver in accordance with Section 10.5 ):

 

(a)    Credit Documents . Administrative Agent shall have received a counterpart of the Credit Documents required to be executed as of the Closing Date, in each case, executed and delivered by each Credit Party (including, in each such party’s capacity as a Guarantor), as applicable, and, in the case of this Agreement, each Lender party hereto and the Required Lenders under and as defined in the Existing Credit Agreement.

 

(b)    Organizational Documents; Incumbency . Administrative Agent shall have received (i) a copy of each Organizational Document of each Credit Party and each other Restricted Subsidiary, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Closing Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of each Credit Party executing the Credit Documents to which it is a party; (iii) resolutions of the board of directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its

 

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secretary or an assistant secretary as being in full force and effect without modification or amendment (unless such modification or amendment is otherwise disclosed); and (iv) a good standing certificate or similar certificate from the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of each Credit Party (or, as applicable, any other jurisdiction in which a Credit Party carries on business) and each other Restricted Subsidiary, each dated a recent date prior to the Closing Date.

 

(c)    [Reserved.]

 

(d)    Collateral . The Collateral Agent shall have received:

 

(i)    [Reserved.]

 

(ii)    the results of a recent search, by a Person reasonably satisfactory to Collateral Agent, of the UCC or PPSA filing offices in the jurisdictions specified by each Credit Party, together with copies of all such filings disclosed by such search;

 

(iii)    [Reserved.]

 

(iv)    [Reserved.]

 

(v)    evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent to create or perfect a First Priority Lien on the Collateral.

 

The Liens purported to be created by the Collateral Documents shall have attached and shall constitute valid, perfected and enforceable First Priority Liens on the Collateral.

 

(e)    Financial Statements; Projections . Administrative Agent shall have received (i) the Historical Financial Statements and (ii) the Base Case Model and Projections.

 

(f)    Opinions of Counsel to Credit Parties . Administrative Agent shall have received executed copies of the favorable written opinions of (i) Davis Polk & Wardwell LLP, New York counsel for Credit Parties, (ii) Blake, Cassels & Graydon LLP, Canadian counsel for Credit Parties, (iii) McInnes Cooper, Nova Scotia counsel for Credit Parties and (iv) Morris, Nichols, Arsht & Tunnell LLP, Delaware counsel to the Credit Parties, in the form of Exhibits D-1 , D-2 , D-3 , and D-4 respectively, each dated as of the Closing Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Administrative Agent).

 

(g)    Fees . Borrowers shall have paid (i) to the Administrative Agent, Collateral Agent, Syndication Agent, Documentation Agent and Lenders, all fees and expenses due and owing pursuant to the Credit Documents and payable on the Closing Date (including the amounts due under the Fee Letter) and (ii) to the Joint Bookrunners, Agents and Lenders (each as defined in the Existing Credit Agreement) all fees (including commitment fees and Letter of Credit Fees

 

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(as defined in the Existing Credit Agreement)) and expenses, whether accrued or due and owing, under the Existing Credit Agreement.

 

(h)    Solvency Certificate . Administrative Agent shall have received a Solvency Certificate dated as of the Closing Date and addressed to Administrative Agent and Lenders, and substantially in the form of Exhibit G hereto.

 

(i)    No Litigation . There shall not exist any Adverse Proceeding, individually or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect.

 

(j)    No Event of Default or Default . No Event of Default or Default has occurred and is continuing as of the Closing Date or would result from this Agreement becoming effective in accordance with its terms.

 

(k)    Closing Date Certificate . Administrative Agent shall have received a Closing Date Certificate dated as of the Closing Date.

 

(l)    Patriot Act . Administrative Agent shall have received all documentation and other information about the Credit Parties at least fifteen (15) Business Days prior to the Closing Date as shall have been requested by Administrative Agent (either on its behalf or on behalf of any Lender) that Administrative Agent or any Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.

