D 8-K
Dominion Energy, Inc (D)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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| Item 1.01 | Entry into a Material Definitive Agreement. |
On April 8, 2025, Dominion Energy, Inc. (Dominion Energy) and two of its wholly-owned subsidiaries, Virginia Electric and Power Company (Virginia Power) and Dominion Energy South Carolina, Inc. (DESC), entered into a $7,000,000,000 Sixth Amended and Restated Revolving Credit Agreement (the Core Credit Facility) with JPMorgan Chase Bank, N.A. (JPMorgan), as Administrative Agent, Mizuho Bank, LTD. (Mizuho), Bank of America, N.A., The Bank of Nova Scotia and Wells Fargo Bank, N.A., as Syndication Agents, JPMorgan, Mizuho, BOFA Securities, Inc., The Bank of Nova Scotia and Wells Fargo Securities, LLC, as Joint Lead Arrangers and Joint Bookrunners and the other agents and lenders party thereto. The Core Credit Facility amends and restates its predecessor agreement in its entirety.
Dominion Energy and the co-borrowers can use the Core Credit Facility to support bank borrowings and the issuance of commercial paper, as well as to support the issuance of letters of credit. The full amount of the Core Credit Facility is available to Dominion Energy less any amounts outstanding to co-borrowers Virginia Power and DESC and subject to any sub-limits for Dominion Energy agreed to among Dominion Energy and the co-borrowers from time to time. The Core Credit Facility matures in April 2030, unless extended.
Also on April 8, 2025, Dominion Energy entered into an amendment to its existing Sustainability Revolving Credit Agreement (the Amendment, and, together with the Core Credit Facility, the Credit Facilities), dated as of June 9, 2021 with Sumitomo Mitsui Banking Corporation (SMBC), as Administrative Agent and Sustainability Coordinator, SMBC, The Bank of Nova Scotia and The Toronto-Dominion Bank, New York Branch, as Joint Lead Arrangers and Joint Bookrunners, and the other lenders named therein. The Amendment, among other changes, extends the maturity to April 2028, increases the commitment to $1,000,000,000 and updates certain pricing terms.
The foregoing description of the Credit Facilities does not purport to be complete and is qualified in its entirety by reference to the complete text of such agreements, copies of which are filed as Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| DOMINION ENERGY, INC. | ||
| Registrant | ||
| /s/ Steven D. Ridge | ||
| Name: | Steven D. Ridge | |
| Title: | Executive Vice President and | |
| Chief Financial Officer | ||
Date: April 9, 2025
Exhibit 10.1
$7,000,000,000
SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
among
DOMINION ENERGY, INC., VIRGINIA ELECTRIC AND POWER
COMPANY, and DOMINION ENERGY SOUTH CAROLINA, INC.
as Borrowers,
The Several Lenders from Time to Time Parties Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
MIZUHO BANK, LTD.,
BANK OF AMERICA, N.A.,
THE BANK OF NOVA SCOTIA
and
WELLS FARGO BANK, N.A.,
as Syndication Agents,
J.P. MORGAN CHASE BANK, N.A.,
MIZUHO BANK, LTD.,
BOFA SECURITIES, INC.,
THE BANK OF NOVA SCOTIA and
WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners
Dated as of April 8, 2025
Table of Contents
| Page | ||||||||
| SECTION 1. DEFINITIONS AND ACCOUNTING TERMS |
1 | |||||||
| 1.1 | Definitions | 1 | ||||||
|
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1.2 | Computation of Time Periods; Other Definitional Provisions | 24 | |||||
| 1.3 | Accounting Terms | 24 | ||||||
| 1.4 | Time | 25 | ||||||
| 1.5 | Interest Rates; Benchmark Notifications | 25 | ||||||
| 1.6 | Divisions | 25 | ||||||
| SECTION 2. LOANS |
26 | |||||||
| 2.1 | Revolving Loan Commitment | 26 | ||||||
| 2.2 | Method of Borrowing for Revolving Loans | 26 | ||||||
| 2.3 | Funding of Revolving Loans | 27 | ||||||
| 2.4 | Minimum Amounts of Revolving Loans | 28 | ||||||
| 2.5 | Reductions of Revolving Loan Commitment | 28 | ||||||
| 2.6 | Revolving Loan Commitment Increase | 28 | ||||||
| 2.7 | Notes | 29 | ||||||
| 2.8 | Extension of Maturity Date | 30 | ||||||
| 2.9 | Adjustment of Sublimits | 31 | ||||||
| SECTION 3. PAYMENTS |
32 | |||||||
| 3.1 | Interest | 32 | ||||||
| 3.2 | Prepayments | 32 | ||||||
| 3.3 | Payment in Full at Maturity | 33 | ||||||
| 3.4 | Fees | 33 | ||||||
| 3.5 | Place and Manner of Payments | 33 | ||||||
| 3.6 | Pro Rata Treatment | 33 | ||||||
| 3.7 | Computations of Interest and Fees | 34 | ||||||
| 3.8 | Sharing of Payments | 34 | ||||||
| 3.9 | Evidence of Debt | 35 | ||||||
| 3.10 | Obligation to Return Erroneous Transmittal | 36 | ||||||
| SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS |
37 | |||||||
| 4.1 | Term SOFR Loan Provisions | 37 | ||||||
| 4.2 | Capital Adequacy | 40 | ||||||
| 4.3 | Compensation | 41 | ||||||
| 4.4 | Taxes | 41 | ||||||
| 4.5 | Mitigation; Mandatory Assignment | 44 | ||||||
| SECTION 5. LETTERS OF CREDIT |
45 | |||||||
| 5.1 | L/C Commitment | 45 | ||||||
| 5.2 | Procedure for Issuance of Letter of Credit | 46 | ||||||
| 5.3 | Fees and Other Charges | 47 | ||||||
| 5.4 | L/C Participations | 47 | ||||||
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5.5 | Reimbursement Obligation of the Borrowers | 48 | |||||
| 5.6 | Obligations Absolute | 48 | ||||||
| 5.7 | Letter of Credit Payments | 49 | ||||||
| 5.8 | Applications | 49 | ||||||
| 5.9 | Cash collateral | 49 | ||||||
| SECTION 6. CONDITIONS PRECEDENT |
49 | |||||||
| 6.1 | Restatement Effective Date Conditions | 49 | ||||||
| 6.2 | Conditions to Loans and Letters of Credit | 51 | ||||||
| SECTION 7. REPRESENTATIONS AND WARRANTIES |
52 | |||||||
| 7.1 | Organization and Good Standing | 52 | ||||||
| 7.2 | Due Authorization | 52 | ||||||
| 7.3 | No Conflicts | 52 | ||||||
| 7.4 | Consents | 53 | ||||||
| 7.5 | Enforceable Obligations | 53 | ||||||
| 7.6 | Financial Condition | 53 | ||||||
| 7.7 | No Default | 53 | ||||||
| 7.8 | Indebtedness | 53 | ||||||
| 7.9 | Litigation | 54 | ||||||
| 7.10 | Taxes | 54 | ||||||
| 7.11 | Compliance with Law | 54 | ||||||
| 7.12 | ERISA | 54 | ||||||
| 7.13 | Government Regulation | 54 | ||||||
| 7.14 | Solvency | 54 | ||||||
| 7.15 | Anti-Corruption Laws and Sanctions | 55 | ||||||
| 7.16 | Affected Financial Institutions | 55 | ||||||
| SECTION 8. AFFIRMATIVE COVENANTS |
55 | |||||||
| 8.1 | Information Covenants | 55 | ||||||
| 8.2 | Preservation of Existence and Franchises | 57 | ||||||
| 8.3 | Books and Records | 57 | ||||||
| 8.4 | Compliance with Law | 57 | ||||||
| 8.5 | Payment of Taxes | 57 | ||||||
| 8.6 | Insurance | 57 | ||||||
| 8.7 | Performance of Obligations | 57 | ||||||
| 8.8 | ERISA | 58 | ||||||
| 8.9 | Use of Proceeds | 58 | ||||||
| 8.10 | Audits/Inspections | 58 | ||||||
| 8.11 | Total Funded Debt to Capitalization | 59 | ||||||
| 8.12 | Anti-Corruption Laws and Sanctions | 59 | ||||||
| SECTION 9. NEGATIVE COVENANTS |
59 | |||||||
| 9.1 | Nature of Business | 59 | ||||||
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9.2 | Consolidation and Merger | 59 | |||||
| 9.3 | Sale or Lease of Assets | 60 | ||||||
| 9.4 | Limitation on Liens | 60 | ||||||
| 9.5 | Fiscal Year | 61 | ||||||
| 9.6 | Use of Proceeds | 61 | ||||||
| SECTION 10. EVENTS OF DEFAULT |
61 | |||||||
| 10.1 | Events of Default | 61 | ||||||
| 10.2 | Acceleration; Remedies | 63 | ||||||
| 10.3 | Allocation of Payments After Event of Default | 64 | ||||||
| SECTION 11. AGENCY PROVISIONS |
65 | |||||||
| 11.1 | Appointment | 65 | ||||||
| 11.2 | Delegation of Duties | 66 | ||||||
| 11.3 | Exculpatory Provisions | 66 | ||||||
| 11.4 | Reliance on Communications | 67 | ||||||
| 11.5 | Notice of Default | 67 | ||||||
| 11.6 | Non-Reliance on Administrative Agent and Other Lenders | 67 | ||||||
| 11.7 | Indemnification | 68 | ||||||
| 11.8 | Administrative Agent in Its Individual Capacity | 69 | ||||||
| 11.9 | Successor Administrative Agent | 69 | ||||||
| 11.10 | ERISA Matters | 69 | ||||||
| SECTION 12. MISCELLANEOUS |
71 | |||||||
| 12.1 | Notices | 71 | ||||||
| 12.2 | Right of Set-Off; Adjustments | 72 | ||||||
| 12.3 | Benefit of Agreement | 73 | ||||||
| 12.4 | No Waiver; Remedies Cumulative | 77 | ||||||
| 12.5 | Payment of Expenses, Indemnity, Limitation of Liability, etc. | 77 | ||||||
| 12.6 | Amendments, Waivers and Consents | 78 | ||||||
| 12.7 | Counterparts; Effectiveness; Electronic Execution | 80 | ||||||
| 12.8 | Headings | 81 | ||||||
| 12.9 | Defaulting Lenders | 81 | ||||||
| 12.10 | Survival of Indemnification and Representations and Warranties | 83 | ||||||
| 12.11 | GOVERNING LAW | 84 | ||||||
| 12.12 | WAIVER OF JURY TRIAL | 84 | ||||||
| 12.13 | Severability | 84 | ||||||
| 12.14 | Entirety | 84 | ||||||
| 12.15 | Binding Effect | 84 | ||||||
| 12.16 | Submission to Jurisdiction | 85 | ||||||
| 12.17 | Confidentiality | 85 | ||||||
|
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12.18 | Designation of SPVs | 86 | |||||
| 12.19 | USA Patriot Act | 87 | ||||||
| 12.20 | No Fiduciary Duty | 87 | ||||||
| 12.21 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 87 | ||||||
| 12.22 | Posting of Communications | 88 | ||||||
| 12.23 | Borrower Communications | 89 | ||||||
| 12.24 | Effect of Restatement | 90 |
| SCHEDULES | ||
| Schedule 1.1 | Commitments | |
| Schedule 5.1 | Existing Letters of Credit | |
| EXHIBITS | ||
| Exhibit 2.7(a) | Form of Revolving Loan Note | |
| Exhibit 2.8(a) | Form of Extension of Maturity Date Request | |
| Exhibit 2.8(b) | Form of Extension of Maturity Date Certificate | |
| Exhibit 2.9 | Form of Sublimit Adjustment Letter | |
| Exhibit 6.1(c) | Form of Closing Certificate | |
| Exhibit 8.1(c) | Form of Officer’s Certificate | |
| Exhibit 12.3 | Form of Assignment Agreement | |
SIXTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Credit Agreement”), dated as of April 8, 2025 among DOMINION ENERGY, INC., a Virginia corporation, VIRGINIA ELECTRIC AND POWER COMPANY, a Virginia corporation, and DOMINION ENERGY SOUTH CAROLINA, INC., a South Carolina corporation (each of the above, individually, a “Borrower” and collectively, the “Borrowers”), the several banks and other financial institutions from time to time parties to this Credit Agreement (each a “Lender” and, collectively, the “Lenders”), JPMORGAN CHASE BANK, N.A., a national banking association, as administrative agent for the Lenders hereunder (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and Mizuho Bank, Ltd., Bank of America, N.A., The Bank of Nova Scotia and Wells Fargo Bank, N.A., as Syndication Agents.
RECITALS
A. Pursuant to the Fifth Amended and Restated Revolving Credit Agreement dated as of June 9, 2021 (as amended by the First Amendment, dated as of September 28, 2022, and as further amended by the Second Amendment, dated as of May 30, 2024) among, inter alia, the Borrowers, JPMorgan Chase Bank, N.A., as administrative agent, and Mizuho Bank, Ltd., Bank of America, N.A, The Bank of Nova Scotia and Wells Fargo Bank, N.A., as syndication agents (the “Syndication Agents”) (as amended and as it may have been further amended, restated or supplemented before the date hereof, the “Existing Credit Agreement”), the Lenders (as defined therein) agreed to make certain revolving loans to, and the Issuing Lenders (as defined therein) agreed to issue certain letters of credit for the account of, the Borrowers upon the terms and conditions set forth in the Existing Credit Agreement.
B. The parties to the Existing Credit Agreement have agreed to amend and restate the Existing Credit Agreement as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree that the Existing Credit Agreement is hereby amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires. Defined terms herein shall include in the singular number the plural and in the plural the singular:
“Additional Lender” shall have the meaning set forth in Section 2.6(b).
“Additional Lender Supplement” shall have the meaning set forth in Section 2.6(b).
“Adjusted Daily Simple SOFR Rate” means with respect to any Borrower, Daily Simple SOFR, plus 0.10%. Notwithstanding the foregoing, if Adjusted Daily Simple SOFR Rate at any time shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“Adjusted Term SOFR Rate” means, for any Interest Period with respect to any Borrower, an interest rate per annum equal to the Term SOFR Rate for such Interest Period plus 0.10%. Notwithstanding the foregoing, if the Adjusted Term SOFR Rate at any time shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“Administrative Agent” has the meaning set forth in the preamble hereof.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling (including but not limited to all directors and officers of such Person), controlled by or under direct or indirect common control with such Person. A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power (i) to vote 20% or more of the securities having ordinary voting power for the election of directors of such corporation or (ii) to direct or cause direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise.
“Ancillary Document” has the meaning set forth in Section 12.7(b).
“Anti-Corruption Laws” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and all similar laws, rules, and regulations of any jurisdiction applicable to any Borrower or their respective Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Parties” shall have the meaning set forth in Section 12.22(c).
“Applicable Percentage” means, for Revolving Loans made to each Borrower and the calculation of Facility Fees, the appropriate applicable percentages, in each case, corresponding to the Rating of the relevant Borrower in effect from time to time as shown below:
| Pricing |
Rating of Borrower |
Applicable Percentage for Term SOFR Loans |
Applicable Percentage for Base Rate Loans |
Applicable Percentage for Facility Fees |
||||||||||
| I. |
≥A+ from S&P or | 0.800 | % | 0.000 | % | 0.075 | % | |||||||
| A1 from Moody’s or A+ from Fitch | ||||||||||||||
| II. |
A from S&P or | 0.900 | % | 0.000 | % | 0.100 | % | |||||||
| A2 from Moody’s or A from Fitch | ||||||||||||||
| III. |
A- from S&P or | 1.000 | % | 0.000 | % | 0.125 | % | |||||||
| A3 from Moody’s or A-from Fitch | ||||||||||||||
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| Pricing |
Rating of Borrower |
Applicable Percentage for Term SOFR Loans |
Applicable Percentage for Base Rate Loans |
Applicable Percentage for Facility Fees |
||||||||||
| IV. |
BBB+ from S&P or | 1.075 | % | 0.075 | % | 0.175 | % | |||||||
| Baa1 from Moody’s or | ||||||||||||||
| BBB+ from Fitch | ||||||||||||||
| V. |
BBB from S&P or | 1.275 | % | 0.275 | % | 0.225 | % | |||||||
| Baa2 from Moody’s or BBB from Fitch |
||||||||||||||
| VI. |
BBB- from S&P or Baa3 from Moody’s or BBB-from Fitch or lower |
1.475 | % | 0.475 | % | 0.275 | % | |||||||
Notwithstanding the above, if at any time there is a split in Ratings among S&P, Moody’s and Fitch and (i) two Ratings are equal and higher than the third, the higher Rating will apply, (ii) two Ratings are equal and lower than the third, the lower Rating will apply or (iii) no Ratings are equal, the intermediate Rating will apply. In the event that any Borrower shall maintain Ratings from only two of S&P, Moody’s and Fitch and such Borrower is split-rated and (x) the Ratings differential is one level, the higher Rating will apply and (y) the Ratings differential is two levels or more, the level one level lower than the higher Rating will apply for such Borrower.
If the Rating of the relevant Borrower shall be changed, such change shall be effective as of the third Business Day following the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by such Borrower to the Administrative Agent and the Lenders. Any adjustment in the Applicable Percentage shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.
The Applicable Percentage for the Facility Fees payable by a Borrower shall be the appropriate applicable percentages from time to time, as shown above, calculated based on the Ratings of such Borrower at such time, as published by S&P, Moody’s and Fitch and applied to each Borrower’s then applicable Sublimit. It is understood that the Applicable Percentages as of the Restatement Effective Date for Facility Fees payable by (i) DEI are based on Pricing Level V (as shown above) and shall remain at Pricing Level V until an applicable change in its Ratings, (ii) VaPower are based on Pricing Level II (as shown above) and shall remain at Pricing Level II until an applicable change in its Ratings and (iii) DESC are based on Pricing Level IV (as shown above) and shall remain at Pricing Level IV until an applicable change in its Ratings. Each Borrower shall at all times maintain a Rating from at least two of S&P, Moody’s and Fitch. If at any time a Borrower does not have a Rating from at least two of S&P, Moody’s and Fitch, the Applicable Percentages shall be set at Pricing Level VI.
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Each Borrower shall promptly deliver, in the manner set forth in Section 12.1, information to the Administrative Agent regarding any change in the Rating of such Borrower that would change the existing Pricing Level (as set forth in the chart above) with respect to such Borrower.
“Application” means an application, in such form as the Issuing Lender may specify from time to time, requesting the Issuing Lender to issue a Letter of Credit.
“Approved Borrower Portal” has the meaning set forth in Section 12.23(a).
“Approved Electronic Platform” has the meaning set forth in Section 12.22(a).
“Assignment Agreement” has the meaning set forth in Section 12.3(b)(vi).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise for determining any frequency of making payments of interest calculated pursuant to this Credit Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (a)(v) of Section 4.1.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.
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“Base Rate” means, for any day, a fluctuating rate per annum equal to the greatest of (a) the Prime Rate for such day, (b) the sum of one-half of one percent (0.50%) plus the NYFRB Rate for such day or (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day) plus one percent (1.00%); provided that if any such rate shall be less than zero, such rate shall be deemed to be zero. Each change in the Base Rate based upon a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall take effect at the time of such change in the Prime Rate, the NYFRB Rate, or the Adjusted Term SOFR Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 4.1(a) (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 4.1(a)(ii)), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Loan that bears interest at a rate of interest determined by reference to a Base Rate.
“Benchmark” means, initially, Term SOFR Rate; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (ii) of Section 4.1(a).
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date;
(1) Adjusted Daily Simple SOFR Rate;
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrowers as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Credit Agreement and the other Credit Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement for purposes of clause (2) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrowers for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark
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Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar denominated syndicated credit facilities.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term SOFR Revolving Loan, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,”, the definition “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Credit Agreement and the other Credit Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if such Benchmark (or component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
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“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 4.1 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 4.1.
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“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Part 4 of Subtitle B of Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies or (c) any Person whose assets include (within the meaning of the Plan Asset Regulations) the assets of any such “employee benefit plan” or “plan.”
“Benefitted Lender” has the meaning set forth in Section 12.2.
“Borrower” has the meaning set forth in the preamble hereof.
“Borrower Communications” has the meaning set forth in Section 12.23(c).
“Business Day” means, any day (other than a Saturday or a Sunday) on which banks are open for business in New York City; provided that, in addition to the foregoing, a Business Day shall be any such day that is only a U.S. Government Securities Business Day (a) in relation to Loans referencing the Adjusted Daily Simple SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Daily Simple SOFR Rate, or any other dealings of such Loans referencing the Adjusted Daily Simple SOFR Rate and (b) in relation to Loans referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencing the Adjusted Term SOFR Rate.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Capitalization” means the sum of (a) Total Funded Debt plus (b) Net Worth.
“Change of Control” means (i) with respect to Dominion Energy, the direct or indirect acquisition by any person (as such term is defined in Section 13(d) of the Exchange Act) of beneficial ownership of more than 50% of the outstanding shares of the capital stock of Dominion Energy entitled to vote generally for the election of directors of Dominion Energy, (ii) with respect to VaPower or DESC such Borrower shall cease to be a Subsidiary of Dominion Energy (other than VaPower or DESC as the case may be, being merged with and into Dominion Energy) or a Change of Control shall occur with respect to Dominion Energy and (iii) with respect to DESC, Dominion Energy shall cease to own, directly or indirectly, more than 50% of the outstanding equity, membership or other ownership interest of DESC.
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“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means, with respect to each Lender, such Lender’s share of the Revolving Loan Commitment based upon such Lender’s Commitment Percentage.
“Commitment Increase” means an increase in the Revolving Loan Commitment as set forth in Section 2.6.
“Commitment Increase Supplement” has the meaning set forth in Section 2.6(c).
“Commitment Percentage” means, for each Lender, the percentage identified as its Commitment Percentage opposite such Lender’s name on Schedule 1.1, as such percentage may be modified in accordance with the terms of this Credit Agreement; provided that at any time after the termination of the Commitments, each Lender’s Commitment Percentage shall be the percentage equal to (x) the outstanding principal amount of Loans owed to such Lender at such time divided by (y) the aggregate principal amount of all Loans outstanding under this Credit Agreement at such time. For purposes of Section 12.9, when a Defaulting Lender shall exist, “Commitment Percentage” shall mean the percentage of total Revolving Loan Commitments (or the aggregate principal amount of all Loans outstanding, as applicable) represented by such Lender’s Commitment (or the outstanding principal amount of Loans owed to such Lender at such time, as applicable) disregarding any Defaulting Lender’s Commitments (or the outstanding principal amount of Loans owed to such Defaulting Lender, as applicable).
“Commitment Period” means the period from the Restatement Effective Date to the Maturity Date.
“Communications” has the meaning set forth in Section 12.22(c).
“Consolidated Affiliate” means, as to any Person, each Affiliate of such Person (whether now existing or hereafter created or acquired), the financial statements of which are consolidated with the financial statements of such Person in accordance with GAAP, including principles of consolidation.
“Continuing Lender” has the meaning set forth in Section 2.8(b).
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Agreement” has the meaning given to such term in the recitals hereof.
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“Credit Documents” means this Credit Agreement, the Notes (if any), the Fee Letter and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto.
“Credit Exposure” has the meaning set forth in the definition of “Required Lenders.”
“Credit Party” means the Administrative Agent, each Issuing Lender or any other Lender.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website.
“Default” means with respect to each Borrower any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default by such Borrower.
“Defaulting Lender” means, subject to Section 12.9(g), at any time, any Lender that, at such time (a) has failed, within three Business Days of the date required to be funded or paid, to (i) make a Loan required pursuant to the terms of this Credit Agreement, (ii) fund any portion of its participations in Letters of Credit or (iii) pay to any Credit Party any other amount required to be paid hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and with supporting facts) has not been satisfied, or, in the case of clause (iii), such amount is the subject of a good faith dispute; (b) notified the Borrowers or any Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its future funding obligations under this Credit Agreement (unless such writing or public statement states that such position is based on such Lender’s good faith determination that a condition precedent to funding a Loan under this Credit Agreement, specifically identified and with reasonable supporting facts, cannot be met) or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after a request by a Borrower or a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender in the jurisdiction of such Lender’s lending office that it will comply with its obligations to fund prospective Loans and participations in then outstanding Letters of Credit under this Credit Agreement, provided,
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however, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Borrower’s or such Credit Party’s receipt of such certification, or (d) has, or has a direct or indirect parent company that has, (i) been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, (ii) has become subject to a bankruptcy, insolvency, receivership, conservatorship or other similar proceedings, or has had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Persons charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such capacity or (iii) becomes the subject of a Bail-in Action; provided, that a Lender shall not become a Defaulting Lender solely as the result of the acquisition or maintenance of an ownership interest in such Lender or in any Person controlling such Lender, or the exercise of control over such Lender or over any Person controlling such Lender, by a Governmental Authority or an instrumentality thereof.
“DEI Sublimit” means $3,000,000,000 as such amount may be adjusted pursuant to Sections 2.6(e) and 2.9.
“DESC” means Dominion Energy South Carolina, Inc. (f/k/a South Carolina Electric & Gas Company), a South Carolina corporation, and its successors and permitted assigns.
“DESC Indenture” means the Indenture, dated as of April 1, 1993, from DESC to NationsBank of Georgia, National Association, predecessor to The Bank of New York Mellon Trust Company, N.A., as supplemented to date and as it may hereafter be amended and supplemented.
“DESC Sublimit” means $1,000,000,000 as such amount may be adjusted pursuant to Sections 2.6(e) and 2.9.
“Dollar”, “dollar” and “$” means lawful currency of the United States.
“Dominion Energy” or “DEI” means Dominion Energy, Inc., a Virginia corporation, and its successors and permitted assigns.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
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“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Eligible Assignee” means (a) any Lender or Affiliate or Subsidiary of a Lender and (b) any other commercial bank, financial institution or “accredited investor” (as defined in Regulation D) that is either a bank organized or licensed under the laws of the United States of America or any State thereof or that has agreed to provide the information listed in Section 4.4(f) to the extent that it may lawfully do so and that is approved by the Administrative Agent and DEI (such approval not to be unreasonably withheld or delayed); provided that (i) DEI’s consent is not required pursuant to clause (a) or, with respect to clause (b), during the existence and continuation of a Default or an Event of Default, (ii) each Eligible Assignee shall be reasonably acceptable to the Issuing Lenders, and (iii) none of the Borrowers nor any Affiliate or Subsidiary of any Borrower shall qualify as an Eligible Assignee. In no event may a natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) or a Defaulting Lender be an Eligible Assignee.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.
“ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) that, together with any Borrower or any Subsidiary of such Borrower, would be deemed to be a member of the same “controlled group” within the meaning of Section 414(b), (c), (m) and (o) of the Code or under common control within the meaning of Section 4001(a)(14) 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.
“Event of Default” with respect to any Borrower has the meaning specified in Section 10.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Credit Agreement” has the meaning set forth in the recitals hereof.
“Existing Letters of Credit” has the meaning set forth in Section 5.1(a).
“Existing Maturity Date” has the meaning set forth in Section 2.8(a).
“Extension of Maturity Date Certificate” has the meaning set forth in Section 2.8(b).
“Extension of Maturity Date Request” has the meaning set forth in Section 2.8(a).
“Extension Period” has the meaning set forth in Section 2.8(a).
“Facility Fees” has the meaning set forth in Section 3.4(a).
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“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any law, regulation, rule, promulgation, guidance notes, practices or official agreement implementing an official government agreement with respect to the foregoing.
“Federal Funds Rate” means for any day the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time), as published by the NYFRB on the Business Day next succeeding such day; provided that if the Federal Funds Rate at any time shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Fee Letter” is the collective reference to (i) that certain fee letter dated as of November 26, 2024, among the Borrowers, JPMCB and Mizuho Bank, Ltd., (ii) that certain fee letter dated as of November 26, 2024, among the Borrowers, Bank of America, N.A., The Bank of Nova Scotia, Wells Fargo Bank, N.A. and certain of the Joint Lead Arrangers, (iii) that certain fee letter dated as of November 26, 2024, among the Borrowers and the Administrative Agent and (iv) any other fee letter executed by the applicable Borrowers and any Issuing Lender in its capacity as such relating to fees and similar payment obligations in connection with Section 5.3 of this Credit Agreement.
“Fee Payment Date” shall mean (a) each January 15, April 15, July 15 and October 15 and (b) the Maturity Date.
“Fitch” means Fitch Ratings Ltd., or any successor or assignee of the business of such company in the business of rating securities.
“Floor” means the benchmark rate floor, if any, provided in this Credit Agreement initially (as of the execution of this Credit Agreement, the modification, amendment or renewal of this Credit Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate, as applicable. For the avoidance of doubt the initial Floor for each of the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate shall be zero.
“Funded Debt” means, as to any Person, without duplication: (a) all Indebtedness of such Person for borrowed money or which has been incurred in connection with the acquisition of assets (excluding letters of credit, bankers’ acceptances, Non-Recourse Debt, Mandatorily Convertible Securities, Trust Preferred Securities and Hybrid Equity Securities), (b) all finance lease obligations of such Person (including Synthetic Lease Obligations only to the extent actually included on such Person’s balance sheet delivered pursuant to Section 6.1(i), 8.1(a) or 8.1(b), as applicable) and (c) all Guaranty Obligations of Funded Debt of other Persons (including Guaranty Obligations of Funded Debt consisting of Synthetic Lease Obligations only to the extent such Guaranty Obligations are actually included on such Person’s balance sheet delivered pursuant to Section 6.1(i), 8.1(a) or 8.1(b), as applicable). Notwithstanding the foregoing (and without limiting
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a Borrower’s rights under Section 1.3), all obligations of a Borrower under a lease or other arrangement (other than Synthetic Lease Obligations) that is determined by such Borrower to be an operating lease under GAAP (as in effect on December 31, 2018) (whether or not such operating lease or arrangement was in effect on such date) and any replacement of such lease or such other arrangement on substantially consistent terms regarding the amount thereof, use of proceeds provisions and economic provisions (subject to prevailing market conditions at the time of such replacement) and therefore not Funded Debt shall continue to be excluded from this definition notwithstanding any changes in applicable accounting rules effective after the date of such determination by such Borrower.
“GAAP” means generally accepted accounting principles in the United States applied on a consistent basis and subject to Section 1.3.
“Governmental Authority” means any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
“Granting Lender” has the meaning set forth in Section 12.18 hereof.
“Guaranty Obligations” means, in respect of any Person, any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Indebtedness of another Person, including, without limitation, any obligation (a) to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness or (b) entered into primarily for the purpose of assuring the owner of such Indebtedness of the payment thereof (such as, for example, but without limitation, an agreement to advance or provide funds or other support for the payment or purchase of such Indebtedness or to maintain working capital, solvency or other balance sheet conditions of such other Person, including, without limitation, maintenance agreements, comfort letters or similar agreements or arrangements, or to lease or purchase property, securities or services) if such obligation would constitute an indirect guarantee of indebtedness of others and the disclosure of such obligation would be required in such Person’s financial statements under GAAP; provided, however, that the term Guaranty Obligations shall not include (i) endorsements for deposit or collection in the ordinary course of business, (ii) obligations under purchased power contracts or (iii) obligations of such Person otherwise constituting Guaranty Obligations under this definition to provide contingent equity support, to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise in respect of any Subsidiary or Affiliate of such Person in connection with the non-utility non-recourse financing activities of such Subsidiary or Affiliate.
“Hybrid Equity Securities” means any securities issued by a Borrower or a financing vehicle of a Borrower that (i) are classified as possessing a minimum of “minimal equity content” by S&P, Basket M equity credit by Moody’s, and 25% equity credit by Fitch and (ii) require no repayments or prepayments and no mandatory redemptions or repurchases, in each case, prior to at least 91 days after the later of the termination of the Commitments and the repayment in full of the Revolving Loans and all other amounts due under this Credit Agreement.
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“Indebtedness” means, as to any Person, without duplication: (a) all obligations of such Person for borrowed money or evidenced by bonds, debentures, notes or similar instruments; (b) all obligations of such Person for the deferred purchase price of property or services (except trade accounts payable arising in the ordinary course of business, customer deposits, provisions for rate refunds, deferred fuel expenses and obligations in respect of pensions and other post-retirement benefits); (c) all finance lease obligations of such Person; (d) all Indebtedness of others secured by a Lien on any properties, assets or revenues of such Person (other than stock, partnership interests or other equity interests of a Borrower or any of its Subsidiaries in other entities) to the extent of the lesser of the value of the property subject to such Lien or the amount of such Indebtedness; (e) all Guaranty Obligations; and (f) all non-contingent obligations of such Person under any letters of credit or bankers’ acceptances.
“Indemnitee” has the meaning set forth in Section 12.5(b).
“Interest Payment Date” means (a) as to Base Rate Loans of any Borrower, the last day of each March, June, September and December and the Maturity Date and (b) as to Term SOFR Loans of any Borrower, the last day of each applicable Interest Period and the Maturity Date and, in the case of any Interest Period longer than three months, the respective dates that fall every three months after the first day of such Interest Period. If an Interest Payment Date falls on a date which is not a Business Day, such Interest Payment Date shall be deemed to be the next succeeding Business Day, except that in the case of Term SOFR Loans where the next succeeding Business Day falls in the next succeeding calendar month, then such Interest Payment Date shall be deemed to be the immediately preceding Business Day.
“Interest Period” means as to Term SOFR Loans, a period of one, three or six months’ duration, as the relevant Borrower may elect, commencing, in each case, on the date of the borrowing (including continuations and conversions of Term SOFR Revolving Loans); provided, however, (i) if any Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then such Interest Period shall end on the next preceding Business Day), (ii) no Interest Period shall extend beyond the Maturity Date and (iii) with respect to Term SOFR Loans, where an Interest Period begins on a day for which there is no numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest Period shall end on the last Business Day of such calendar month.
“Investment Company Act” has the meaning set forth in Section 7.13.
“Issuing Lender” means, with respect to any Letter of Credit, the issuer thereof, which shall be any of JPMCB, Bank of America, N.A., The Bank of Nova Scotia, Goldman Sachs Bank USA, Mizuho Bank, Ltd., Wells Fargo Bank, N.A., U.S. Bank National Association, KeyBank National Association, any affiliate of any of the foregoing, or one or more consenting Lenders selected by the Joint Lead Arrangers in consultation with and satisfactory to the Borrowers, each in its capacity as issuer of any Letter of Credit.
“Joint Lead Arrangers” means JPMCB, Mizuho Bank, Ltd., BofA Securities, Inc., The Bank of Nova Scotia and Wells Fargo Securities, LLC.
“JPMCB” means JPMorgan Chase Bank, N.A.
“L/C Commitment” means $3,000,000,000.
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“L/C Obligations” means, at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 5.5. The L/C Obligation of any Lender at any time shall be its Commitment Percentage of the total L/C Obligations at such time.
“L/C Participants” means the collective reference to all the Lenders other than the applicable Issuing Lender.
“Lender-Related Person” has the meaning set forth in Section 12.5(c).
“Lenders” means those banks and other financial institutions identified as such on the signature pages hereto and such other institutions that may become Lenders pursuant to Section 12.3(b). Unless the context otherwise requires, the term “Lenders” includes the Issuing Lender.
“Letter of Credit” has the meaning set forth in Section 5.1(a).
“Letter of Credit Fees” has the meaning set forth in Section 5.3(a).
“Liabilities” means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the Uniform Commercial Code as adopted and in effect in the relevant jurisdiction or other similar recording or notice statute, and any lease in the nature thereof).
“Loan” means any loan made by any Lender pursuant to this Credit Agreement.
“Mandatorily Convertible Securities” means any mandatorily convertible equity-linked securities issued by a Borrower, so long as the terms of such securities require no repayments or prepayments and no mandatory redemptions or repurchases (other than repayments, prepayments, redemptions or repurchases that are to be settled by the issuance of equity securities by a Borrower or the proceeds of which are concurrently applied to purchase equity securities from a Borrower), in each case prior to at least 91 days after the later of the termination of the Commitments and the repayment in full of the Loans and all other amounts due under this Credit Agreement.
“Material Adverse Effect” means with respect to any Borrower a material adverse effect, after taking into account applicable insurance, if any, on (a) the operations, financial condition or business of such Borrower and its subsidiaries taken as a whole, (b) the ability of such Borrower to perform its obligations under this Credit Agreement or (c) the validity or enforceability of this Credit Agreement or any of the other Credit Documents against such Borrower, or the rights and remedies of the Lenders against such Borrower hereunder or thereunder; provided, however, that a transfer of assets permitted under and in compliance with Section 9.3 shall not be considered to have a Material Adverse Effect.
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“Material Liability” has the meaning set forth in Section 10.1(h).
“Material Subsidiary” shall mean (i) with respect to any Borrower, a Subsidiary of such Borrower whose total assets (as determined in accordance with GAAP) represent at least 20% of the total assets of such Borrower, on a consolidated basis and (ii) notwithstanding the foregoing, VaPower with respect to DEI.
“Maturity Date” means April 8, 2030 or such later date as shall be determined pursuant to the provisions of Section 2.8, or if such date is not a Business Day, the Business Day next succeeding such date.
“Maximum L/C Commitment” has the meaning set forth in Section 5.1(c) hereof.
“Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities.
“Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any Borrower, Subsidiary or ERISA Affiliate is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a ERISA Affiliate during such five year period but only with respect to the period during which such Person was a ERISA Affiliate.
“Net Worth” means with respect to any Borrower, as of any date, the shareholders’ equity or net worth of such Borrower and its Consolidated Affiliates (including, but not limited to, the value of any Mandatorily Convertible Securities, Trust Preferred Securities, Hybrid Equity Securities and Preferred Stock; but, excluding (1) the accumulated other comprehensive income or loss component of shareholders’ equity (“AOCI”), such AOCI to be computed assuming that such Borrower was entitled to utilize hedge accounting treatment for applicable interest expense and interest income items identified by such Borrower and (2) any impact resulting directly from any change in such Borrower’s accounting policies after January 1, 2024 (including any change in any accounting policy after January 1, 2024 that causes any impact to accounting periods on or prior to such date) that is (a) in accordance with GAAP and (B) agreed to by DEI’s independent auditor), on a consolidated basis, as determined in accordance with GAAP except as otherwise noted above.
“Non-Consenting Lender” has the meaning set forth in Section 12.6.
“Non-Recourse Debt” means Indebtedness (a) as to which no Borrower (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor or otherwise, or (iii) constitutes the lender; (b) no default with respect to which would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or the Notes) of any Borrower to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders will not have any recourse to the stock or assets of any Borrower (other than the specific assets pledged to secure such Indebtedness) and the relevant legal documents so provide.
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“Non-Regulated Assets” means with respect to any Borrower, the operations that are not regulated by a Governmental Authority with respect to ratemaking (i.e., merchant generation, exploration and production, producer services or retail supply assets of the Borrower).
“Notes” means the reference to the Revolving Loan Notes of the Borrowers.
“Notice of Borrowing” means a request by a Borrower for a Loan, which shall be substantially in the form approved by the Administrative Agent and separately provided to the Borrowers.
“Notice of Continuation/Conversion” means a request by a Borrower for the continuation or conversion of a Loan, which shall be substantially in the form approved by the Administrative Agent and separately provided to the Borrowers.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any date that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates is published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Offered Increase Amount” has the meaning set forth in Section 2.6(a).
“Other Taxes” has the meaning set forth in Section 4.4(b) hereof.
“Overnight Bank Funding Rate” means, for any date, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Participant Register” has the meaning set forth in Section 12.3(e).
“Patriot Act” has the meaning set forth in Section 12.19 hereof.
“Payment” has the meaning set forth in Section 3.10(a).
“Payment Notice” has the meaning set forth in Section 3.10(b).
“PBGC” means the Pension Benefit Guaranty Corporation established under ERISA and any successor thereto.
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“Person” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise (whether or not incorporated), or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means any single-employer plan as defined in Section 4001(a)(15) of ERISA, which is maintained, or at any time during the five calendar years preceding the date of this Credit Agreement was maintained, for employees of a Borrower, any Subsidiary of a Borrower or any ERISA Affiliate.
“Plan Asset Regulation” means the regulations issued by the United States Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the United States Code of Federal Regulations, as modified by Section 3(42) of ERISA, as the same may be amended from time to time.
“Preferred Stock” means any Capital Stock issued by a Borrower that is entitled to preference or priority over any other Capital Stock of such Borrower in respect of the payment of dividends or distribution of assets upon liquidation, or both.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Rating” means the rating assigned by S&P, Moody’s or Fitch to a Borrower based on such Borrower’s senior, unsecured, non-credit-enhanced obligations or, if no such rating is assigned to a Borrower by at least two of S&P, Moody’s or Fitch, the issuer rating assigned to such Borrower by S&P, Moody’s or Fitch.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, (2) if, following a Benchmark Transition Event and a Benchmark Replacement Date with respect to the Term SOFR Rate, such Benchmark is Daily Simple SOFR, then four U.S. Government Securities Business Days prior to such setting or (3) if such Benchmark is none of the Term SOFR Rate or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.
“Refund” has the meaning set forth in Section 4.4(e).
“Registers” has the meaning set forth in Section 12.3(c).
“Regulatory Authority” has the meaning set forth in Section 12.17.
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“Reimbursement Obligation” means the obligation of each Borrower to reimburse an Issuing Lender pursuant to Section 5.5 for amounts drawn under each Letter of Credit issued by such Issuing Lender for the account of such Borrower.
“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB, or, in each case, any successor thereto.
“Reportable Event” means a “reportable event” as defined in Section 4043 of ERISA with respect to which the notice requirements to the PBGC have not been waived.
“Requested Maturity Date” has the meaning set forth in Section 2.8(a).
“Required Lenders” means Lenders whose aggregate Credit Exposure (as hereinafter defined) constitutes more than 50% of the aggregate Credit Exposure of all Lenders at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Lenders the aggregate principal amount of Credit Exposure of such Lender at such time. For purposes of the preceding sentence, the term “Credit Exposure” as applied to each Lender shall mean (a) at any time prior to the termination of the Commitments, the Commitment Percentage of such Lender multiplied by the Revolving Loan Commitment and (b) at any time after the termination of the Commitments, the sum of (i) the outstanding amount of Loans owed to such Lender and (ii) such Lender’s Commitment Percentage of the L/C Obligations then outstanding.
“Resolution Authority” means, (i) with respect to any Lender that is a UK Financial Institution, a UK Resolution Authority and (ii) with respect to any Lender that is a EEA Financial Institution, an EEA Resolution Authority.
“Responsible Officer” means, with respect to any Borrower, each of the Chief Financial Officer, the Treasurer and any Assistant Treasurer – Corporate Finance, of such Borrower.
“Restatement Effective Date” has the meaning set forth in Section 6.1 hereof.
“Revolving Loan” means a Loan made by the Lenders to a Borrower pursuant to Section 2.1(a) hereof.
“Revolving Loan Commitment” means Seven Billion Dollars ($7,000,000,000), as such amount may be otherwise reduced in accordance with Section 2.5 or increased in accordance with Section 2.6.
“Revolving Loan Commitment Increase Notice” has the meaning set forth in Section 2.6(a).