 

Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Required Lenders or Lenders, as applicable on the Closing Date unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

3.2    Conditions to Each Credit Extension

 

(a)    Conditions Precedent . Except with respect to any Incremental Facility or Incremental Equivalent Debt (as applicable), the obligation of each Lender to make any Loan (other than Revolving Loans converted pursuant to Section 2.3(c) or Swingline Loans) on any Credit Date (including the Closing Date), any LC Issuing Bank to issue, amend or extend any Letter of Credit on any Credit Date (including the Closing Date) are subject to the satisfaction of the following conditions precedent (or waiver in accordance with Section 10.5 ):

 

(i)    Administrative Agent shall have received a fully executed and delivered Borrowing Notice And Certificate or Notice of LC Activity and Certificate, as the case may be, which shall include certifications that Borrowers have satisfied the conditions precedent in clauses (ii) through (viii) below as of the applicable Credit Date or Increased Amount Date;

 

(ii)    after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;

 

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(iii)    as of such Credit Date, the representations and warranties of the Credit Parties (including those made on behalf of the Restricted Subsidiaries pursuant to Section 5.10 ) contained herein and in the other Credit Documents shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or any similar qualifier, in which case, it shall be true and correct in all respects) on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or any similar qualifier, in which case, it shall have been true and correct in all respects) on and as of such earlier date;

 

(iv)    as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute either a Default or an Event of Default under this Agreement;

 

(v)    on or before the date of issuance, amendment or extension of any Letter of Credit, Administrative Agent shall have received all other information required under Section 2.3 ;

 

(vi)    as of such Credit Date, Borrowers shall be in compliance with the Leverage Ratio and Interest Coverage Ratio requirements described in Section 6.6 for the immediately preceding Measurement Period;

 

(vii)    since December 31, 2016, no event, circumstance or change has occurred that has caused or could reasonably be expected to result in a Material Adverse Effect; and

 

(viii)    neither Administrative Agent nor any Lender shall have received any order or demand in respect of a Borrower under Section 224(1.1) of the ITA or Section 317 of the Excise Tax Act (Canada) or any similar federal, state, provincial or local legislation.

 

(b)    Notices . Any Notice shall be executed by an Authorized Representative in a writing delivered to Administrative Agent. In lieu of delivering a Notice, Borrowers may give Administrative Agent telephonic notice by the required time of any proposed borrowing, conversion/continuation or issuance of a Letter of Credit, as the case may be; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or before the applicable date of borrowing, continuation/conversion or issuance. Neither Administrative Agent nor any Lender shall incur any liability to Borrowers in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly Authorized Representative or other person authorized on behalf of Borrowers or for otherwise acting in good faith.

 

(c)    Request and Acceptance of Proceeds . The request and acceptance, respectively, by the Borrowers of the proceeds of any Loan or the incurrence of any L/C

 

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Obligations shall be deemed to constitute, as of the respective date thereof, a representation and warranty by the Borrowers that the conditions in this Section 3.2 have been satisfied.

 

Section 4.    REPRESENTATIONS AND WARRANTIES

 

In order to induce Lenders and LC Issuing Banks to enter into this Agreement and to make each Credit Extension to be made thereby, the Credit Parties, on behalf of themselves and, where applicable, on behalf of the Restricted Operating Company Subsidiaries and, pursuant to Section 5.10 , the other Restricted Subsidiaries, each represent and warrant to each Lender and each LC Issuing Bank, on the Closing Date and on each Credit Date, that the following statements are true and correct (it being understood and agreed that the representations and warranties made on the Closing Date are deemed to be made concurrently with the consummation of the Transactions contemplated hereby):

 

4.1    Organization; Requisite Power and Authority; Qualification . Each Credit Party (a) is duly organized, validly existing and in good standing under the Governmental Rules of its jurisdiction of organization as identified in Schedule 4.1 , (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents, if any, to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in the case of clauses (b) and (c), where the failure to do so would not be reasonably expected to have, a Material Adverse Effect. Each Credit Party represents and warrants that the foregoing is true with respect to each Restricted Operating Company Subsidiary.

 

4.2    Subsidiaries; Capital Stock and Ownership . Schedule 4.2 sets forth as of the Closing Date the name and jurisdiction of incorporation of each Subsidiary of each Credit Party and the ownership interest of the Credit Parties and their respective Subsidiaries as of the Closing Date. The Capital Stock of each of Borrowers and the Restricted Holding Company Subsidiaries the shares of which are pledged under the Pledge Agreements has been duly authorized and validly issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2 , as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which, Borrowers or any of the Restricted Holding Company Subsidiaries is a party requiring, and there is no membership interest or other Capital Stock of Borrowers or any of the Restricted Holding Company Subsidiaries outstanding which upon conversion or exchange would require, the issuance by Borrowers or any of the Restricted Holding Company Subsidiaries of any Capital Stock of Borrowers or any of the Restricted Holding Company Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase Capital Stock of Borrowers or any of the Restricted Holding Company Subsidiaries.

 

4.3    Due Authorization . The execution, delivery and performance of the Credit Documents have been duly authorized by all necessary action on the part of each Credit Party that is a party thereto.