“Revolving Loan Notes” means with respect to any Borrower the promissory notes of such Borrower in favor of each Lender evidencing the Revolving Loans made to such Borrower and substantially in the form of Exhibit 2.7(a), as such promissory notes may be amended, modified, supplemented or replaced from time to time.
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“S&P” means S&P Global Inc. or any successor in the business of rating securities.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of comprehensive Sanctions (as of the Restatement Effective Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person described in clause (a) or (b) above.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by OFAC or the U.S. Department of State.
“SOFR” means a rate per annum equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvent” means, with respect to any Person as of a particular date, that on such date (a) the fair saleable value (on a going concern basis) of such Person’s assets exceeds its liabilities, contingent or otherwise, fairly valued, (b) such Person will be able to pay its debts as they become due, (c) such Person does not have unreasonably small capital with which to satisfy all of its current and reasonably anticipated obligations and (d) such Person does not intend to incur nor does it reasonably anticipate that it will incur debts beyond its ability to pay as such debts become due.
“SPV” has the meaning set forth in Section 12.18 hereof.
“Sublimit” means, individually, the DEI Sublimit, the VaPower Sublimit or the DESC Sublimit and collectively, the “Sublimits”.
“Sublimit Adjustment Letter” has the meaning set forth in Section 2.9.
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“Subsidiary” means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Credit Agreement shall refer to a Subsidiary or Subsidiaries of a Borrower.
“Syndication Agents” has the meaning given to such term in the recitals hereof.
“Synthetic Lease” means each arrangement, however described, under which the obligor accounts for its interest in the property covered thereby under GAAP as lessee of a lease and accounts for its interest in the property covered thereby for federal income tax purposes as the owner.
“Synthetic Lease Obligation” means, as to any Person with respect to any Synthetic Lease at any time of determination, the amount of the liability of such Person in respect of such Synthetic Lease that would (if such lease was required to be classified and accounted for as a finance lease on a balance sheet of such Person in accordance with GAAP) be required to be capitalized on the balance sheet of such Person at such time.
“Taxes” has the meaning set forth in Section 4.4(a).
“Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Loan” means a Loan that bears interest at a rate of interest determined by reference to the Adjusted Term SOFR Rate.
“Term SOFR Rate” means with respect to any Term SOFR Loan and for any tenor comparable to the applicable the Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m. (Chicago time), two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term SOFR Loan and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
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“Term SOFR Revolving Loan” means a Revolving Loan bearing interest at a rate of interest determined by reference to the Adjusted Term SOFR Rate.
“Terminating Lender” has the meaning set forth in Section 2.8(a).
“Total Funded Debt” means with respect to each Borrower all Funded Debt of such Borrower and its Consolidated Affiliates, on a consolidated basis, as determined in accordance with GAAP except as otherwise provided in this Credit Agreement.
“Trust Preferred Securities” means the preferred securities issued by a subsidiary capital trust established by any of the Borrowers outstanding on the date hereof and reflected as Unsecured Junior Subordinated Notes Payable to Affiliated Trust, 8.4%, due 2031, in the financial statements of any of the Borrowers for the fiscal year ended December 31, 2020, and any additional trust preferred securities that are substantially similar thereto, along with the junior subordinated debt obligations of any of the Borrowers, so long as (a) the terms thereof require no repayments or prepayments and no mandatory redemptions or repurchases, in each case prior to at least 91 days after the later of the termination of the Commitments and the repayment in full of the Loans and all other amounts due under this Credit Agreement, (b) such securities are subordinated and junior in right of payment to all obligations of such Borrower for or in respect of borrowed money and (c) the obligors in respect of such preferred securities and subordinated debt have the right to defer interest and dividend payments, in each case, to substantially the same extent as such currently outstanding preferred securities or on similar terms customary for trust preferred securities and not materially less favorable to the interests of such Borrower or the Lenders.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
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“Utilized Revolving Commitment” means, for any Borrower for any day during the Commitment Period, an amount equal to the sum of (a) the aggregate principal amount of all Loans outstanding on such day to such Borrower and (b) the aggregate L/C Obligations of such Borrower then outstanding.
“VaPower” means Virginia Electric and Power Company, a Virginia corporation and its successors and permitted assigns.
“VaPower Indenture” means the first mortgage bond indenture, dated November 1, 1935, by and between VaPower and The Bank of New York Mellon (successor to JPMorgan Chase Bank, N.A., formerly known as The Chase Manhattan Bank and The Chase National Bank of the City of New York), as supplemented and amended through the date hereof and as the same may be hereafter amended, supplemented and/or amended and restated or replaced in its entirety.
“VaPower Sublimit” means $3,000,000,000 as such amount may be adjusted pursuant to Sections 2.6(e) and 2.9.
“Wholly-Owned Subsidiary” means, as to any Person, any other Person all of the Capital Stock of which (other than de minimis directors’ qualifying shares or local ownership shares required by law and outstanding publicly owned Preferred Stock of VaPower or DESC) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
“Withholding Agent” means any Borrower or the Administrative Agent, as determined by applicable law.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Computation of Time Periods; Other Definitional Provisions.
For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.” References in this Credit Agreement to “Sections”, “Schedules” and “Exhibits” shall be to Sections, Schedules or Exhibits of or to this Credit Agreement unless otherwise specified.
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis. All calculations made for the purposes of determining compliance
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with this Credit Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 8.1; provided, however, if (a) a Borrower shall object to determining such compliance on such basis at the time of delivery of such financial statements due to any change in GAAP or the rules promulgated with respect thereto or (b) the Administrative Agent or the Required Lenders shall so object in writing within 30 days after delivery of such financial statements, then such calculations shall be made on a basis consistent with the most recent financial statements delivered by such Borrower to the Lenders as to which no such objection shall have been made.
1.4 Time.
All references to time herein shall be references to Eastern Standard Time or Eastern Daylight Time, as the case may be, unless specified otherwise.
1.5 Interest Rates; Benchmark Notifications.
The interest rate on Term SOFR Loans is determined by reference to the Term SOFR Reference Rate, which may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 4.1 provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to any interest rate used in this Credit Agreement or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, any such alternative, successor or replacement rate implemented pursuant to Section 4.1), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any interest rate prior to its discontinuance or unavailability.
1.6 Divisions.
For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its equity interests at such time.
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SECTION 2. LOANS
2.1 Revolving Loan Commitment.
(a) Revolving Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make revolving loans to each Borrower in Dollars, at any time and from time to time, during the Commitment Period (each a “Revolving Loan” and collectively the “Revolving Loans”); provided that (i) the Utilized Revolving Commitments of (A) DEI shall not exceed the DEI Sublimit, (B) VaPower shall not exceed the VaPower Sublimit, (C) DESC shall not exceed the DESC Sublimit and (D) the Borrowers on any day shall not exceed the Revolving Loan Commitment and (ii) with respect to each individual Lender, the Lender’s pro rata share of the sum of outstanding Revolving Loans plus the L/C Obligations then outstanding on any day shall not exceed such Lender’s Commitment Percentage of the Revolving Loan Commitment. Revolving Loans made to any Borrower shall be the several obligations of such Borrower. Subject to the terms and conditions of this Credit Agreement, each Borrower may borrow, repay and reborrow the amount of the Revolving Loan Commitment made to it.
(b) [Reserved].
2.2 Method of Borrowing for Revolving Loans.
(a) Base Rate Loans. By no later than 12:00 p.m. on the date of a Borrower’s request for funding of the borrowing (or for the conversion of Term SOFR Revolving Loans to Base Rate Loans), such Borrower shall submit a Notice of Borrowing (or in the case of any request for the conversion of Term SOFR Loans to Base Rate Loans, a Notice of Continuation/Conversion) to the Administrative Agent setting forth (i) the amount requested, (ii) the desire to have such Revolving Loans accrue interest at the Base Rate plus the Applicable Percentage for Base Rate Loans for the relevant Borrower and (iii) except in the case of conversions of Term SOFR Revolving Loans to Base Rate Loans, complying in all respects with Section 6.2 hereof. Each such borrowing request shall be irrevocable and signed by the applicable Borrower; provided that, if such borrowing request is submitted through an Approved Borrower Portal, the foregoing signature requirement may be waived at the sole discretion of the Administrative Agent.
(b) Term SOFR Revolving Loans. By no later than 12:00 p.m. three Business Days prior to the date of a Borrower’s request for funding of the borrowing (or for the conversion of Base Rate Loans to Term SOFR Revolving Loans or the continuation of existing Term SOFR Loans), such Borrower shall submit a Notice of Borrowing (or in the case of any request for the conversion of Base Rate Loans to Term SOFR Loans or the continuation of existing Term SOFR Loans, a Notice of Continuation/Conversion) to the Administrative Agent setting forth (i) the amount requested, (ii) the desire to have such Revolving Loans accrue interest at the Adjusted Term SOFR Rate plus the Applicable Percentage for Term SOFR Loans for the relevant Borrower, (iii) the Interest Period applicable thereto, and (iv) except in the case of conversions of Base Rate Loans to Term SOFR Revolving Loans or the continuation of existing Term SOFR Loans, complying in all respects with Section 6.2 hereof. Each such borrowing request shall be irrevocable and signed by the applicable Borrower; provided that, if such borrowing request is submitted through an Approved Borrower Portal, the foregoing signature requirement may be waived at the sole discretion of the Administrative Agent.
(c) Continuation and Conversion. Each Borrower shall have the option, on any Business Day, to continue existing Term SOFR Revolving Loans made to it for a subsequent Interest Period, to convert Base Rate Loans made to it into Term SOFR Revolving Loans or to convert Term SOFR Revolving Loans made to it into Base Rate Loans. By no later than 12:00 p.m. (a) on the date of the requested conversion of a Term SOFR Revolving Loan to a Base Rate Loan or (b) three Business Days prior to the date for a requested continuation of a Term SOFR Revolving Loan or conversion of a Base Rate Loan to a Term SOFR Revolving Loan, the relevant
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Borrower shall notify the Administrative Agent by delivering to the Administrative Agent a written Notice of Continuation/Conversion, setting forth (i) whether the relevant Borrower wishes to continue or convert such Loans and (ii) if the request is to continue a Term SOFR Revolving Loan or convert a Base Rate Loan to a Term SOFR Revolving Loan, the Interest Period applicable thereto. Each such Notice of Continuation/Conversion shall be irrevocable and signed by the relevant Borrower; provided that, if such Notice of Continuation/Conversion is submitted through an Approved Borrower Portal, the foregoing signature requirement may be waived at the sole discretion of the Administrative Agent. Notwithstanding anything herein to the contrary, (i) except as provided in Section 4.1 hereof, Term SOFR Revolving Loans may be converted to Base Rate Loans only on the last day of an Interest Period applicable thereto; (ii) Term SOFR Revolving Loans may be continued and Base Rate Loans may be converted to Term SOFR Revolving Loans only if no Default or Event of Default with respect to the relevant Borrower is in existence on the date of such extension or conversion; (iii) any continuation or conversion must comply with Sections 2.2(a) or 2.2(b) hereof, as applicable; and (iv) failure by such Borrower to properly continue Term SOFR Revolving Loans at the end of an Interest Period shall be deemed a conversion to Base Rate Loans.
Notwithstanding the foregoing, in no event shall any Borrower be permitted to request pursuant to this Section 2.2 prior to a Benchmark Transition Event and Benchmark Replacement Date with respect to the Term SOFR Rate, a Revolving Loan bearing interest based on Daily Simple SOFR (it being understood and agreed that Daily Simple SOFR shall only apply to the extent provided in Sections 4.1(a)(i) and 4.1(a)(vi)), as applicable.
2.3 Funding of Revolving Loans.
Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly inform the Lenders as to the terms thereof. Each Lender will make its pro rata share of the Revolving Loans available to the Administrative Agent by 2:00 p.m. on the date specified in the Notice of Borrowing by deposit (in Dollars) of immediately available funds at the offices of the Administrative Agent at its principal office in New York, New York, or at such other address as the Administrative Agent may designate in writing. All Revolving Loans shall be made by the Lenders pro rata on the basis of each Lender’s Commitment Percentage. No Lender shall be responsible for the failure or delay by any other Lender in its obligation to make Loans hereunder; provided, however, that the failure of any Lender to fulfill its obligations hereunder shall not relieve any other Lender of its obligations hereunder. The Administrative Agent will make the proceeds of such Revolving Loans available to the relevant Borrower promptly after it receives funds from the Lenders as described in the preceding paragraph. Unless the Administrative Agent shall have been notified by any Lender prior to the time of any such Loan that such Lender does not intend to make available to the Administrative Agent its portion of the Loans to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on the date of such Loans, and the Administrative Agent in reliance upon such assumption, may (in its sole discretion without any obligation to do so) make available to the relevant Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent, the Administrative Agent shall be able to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent will promptly notify the relevant Borrower and such Borrower shall immediately pay such
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corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from the Lender or such Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to such Borrower to the date such corresponding amount is recovered by the Administrative Agent at a per annum rate equal to (a) the applicable rate for such Loan pursuant to the Notice of Borrowing, if recovered from such Borrower, and (b) the Federal Funds Rate, if recovered from a Lender.
2.4 Minimum Amounts of Revolving Loans.
Each request for Revolving Loans shall be, in the case of Term SOFR Revolving Loans, in an aggregate principal amount that is not less than the lesser of $10,000,000 or the remaining amount available to be borrowed and, in the case of Base Rate Loans, in an aggregate principal amount that is not less than the lesser of $5,000,000 or the remaining amount available to be borrowed. Any Revolving Loan requested shall be in an integral multiple of $1,000,000 unless the request is for all of the remaining amount available to be borrowed.
2.5 Reductions of Revolving Loan Commitment.
Upon at least three Business Days’ notice, Dominion Energy, on its own behalf and/or acting on the request of any other Borrower, shall have the right to permanently terminate or reduce the aggregate unused amount of the Revolving Loan Commitment available to it and/or such other Borrower at any time or from time to time; provided that (a) each partial reduction shall be in an aggregate amount at least equal to $10,000,000 and in integral multiples of $1,000,000 above such amount, (b) no reduction shall be made which would reduce the Revolving Loan Commitment to an amount less than the Utilized Revolving Commitment and (c) each such reduction shall have the effect of reducing each Borrower’s Sublimit in a pro rata amount. Any reduction in (or termination of) the Revolving Loan Commitment shall be permanent and may not be reinstated (except as may be otherwise provided pursuant to Section 2.6).
2.6 Revolving Loan Commitment Increase.
(a) The Borrowers shall have the right to increase the Revolving Loan Commitments pursuant to this Section 2.6 subject to the restrictions of subsection 2.6(d) below (any such increase, a “Commitment Increase”) provided that (i) no Default or Event of Default has occurred and is continuing on the date of the Commitment Increase or shall result from the proposed Commitment Increase and (ii) the representations and warranties contained in Section 7 and in the other Credit Documents shall be true and correct in all material respects on and as of the date of the Commitment Increase as if made on and as of such date or, if any such representation and warranty is expressly stated to have been made as of a specific date, as of such specific date. In the event that the Borrowers wish to increase the aggregate Revolving Loan Commitment at any time, the Borrowers shall notify the Administrative Agent in writing of the amount (the “Offered Increase Amount”) of such proposed increase (such notice, a “Revolving Loan Commitment Increase Notice”); provided, that the aggregate amount of any such increase in the Revolving Loan Commitment shall be at least $25,000,000. Each Revolving Loan Commitment Increase Notice shall specify which Lenders and/or other banks, financial institutions or other entities the Borrowers desire to participate in such Commitment Increase. The Borrowers or, if requested by the Borrowers, the Administrative Agent, will notify such Lenders and/or other banks, financial institutions or other entities of such offer.
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(b) Any additional bank, financial institution or other entity which the Borrowers select to offer participation in the Commitment Increase and which elects to become a party to this Credit Agreement and provide a commitment in an amount so offered and accepted by it pursuant to subsection 2.6(a) shall execute an Additional Lender Supplement (in substantially the form specified by the Administrative Agent, each an “Additional Lender Supplement”) with the Borrowers and the Administrative Agent, whereupon such bank, financial institution or other entity (herein called an “Additional Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Credit Agreement, and Schedule 1.1 shall be deemed to be amended to add the name and Commitment of such Additional Lender, provided that (i) the Commitment of any such new Additional Lender shall be in an amount not less than $25,000,000 and (ii) any Additional Lender shall be reasonably acceptable to the Administrative Agent and each Issuing Lender.
(c) Any existing Lender which accepts an offer to it by the Borrowers to increase its Commitment pursuant to Section 2.6 shall, in each case, execute a Commitment Increase Supplement (in substantially the form specified by the Administrative Agent, each a “Commitment Increase Supplement”) with the Borrowers and the Administrative Agent whereupon such Lender shall be bound by and entitled to the benefits of this Credit Agreement with respect to the full amount of its Commitment as so increased, and Schedule 1.1 shall be deemed to be amended to so increase the Commitment of such Lender.
(d) Notwithstanding anything to the contrary in this Section 2.6, it is understood and agreed that (i) in no event shall any further Commitment Increase or transaction effected pursuant to this Section 2.6 cause the aggregate Revolving Loan Commitment hereunder to exceed $9,000,000,000 absent a further amendment to this Credit Agreement, and (ii) no existing Lender shall have any obligation to increase its Commitment unless it agrees to do so in its sole discretion.
(e) At the time the Borrowers submit a Revolving Loan Commitment Increase Notice, they shall advise the Lenders of the allocations of the applicable Commitment Increase to their respective Sublimits, which allocations would become effective to increase the applicable Sublimits upon the effectiveness of such Commitment Increase pursuant hereto.
2.7 Notes.
(a) Revolving Loan Notes. The Revolving Loans made by the Lenders to a Borrower shall be evidenced, upon request by any Lender, by a promissory note of such Borrower payable to each Lender in substantially the form of Exhibit 2.7(a) hereto (the “Revolving Loan Notes”) and in a principal amount equal to the amount of such Lender’s Commitment Percentage of the Revolving Loan Commitment as originally in effect.
(b) Recordation of Loan Information. The date, amount, type, interest rate and duration of Interest Period (if applicable) of each Loan made by each Lender to each Borrower, and each payment made on account of the principal thereof, shall be recorded by such Lender on its books; provided that the failure of such Lender to make any such recordation or endorsement shall not affect the obligations of such Borrower to make a payment when due of any amount owing hereunder or under any Note in respect of the Loans to be evidenced by such Note, and each such recordation or endorsement shall be conclusive and binding absent manifest error.
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2.8 Extension of Maturity Date.
(a) On any anniversary of the Restatement Effective Date prior to the Maturity Date, the Borrowers may request to extend the then-applicable Maturity Date (the “Existing Maturity Date”) for an additional one-year period (an “Extension Period”) to the date that is one year after the Existing Maturity Date (the “Requested Maturity Date”); provided that the Borrowers may extend the Maturity Date for a maximum two (2) such Extension Periods. The Borrowers may make such request in a notice given as herein provided and substantially in the form attached hereto as Exhibit 2.8(a) (the “Extension of Maturity Date Request”) to the Administrative Agent not less than 30 days prior to any anniversary of the Restatement Effective Date, so long as (i) each of the representations and warranties contained in Section 7 and in the other Credit Documents shall be true and correct in all material respects on and as of the date of such notice and as of the commencement date of the relevant Extension Period as if made on and as of each date, or, if any such representation and warranty is expressly stated to have been made as of a specific date, as of such specific date and (ii) no Default or Event of Default shall have occurred and be continuing on the date of such notice and as of the commencement date of the relevant Extension Period. Each Lender, acting in its sole discretion, shall, not later than a date 30 days after its receipt of any such notice from the Administrative Agent, notify the Borrowers and the Administrative Agent in writing of its election to extend or not to extend the Existing Maturity Date with respect to its Commitment. Any Lender which shall not timely notify the Borrowers and the Administrative Agent of its election to extend the Existing Maturity Date shall be deemed not to have elected to extend the Existing Maturity Date with respect to its Commitment (any Lender who timely notifies the Borrowers and the Administrative Agent of an election not to extend or fails to timely notify the Borrowers and the Administrative Agent of its election being referred to as a “Terminating Lender” and all such Lenders, collectively, the “Terminating Lenders”). The election of any Lender to agree to a requested extension shall not obligate any other Lender to agree to such requested extension.
(b) If and only if (i) one or more Lenders shall have agreed in writing during the 30 day period referred to in Section 2.8(a) to extend the Existing Maturity Date and (ii) the Borrowers shall have submitted to the Administrative Agent, on the commencement date of the relevant Extension Period, a certificate of the Borrowers, substantially in the form of Exhibit 2.8(b) (the “Extension of Maturity Date Certificate”), stating that (x) the representations and warranties made by each Borrower in or pursuant to the Credit Documents are true and correct in all material respects on and as of the date thereof, or, if any such representation and warranty is expressly stated to have been made as of a specific date, as of such specific date and (y) no Default or Event of Default by each Borrower has occurred and is continuing, then (A) the Commitments of the Lenders other than Terminating Lenders (the “Continuing Lenders”, each a “Continuing Lender”) shall, subject to the other provisions of this Credit Agreement, be extended to the Requested Maturity Date specified in the Extension of Maturity Date Request from the Borrowers, and as to such Lenders the term “Maturity Date”, as used herein, shall on and after the date as of which the requested extension is effective mean such Requested Maturity Date, provided that if such date is not a Business Day, then such Requested Maturity Date shall be the next succeeding Business Day
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and (B) the Commitments and L/C Commitment (if applicable) of the Terminating Lenders shall continue until the Existing Maturity Date and shall then terminate, and as to the Terminating Lenders, the term “Maturity Date”, as used herein, shall continue to mean the Existing Maturity Date. The Administrative Agent shall promptly notify (x) the Lenders of any Extension of Maturity Date Request, (y) the Lenders and the Borrowers of any extension of the Existing Maturity Date pursuant to this Section 2.8 and (z) the Borrowers and the Lenders of any Lender which becomes a Terminating Lender.
(c) In the event that the Maturity Date shall have been extended for the Continuing Lenders in accordance with Section 2.8(b) above and, in connection with such extension, there are Terminating Lenders, the Borrowers may, at their own expense and in their sole discretion and prior to the Existing Maturity Date, require any Terminating Lender to transfer and assign its interests, rights and obligations under this Credit Agreement in accordance with Section 4.5 to an Eligible Assignee that shall assume such assigned obligations and that shall agree that its Commitment will expire on the Maturity Date in effect for Continuing Lenders; provided, however, that the Borrowers shall have given written notice to the Administrative Agent in the case of an assignee that is not a Lender. Any such Eligible Assignee’s initial Maturity Date shall be the Maturity Date in effect for the Continuing Lenders at the time of such assignment. The Borrowers shall not be permitted to require a Lender to assign any part of its interests, rights and obligations under this Credit Agreement pursuant to this Section 2.8(c) unless the Borrowers have notified such Lender of their intention to require the assignment thereof at least ten days prior to the proposed assignment date. Any Eligible Assignee that becomes a Lender as a result of such an assignment made pursuant to this Section 2.8(c) shall be deemed to have consented to the applicable Extension of Maturity Date Request and, therefore, shall not be a Terminating Lender.
(d) Revolving Loans or L/C Obligations owing to any Terminating Lender on the Existing Maturity Date with respect to such Terminating Lender shall be repaid in full, with accrued interest and all other amounts then due and owing thereon, on the Existing Maturity Date with respect to such Terminating Lender.
2.9 Adjustment of Sublimits.
So long as no Event of Default exists with respect to any Borrower and the representations and warranties made by each Borrower in or pursuant to the Credit Documents (excluding clause (ii) of the second paragraph of Section 7.6 and excluding Section 7.9) are true and correct in all material respects on and as of the date of a Sublimit Adjustment Letter with the same effect as if made on such date, or, if any such representation and warranty is expressly stated to have been made as of a specific date, as of such specific date, upon five Business Days’ notice to the Administrative Agent pursuant to a sublimit adjustment letter substantially in the form of Exhibit 2.9 (a “Sublimit Adjustment Letter”), the Borrowers may up to six times in a calendar year reallocate the amounts of their Sublimits between their respective Sublimits, provided that the DESC Sublimit shall not at any time exceed $1,000,000,000.
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SECTION 3. PAYMENTS
3.1 Interest.
(a) Interest Rate.
(i) All Base Rate Loans made to a Borrower shall accrue interest at the Base Rate plus the Applicable Percentage for Base Rate Loans with respect to such Borrower.
(ii) All Term SOFR Loans made to a Borrower shall accrue interest at the Adjusted Term SOFR Rate plus the Applicable Percentage for Term SOFR Loans applicable to such Borrower.
(b) Default Rate of Interest. Upon the occurrence, and during the continuance, of an Event of Default under Section 10.1(a) or (e) with respect to any Borrower, the principal of and, to the extent permitted by law, interest on the Loans outstanding to such Borrower and any other amounts owing by such Borrower hereunder or under the other Credit Documents shall bear interest, payable on demand, at a per annum rate equal to 2% plus the rate which would otherwise be applicable (or if no rate is applicable, then the rate for Loans outstanding to such Borrower that are Base Rate Loans plus 2% per annum).
(c) Interest Payments. Interest on Loans shall be due and payable in arrears on each Interest Payment Date.
3.2 Prepayments.
(a) Voluntary Prepayments. Each Borrower shall have the right to prepay Loans made to it in whole or in part from time to time without premium or penalty; provided, however, that (i) Base Rate Loans may only be prepaid with prior written notice to the Administrative Agent, with such notice being provided no later than 12:00 p.m. New York time on the date of such prepayment, (ii) Term SOFR Loans may only be prepaid on three Business Days’ prior written notice, with such notice being provided no later than 12:00 p.m. New York time, to the Administrative Agent and any prepayment of Term SOFR Loans will be subject to Section 4.3 hereof and (iii) each such partial prepayment of Loans shall be in the minimum principal amount of $10,000,000. Amounts prepaid hereunder shall be applied as such Borrower may elect; provided that if such Borrower fails to specify the application of a voluntary prepayment then such prepayment shall be applied in each case first to Base Rate Loans of such Borrower and then to Term SOFR Revolving Loans of such Borrower in direct order of Interest Period maturities. The relevant Borrower shall notify the Administrative Agent by telephone of any prepayment (confirmed by telecopy or electronic communication, including an Approved Borrower Portal, if arrangements for doing so have been approved by the Administrative Agent).
(b) Mandatory Prepayments. If at any time (x) the amount of the Utilized Revolving Commitment exceeds the Revolving Loan Commitment or (y) the amount of the Utilized Revolving Commitment of any Borrower exceeds such Borrower’s Sublimit, one or more of the Borrowers shall immediately make a principal payment to the Administrative Agent in the manner and in an amount necessary to be in compliance with Section 2.1 hereof. Any payments made under this Section 3.2(b) shall be subject to Section 4.3 hereof and shall be applied first to Base Rate Loans of the relevant Borrower, then to Term SOFR Revolving Loans of the relevant Borrower in direct order of Interest Period maturities pro rata among all Lenders holding same.
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3.3 Payment in Full at Maturity.
On the Maturity Date, the entire outstanding principal balance of all Loans, together with accrued but unpaid interest and all other sums owing under this Credit Agreement, shall be due and payable in full, unless accelerated sooner pursuant to Section 10 hereof.
3.4 Fees.
(a) Facility Fees.
(i) In consideration of the Revolving Loan Commitment being made available by the Lenders hereunder, DEI agrees to pay to the Administrative Agent (for itself and on behalf of VaPower and DESC), for the pro rata benefit of each Lender (except as otherwise provided in Section 12.9 with respect to a Defaulting Lender), a per annum fee equal to the Applicable Percentage for Facility Fees multiplied by the Revolving Loan Commitment (the “Facility Fees”).
(ii) The accrued Facility Fees shall be due and payable in arrears on each Fee Payment Date (as well as on any date that the Revolving Loan Commitment is reduced) for the immediately preceding fiscal quarter (or portion thereof), beginning with the first of such dates to occur after the Restatement Effective Date.
(b) Administrative Fees. Dominion Energy agrees to pay to the Administrative Agent an annual fee as agreed to between the Borrowers and the Administrative Agent.
3.5 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other amounts to be made by each Borrower under this Credit Agreement shall be received not later than 2:00 p.m. on the date when due in Dollars and in immediately available funds, without setoff, deduction, counterclaim or withholding of any kind, by the Administrative Agent at its offices in New York, New York, except payments to be made directly to an Issuing Lender as provided herein. Each Borrower shall, at the time it makes any payment under this Credit Agreement, specify to the Administrative Agent, the Loans, fees or other amounts payable by such Borrower hereunder to which such payment is to be applied (and in the event that it fails to specify, or if such application would be inconsistent with the terms hereof, the Administrative Agent, shall distribute such payment to the Lenders in such manner as it reasonably determines in its sole discretion).
3.6 Pro Rata Treatment.
Except to the extent otherwise provided herein, all Revolving Loans, each payment or prepayment of principal of any Revolving Loan, each payment of interest on the Revolving Loans, each payment of Facility Fees and Letter of Credit Fees, each reduction of the Revolving Loan Commitment, and each conversion or continuation of any Revolving Loans, shall be allocated pro rata among the Lenders in accordance with the respective Commitment Percentages.
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3.7 Computations of Interest and Fees.
(a) Except for Base Rate Loans computed using the Prime Rate, on which interest shall be computed on the basis of a 365 or 366 day year as the case may be, all computations of interest and fees hereunder shall be made on the basis of the actual number of days elapsed over a year of 360 days.
(b) It is the intent of the Lenders and each Borrower to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between the Lenders and the Borrowers are hereby limited by the provisions of this paragraph which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral. In no way, nor in any event or contingency (including but not limited to prepayment or acceleration of the maturity of any obligation), shall the interest taken, reserved, contracted for, charged, or received under this Credit Agreement, under the Notes or otherwise, exceed the maximum non-usurious amount permissible under applicable law. If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum non-usurious amount, any such construction shall be subject to the provisions of this paragraph and such documents shall be automatically reduced to the maximum non-usurious amount permitted under applicable law, without the necessity of execution of any amendment or new document. If any Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum lawful amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans of the relevant Borrower and not to the payment of interest, or refunded to the relevant Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans of the relevant Borrower. The right to demand payment of the Loans of any Borrower or any other indebtedness evidenced by any of the Credit Documents does not include the right to receive any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand. All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such indebtedness does not exceed the maximum non-usurious amount permitted by applicable law.
3.8 Sharing of Payments.
Each Lender agrees that, in the event that any Lender shall obtain payment in respect of any Revolving Loan or L/C Obligation owing to such Lender under this Credit Agreement through the exercise of a right of set-off, banker’s lien, counterclaim or otherwise (including, but not limited to, pursuant to the Bankruptcy Code) in excess of its pro rata share as provided for in this Credit Agreement, such Lender shall promptly purchase from the other Lenders a participation in such Loans, in such amounts and with such other adjustments from time to time, as shall be equitable in order that all Lenders share such payment in accordance with their
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respective ratable shares as provided for in this Credit Agreement. Each Lender further agrees that if a payment to a Lender (which is obtained by such Lender through the exercise of a right of set-off, banker’s lien, counterclaim or otherwise) shall be rescinded or must otherwise be restored, each Lender which shall have shared the benefit of such payment shall, by repurchase of a participation theretofore sold, return its share of that benefit to each Lender whose payment shall have been rescinded or otherwise restored. Each Borrower agrees that any Lender so purchasing such a participation in Loans made to such Borrower may, to the fullest extent permitted by law, exercise all rights of payment, including set-off, banker’s lien or counterclaim, with respect to such participation as fully as if such Lender were a holder of such Loan or other obligation in the amount of such participation. Except as otherwise expressly provided in this Credit Agreement, if any Lender shall fail to remit to the Administrative Agent or any other Lender an amount payable by such Lender to the Administrative Agent or such other Lender pursuant to this Credit Agreement on the date when such amount is due, such payments shall accrue interest thereon, for each day from the date such amount is due until the day such amount is paid to the Administrative Agent or such other Lender, at a rate per annum equal to the Federal Funds Rate.
3.9 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing each Loan made by such Lender to a Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender by or for the account of each Borrower from time to time under this Credit Agreement. Each Lender will make reasonable efforts to maintain the accuracy of its account or accounts and to promptly update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register for each Borrower pursuant to Section 12.3(c), and a subaccount for each Lender, in which Registers and subaccounts (taken together) shall be recorded (i) the amount, type and Interest Period of each such Loan hereunder in accordance with the documents submitted by a Borrower under Section 2.2, (ii) the amount of any principal or interest due and payable or to become due and payable to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from or for the account of the Borrowers and each Lender’s share thereof. The Administrative Agent will make reasonable efforts to maintain the accuracy of the subaccounts referred to in the preceding sentence and to promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Registers and subaccounts maintained pursuant to subsection (b) of this Section 3.9 (and, if consistent with the entries of the Administrative Agent, subsection (a)) shall be prima facie evidence of the existence and amounts of the obligations of each Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain any such account, such Registers or such subaccounts, as applicable, or any error therein, shall not in any manner affect the obligation of any Borrower to repay the Loans made by such Lender to such Borrower in accordance with the terms hereof.
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3.10 Obligation to Return Erroneous Transmittal.
(a) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 3.10 shall be conclusive, absent manifest error.
(b) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) Each Borrower hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any obligations owed by any Borrower, except to the extent of any amounts paid by any Borrower to the Administrative Agent for the account of the Lenders.
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(d) Each party’s obligations under this Section 3.10 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all obligations under any Credit Document.
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS
4.1 Term SOFR Loan Provisions.
(a) Unavailability.
(i) If, prior to the commencement of any Interest Period for a Term SOFR Loan:
(A) the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a borrowing of Term SOFR Loans, that adequate and reasonable means do not exist for ascertaining the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis) for such Interest Period; or
(B) the Administrative Agent is advised by the Required Lenders that prior to the commencement of any Interest Period for a borrowing of Term SOFR Loans, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Continuation/Conversion that requests the conversion of any Revolving Loan to, or continuation of any Revolving Loan as, a Term SOFR Loan shall be ineffective and such Loan shall remain or convert to a Base Rate Loan and (B) if any Notice of Borrowing requests a Term SOFR Loan, such Loan shall be made as a Base Rate Loan.
(ii) Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark (including any related adjustments) for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Credit Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such
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Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Credit Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(iii) Notwithstanding anything to the contrary herein or in any other Credit Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Credit Agreement or any other Credit Document.
(iv) The Administrative Agent will promptly notify the Borrowers and the Lenders of (1) any occurrence of a Benchmark Transition Event, (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes, (4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (vi) below and (5) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.1, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Credit Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 4.1.
(v) Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (x) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (y) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (x) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (y) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(vi) Upon the Borrowers’ receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any request for a borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrowers will be deemed to have converted such request into a request for a borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
(b) Change in Legality.
(i) Notwithstanding any other provision herein, if any change in any law or regulation or in the interpretation thereof by any Governmental Authority charged with the administration or interpretation thereof shall make it unlawful for any Lender to make or maintain any Term SOFR Loan or to give effect to its obligations as contemplated hereby with respect to any Term SOFR Loan, then, by written notice to the relevant Borrower and to the Administrative Agent, such Lender may:
(A) declare that Term SOFR Loans, and conversions to or continuations of Term SOFR Loans, will not thereafter be made by such Lender to such Borrower hereunder, whereupon any request by such Borrower for, or for conversion into or continuation of, Term SOFR Loans shall, as to such Lender only, be deemed a request for, or for conversion into or continuation of, Base Rate Loans, unless such declaration shall be subsequently withdrawn; and
(B) require that all outstanding Term SOFR Loans made by it to such Borrower be converted to Base Rate Loans in which event all such Term SOFR Loans shall be automatically converted to Base Rate Loans.
In the event any Lender shall exercise its rights under clause (A) or (B) above, all payments and prepayments of principal which would otherwise have been applied to repay the Term SOFR Loans that would have been made by such Lender to such Borrower or the converted Term SOFR Loans of such Lender to such Borrower shall instead be applied to repay the Base Rate Loans made by such Lender to such Borrower in lieu of, or resulting from the conversion of, such Term SOFR Loans.
(c) Increased Costs. If at any time a Lender or Issuing Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to the making, continuing or converting, the commitment to make or the maintaining of any Loan or the issuance, the commitment to issue or the maintaining of any Letter of Credit or any participation therein, including subjecting any Lender to any taxes (other than Taxes, Other Taxes and the excluded taxes described in the definition of Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, because of any change since the date of this Credit Agreement in any applicable law, governmental rule, regulation, guideline or order (or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, guideline or such
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order) including, without limitation, the imposition, modification or deemed applicability of any reserves, deposits, liquidity or similar requirements (such as, for example, but not limited to, a change in official reserve requirements, but, in all events, excluding reserves required to the extent included in the computation of the Adjusted Term SOFR Rate); then the relevant Borrower shall pay to such Lender or Issuing Lender promptly upon written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Lender may determine in its sole discretion) as may be required to compensate such Lender or Issuing Lender for such increased costs or reductions in amounts receivable hereunder.
Each determination and calculation made by a Lender or Issuing Lender under this Section 4.1 shall, absent manifest error, be binding and conclusive on the parties hereto.
Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the date enacted, adopted, issued or implemented.
4.2 Capital Adequacy.
If any Lender or Issuing Lender determines that the adoption or effectiveness, after the date hereof, of any applicable law, rule or regulation regarding capital adequacy or liquidity, or any change therein, or any change 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 such Lender or Issuing Lender (or its parent corporation) with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s or Issuing Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to any Borrower to a level below that which such Lender or Issuing Lender (or its parent corporation) could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or Issuing Lender’s (or parent corporation’s) policies with respect to capital adequacy or liquidity), then, upon notice from such Lender or Issuing Lender, the relevant Borrower shall pay to such Lender or Issuing Lender such additional amount or amounts (but without duplication of any amounts payable under Section 4.1(c)) as will compensate such Lender or Issuing Lender (or its parent corporation) for such reduction. Each determination by any such Lender or Issuing Lender of amounts owing under this Section 4.2 shall, absent manifest error, be conclusive and binding on the parties hereto.
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4.3 Compensation.
Each Borrower shall compensate each Lender, upon its written request, for all reasonable losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by the Lender to fund its Term SOFR Loans to such Borrower) which such Lender may sustain:
(a) if for any reason (other than a default by such Lender or the Administrative Agent) a borrowing of Term SOFR Loans by such Borrower does not occur on a date specified therefor in a Notice of Borrowing submitted by such Borrower;
(b) if any repayment, continuation or conversion of any Term SOFR Loan by such Borrower occurs on a date which is not the last day of an Interest Period applicable thereto, including, without limitation, in connection with any demand, acceleration, mandatory prepayment, assignment or otherwise (including any demand under this Section 4); or
(c) if such Borrower fails to repay its Term SOFR Loans when required by the terms of this Credit Agreement.
Calculation of all amounts payable to a Lender under this Section 4.3 shall be made as though the Lender has actually funded its relevant Term SOFR Loan through the purchase of a Term SOFR Rate deposit bearing interest at the Adjusted Term SOFR Rate in an amount equal to the amount of that Loan, having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund each of its Term SOFR Loans in any manner it sees fit and the foregoing assumption shall be utilized only for the calculation of amounts payable under this Section 4.3.
4.4 Taxes.
(a) Tax Liabilities. Any and all payments by a Borrower hereunder or under any of the Credit Documents shall be made, in accordance with the terms hereof and thereof, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding taxes measured by net income and franchise taxes imposed on the Administrative Agent or any Lender by the jurisdiction under the laws of which the Administrative Agent or such Lender is organized or transacting business or any political subdivision thereof, any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which such Borrower is located, in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in this Credit Agreement pursuant to a law in effect on the date on which (y) such Lender acquires such interest in this Credit Agreement (other than pursuant to an assignment request by a Borrower under Section 4.5 below) or (z) such Lender changes its lending office, except in each case to the extent that, pursuant to this Section 4.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, and any withholding Taxes imposed under FATCA (all such non-excluded taxes, being hereinafter referred to as “Taxes”). If such Borrower shall be required by law to deduct any Taxes or Other Taxes (as defined in Section 4.4(b)) from or in respect of any sum payable hereunder to the Administrative Agent or any Lender, as applicable, as determined in good faith by the applicable Withholding Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions
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applicable to additional sums payable under this Section 4.4) the Administrative Agent or such Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions, (iii) such Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law, and (iv) such Borrower shall deliver to the Administrative Agent or such Lender, as the case may be, evidence of such payment to the relevant Governmental Authority.
(b) Other Taxes. In addition, each Borrower agrees to pay, upon notice from a Lender and prior to the date when penalties attach thereto, all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies of the United States or any state or political subdivision thereof or any applicable foreign jurisdiction that arise from any payment made hereunder by such Borrower or from the execution, delivery or registration of, or otherwise from such Borrower’s participation with respect to, this Credit Agreement or any other Credit Document, including any interest, addition to tax or penalties applicable thereto (collectively, the “Other Taxes”) to the relevant Governmental Authority in accordance with applicable law.
(c) If (i) a Borrower fails to pay any Taxes or Other Taxes when due to the appropriate taxing authority, (ii) a Borrower fails to comply with Section 4.4(a)(iii) above or (iii) any Taxes or Other Taxes are imposed directly upon the Administrative Agent or any Lender, such Borrower shall indemnify the Administrative Agent or the Lenders, as the case may be, for such amounts and any incremental taxes, interest or penalties paid by the Administrative Agent or any Lender, as the case may be, solely as a result of any such failure, in the case of (i) and (ii), or any such direct imposition, in the case of (iii). Notwithstanding the foregoing, no amounts shall be payable by a Borrower pursuant to Section 4.4(a)(i) or this Section 4.4(c) to the extent that such Taxes or Other Taxes resulted solely from the applicable Lender’s failure to submit to the Borrowers and the Administrative Agent on or before the Restatement Effective Date (or, in the case of a Person that becomes a Lender after the Restatement Effective Date by assignment, promptly upon such assignment) the applicable forms described in Section 4.4(f).
(d) Without duplication of any amounts paid to the Administrative Agent pursuant to Section 11.7, each Lender shall indemnify the Administrative Agent for the full amount of any taxes, levies, imposts, duties, charges, fees, deductions, withholdings or similar charges imposed by any Governmental Authority that are attributable to such Lender and that are payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs and expenses arising therefrom or with respect thereto, as determined by the Administrative Agent in good faith. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.
(e) Refunds. If a Lender or the Administrative Agent (as the case may be) shall become aware that it is entitled to claim a refund (or a refund in the form of a credit) (each, a “Refund”) from a Governmental Authority (as a result of any error in the amount of Taxes or Other Taxes paid to such Governmental Authority or otherwise) of Taxes or Other Taxes which a Borrower has paid, or with respect to which a Borrower has paid additional amounts, pursuant to this Section 4.4, it shall promptly notify such Borrower of the availability of such Refund and shall, within 30 days after receipt of written notice by such Borrower, make a claim to such Governmental Authority for such Refund at such Borrower’s expense if, in the judgment of such
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Lender or the Administrative Agent (as the case may be), the making of such claim will not be otherwise materially disadvantageous to it; provided that nothing in this subsection (e) shall be construed to require any Lender or the Administrative Agent to institute any administrative proceeding (other than the filing of a claim for any such Refund) or judicial proceeding to obtain such Refund.