 

4.4    No Conflict .

 

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(a)    The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not (i) violate any provision of Governmental Rules applicable to the Credit Parties, any of the Organizational Documents of the Credit Parties or any order, judgment or decree of any court or other Governmental Authority binding on the Credit Parties; (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material Contractual Obligation of the Credit Parties; (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of the Credit Parties (other than any Liens created under any of the Credit Documents in favor of Collateral Agent, on behalf of Secured Parties, or any other Lien permitted hereunder); or (iv) require any approval of stockholders, members or partners or any approval or material consent of any Person under the applicable Organizational Documents of the Credit Parties, except for such approvals or consents which will be obtained on or before the Closing Date and disclosed to Administrative Agent or approvals to enforce certain remedies in the case of a foreclosure.

 

(b)    The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not (i) violate any provision of any Governmental Rule applicable to the Restricted Operating Company Subsidiaries or any order, judgment or decree of any court or other Governmental Authority binding on the Restricted Operating Company Subsidiaries except where such violation would not reasonably be expected to have a Material Adverse Effect; (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of the Restricted Operating Company Subsidiaries (including the Project Financing Documents) except where such conflict, breach or default would not reasonably be expected to have a Material Adverse Effect; (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of the Restricted Operating Company Subsidiaries (except for Permitted Liens); or (iv) require any approval of stockholders, members or partners or any approval or material consent of any Person under the applicable Organizational Documents of the Restricted Operating Company Subsidiaries, except for such approvals or consents which will be obtained on or before the Closing Date and disclosed to Administrative Agent.

 

4.5    Governmental Authorizations .

 

(a)    The execution, delivery and performance by the Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority except for (i) the registrations, consents, approvals, notices or other actions which have been duly obtained, taken, given or made and, are in full force and effect, (ii) registrations, consents, approvals, notices or other actions required by Governmental Rules in connection with an exercise of remedies, and (iii) such registrations, consents, approvals, notices or other actions that if not obtained and maintained in full force and effect would not reasonably be expected to have a Material Adverse Effect.

 

(b)    As of the Closing Date, no Governmental Authorization, and no notice to, filing with, or consent or approval of any Governmental Authority is required in connection with

 

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the operation of the Projects in accordance with any applicable Governmental Rule and as otherwise contemplated by this Agreement, except for Governmental Authorizations required to be obtained as of the date hereof by the terms of the applicable Project Financing Documents and that (i) have been duly obtained, taken, given or made and are in full force and effect or (ii) the failure of which to obtain and maintain would not reasonably be expected to result in a Material Adverse Effect. Each Credit Party and Restricted Operating Company Subsidiary is in compliance with each Governmental Authorization applicable to it in respect of this Agreement, the other Credit Documents and the Project Financing Documents (as the case may be), the conduct of its business and the ownership of its property, and the construction, operation or maintenance of the Projects, except, in the case of a Restricted Operating Company Subsidiary, where failure of such compliance would not reasonably be expected to have a Material Adverse Effect.

 

4.6    Binding Obligation . Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Governmental Rules relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).

 

4.7    Historical Financial Statements . The Historical Financial Statements were prepared in conformity with GAAP and fairly present, in all material respects, the financial position, of the Persons described in such financial statements as at the respective dates thereof and the results of operations and cash flows, of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnotes. As of the Closing Date, none of the Credit Parties nor any Restricted Operating Company Subsidiary has Indebtedness other than Indebtedness established under the Credit Documents or permitted by the Project Financing Documents, as the case may be. Since December 31, 2016, there has been no change in the business, results of operations or condition (financial or otherwise) of the Credit Parties that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

4.8    Projections . As of the Closing Date, the projections of Borrowers and their Restricted Subsidiaries for the period Fiscal Year 2018 through and including Fiscal Year 2022 (the “ Projections ”) set forth in the base case model in the form attached hereto as Schedule 4.8 (the “ Base Case Model ”) are based on good faith estimates and assumptions made by the management of Borrowers believed by management to have been reasonable at the time made; provided , the Projections are not to be viewed as facts and actual results during the period or periods covered by the Projections may differ from such Projections and that the differences may be material.

 

4.9    Adverse Proceedings, Etc. There are no Adverse Proceedings, individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect. No Credit Party nor any Restricted Operating Company Subsidiary is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, provincial, municipal or other governmental department, commission, board, bureau,

 

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agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

4.10    Payment of Taxes. As of the Closing Date, except as otherwise permitted under Section 5.3 and except as would not reasonably be expected to have a Material Adverse Effect, all material tax returns and reports of each Credit Party and Restricted Operating Company Subsidiary required to be filed by any of them have been timely filed, and all material taxes and all material assessments, fees and other governmental charges upon such parties and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable. No Credit Party knows of any material tax assessment that has not been disclosed to Administrative Agent that has been assessed in writing against it or any Restricted Operating Company Subsidiary as of the Closing Date which is not being actively contested by such party in good faith and by appropriate proceedings; provided , such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.