If a Lender or the Administrative Agent (as the case may be) receives a Refund from a Governmental Authority (as a result of any error in the amount of Taxes or Other Taxes paid to such Governmental Authority or otherwise) of any Taxes or Other Taxes which have been paid by a Borrower, or with respect to which a Borrower has paid additional amounts pursuant to this Section 4.4, it shall promptly pay to such Borrower the amount so received (but only to the extent of payments made, or additional amounts paid, by such Borrower under this Section 4.4 with respect to Taxes or Other Taxes giving rise to such Refund), net of all reasonable out-of-pocket expenses (including the net amount of taxes, if any, imposed on such Lender or the Administrative Agent with respect to such Refund) of such Lender or Administrative Agent, and without interest (other than interest paid by the relevant Governmental Authority with respect to such Refund); provided, however, that such Borrower, upon the request of Lender or the Administrative Agent, agrees to repay the amount paid over to such Borrower (plus penalties, interest or other charges) to such Lender or the Administrative Agent in the event such Lender or the Administrative Agent is required to repay such Refund to such Governmental Authority. Nothing contained in this Section 4.4(e) shall require any Lender or the Administrative Agent to make available any of its tax returns (or any other information that it deems to be confidential or proprietary).
Notwithstanding anything to the contrary in this paragraph (e), in no event will the Administrative Agent or any Lender be required to pay any amount to any Borrower pursuant to this paragraph (e) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.
(f) Tax Forms. (i) Each Lender (which, for purposes of this Section 4.4, shall include any Affiliate of a Lender that makes any Term SOFR Loan pursuant to the terms of this Credit Agreement) that is not a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrowers and the Administrative Agent on or before the Restatement Effective Date (or, in the case of a Person that becomes a Lender after the Restatement Effective Date by assignment, promptly upon such assignment), two duly completed and signed copies, as applicable, of (A) Form W-8BEN-E (or W-BEN if applicable), or any applicable successor form, of the United States Internal Revenue Service entitling such Lender to a complete exemption from withholding on all amounts to be received by such Lender pursuant to this Credit Agreement and/or the Notes, (B) Form W-8ECI or W-8IMY, or any applicable successor form, of the United States Internal Revenue Service relating to all amounts to be received by such Lender pursuant to this Credit Agreement and/or the Notes and (C) Form W-8BEN-E (or W-BEN if applicable) of the United States Internal Revenue Service entitling such Lender to receive a complete exemption from United States backup withholding tax. Each such Lender shall, from time to time after submitting any such form, submit to the Borrowers and the Administrative Agent such additional duly completed and signed copies of such forms (or such successor forms),
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along with any other documents or certifications as shall be adopted from time to time by the relevant United States taxing authorities, in each case as may be reasonably requested in writing by the Borrowers or the Administrative Agent and appropriate under then current United States laws or regulations.
(ii) Each Lender that is a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrowers and the Administrative Agent on or before the Restatement Effective Date (or, in the case of a Person that becomes a Lender after the Restatement Effective Date by assignment, promptly upon such assignment), two duly completed and signed copies of Form W-9, or any applicable successor form, of the United States Internal Revenue Service certifying that such Lender is exempt from United States federal withholding and backup withholding tax. Each such Lender shall, from time to time after submitting such form, submit to the Borrowers and the Administrative Agent such additional duly completed and signed copies of such forms (or such successor forms or other documents as shall be adopted from time to time by the relevant United States taxing authorities) as may be (1) reasonably requested in writing by the Borrowers or the Administrative Agent and (2) appropriate under then current United States laws or regulations.
(iii) If a payment made to a Lender under any Credit Document would be subject to withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the 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 (iii), “FATCA” shall include any amendments made to FATCA after the date of this Credit Agreement.
4.5 Mitigation; Mandatory Assignment.
The Administrative Agent and each Lender shall use reasonable efforts to avoid or mitigate any increased cost or suspension of the availability of an interest rate under Sections 4.1 through 4.4 above to the greatest extent practicable (including transferring the Loans to another lending office or Affiliate of a Lender) unless, in the opinion of the Administrative Agent or such Lender, such efforts would be likely to have an adverse effect upon it. In the event a Lender makes a request to a Borrower for additional payments in accordance with, or exercises any of its rights under, Section 4.1, 4.2 or 4.4, then, provided that no Default or Event of Default with respect to such Borrower has occurred and is continuing at such time, such Borrower may, at its own expense (such expense to include any transfer fee payable to the Administrative Agent under Section 12.3(b) and any expense pursuant to Section 4 hereof) and in its sole discretion, require such Lender to transfer and assign in whole (but not in part), without recourse (in accordance with and
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subject to the terms and conditions of Section 12.3(b)), all of its interests, rights and obligations under this Credit Agreement to an Eligible Assignee which shall assume such assigned obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that (a) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority and (b) the Borrowers or such Eligible Assignee shall have paid to the assigning Lender in immediately available funds the principal of and interest accrued to the date of such payment on the portion of the Loans hereunder held by such assigning Lender and all other amounts owed to such assigning Lender hereunder, including amounts owed pursuant to Sections 4.1 through 4.4 hereof. Notwithstanding anything contained herein to the contrary, no Borrower shall be required to make any additional payments to a Lender pursuant to any of Sections 4.1 through 4.4 unless such Lender has notified such Borrower of such Lender’s claim for such payments within 180 days after the occurrence of the event giving rise to the same; provided that, if any change in law giving rise to such payment is retroactive, then such 180-day period shall be extended to include the period of retroactive effect thereof.
SECTION 5. LETTERS OF CREDIT
5.1 L/C Commitment.
(a) As of the Restatement Effective Date, the existing letters of credit set forth on Schedule 5.1 (“Existing Letters of Credit”) shall be deemed Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the agreements of the other Lenders set forth in Section 5.4(a), agrees to issue new standby letters of credit (“Letters of Credit”) for the account of any Borrower requesting the same and for the benefit of such Borrower or any Subsidiary of such Borrower on any Business Day from the Restatement Effective Date until the date that is ten Business Days prior to the Maturity Date in such form as may be approved from time to time by such Issuing Lender; provided that such Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment (ii) the aggregate amount of the Utilized Revolving Commitments would be greater than the Revolving Loan Commitments or (iii) the Utilized Revolving Commitments of such Borrower would exceed such Borrower’s Sublimit. Each Letter of Credit shall (i) be denominated in Dollars, (ii) have a face amount of at least $100,000 (unless otherwise agreed by the applicable Issuing Lender) and expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five Business Days prior to the Maturity Date; provided, that, if one or more Letters of Credit shall at any time have an expiry date that is later than the Maturity Date, the relevant Borrower shall, not later than (i) five days preceding the Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions satisfactory to the Administrative Agent and Issuing Lenders, an amount equal to the L/C Obligations with respect to such Letters of Credit, if the relevant Borrower’s Rating in effect is at least BBB- as published by S&P, is at least Baa3 as published by Moody’s and is at least BBB- as published by Fitch or (ii) fifteen days preceding the Maturity Date, cash collateralize in accordance with Section 5.9, on terms and conditions reasonably satisfactory to the Administrative Agent and Issuing Lenders, an amount equal to the L/C Obligations with respect to such Letters of Credit if the relevant Borrower’s Rating in effect is lower than BBB- as published by S&P, is lower than Baa3 as published by Moody’s or is lower than BBB- as published by Fitch; provided, further, that the obligations under this Section 5 in respect of such Letters of Credit of (i) the relevant Borrower shall survive the Maturity Date and shall remain in effect until no Letters of Credit for such
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Borrower remain outstanding and (ii) each Lender shall be reinstated, to the extent any such cash collateral, the application thereof or reimbursement in respect thereof is required to be returned to the relevant Borrower by an Issuing Lender after the Maturity Date. Amounts held in such cash collateral account shall be held and applied by the Administrative Agent in the manner and for the purposes set forth in Section 10.2(c).
(b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable requirement of law.
(c) Each Issuing Lender’s share of the aggregate L/C Commitment (so determined) shall not exceed the amount that such Issuing Lender has agreed shall be its “Maximum L/C Commitment”. Each Issuing Lender listed in Schedule 1.1 hereby agrees that its “Maximum L/C Commitment” shall be the amount set forth opposite the name of such Issuing Lender in the Schedule 1.1. The Maximum L/C Commitment of any Issuing Lender that agrees to change its Maximum L/C Commitment or that becomes an Issuing Lender after the date hereof pursuant to the definition of the “Issuing Lender” shall be the amount specified by the Borrowers and such Issuing Lender, subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). In no event shall any Issuing Lender be obligated to increase its Maximum L/C Commitment upon any Commitment Increase pursuant to Section 2.6. Concurrently with any reduction of the Revolving Loan Commitments pursuant to Section 2.5, the Maximum L/C Commitment of each Issuing Lender shall be automatically reduced pro rata.
5.2 Procedure for Issuance of Letter of Credit. Any Borrower may from time to time request that an Issuing Lender issue a Letter of Credit (or amend, renew, cancel or extend an outstanding Letter of Credit) by hand delivering or telecopying (or transmitting by electronic communication, including an Approved Borrower Portal, if arrangements for doing so have been approved by the respective Issuing Lender) to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the satisfaction of such Issuing Lender and such other certificates, documents and other papers and information as such Issuing Lender may request. Upon receipt of any Application, such Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue, amend, renew, cancel or extend the Letter of Credit as requested thereby (but in no event shall such Issuing Lender be required to issue, amend, renew, cancel or extend any Letter of Credit (a) earlier than three Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, (b) that would violate one or more of such Issuing Lender’s customary, generally applicable policies pertaining to the issuance of letters of credit) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the relevant Borrower or (c) if such Letter of Credit is not a standby letter of credit. The Issuing Lender shall furnish a copy of such Letter of Credit or amendment, renewal, cancellation or extension thereof to the relevant Borrower promptly following the issuance, amendment, renewal, cancellation or extension thereof. The Issuing Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof), as well as notice of any amendments to, payments on or cancellations of such Letter of Credit, or any other change that would extend the expiry date of such Letter of Credit.
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5.3 Fees and Other Charges.
(a) Each Borrower will pay a fee (“Letter of Credit Fees”) on all outstanding Letters of Credit issued for its account at a per annum rate equal to the Applicable Percentage then in effect with respect to Term SOFR Loans, shared ratably among the Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance date. In addition, in accordance with the Fee Letter (or as separately agreed between the relevant Borrower and any Issuing Lender) the relevant Borrower shall pay to each Issuing Lender for its own account a fronting fee on the undrawn and unexpired amount of each Letter of Credit, payable quarterly in arrears on each Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the relevant Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.
5.4 L/C Participations.
(a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce each Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Commitment Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of Credit and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit for which such Issuing Lender is not reimbursed in full by the relevant Borrower in accordance with the terms of this Credit Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Commitment Percentage of the amount of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an Issuing Lender pursuant to Section 5.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 5.4(a) is not made available to an Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the Base Rate plus the Applicable Percentage for Base Rate Loans. A certificate of such Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error.
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(c) Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 5.4(a), such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the relevant Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will distribute to such L/C Participant its pro rata share thereof; provided, however, that in the event that any such payment received by an Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.
5.5 Reimbursement Obligation of the Borrowers. Each Borrower for whose account a Letter of Credit is issued agrees to reimburse the Issuing Lender no later than the Business Day immediately following the Business Day on which such Issuing Lender notifies such Borrower of the date and amount of a draft presented under any Letter of Credit and paid by such Issuing Lender for the amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by such Issuing Lender in connection with such payment. Each such payment shall be made to the Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full (i) at the Base Rate plus the Applicable Percentage for Base Rate Loans until the Business Day next succeeding the date of the relevant notice and (ii) thereafter, at the rate set forth in Section 3.1(b).
5.6 Obligations Absolute. Each Borrower’s obligations under this Section 5 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Credit Agreement under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that such Borrower may have or have had against the Issuing Lender, any beneficiary of a Letter of Credit or any other Person. Each Borrower also agrees with the Issuing Lender that the Issuing Lender shall not be responsible for, and the relevant Borrower’s Reimbursement Obligations under Section 5.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among any Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of any Borrower against any beneficiary of such Letter of Credit or any such transferee. The Administrative Agent, the Lenders, the Issuing Lender and/or its Affiliates, their respective officers, directors, employees, representatives and agents shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Lender, except for errors or omissions found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Issuing Lender. Each Borrower agrees that any action taken or omitted by the Issuing Lender under or in connection with any Letter of Credit issued for such Borrower’s account or the related drafts or documents shall be binding on such Borrower and shall not result in any liability of the Issuing Lender to such Borrower unless a court of competent jurisdiction determines that such action constitutes gross negligence or willful misconduct on the part of the Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to
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documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Lender may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
5.7 Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the Issuing Lender shall promptly notify the relevant Borrower of the date and amount thereof. The responsibility of the Issuing Lender to the relevant Borrower in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit, subject to Section 5.6.
5.8 Applications. To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Credit Agreement, the provisions of this Credit Agreement shall control.
5.9 Cash collateral. For purposes of this Credit Agreement, providing “cash collateral” for, or to “cash collateralize” a Letter of Credit means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Lenders and the L/C Participants, as collateral for the L/C Obligations, cash or deposit account balances in the currency in which the Letters of Credit are denominated and in an amount equal to the undrawn amount of such Letter of Credit and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Borrowers. Each Borrower hereby grants to the Administrative Agent, for the benefit of each Issuing Lender issuing a Letter of Credit for such Borrower’s account and each L/C Participant in such Letter of Credit, a security interest in all such cash, deposit accounts and all balances therein provided by such Borrower and all proceeds of the foregoing. All cash collateral shall be maintained in a blocked deposit account with the Administrative Agent.
SECTION 6. CONDITIONS PRECEDENT
6.1 Restatement Effective Date Conditions. The amendment and restatement of the Existing Credit Agreement shall become effective at such time (the “Restatement Effective Date”) when all of the conditions set forth in this Section 6.1 have been satisfied or waived by the Lenders, and thereafter this Credit Agreement shall be binding upon and inure to the benefit of each Borrower, the Administrative Agent and each Lender and their respective successors and permitted assigns:
(a) Credit Agreement. Receipt by the Administrative Agent of duly executed copies of this Credit Agreement.
(b) Corporate Documents. Receipt by the Administrative Agent of the following:
(i) Charter Documents. Copies of the articles of incorporation, articles of organization or other charter documents of each Borrower certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation and certified by a secretary or assistant secretary of the relevant Borrower to be true and correct as of the Restatement Effective Date.
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(ii) Bylaws and Operating Agreement. A copy of the bylaws or operating agreement, as applicable, of each Borrower certified by a secretary or assistant secretary of the relevant Borrower to be true and correct as of the Restatement Effective Date.
(iii) Resolutions. Copies of resolutions of the Board of Directors of each Borrower approving and adopting the Credit Documents, the transactions contemplated herein and therein and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of the relevant Borrower to be true and correct and in force and effect as of the Restatement Effective Date.
(iv) Good Standing. Copies of certificates of good standing, existence or its equivalent with respect to each Borrower certified as of a recent date by the appropriate Governmental Authorities of its jurisdiction of incorporation.
(c) Closing Certificate. Receipt by the Administrative Agent of a certificate of each Borrower, dated the Restatement Effective Date, substantially in the form of Exhibit 6.1(c), executed by the Treasurer or any Assistant Treasurer and the Secretary or any Assistant Secretary of such Borrower, and attaching the documents referred to in subsection 6.1(b).
(d) Fees. The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented.
(e) Opinion of Counsel. Receipt by the Administrative Agent of opinions, satisfactory in form and content to the Administrative Agent and the Lenders, addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Effective Date, from McGuireWoods LLP, legal counsel to the Borrowers, and Burr & Forman LLP, South Carolina counsel to DESC.
(f) Consents. Receipt by the Administrative Agent of a written representation from each Borrower that (i) all governmental, shareholder and third party consents and approvals necessary or, in the reasonable opinion of the Administrative Agent, advisable in connection with the transactions contemplated hereby have been received and are in full force and effect and (ii) no condition or requirement of law exists which could reasonably be likely to restrain, prevent or impose any material adverse condition on the transactions contemplated hereby, and receipt by the Administrative Agent of copies of any required orders of the Virginia State Corporation Commission or any other state utilities commission approving the relevant Borrower’s execution, delivery and performance of this Credit Agreement and the borrowings hereunder.
(g) No Default; Representations and Warranties. As of the Restatement Effective Date (i) there shall exist no Default or Event of Default by any Borrower and (ii) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects.
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(h) Material Adverse Effect. No event or condition shall have occurred since the latest date of the financial statements delivered pursuant to Section 8.1(a) of the Existing Credit Agreement prior to the Restatement Effective Date that has or would be likely to have a Material Adverse Effect on the Borrowers.
(i) Financial Statements. Receipt by the Administrative Agent and the Lenders of the audited financial statements of each Borrower and its Consolidated Affiliates for the fiscal year ended as of December 31, 2024 (it being agreed that each Borrower may make available such items on its corporate website, any Securities and Exchange Commission website or any such other publicly available website and will notify the Administrative Agent and Lenders of the availability on such website).
(j) KYC. To the extent reasonably requested at least ten Business Days prior to the Restatement Effective Date by the Administrative Agent or any Lender, the Administrative Agent shall have received, at least three Business Days prior to the Restatement Effective Date, all documentation and other information required by any Governmental Authority under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act and, to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall have delivered to each Lender so requesting a Beneficial Ownership Certification in relation to such Borrower.
(k) Other. Receipt by the Lenders of such other documents, instruments, agreements or information as reasonably requested by any Lender.
6.2 Conditions to Loans and Letters of Credit.
In addition to the conditions precedent stated elsewhere herein, the Lenders shall not be obligated to make new Loans to any Borrower (including the initial Loans to be made hereunder) or to issue, renew or participate in any Letter of Credit unless:
(a) Request. Such Borrower shall have timely delivered a duly executed and completed Notice of Borrowing or Application, as applicable, in conformance with all the terms and conditions of this Credit Agreement.
(b) Representations and Warranties. The representations and warranties made by such Borrower in or pursuant to this Credit Agreement are true and correct in all material respects at and as if made as of the date of the funding of the Loans or issuance or renewal of any Letter of Credit or, if any such representation and warranty was made as of a specific date, such representation and warranty was true and correct in all material respects as of such date; provided, however, that the representations and warranties set forth in (x) clause (ii) of the second paragraph of Section 7.6 hereof and (y) Section 7.9 hereof need not be true and correct as a condition to the making of any Loans or the issuance, renewal or participations in any Letter of Credit made after the Restatement Effective Date.
(c) No Default. On the date of the funding of the Loans or issuance or renewal of any Letter of Credit, no Default or Event of Default with respect to such Borrower has occurred and is continuing or would be caused by making the Loans or issuing the Letter of Credit.
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(d) Availability. Immediately after giving effect to the making of a Loan (and the application of the proceeds thereof) or issuance or renewal of the Letter of Credit, (x) the Utilized Revolving Commitment shall not exceed the Revolving Loan Commitment and (y) the Utilized Revolving Commitment of any Borrower shall not exceed such Borrower’s Sublimit.
The delivery of each Notice of Borrowing and Application shall constitute a representation and warranty by such Borrower of the correctness of the matters specified in subsections (b), (c) and (d) above.
SECTION 7. REPRESENTATIONS AND WARRANTIES
Each Borrower, severally and not jointly, hereby represents and warrants to each Lender that:
7.1 Organization and Good Standing.
Such Borrower and each Material Subsidiary of such Borrower (other than any such Material Subsidiary that is not a corporation) (a) is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation, (b) is duly qualified and in good standing as a foreign corporation authorized to do business in every jurisdiction where the failure to so qualify would have a Material Adverse Effect on such Borrower and (c) has the requisite corporate power and authority to own its properties and to carry on its business as now conducted and as proposed to be conducted. Each Material Subsidiary of a Borrower that is not a corporation (a) is a limited liability company or other legal entity duly organized and validly existing under the laws of its jurisdiction of organization, (b) is registered or qualified as a limited liability company or other entity authorized to do business in every jurisdiction where the failure to be so registered or qualified would have a Material Adverse Effect on such Borrower and (c) has the requisite power and authority to own its properties and to carry on its business as now conducted and as proposed to be conducted.
7.2 Due Authorization.
Such Borrower (a) has the requisite corporate or limited liability company, as applicable, power and authority to execute, deliver and perform this Credit Agreement and the other Credit Documents and to incur the obligations herein and therein provided for and (b) is duly authorized to, and has been authorized by all necessary corporate or limited liability company, as applicable, action, to execute, deliver and perform this Credit Agreement and the other Credit Documents.
7.3 No Conflicts.
Neither the execution and delivery of the Credit Documents and the consummation of the transactions contemplated therein, nor the performance of and compliance with the terms and provisions thereof by such Borrower will (a) violate or conflict with any provision of its articles of incorporation, articles of organization, bylaws or operating agreement, as applicable, (b) violate, contravene or materially conflict with any law, regulation (including without limitation, Regulation U or Regulation X), order, writ, judgment, injunction, decree or permit applicable to
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it, (c) violate, contravene or materially conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound, the violation of which could have a Material Adverse Effect on such Borrower or (d) result in or require the creation of any Lien upon or with respect to its properties.
7.4 Consents.
No consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party is required to be obtained or made by such Borrower in connection with such Borrower’s execution, delivery or performance of this Credit Agreement or any of the other Credit Documents that has not been obtained or made, other than any filings with the Securities and Exchange Commission and other Governmental Authorities that may be required to be made after the date hereof.
7.5 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have been duly executed and delivered and constitute legal, valid and binding obligations of such Borrower enforceable against such Borrower in accordance with their respective terms, except as may be limited by bankruptcy or insolvency laws or similar laws affecting creditors’ rights generally or by general equitable principles.
7.6 Financial Condition.
The financial statements provided to the Lenders pursuant to Section 6.1(i) and pursuant to Section 8.1(a) and (b) present fairly the financial condition, results of operations and cash flows of such Borrower and its Consolidated Affiliates as of the dates stated therein.
In addition, (i) such financial statements were prepared in accordance with GAAP and (ii) since the latest date of such financial statements, there have occurred no changes or circumstances which have had or would be reasonably expected to have a Material Adverse Effect on such Borrower.
7.7 No Default.
Neither such Borrower nor any of its Material Subsidiaries is in default in any respect under any contract, lease, loan agreement, indenture, mortgage, security agreement or other agreement or obligation to which it is a party or by which any of its properties is bound which default would have or would be reasonably expected to have a Material Adverse Effect on such Borrower.
7.8 Indebtedness.
As of the Restatement Effective Date, the ratio of (i) Total Funded Debt to (ii) Capitalization (a) for DEI is less than or equal to 0.675 to 1.00 (on a consolidated basis) and (b) for each of the other Borrowers is less than or equal to 0.65 to 1.00 (each on a consolidated basis).
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7.9 Litigation.
As of the Restatement Effective Date, except as disclosed in each Borrower’s Annual Report on Form 10-K for the year ended December 31, 2024, there are no actions, suits or legal, equitable, arbitration or administrative proceedings, pending or, to the knowledge of such Borrower, threatened against such Borrower or a Material Subsidiary of such Borrower in which there is a reasonable expectation of an adverse decision which would have or would reasonably be expected to have a Material Adverse Effect on such Borrower.
7.10 Taxes.
Such Borrower and each Material Subsidiary of such Borrower has filed, or caused to be filed, all material tax returns (federal, state, local and foreign) required to be filed by it and paid all material amounts of taxes shown thereon to be due (including interest and penalties) and has paid all other material taxes, fees, assessments and other governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes which are not yet delinquent or that are being contested in good faith and by proper proceedings, and against which adequate reserves are being maintained in accordance with GAAP.
7.11 Compliance with Law.
Except as disclosed in each Borrower’s Annual Report on Form 10-K for the year ended December 31, 2024, such Borrower and each Material Subsidiary of such Borrower is in compliance with all laws, rules, regulations, orders and decrees applicable to it, or to its properties, unless such failure to comply would not have a Material Adverse Effect on such Borrower.
7.12 ERISA.
To the extent that it would have or would be reasonably expected to have a Material Adverse Effect on any Borrower, (a) no Reportable Event has occurred and is continuing with respect to any Plan; (b) no Plan has failed to meet the minimum, funding standard determined under Section 412 of the Code; (c) no proceedings have been instituted, or, to the knowledge of such Borrower, planned to terminate any Plan; (d) no Borrower, Subsidiary nor any ERISA Affiliate has instituted or intends to institute proceedings to withdraw from any Multiemployer Plan; and (e) each Plan has been maintained and funded in all material respects in accordance with its terms and with the provisions of ERISA applicable thereto.
7.13 Government Regulation.
Such Borrower is not an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and is not controlled by such a company, nor is otherwise subject to regulation under the Investment Company Act.
7.14 Solvency.
Such Borrower is and, after the consummation of the transactions contemplated by this Credit Agreement and the other Credit Documents, will be Solvent.
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7.15 Anti-Corruption Laws and Sanctions.
Such Borrower has implemented and maintains in effect policies and procedures designed to promote and achieve compliance by such Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and the Sanctions, if any, applicable to such Persons. Such Borrower and its Subsidiaries, and to the knowledge of such Borrower, its and their respective directors, officers and employees, are in compliance in all material respects with Anti-Corruption Laws and the Sanctions, if any, applicable to such Persons. Neither such Borrower nor any of its Subsidiaries nor, to the knowledge of such Borrower, any of its or their respective directors, officers or employees, is a Sanctioned Person.
7.16 Affected Financial Institutions.
No Borrower is an Affected Financial Institution.
SECTION 8. AFFIRMATIVE COVENANTS
Each Borrower, severally but not jointly, hereby covenants and agrees that so long as this Credit Agreement is in effect and until the Loans made to it, together with interest, fees and other obligations hereunder, have been paid in full and the Commitments and all Letters of Credit hereunder shall have terminated:
8.1 Information Covenants.
Such Borrower will furnish, or cause to be furnished, to the Administrative Agent and each Lender:
(a) Annual Financial Statements. As soon as available, and in any event within 120 days after the close of each fiscal year of such Borrower, its audited consolidated balance sheet and related audited consolidated statements of income and cash flow as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche or another independent registered public accounting firm of recognized national standing reasonably acceptable to the Administrative Agent and whose opinion shall be to the effect that such financial statements have been prepared in accordance with GAAP (except for changes with which such accountants concur) and shall not be limited as to the scope of the audit or qualified in any respect.
(b) Quarterly Financial Statements. As soon as available, and in any event within 60 days after the close of each of the first three fiscal quarters of such Borrower, its unaudited consolidated balance sheet and the related statements of income and cash flows for the portion of the then-current fiscal year through the end of such fiscal quarter, setting forth in each case in comparative form the figures as of the end of and for the corresponding period or periods of the previous fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of such Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of such Borrower and have been prepared in accordance with GAAP, subject to changes resulting from audit and normal year-end audit adjustments.
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(c) Officer’s Certificate. At the time of delivery of the financial statements provided for in Sections 8.1(a) and 8.1(b) above, a certificate of a Responsible Officer of such Borrower, substantially in the form of Exhibit 8.1(c), (i) demonstrating compliance with the financial covenant contained in Section 8.11 by calculation thereof as of the end of each such fiscal period and (ii) stating that no Default or Event of Default by such Borrower exists, or if any such Default or Event of Default does exist, specifying the nature and extent thereof and what action such Borrower proposes to take with respect thereto.
(d) Reports. Promptly upon transmission or receipt thereof, copies of any publicly available filings and registrations with, and reports to or from, the Securities and Exchange Commission, or any successor agency, and copies of all publicly available financial statements, proxy statements, notices and reports as Dominion Energy shall send to its shareholders.
(e) Notices. Upon such Borrower obtaining knowledge thereof, written notice to the Administrative Agent immediately of (i) the occurrence of an event or condition consisting of a Default or Event of Default by such Borrower, specifying the nature and existence thereof and what action such Borrower proposes to take with respect thereto and (ii) the occurrence of any of the following: (A) the pendency or commencement of any litigation, arbitral or governmental proceeding against such Borrower or a Material Subsidiary of such Borrower which, if adversely determined, is likely to have a Material Adverse Effect on such Borrower, (B) the institution of any proceedings against such Borrower or a Material Subsidiary of such Borrower with respect to, or the receipt of notice by such Person of potential liability or responsibility for violation, or alleged violation of any federal, state or local law, rule or regulation, the violation of which would likely have a Material Adverse Effect on such Borrower or (C) any notice or determination concerning the imposition of any withdrawal liability by a Multiemployer Plan against such Borrower or any ERISA Affiliate, or the termination of any Plan of such Borrower.
(f) Other Information. With reasonable promptness upon any such request, such other information regarding the business, properties or financial condition of such Borrower as the Administrative Agent or the Required Lenders may reasonably request, including information as may reasonably be requested from time to time for purposes of compliance with applicable laws (including without limitation the Patriot Act, the Financial Crimes Enforcement Network of the U.S. Department of the Treasury, the Beneficial Ownership Regulation and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrative Agent or Lender to comply therewith.
In lieu of furnishing the Lenders the items referred to in this Section 8.1, the Borrowers may make available such items on the Borrower’s corporate website, any Securities and Exchange Commission website (including, for the avoidance of doubt, a Form 10-K or Form 10-Q, as applicable, as required to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and the Exchange Act, with respect to Sections 8.1(a) or (b), as the case may be) or any such other publicly available website as notified to the Administrative Agent and the Lenders.
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8.2 Preservation of Existence and Franchises.
Such Borrower will do (and will cause each of its Material Subsidiaries to do) all things necessary to preserve and keep in full force and effect its (i) existence (in the case of the Borrowers, in a United States jurisdiction) and (ii) to the extent material to the conduct of the business of the Borrowers or any of its Material Subsidiaries, its rights, franchises and authority; provided that nothing in this Section 8.2 shall prevent any transaction otherwise permitted under Section 9.2 or Section 9.3 or any change in the form of organization (by merger or otherwise) of any Material Subsidiary of any Borrower so long as such change shall not have an adverse effect on such Borrower’s ability to perform its obligations hereunder.
8.3 Books and Records.
Such Borrower will keep (and will cause each of its Material Subsidiaries to keep) complete and accurate books and records of its transactions in accordance with good accounting practices on the basis of GAAP (including the establishment and maintenance of appropriate reserves).
8.4 Compliance with Law.
Such Borrower will comply (and will cause each of its Material Subsidiaries to comply) with all laws, rules, regulations and orders, and all applicable restrictions imposed by all Governmental Authorities, applicable to it and its property if noncompliance with any such law, rule, regulation, order or restriction would be reasonably expected to have a Material Adverse Effect on such Borrower.
8.5 Payment of Taxes.
Such Borrower will pay and discharge all material taxes, assessments and governmental charges or levies imposed upon it, or upon its income or profits, or upon any of its properties, before they shall become delinquent; provided, however, that such Borrower shall not be required to pay any such tax, assessment, charge, levy, or claim which is being contested in good faith by appropriate proceedings and as to which adequate reserves therefor have been established in accordance with GAAP.
8.6 Insurance.
Such Borrower will at all times maintain in full force and effect insurance (including worker’s compensation insurance, liability insurance and casualty insurance) in such amounts, covering such risks and liabilities and with such deductibles or self-insurance retentions as are in accordance with normal industry practice.
8.7 Performance of Obligations.
Such Borrower will perform (and will cause each of its Material Subsidiaries to perform) in all material respects all of its obligations under the terms of all agreements that are material to the conduct of the business of the Borrowers or any of its Material Subsidiaries, including all such material indentures, mortgages, security agreements or other debt instruments to which it is a party or by which it is bound, if nonperformance would be reasonably expected to have a Material Adverse Effect on such Borrower.
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8.8 ERISA.
Such Borrower, each Subsidiary and each ERISA Affiliate will (a) at all times make prompt payment of all contributions (i) required under each Plan and Multiemployer Plan and (ii) required to meet the minimum funding standard set forth in ERISA with respect to each Plan; (b) promptly upon request, furnish the Administrative Agent and the Lenders copies of each annual report/return (Form 5500 Series), as well as all schedules and attachments required to be filed with the Department of Labor and/or the Internal Revenue Service pursuant to ERISA, and the regulations promulgated thereunder, in connection with each Plan for each Plan Year (as defined in ERISA); (c) notify the Administrative Agent immediately of any fact, including, but not limited to, any Reportable Event arising in connection with any Plan, which might constitute grounds for termination thereof by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan, together with a statement, if requested by the Administrative Agent, as to the reason therefor and the action, if any, proposed to be taken in respect thereof; and (d) furnish to the Administrative Agent, upon its request, such additional information concerning any Plan as may be reasonably requested. Such Borrower will not, nor will it permit any Subsidiary nor any ERISA Affiliate to (A) terminate a Plan if any such termination would have a Material Adverse Effect on such Borrower or (B) cause or permit to exist any Reportable Event or other event or condition which presents a material risk of termination at the request of the PBGC if such termination would have a Material Adverse Effects.
8.9 Use of Proceeds.
The proceeds of the Loans made to each Borrower hereunder may be used solely (a) for working capital of such Borrower and its Subsidiaries and (b) for other general corporate purposes.
None of the proceeds of the Loans made to such Borrower hereunder will be used for the purpose of purchasing or carrying any “margin stock” which violates Regulation U or Regulation X or for the purpose of reducing or retiring in violation of Regulation U or Regulation X any Indebtedness which was originally incurred to purchase or carry “margin stock” or for any other purpose which might constitute this transaction a “purpose credit” in violation of Regulation U or Regulation X.
8.10 Audits/Inspections.
Upon reasonable notice, during normal business hours and in compliance with the reasonable security procedures of such Borrower (and subject to applicable confidentiality restrictions and limitations), such Borrower will permit representatives appointed by the Administrative Agent or the Required Lenders (or, upon a Default or Event of Default, any Lender), including, without limitation, independent accountants, agents, attorneys, and appraisers to visit and inspect such Borrower’s property, including its books and records, its accounts receivable and inventory, the Borrower’s facilities and its other business assets, and to make photocopies or photographs thereof and to write down and record any information such representative obtains and shall permit the Required Lenders (or, upon a Default or Event of Default, any Lender) or the Administrative Agent or its representatives to investigate and verify the accuracy of information provided to the Lenders and to discuss all such matters with the officers, employees and representatives of such Borrower.
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8.11 Total Funded Debt to Capitalization.
The ratio of (a) Total Funded Debt to (b) Capitalization shall be (i) for DEI less than or equal to 0.675 to 1.00 (on a consolidated basis) and (ii) for each of the other Borrowers less than or equal to 0.65 to 1.00 (each on a consolidated basis) as of the last day of any fiscal quarter of such Borrower.
8.12 Anti-Corruption Laws and Sanctions.
Such Borrower will maintain in effect and enforce policies and procedures designed to promote and achieve compliance by such Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and the Sanctions, if any, applicable to such Persons.
SECTION 9. NEGATIVE COVENANTS
Each Borrower, severally but not jointly, hereby covenants and agrees that so long as this Credit Agreement is in effect and until the Loans, together with interest, fees and other obligations hereunder, have been paid in full and the Commitments and all Letters of Credit hereunder shall have terminated:
9.1 Nature of Business.
Such Borrower will not alter the character of its business from that conducted as of the Restatement Effective Date and activities reasonably related thereto and similar and related businesses; provided, however, that such Borrower may transfer Non-Regulated Assets to one or more Wholly-Owned Subsidiaries of DEI to the extent permitted under Section 9.3.
9.2 Consolidation and Merger.
Such Borrower will not enter into any transaction of merger or consolidation or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution); provided that notwithstanding the foregoing provisions of this Section 9.2, the following actions may be taken if, after giving effect thereto, no Default or Event of Default by such Borrower exists:
(a) a Subsidiary or Consolidated Affiliate of such Borrower may be merged or consolidated with or into any Borrower; provided that a Borrower shall be the continuing or surviving entity;
(b) such Borrower may merge or consolidate with any other Person if either (i) such Borrower shall be the continuing or surviving entity or (ii) such Borrower shall not be the continuing or surviving entity and the entity so continuing or surviving (A) is an entity organized and duly existing under the law of any state of the United States and (B)
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executes and delivers to the Administrative Agent and the Lenders an instrument in form satisfactory to the Required Lenders pursuant to which it expressly assumes the Loans of such Borrower and all of the other obligations of such Borrower under the Credit Documents and procures for the Administrative Agent and each Lender an opinion in form satisfactory to the Required Lenders and from counsel satisfactory to the Required Lenders in respect of the due authorization, execution, delivery and enforceability of such instrument and covering such other matters as the Required Lenders may reasonably request; and
(c) such Borrower may be merged or consolidated with or into any other Borrower.
9.3 Sale or Lease of Assets.
Such Borrower will not convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets whether now owned or hereafter acquired, it being understood and agreed that any Borrower (or any Material Subsidiary of a Borrower) may transfer Non-Regulated Assets to one or more Wholly-Owned Subsidiaries of Dominion Energy, provided that (i) each such Wholly-Owned Subsidiary remains at all times a Wholly-Owned Subsidiary of Dominion Energy and (ii) the Ratings of Dominion Energy and such Borrower will not be lowered to less than BBB by S&P, Baa2 by Moody’s or BBB by Fitch in connection with or as a result of such transfer.
9.4 Limitation on Liens.
In the case of VaPower, VaPower shall not, nor shall it permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for (i) Liens permitted by the VaPower Indenture, (ii) Liens created in the ordinary course of business and (iii) Liens on any and all assets, revenues and related contracts, agreements and other documents associated with the development and operation of a new nuclear unit number three at its North Anna Power Station, in each case securing financing thereof, including any common and/or shared facilities, assets or agreements that will be utilized in connection therewith.
In the case of Dominion Energy, if Dominion Energy shall pledge as security for any indebtedness or obligations, or permit any Lien as security for Indebtedness or obligations upon, any capital stock owned by it on the date hereof or thereafter acquired, of any of its Material Subsidiaries, Dominion Energy will secure the outstanding Loans and L/C Obligations ratably with the indebtedness or obligations secured by such pledge, except for Liens incurred or otherwise arising in the ordinary course of business.
In the case of DESC, DESC shall not, nor shall it permit any of its Material Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for (i) Liens permitted by the DESC Indenture, (ii) Liens that do not secure Indebtedness for borrowed money or that is evidenced by bonds, debentures, notes or similar instruments and (iii) Liens created in the ordinary course of business.
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9.5 Fiscal Year.
Such Borrower will not change its fiscal year without prior notification to the Lenders.
9.6 Use of Proceeds.
Such Borrower will not request any borrowing or any issuance of a Letter of Credit, and such Borrower shall not use, directly or, to the knowledge of the Borrower, indirectly, the proceeds of any borrowing or any Letter of Credit in any manner, that violates Anti-Corruption Laws or the Sanctions, if any, applicable to such Borrower and its Subsidiaries.
SECTION 10. EVENTS OF DEFAULT
10.1 Events of Default.
An Event of Default with respect to a Borrower shall exist upon the occurrence and continuation of any of the following specified events with respect to such Borrower (each an “Event of Default”):
(a) Payment. Such Borrower shall:
(i) default in the payment when due of any principal of any of the Loans or Reimbursement Obligations, or shall fail to deliver to the Administrative Agent, when due, any cash collateral required to be provided in accordance with Section 5.1(a); or
(ii) default, and such default shall continue for five or more Business Days, in the payment when due of any interest on the Loans or of any fees or other amounts owing hereunder, under any of the other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement made or deemed to be made by such Borrower herein, in any of the other Credit Documents, or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in any material respect on the date as of which it was deemed to have been made.
(c) Covenants. Such Borrower shall:
(i) default in the due performance or observance of any term, covenant or agreement contained in Sections 8.2, 8.9, 8.11, 9.1, 9.2, 9.3 or 9.5; or
(ii) default in the due performance or observance by it of any term, covenant or agreement contained in Section 8.1(a), (b) or (c), 9.4 or 9.6 and such default shall continue unremedied for a period of five Business Days after the earlier of a Responsible Officer of such Borrower becoming aware of such default or notice thereof given by the Administrative Agent; or
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(iii) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in subsections (a), (b), (c)(i), or (c)(ii) of this Section 10.1) contained in this Credit Agreement or any other Credit Document and such default shall continue unremedied for a period of at least 30 days after the earlier of a Responsible Officer of such Borrower becoming aware of such default or notice thereof given by the Administrative Agent.
(d) Invalidity of Credit Documents. Any Credit Document shall fail to be in full force and effect in all material respects with respect to such Borrower or to give the Administrative Agent and/or the Lenders all material security interests, liens, rights, powers and privileges purported to be created thereby and relating to such Borrower.
(e) Bankruptcy, etc. The occurrence of any of the following with respect to such Borrower or a Material Subsidiary of such Borrower: (i) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of such Borrower or a Material Subsidiary of such Borrower in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Borrower or a Material Subsidiary of such Borrower or for any substantial part of its property or ordering the winding up or liquidation of its affairs; or (ii) an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect is commenced against such Borrower or a Material Subsidiary of such Borrower and such petition remains unstayed and in effect for a period of 60 consecutive days; or (iii) such Borrower or a Material Subsidiary of such Borrower shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or any substantial part of its property or make any general assignment for the benefit of creditors; or (iv) such Borrower or a Material Subsidiary of such Borrower shall admit in writing its inability to pay its debts generally as they become due or any action shall be taken by such Person in furtherance of any of the aforesaid purposes.
(f) Defaults under Other Agreements. With respect to any Indebtedness (other than Indebtedness of such Borrower outstanding under this Credit Agreement) of such Borrower or a Material Subsidiary of such Borrower in a principal amount in excess of (x) with respect to DEI or VaPower, $250,000,000 or (y) with respect to DESC, $150,000,000, (i) such Borrower or a Material Subsidiary of such Borrower shall (A) default in any payment (beyond the applicable grace period with respect thereto, if any) with respect to any such Indebtedness, or (B) default (after giving effect to any applicable grace period) in the observance or performance of any covenant or agreement relating to such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event or condition shall occur or condition exist, the effect of which default or other event or condition under (A) or (B) above is to cause, or permit, the holder or holders of such Indebtedness (or trustee or agent on behalf of such holders) to cause any such Indebtedness to become due prior to its stated maturity; or (ii) any such Indebtedness shall be declared due and payable, or required to be prepaid other than by a regularly scheduled required prepayment or mandatory redemption, prior to the stated maturity thereof; or (iii) any such Indebtedness matures and is not paid at maturity; provided, that clauses (i)(B) and (ii) above shall not apply to any event that permits (x) holders of any such Indebtedness constituting convertible indebtedness of DEI to convert such Indebtedness pursuant to its terms or
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(y) the conversion of any such Indebtedness constituting convertible indebtedness of DEI pursuant to its terms, in either case, into common stock of DEI (or other securities or property following a merger event, reclassification or other change of the common stock of DEI), cash or a combination thereof, unless, in either case, such conversion results from a default thereunder (or an event of the type that constitutes an Event of Default).