 

4.11    Properties . Each Borrower and its Restricted Subsidiaries has (a) good, sufficient and legal title to (in the case of fee interests in real property), (b) valid leasehold interests in (in the case of leased property), and (c) good title to or rights in (in the case of all other personal property), all of their respective material properties and assets reflected in their respective Historical Financial Statements referred to in Section 4.7 and in the most recent financial statements delivered pursuant to Section 5.1 , in each case except for assets disposed as permitted under Section 6.7 or as would otherwise not be reasonably expected to give rise to a Material Adverse Effect. Each Borrower and its Restricted Subsidiaries has good title to the Capital Stock of its Subsidiaries owned by it. Except for Permitted Liens and Permitted Project Liens, all such properties and assets are free and clear of Liens.

 

4.12    Environmental Matters . No Credit Party nor any Restricted Operating Company Subsidiary nor any of their respective Facilities or operations are subject to any outstanding written order, consent decree or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, any Environmental Liability or any Release or threatened Release of Hazardous Materials that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Each Project is in compliance with all Environmental Laws, and any past non-compliance with Environmental Law has been fully resolved without any pending, on-going or future obligation or cost, except to the extent that any such failure to comply or past non-compliance, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each Credit Party and each Restricted Operating Company Subsidiary has obtained, maintained and complied with all Governmental Authorizations necessary under any Environmental Law to own, construct, operate or maintain the Projects, and such Governmental Authorizations are in full force and effect and not subject to any pending or, to each Credit Party’s knowledge, threatened appeal or Environmental Claim, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No Credit Party nor any Restricted Operating Company Subsidiary has received any letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable Environmental Law, except, with respect to matters that would not reasonably be expected to have a Material Adverse Effect. To each Credit Party’s knowledge, there are and

 

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have been no conditions or occurrences, including any Release, threatened Release, use, generation, storage, treatment, transportation, processing, disposal, removal or remediation of, or exposure to, Hazardous Materials, which could reasonably be expected to form the basis of any Environmental Claim against, or any Environmental Liability with respect to, any Credit Party or any Restricted Operating Company Subsidiary that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No Credit Party nor any Restricted Operating Company Subsidiary has been issued or required to obtain a permit for the treatment, storage or disposal of hazardous waste for any of its currently owned or operated Facilities, pursuant to the federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq. and its implementing regulations (“ RCRA ”), or any comparable Environmental Law, nor are any such Facilities regulated as “interim status” facilities required to undergo corrective action pursuant to RCRA, except in either case to the extent that such Facilities’ obligations pursuant to RCRA, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Compliance with all requirements of Environmental Law or, to each Credit Party’s knowledge, reasonably likely future requirements arising from existing Environmental Laws would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

4.13    No Defaults . No Default or Event of Default has occurred and is continuing. As of the Closing Date, no Credit Party nor any Restricted Operating Company Subsidiary is in default in the performance, observance or fulfillment of any of its material obligations, covenants or conditions contained in any other Transaction Document to which it is a party, which with the giving of notice or the lapse of time or both, could constitute an event of default under such other Transaction Document, but only to the extent the occurrence of such an event of default could reasonably be expected to have, individually or in the aggregate, in a Material Adverse Effect.

 

4.14    Liens . Each Lien created and perfected under the Credit Documents in favor of Collateral Agent constitutes a valid and enforceable First Priority Lien on the Collateral that is subject to such Lien.

 

4.15    Compliance with Laws . No Credit Party nor any Restricted Operating Company Subsidiary is in violation of, or has failed to comply with, the requirements of any applicable Governmental Rules, the violation of, or the failure to comply with, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

4.16    Governmental Regulation . No Credit Party is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other federal, state or provincial statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. No Credit Party is a “registered investment company” or a company “controlled” by a “registered investment company” as such terms are defined in the Investment Company Act of 1940.

 

4.17    Margin Stock . No Credit Party or any Restricted Operating Company Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Revolving Loans made to Borrowers will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for

 

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any purpose that violates, or is inconsistent with, the provisions of Regulation U or X of said Board of Governors.

 

4.18    Employee Matters . Except as would otherwise be reasonably expected to result i