(g) Judgments. One or more judgments, orders, or decrees shall be entered against such Borrower or a Material Subsidiary of such Borrower in an outstanding amount of $150,000,000 or more, in the aggregate (to the extent not paid or covered by insurance provided by a carrier who has acknowledged coverage), and such judgments, orders or decrees shall continue unsatisfied, undischarged and unstayed for a period ending on the 30th day after such judgment, order or decree becomes final and unappealable.
(h) ERISA. (i) Such Borrower, or a Material Subsidiary of such Borrower or any ERISA Affiliate shall fail to pay when due an amount or amounts aggregating in excess of $150,000,000 which it shall have become liable to pay under Title IV of ERISA; or (ii) notice of intent to terminate one or more Plans which in the aggregate has unfunded liabilities in excess of $150,000,000 (a “Material Liability”) shall be filed under Title IV of ERISA by such Borrower or ERISA Affiliate, any plan administrator or any combination of the foregoing; or (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer one or more Plans having an aggregate Material Liability; or (iv) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that one or more Plans having an aggregate Material Liability must be terminated; or (v) there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more ERISA Affiliates to incur a current payment obligation in excess of $150,000,000.
(i) Change of Control. The occurrence of any Change of Control with respect to such Borrower.
10.2 Acceleration; Remedies.
(a) Upon the occurrence of an Event of Default with respect to any Borrower, and at any time thereafter unless and until such Event of Default has been waived by the Required Lenders or cured to the reasonable satisfaction of the Required Lenders, the Administrative Agent may with the consent of the Required Lenders, and shall, upon the request and direction of the Required Lenders, by written notice to such Borrower take any of the following actions without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against such Borrower, except as otherwise specifically provided for herein:
(i) Termination of Commitments. Declare the Commitments with respect to such Borrower (and, if such Borrower is VaPower, then also to Dominion Energy) terminated whereupon the Commitments with respect to such Borrower (and, if such Borrower is VaPower, then also to Dominion Energy) shall be immediately terminated.
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(ii) Acceleration of Loans. Declare the unpaid principal of and any accrued interest in respect of all Loans made to such Borrower (and, if such Borrower is VaPower, then also to Dominion Energy) and any and all other indebtedness or obligations of any and every kind (including all amounts of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 5.5) owing by such Borrower (and, if such Borrower is VaPower, then also by Dominion Energy) to any of the Lenders or the Administrative Agent hereunder to be due whereupon the same shall be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by such Borrower (and, if such Borrower is VaPower, then also by Dominion Energy).
(iii) Enforcement of Rights. Enforce any and all rights and interests created and existing under the Credit Documents, including, without limitation, all rights of set-off, as against such Borrower.
(b) Notwithstanding the foregoing, if an Event of Default specified in Section 10.1(e) shall occur, then the Commitments with respect to such Borrower (and, if such Borrower is VaPower, then also to Dominion Energy) shall automatically terminate and all Loans made to such Borrower (and, if such Borrower is VaPower, then also to Dominion Energy), all accrued interest in respect thereof, all accrued and unpaid fees and other indebtedness or obligations owing by such Borrower (and, if such Borrower is VaPower, then also by Dominion Energy) to the Lenders and the Administrative Agent hereunder shall immediately become due and payable without the giving of any notice or other action by the Administrative Agent or the Lenders.
(c) With respect to any Letter of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this Section 10.2, the Borrower for whose account any such Letter of Credit was issued shall at such time cash collateralize in accordance with Section 5.9 an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of such Borrower hereunder and under the other Credit Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of such Borrower hereunder and under the other Credit Documents shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to such Borrower (or such other Person as may be lawfully entitled thereto).
10.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement, after the occurrence and during the continuance of an Event of Default with respect to any Borrower, all amounts collected from such Borrower or received by the Administrative Agent or any Lender on account of amounts outstanding under any of the Credit Documents shall be paid over or delivered as follows:
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FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable outside attorneys’ fees other than the fees of in-house counsel) of the Administrative Agent or any of the Lenders in connection with enforcing the rights of the Lenders under the Credit Documents against such Borrower and any protective advances made by the Administrative Agent or any of the Lenders, pro rata as set forth below;
SECOND, to payment of any fees, indemnities, expenses and other amounts payable to the Administrative Agent (including fees and disbursements and other charges of counsel to the Administrative Agent payable under Section 12.5 and amounts pursuant to Section 3.4(b) payable to the Administrative Agent in its capacity as such) and any other fees owed to the Administrative Agent or any Lender by such Borrower, pro rata as set forth below;
THIRD, to the payment of all accrued interest payable to the Lenders by such Borrower hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of the Loans or Letters of Credit outstanding of such Borrower, pro rata as set forth below;
FIFTH, to all other obligations which shall have become due and payable of such Borrower under the Credit Documents and not repaid pursuant to clauses “FIRST” through “FOURTH” above; and
SIXTH, the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided above until exhausted prior to application to the next succeeding category and (b) each of the Lenders shall receive an amount equal to its pro rata share (based on each Lender’s Commitment Percentages) of amounts available to be applied.
SECTION 11. AGENCY PROVISIONS
11.1 Appointment.
Each Lender hereby designates and appoints JPMCB as administrative agent of such Lender to act as specified herein and the other Credit Documents, and each such Lender hereby authorizes the Administrative Agent, as the agent for such Lender, to take such action on its behalf under the provisions of this Credit Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated by the terms hereof and of the other Credit Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other Credit Documents, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein and therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Credit Agreement or any of the other Credit Documents, or shall otherwise exist against the Administrative Agent. The provisions of this Section are solely for the benefit of the
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Administrative Agent and the Lenders and no Borrower shall have any rights as a third party beneficiary of the provisions hereof. In performing its functions and duties under this Credit Agreement and the other Credit Documents, the Administrative Agent shall act solely as agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for any Borrower. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of any Borrower.
11.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder or under the other Credit Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
11.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection herewith or in connection with any of the other Credit Documents (except for its or such Person’s own gross negligence or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction), or responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by a Borrower contained herein or in any of the other Credit Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection herewith or in connection with the other Credit Documents, or enforceability or sufficiency therefor of any of the other Credit Documents, or for any failure of the Borrowers to perform their respective obligations hereunder or thereunder. The Administrative Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Credit Agreement, or any of the other Credit Documents or for any representations, warranties, recitals or statements made herein or therein or made by a Borrower in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Administrative Agent to the Lenders or by or on behalf of a Borrower to the Administrative Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Default or Event of Default or to inspect the properties, books or records of a Borrower. The Administrative Agent is not a trustee for the Lenders and owes no fiduciary duty to the Lenders. None of the Lenders identified on the facing page or signature pages of this Credit Agreement as “Syndication Agents” or “Joint Bookrunners” shall have any right, power, obligation, liability, responsibility or duty under this Credit Agreement other than those applicable to all Lenders as such, nor shall they have or be deemed to have any fiduciary relationship with any Lender.
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11.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to a Borrower, independent accountants and other experts selected by the Administrative Agent with reasonable care). The Administrative Agent may deem and treat the Lenders as the owner of its interests hereunder for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent in accordance with Section 12.3(b). The Administrative Agent shall be fully justified in failing or refusing to take any action under this Credit Agreement or under any of the other Credit Documents unless it shall first receive such advice or concurrence of the Required Lenders (or to the extent specifically provided in Section 12.6, all the Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Credit Documents in accordance with a request of the Required Lenders (or to the extent specifically provided in Section 12.6, all the Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders (including their successors and assigns).
11.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or the relevant Borrower referring to the Credit Document, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be directed by the Required Lenders (or, to the extent specifically provided in Section 12.6, all the Lenders).
11.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the Administrative Agent or any affiliate thereof hereinafter taken, including any review of the affairs of a Borrower, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of a Borrower and made its own decision to make its Loans hereunder and enter into this Credit Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative
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Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Credit Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of a Borrower. Except for (i) delivery of the Credit Documents and (ii) notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of a Borrower which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates. Each Lender and each Issuing Lender represents and warrants that (i) the Credit Documents set forth the terms of a commercial lending facility, (ii) in participating as a Lender or Issuing Lender, as applicable, it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or Issuing Lender, in each case in the ordinary course of business, and not for the purpose of investing in the general performance or operations of any Borrower, or for the purpose of purchasing, acquiring or holding any other type of financial instrument such as a security (and each Lender and each Issuing Lender agrees not to assert a claim in contravention of the foregoing, such as a claim under the federal or state securities laws) and (iii) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
11.7 Indemnification.
Each Lender agrees to indemnify the Administrative Agent in its capacity as such and each Issuing Lender in its capacity as such (to the extent not reimbursed by a Borrower and without limiting the obligation of a Borrower to do so), ratably according to its Commitment Percentage, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including without limitation at any time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent in its capacity as such or an Issuing Lender in its capacity as such in any way relating to or arising out of this Credit Agreement or the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent or an Issuing Lender under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or such Issuing Lender, as applicable, as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder and under the other Credit Documents.
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11.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, issue or participate in Letters of Credit for the account of, accept deposits from and generally engage in any kind of business with a Borrower as though the Administrative Agent were not Administrative Agent hereunder. With respect to the Loans made by it, the Administrative Agent shall have the same rights and powers under this Credit Agreement as any Lender and may exercise the same as though they were not Administrative Agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity.
11.9 Successor Administrative Agent.
The Administrative Agent may, at any time, resign upon 30 days written notice to the Lenders. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent that is, except during the existence of a Default or Event of Default, reasonably satisfactory to the Borrowers. If no successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment, within 30 days after the notice of resignation, then the retiring Administrative Agent shall select a successor Administrative Agent provided such successor is reasonably satisfactory to the Borrowers and an Eligible Assignee (or if no Eligible Assignee shall have been so appointed by the retiring Administrative Agent and shall have accepted such appointment, then the Lenders shall perform all obligations of the retiring Administrative Agent until such time, if any, as a successor Administrative Agent shall have been so appointed and shall have accepted such appointment as provided for above). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations as Administrative Agent, as appropriate, under this Credit Agreement and the other Credit Documents and the provisions of this Section 11 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Credit Agreement.
11.10 ERISA Matters
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Joint Lead Arrangers and their respective Affiliates, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans, Letter of Credit or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain
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transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), and the conditions for exemptive relief thereunder are and will continue to be satisfied in connection with respect to, such Lender’s entrance into, participation in, administration of and performance of the Loans, Letter of Credit or the Commitments,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, Letter of Credit or the Commitments and this Credit Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, Letter of Credit or the Commitments and this Credit Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to, and the conditions for exemptive relief under PTE 84-14 are and will continue to be satisfied in connection with, such Lender’s entrance into, participation in, administration of and performance of the Loans, Letter of Credit or the Commitments and this Credit Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender to the effect that such Lender’s entrance into, participation in, administration of and performance of the Loans, Letter of Credit or the Commitments and this Credit Agreement will not give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Joint Lead Arrangers and their respective Affiliates that:
(i) none of the Administrative Agent or the Joint Lead Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Credit Agreement, any Credit Document or any documents related hereto or thereto),
(ii) [Reserved],
(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, Letter of Credit or the Commitments and this Credit Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies,
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(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, Letter of Credit or the Commitments and this Credit Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, Letter of Credit or the Commitments and this Credit Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent, the Joint Lead Arrangers or any of their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, Letter of Credit or the Commitments or this Credit Agreement.
(c) The Administrative Agent and the Joint Lead Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, Letter of Credit or the Commitments and this Credit Agreement, (ii) may recognize a gain if it extended the Loans, Letter of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, Letter of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Credit Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
SECTION 12. MISCELLANEOUS
12.1 Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or e-mail, as follows:
(i) if to any Borrower, to it at 600 East Canal Street, Richmond, Virginia 23219, Attention of Richard M. Davis, Jr. (Telephone No. [________] (Email: [___________________]), with a copy to 120 Tredegar Street, Richmond, Virginia 23219, Attention of Amanda Shannon (Telecopy No. [________]) (Email: [___________________]);
(ii) if to the Administrative Agent from the Borrowers, to JPMorgan Chase Bank, N.A., at the address separately provided to the Borrowers;
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(iii) if to the Administrative Agent from the Lenders, to JPMorgan Chase Bank, N.A., 4041 Ogletown Stanton Rd, Floor 02, Newark, DE 19713-2107, United States, United States (Attention: [___________________]);
(iv) if to an Issuing Lender, to it at the address separately provided to the Borrowers; and
(v) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through Approved Electronic Platforms or Approved Borrower Portals, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
(b) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor.
(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
12.2 Right of Set-Off; Adjustments.
In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence of an Event of Default by a Borrower and the commencement of remedies described in Section 10.2, each Lender and each of its Affiliates is authorized at any time and from time to time, without presentment, demand, protest or other notice of any kind (all of which rights being hereby expressly waived), to set-off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by such Lender (including, without limitation branches, agencies or Affiliates of such Lender wherever located) to or for the credit or the account of such Borrower against obligations and liabilities of such Borrower to the Lenders hereunder, under the Notes, the other Credit Documents or otherwise, irrespective of whether the Administrative Agent or the Lenders shall have made any demand hereunder and although such obligations, liabilities or claims, or any of them, may be contingent or unmatured, and any such set-off shall be deemed to have been made immediately upon the occurrence of an Event of Default even though such charge is made or entered on the books of such Lender subsequent thereto. Each Borrower hereby agrees that any Person purchasing a participation in the Loans and Commitments to it hereunder pursuant to Section 12.3(e) may exercise all rights of set-off with respect to its participation interest as fully as if such Person were a Lender hereunder.
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Except to the extent that this Credit Agreement expressly provides for payments to be allocated to a particular Lender, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the obligations owing to it by a Borrower under this Credit Agreement, receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 10.1(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the obligations owing to such other Lender by such Borrower under this Credit Agreement, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
12.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided that a Borrower may not assign and transfer any of its interests hereunder (except as permitted by Section 9.2) without prior written consent of the Lenders; and provided further that the rights of each Lender to transfer, assign or grant participations in its rights and/or obligations hereunder shall be limited as set forth in this Section 12.3.
(b) Assignments. Each Lender may assign all or a portion of its rights and obligations under this Credit Agreement (including, without limitation, all or a portion of its Loans, its Notes, and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) each of (A) the Administrative Agent (other than in the case of an Eligible Assignee that is a Lender) and (B) the Issuing Lenders, shall have provided their written consent (not to be unreasonably withheld or delayed);
(iii) To the extent required in the definition of “Eligible Assignee,” DEI shall have provided its written consent (not to be unreasonably withheld or delayed) which consent shall not be required during the existence of a Default or Event of Default; provided, however, that DEI shall be deemed to have consented to any proposed assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof;
(iv) any such partial assignment shall be in an amount at least equal to $5,000,000 (or, if less, the remaining amount of the Commitment being assigned by such Lender) or an integral multiple of $5,000,000 in excess thereof;
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(v) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its rights and obligations under this Credit Agreement and the Notes;
(vi) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreement in substantially the form of Exhibit 12.3 (the “Assignment Agreement”), together with a processing fee from the assignor of $4,000; and
(vii) without the prior written consent of the Administrative Agent, no assignment shall be made to a prospective assignee that bears a relationship to any Borrower described in Section 108(e)(4) of the Code.
Upon execution, delivery, and acceptance of such Assignment Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Lender hereunder and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Credit Agreement. Upon the consummation of any assignment pursuant to this Section 12.3(b), the assignor, the Administrative Agent and the relevant Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the assignee. If the assignee is not incorporated under the laws of the United States of America or a State thereof, it shall deliver to such Borrower and the Administrative Agent certification as to exemption from deduction or withholding of taxes in accordance with Section 4.4.
By executing and delivering an Assignment Agreement in accordance with this Section 12.3(b), the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and the assignee warrants that it is an Eligible Assignee; (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto or the financial condition of a Borrower or the performance or observance by such Borrower of any of its obligations under this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto; (C) such assignee represents and warrants that it is legally authorized to enter into such Assignment Agreement; (D) such assignee confirms that it has received a copy of this Credit Agreement, the other Credit Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement and the other Credit Documents; (F) such assignee appoints and authorizes the Administrative Agent to take such action on its behalf and to exercise such powers under this Credit Agreement or any
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other Credit Document as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto; (G) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Credit Agreement and the other Credit Documents are required to be performed by it as a Lender; and (H) such assignee represents and warrants that it does not bear a relationship to any Borrower described in Section 108(e)(4) of the Code (provided that such representation shall not be required where the Administrative Agent has been made aware of such relationship existing between the assignee and the Borrowers and has given its consent to such assignment pursuant to Section 12.3(b)(vii)).
For avoidance of doubt, the parties to this Credit Agreement acknowledge that the provisions of this Section 12.3 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or assignment by a Lender to any Federal Reserve Bank or other central bank having jurisdiction over such Lender in accordance with applicable law.
(c) Register. The Administrative Agent shall maintain a copy of each Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender from time to time by each Borrower (collectively, the “Registers”). The entries in the Registers shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the relevant Register as a Lender hereunder for all purposes of this Credit Agreement. The Registers shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment Agreement has been completed and is in substantially the form of Exhibit 12.3, (i) accept such Assignment Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the parties thereto.
(e) Participations. Each Lender may sell, transfer, grant or assign participations in all or any part of such Lender’s interests and obligations hereunder (other than to any natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), any Defaulting Lender, any Borrower or any Affiliate of any Borrower); provided that (i) such selling Lender shall remain a “Lender” for all purposes under this Credit Agreement (such selling Lender’s obligations under the Credit Documents remaining unchanged) and the participant shall not constitute a Lender hereunder, (ii) no Lender shall grant to any such participant rights to approve any amendment or waiver relating to the Credit Documents, except to the extent any such amendment or waiver would (A) reduce the principal of or rate of interest on or fees in respect of any Loans in which the participant is participating, or (B) postpone the date fixed for any payment of principal (including extension of the Maturity Date or the date of any mandatory prepayment), interest or fees in respect of any Loans in which the participant is participating, (iii) such selling Lender shall deliver notice to the Borrowers of any sub-participations by the participant (except to an Affiliate, parent company or Affiliate of a parent
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company of the participant) and (iv) without the prior written consent of the Administration Agent, no participation shall be sold to a prospective participant that bears a relationship to any Borrower described in Section 108(e)(4) of the Code. In the case of any such participation and notwithstanding the foregoing, (i) the participant shall not have any rights under this Credit Agreement or the other Credit Documents (the participant’s rights against the selling Lender in respect of such participation to be those set forth in the participation agreement with such Lender creating such participation in a manner consistent with this Section 12.3(e)), (ii) the Borrowers, the Administrative Agent and the other Lenders shall be entitled to deal solely with the Lender who has sold a participation with respect to all matters arising under this Credit Agreement, and (iii) all amounts payable by such Borrower hereunder shall be determined as if such Lender had not sold such participation; provided, however, that such participant shall be entitled to receive additional amounts under Section 4 to the same extent that the Lender from which such participant acquired its participation would be entitled to the benefit of such cost protection provisions.
Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrowers (solely for tax purposes), shall maintain a register for the recordation of the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Credit Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Credit Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and such Lender and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Credit Agreement.
(f) Payments. No Eligible Assignee, participant or other transferee of any Lender’s rights shall be entitled to receive any greater payment under Section 4 than such Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the Participant acquired the applicable participation.
(g) Nonrestricted Assignments. Notwithstanding any other provision set forth in this Credit Agreement, any Lender may at any time assign and pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank or other central bank having jurisdiction over such Lender as collateral security pursuant to Regulation A and any operating circular issued by such Federal Reserve Bank or such other central bank having jurisdiction over such Lender. No such assignment shall release the assigning Lender from its obligations hereunder.
(h) Information. Any Lender may furnish any information concerning a Borrower or any of its Subsidiaries in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants) who is notified of the confidential nature of the information and agrees to use its reasonable best efforts to keep confidential all non-public information from time to time supplied to it.
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12.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between a Borrower and the Administrative Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights and remedies provided herein are cumulative and not exclusive of any rights or remedies which the Administrative Agent or any Lender would otherwise have. No notice to or demand on a Borrower in any case shall entitle such Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or the Lenders to any other or further action in any circumstances without notice or demand.
12.5 Payment of Expenses, Indemnity, Limitation of Liability, etc.
(a) Each Borrower agrees to pay all reasonable out-of-pocket costs and expenses of (i) the Administrative Agent and the Joint Lead Arrangers in connection with the negotiation, preparation, execution and delivery of this Credit Agreement and the other Credit Documents and the documents and instruments referred to therein (including, without limitation, the reasonable fees and expenses of outside legal counsel to the Administrative Agent) and any amendment, waiver or consent relating hereto and thereto including, but not limited to, any such amendments, waivers or consents resulting from or related to any work-out, renegotiation or restructure relating to the performance by such Borrower under this Credit Agreement, (ii) of the Administrative Agent and the Lenders in connection with enforcement of the Credit Documents and the documents and instruments referred to therein (including, without limitation, in connection with any such enforcement, the reasonable fees and disbursements of outside counsel for the Administrative Agent and each of the Lenders) against such Borrower and (iii) each Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder.
(b) Each Borrower agrees to indemnify the Administrative Agent, each Joint Lead Arranger, each Issuing Lender and each Lender and their respective Affiliates, their respective officers, directors, employees, representatives and agents (each such Person an “Indemnitee”) from and hold each of them harmless against any and all losses (including intraparty claims), liabilities, claims, damages or reasonable expenses incurred by any of them as a result of, or arising out of, or in any way related to, or by reason of, any investigation, litigation or other proceeding (whether or not the Administrative Agent, the Joint Lead Arrangers, any Issuing Lender or any Lender or any of their respective Affiliates is a party thereto, or whether or not such investigation, litigation or other proceeding was initiated by any Borrower, its Affiliates or any other party, other than in the case of any investigation, litigation or other proceeding (i) initiated by any Borrower in connection with a material breach of obligations (as determined by a final, non-appealable judgment of a court of competent jurisdiction) by such Indemnitee hereunder or (ii) solely between or among any such Indemnitees (other than any thereof in this clause (ii) either (A) against the Administrative Agent, acting in such capacity, or (B) to the extent arising out of any act or omission of any Borrower)) related to the entering into of this Credit Agreement, any Credit Document, or any agreement or instrument contemplated hereby or thereby, the
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performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, any Loans or Letter of Credit or the use of proceeds therefrom (including other extensions of credit or the refusal of the Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or the consummation of any other transactions contemplated in any Credit Document by such Borrower, including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any such investigation, litigation or other proceeding (but excluding any such losses, liabilities, claims, damages or expenses to the extent incurred by reason of gross negligence or willful misconduct on the part of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction).
(c) To the extent permitted by applicable law (i) each Borrower shall not assert, and each Borrower hereby waives, any claim against the Administrative Agent, any Joint Lead Arranger, any Issuing Lender and any Lender and their respective Affiliates, their respective officers, directors, employees, representatives and agents of any of the foregoing (each such Person being called a “Lender-Related Person”) for any losses (including intraparty claims), liabilities, claims, damages or reasonable expenses arising from the use by others of information or other materials (including, without limitation, any personal data) obtained through telecommunications, electronic or other information transmission systems (including the Internet, any Approved Electronic Platform and any Approved Borrower Portal) other than for direct, actual damages resulting from the gross-negligence or willful misconduct of such Lender-Related Persons in connection with the use of information or other materials so obtained as determined by a final, non-appealable judgment of a court of competent jurisdiction, and (ii) no party hereto shall assert, and each such party hereby waives, any losses (including intraparty claims), liabilities, claims, damages or reasonable expenses against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Credit Agreement, any other Credit Document, or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this Section 12.5(c) shall relieve any Borrower of any obligation it may have to indemnify an Indemnitee, as provided in Section 12.5(b), against any special, indirect, consequential or punitive damages asserted by a third party against any Indemnitee.
12.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document (other than Letters of Credit as provided herein) nor any of the terms hereof or thereof may be amended, changed, waived, discharged or terminated unless such amendment, change, waiver, discharge or termination is in writing and signed by the Required Lenders and by the Borrower or Borrowers directly affected thereby; provided that no such amendment, change, waiver, discharge or termination shall without the consent of each Lender affected thereby:
(a) extend the Maturity Date or the Commitment Period;
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(b) reduce the rate or extend the time of payment of interest (other than as a result of waiving the applicability of any post-default increase in interest rates) thereon or fees hereunder;
(c) reduce or forgive the principal amount of any Loan or Reimbursement Obligation;
(d) increase or extend the Commitment of a Lender over the amount thereof in effect (it being understood and agreed that a waiver of any Default or Event of Default or a waiver of any mandatory reduction in the Commitments shall not constitute a change in the terms of any Commitment of any Lender);
(e) release a Borrower from its obligations under the Credit Documents or consent to the transfer or assignment of such obligations;
(f) amend, modify or waive any provision of this Section or Section 3.6, 3.8, 10.1(a), 10.3, 11.7, 12.2, 12.3, 12.5, 12.9(b) or 12.9(e);
(g) reduce any percentage specified in, or otherwise modify, the definition of Required Lenders or other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any provision hereof; or
(h) release all or substantially all of any cash collateral while any Letters of Credit or Reimbursement Obligations remain outstanding.
Notwithstanding the above, (i) any provision of any Letter of Credit or any L/C Obligation shall not be amended, modified or waived without the written consent of the affected Issuing Lender and (ii) the Maximum L/C Commitment of an Issuing Lender may be amended without the consent of the Required Lenders but only with the consent of such affected Issuing Lender.
Notwithstanding the above, no provisions of Section 11 may be amended or modified without the consent of the Administrative Agent, and no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Lenders without the prior written consent of the Administrative Agent or the Issuing Lenders, as the case may be.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein.
In the event any proposed amendment or waiver of the terms of this Credit Agreement or any other Credit Document requires the consent of all Lenders or of all Lenders directly affected thereby, and such proposed amendment or waiver is approved by Required Lenders, the Borrowers may, in their sole discretion, require any Lender that has failed to consent to such proposed amendment or waiver (the “Non-Consenting Lender”) to transfer and assign its
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interests, rights and obligations under this Credit Agreement in a manner consistent with the terms and conditions of Section 4.5 to an Eligible Assignee that shall assume such assigned obligations; provided, however, that the Borrowers shall have given written notice to the Administrative Agent in the case of an assignee that is not a Lender. The Borrowers shall not be permitted to require a Non-Consenting Lender to assign any part of its interests, rights and obligations under this Credit Agreement pursuant to this Section 12.6 unless the Borrowers have notified such Non-Consenting Lender of their intention to require the assignment thereof at least ten days prior to the proposed assignment date.
12.7 Counterparts; Effectiveness; Electronic Execution.
(a) This Credit Agreement may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Credit Agreement to produce or account for more than one such counterpart. Delivery of executed counterparts by facsimile or other electronic means (including by e-mail with a “pdf” copy thereof attached thereto) shall be effective as an original and shall constitute a representation that an original will be delivered.
(b) Delivery of an executed counterpart of a signature page of (x) this Credit Agreement, (y) any other Credit Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 12.1), certificate, request, statement, disclosure or authorization related to this Credit Agreement, any other Credit Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Credit Agreement, such other Credit Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Credit Agreement, any other Credit Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of any Borrower without further verification thereof and without any obligation to review the appearance or form of any such Electronic signature and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, each Borrower hereby (A) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and any Borrower, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of
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an actual executed signature page and/or any electronic images of this Credit Agreement, any other Credit Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (B) agrees that the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Credit Agreement, any other Credit Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (C) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Credit Agreement, any other Credit Document and/or any Ancillary Document based solely on the lack of paper original copies of this Credit Agreement, such other Credit Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (D) waives any claim against any Lender-Related Person for any Liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf., or any other electronic means that reproduces an image of an actual executed signature page, including any Liabilities arising as a result of the failure of any Borrower to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
12.8 Headings.
The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Credit Agreement.
12.9 Defaulting Lenders.
Notwithstanding any provision of this Credit Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) no Facility Fees shall accrue on the unfunded portion of any Commitment of any Defaulting Lender pursuant to Section 3.4(a)(i).
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.6), provided that any waiver, amendment or modification requiring the consent of each affected Lender pursuant to Section 12.6(a)-(d) or any waiver, amendment or modification of this Section 12.9(b) shall require the consent of such Defaulting Lender if such Defaulting Lender would be directly adversely affected thereby.
(c) if any L/C Obligations exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such L/C Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitment Percentages, but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) no Default or Event of Default has occurred and is continuing at the time such Lender becomes a Defaulting Lender and its L/C Obligation is reallocated;
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(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each Borrower for whom a Letter of Credit was issued shall within one Business Day following notice by the Administrative Agent (which notice shall be promptly delivered by the Administrative Agent upon the failure of the reallocation in clause (i) above to be fully effected) cash collateralize such Defaulting Lender’s L/C Obligation as to such Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above), which cash collateral shall be deposited into a cash collateral account in the name of and under the control of the Administrative Agent, in accordance with the procedures set forth in Section 5.9 for so long as such L/C Obligation is outstanding;
(iii) if a Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligation pursuant to this Section 12.9(c), such Borrower shall not be required to pay any Letter of Credit Fees to such Defaulting Lender with respect to such Defaulting Lender’s L/C Obligation during the period such Defaulting Lender’s L/C Obligation are cash collateralized;
(iv) if the L/C Obligation of the non-Defaulting Lenders is reallocated pursuant to Section 12.9(c), then the fees payable to the Lenders pursuant to Section 5.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Commitment Percentage; and
(v) if any Defaulting Lender’s L/C Obligation is neither cash collateralized nor reallocated pursuant to this Section 12.9(c), then, without prejudice to any rights or remedies of the Issuing Lenders or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligation) and Letter of Credit Fees payable with respect to such Defaulting Lender’s L/C Obligation shall be payable to the Administrative Agent as cash collateral until such L/C Obligation is cash collateralized and/or reallocated.
(d) so long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that 100% of the related exposure will be covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 12.9(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 12.9(c)(i) (and Defaulting Lenders shall not participate therein).
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(e) except as otherwise provided in this Credit Agreement, any amount payable to or for the account of any Defaulting Lender in its capacity as a Lender hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Lender) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (2) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lenders in respect of such Defaulting Lender’s participations in Letters of Credit, (3) third, to cash collateralize participation obligations of such Defaulting Lender in respect of outstanding Letters of Credit and (4) fourth, to the funding of such Defaulting Lender’s Commitment Percentage of any Loans in respect of which such Defaulting Lender shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Lender in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or any non-Defaulting Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any non-Defaulting Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction.
(f) The Borrowers may, in their sole discretion, require any Defaulting Lender to transfer and assign its interests, rights and obligations under this Credit Agreement in a manner consistent with the terms and conditions of Section 4.5 (but at the expense of such Defaulting Lender) to an Eligible Assignee that shall assume such assigned obligations; provided, however, that the Borrowers shall have given written notice to the Administrative Agent in the case of an assignee that is not a Lender. The Borrowers shall not be permitted to require a Defaulting Lender to assign any part of its interests, rights and obligations under this Credit Agreement pursuant to this Section 12.9(f) unless the Borrowers have notified such Defaulting Lender of their intention to require the assignment thereof at least ten days prior to the proposed assignment date.
(g) In the event that the Administrative Agent, the Borrowers and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Commitment Percentage.
12.10 Survival of Indemnification and Representations and Warranties.
All indemnities set forth herein, the agreements contained in Sections 4.1(c), 4.2, 4.3 and 4.4 and all representations and warranties made herein shall survive the execution and delivery of this Credit Agreement, the making of the Loans, and the repayment of the Loans and other obligations and the termination of the Commitments hereunder.
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12.11 GOVERNING LAW.
THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER AND ANY CLAIM, CONTROVERSY, DISPUTE, PROCEEDING OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT (EXCEPT, AS TO ANY OTHER CREDIT DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each Borrower irrevocably consents to the service of process out of any competent court in any action or proceeding brought in connection with this Credit Agreement by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address for notices pursuant to Section 12.1, such service to become effective 30 days after such mailing. Nothing herein shall affect the right of a Lender to serve process in any other manner permitted by law.
12.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.13 Severability.
If any provision of any of the Credit Documents is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions.
12.14 Entirety.
This Credit Agreement together with the other Credit Documents represent the entire agreement of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or written, if any, including any commitment letters or correspondence relating to the Credit Documents or the transactions contemplated herein and therein.
12.15 Binding Effect.
This Credit Agreement shall become effective at such time when all of the conditions set forth in Section 6.1 have been satisfied or waived by the Lenders and this Credit Agreement shall have been executed by each of the Borrowers and the Administrative Agent, and the Administrative Agent shall have received copies (telefaxed or otherwise) which, when taken together, bear the signatures of each Lender, and thereafter this Credit Agreement shall be binding upon and inure to the benefit of each Borrower, the Administrative Agent and each Lender and their respective successors and permitted assigns.
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12.16 Submission to Jurisdiction.
Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding (whether in contract, tort or otherwise and whether at law or in equity) arising out of or relating to this Credit Agreement or any other Credit Document or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Credit Agreement or in any other Credit Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Credit Agreement against any Borrower or its properties in the courts of any jurisdiction. Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Credit Agreement or any other Credit Document in any court referred to above. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each of the Borrowers also hereby irrevocably and unconditionally waives any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.
12.17 Confidentiality. Each of the Administrative Agent and each Lender agrees to keep confidential all non-public information provided to it by any Borrower pursuant to this Credit Agreement that is designated by such Borrower as confidential; provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such information (a) to the Administrative Agent, any other Lender or any of its Affiliates and other parties hereto, (b) subject to an agreement to comply with the provisions of this Section 12.17 (or terms substantially consistent with and no less restrictive than this Section 12.17), to (i) any actual or prospective assignee or participant, (ii) credit insurance providers requiring access to such information in connection with credit insurance issued for the benefit of such Lender, and (iii) any contractual counterparties (or the professional advisors thereto) to any swap, derivative, securitization transaction or other transaction under which payments are to be made by reference to (1) obligations of parties under this Credit Agreement, including any Borrower or its respective subsidiaries or (2) payments under this Credit Agreement, (c) to its employees, directors, agents, attorneys and accountants or those of any of its affiliates, (d) upon the request or demand of any Governmental Authority or any self-regulatory organization claiming jurisdiction or oversight over the Administrative Agent or such Lender or any of their respective affiliates, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any requirement of law, (f) if required to do so in connection with any litigation or
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similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (i) in connection with the exercise of any remedy hereunder or under any other Credit Document, (j) market data collectors, league table providers and similar service providers to the lending industry, such information to consist of deal terms and other information customarily provided by arrangers to league table providers or found in Gold Sheets and similar industry publications, and (k) with the written consent of any Borrower.
For the avoidance of doubt, nothing in this Section 12.17 shall prohibit any Person from voluntarily disclosing or providing any information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) without any notification to any person to the extent that such prohibition on disclosure set forth in this Section 12.17 shall be prohibited by the laws or regulations applicable to such Regulatory Authority.
12.18 Designation of SPVs.
Notwithstanding anything to the contrary contained herein, any Lender, (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by such Granting Lender to the Administrative Agent and the Borrowers, the option to fund all or any part of any Loan that such Granting Lender would otherwise be obligated to fund pursuant to this Credit Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to fund any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to fund all or any part of such Loan, the Granting Lender shall be obligated to fund such Loan pursuant to the terms hereof, (iii) no SPV shall have any voting rights pursuant to Section 12.6 and (iv) with respect to notices, payments and other matters hereunder, the Borrowers, the Administrative Agent and the Lenders shall not be obligated to deal with an SPV, but may limit their communications and other dealings relevant to such SPV to the applicable Granting Lender. The funding of a Loan by an SPV hereunder shall utilize the Revolving Loan Commitment of the Granting Lender to the same extent that, and as if, such Loan were funded by such Granting Lender.
As to any Loans or portion thereof made by it, each SPV shall have all the rights that its applicable Granting Lender making such Loans or portion thereof would have had under this Credit Agreement; provided, however, that each SPV shall have granted to its Granting Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Credit Agreement (and any related documents) and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Credit Agreement. No additional Note shall be required to evidence the Loans or portion thereof made by an SPV; and the related Granting Lender shall be deemed to hold its Note as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Granting Lender as agent for such SPV.
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Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Credit Agreement for which a Lender would otherwise be liable for so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Credit Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof.
In addition, notwithstanding anything to the contrary contained in this Credit Agreement, any SPV may (i) at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Granting Lender or to any financial institutions providing liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 12.18 may not be amended without the written consent of any Granting Lender affected thereby.
12.19 USA Patriot Act. Each Lender hereby notifies each Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”)), it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender to identify each Borrower in accordance with the Patriot Act.
12.20 No Fiduciary Duty.
Each Borrower agrees that nothing in the Credit Documents will be deemed to create an advisory, fiduciary, agency relationship or other similar duty between any Credit Party and its Affiliates, on the one hand, and any Borrower, its stockholders or its affiliates on the other with respect to the transactions contemplated hereby (irrespective of whether any Credit Party or its Affiliates has advised, is currently advising or will advise any Borrower on other unrelated matters), or any other obligation by a Credit Party or its Affiliates to any Borrower its stockholders or its affiliates except the obligations expressly set forth in the Credit Documents. Each Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrowers, in connection with the transactions contemplated hereby or the process leading thereto. Each Credit Party and their respective Affiliates may have economic interests that conflict with those of the Borrowers, their stockholders, and/or their respective Affiliates.
12.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Credit Agreement or any other Credit Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
12.22 Posting of Communications. The Borrowers agree that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Lenders by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”).
(a) Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Restatement Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, each of the Issuing Lenders and each of the Borrowers acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the Approved Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Lenders and each of the Borrowers hereby approve distribution of the Communications through the Approved Electronic Platform and understand and assume the risks of such distribution.
(b) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR
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A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY JOINT LEAD ARRANGER, ANY SYNDICATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY ISSUING LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.
“Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Credit Party pursuant to any Credit Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Lender by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.
(c) Each Lender and each Issuing Lender agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender and Issuing Lender agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Lender’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(d) Each of the Lenders, each of the Issuing Lenders and each of the Borrowers agree that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
(e) Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Lenders to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.
12.23 Borrower Communications. The Administrative Agent, the Lenders and the Issuing Lenders agree that any Borrower may, but shall not be obligated to, make any Borrower Communications to the Administrative Agent through an electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Borrower Portal”).
(a) Although the Approved Borrower Portal and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Restatement Effective Date, a user ID/password authorization system), each of the Lenders, each of the Issuing Lenders and each
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Borrower acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Borrower that are added to the Approved Borrower Portal, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Lenders and each Borrower hereby approves distribution of Borrower Communications through the Approved Borrower Portal and understands and assumes the risks of such distribution.
(b) THE APPROVED BORROWER PORTAL IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER COMMUNICATION, OR THE ADEQUACY OF THE APPROVED BORROWER PORTAL AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED BORROWER PORTAL AND THE BORROWER COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE BORROWER COMMUNICATIONS OR THE APPROVED BORROWER PORTAL. IN NO EVENT SHALL ANY APPLICABLE PARTY HAVE ANY LIABILITY TO ANY BORROWER, ANY LENDER, ANY ISSUING LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY BORROWER’S TRANSMISSION OF BORROWER COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED BORROWER PORTAL.
“Borrower Communications” means, collectively, any Notice of Borrowing, Notice of Continuation/Conversion, notice of prepayment, notice requesting the issuance, amendment or extension of a Letter of Credit or other notice, demand, communication, information, document or other material provided by or on behalf of any Borrower pursuant to any Credit Document or the transactions contemplated therein which is distributed by any Borrower to the Administrative Agent through an Approved Borrower Portal.
(c) Each of the Lenders, each of the Issuing Lenders and each Borrower agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Borrower Communications on the Approved Borrower Portal in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
(d) Nothing herein shall prejudice the right of any Borrower to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.
12.24 Effect of Restatement. This Credit Agreement shall amend and restate the Existing Credit Agreement in its entirety, with the parties hereby agreeing that there is no novation (and that it is their intention that there is no novation) of the Existing Credit Agreement and from and after the Restatement Effective Date, the rights and obligations of the parties under the Existing
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Credit Agreement shall be subsumed and governed by this Credit Agreement. From and after the Restatement Effective Date, the obligations and Commitments under the Existing Credit Agreement shall continue as obligations and Commitments under this Credit Agreement until otherwise paid or terminated in accordance with the terms hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first written above.
| DOMINION ENERGY, INC. | ||
| By: | /s/ David M. McFarland | |
| Name: | David M. McFarland | |
| Title: | Vice President-Investor Relations and Treasurer | |
| VIRGINIA ELECTRIC AND POWER COMPANY | ||
| By: | /s/ David M. McFarland | |
| Name: | David M. McFarland | |
| Title: | Vice President-Investor Relations and Treasurer | |
| DOMINION ENERGY SOUTH CAROLINA, INC. | ||
| By: | /s/ David M. McFarland | |
| Name: | David M. McFarland | |
| Title: | Vice President-Investor Relations and Treasurer | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||
| By: | /s/ Khawaja Tariq | |
| Name: | Khawaja Tariq | |
| Title: | Vice President | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| JPMORGAN CHASE BANK, N.A., as an Issuing Lender | ||
| By: | /s/ Khawaja Tariq | |
| Name: | Khawaja Tariq | |
| Title: | Vice President | |
| JPMORGAN CHASE BANK, N.A., as a Lender | ||
| By: | /s/ Khawaja Tariq | |
| Name: | Khawaja Tariq | |
| Title: | Vice President | |
| MIZUHO BANK, LTD., as an Issuing Lender | ||
| By: | /s/ Edward Sacks | |
| Name: | Edward Sacks | |
| Title: | Managing Director | |
| MIZUHO BANK, LTD., as a Lender | ||
| By: | /s/ Edward Sacks | |
| Name: | Edward Sacks | |
| Title: | Managing Director | |
| BANK OF AMERICA, N.A., as an Issuing Lender | ||
| By: | /s/ Jacqueline G. Margetis | |
| Name: | Jacqueline G. Margetis | |
| Title: | Director | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| BANK OF AMERICA, N.A., as a Lender | ||
| By: | /s/ Jacqueline G. Margetis | |
| Name: | Jacqueline G. Margetis | |
| Title: | Director | |
| THE BANK OF NOVA SCOTIA, as an Issuing Lender | ||
| By: | /s/ David Dewar | |
| Name: | David Dewar | |
| Title: | Director | |
| THE BANK OF NOVA SCOTIA, as a Lender | ||
| By: | /s/ David Dewar | |
| Name: | David Dewar | |
| Title: | Director | |
| WELLS FARGO BANK, N.A., as an Issuing Lender | ||
| By: | /s/ Patrick Engel | |
| Name: | Patrick Engel | |
| Title: | Managing Director | |
| WELLS FARGO BANK, N.A., as a Lender | ||
| By: | /s/ Patrick Engel | |
| Name: | Patrick Engel | |
| Title: | Managing Director | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| MUFG BANK, LTD., as a Lender | ||
| By: | /s/ Jeffrey Fesenmaier | |
| Name: | Jeffrey Fesenmaier | |
| Title: | Managing Director | |
| BANCO SANTANDER, S.A., NEW YORK BRANCH, as a Lender | ||
| By: | /s/ Andres Barbosa | |
| Name: | Andres Barbosa | |
| Title: | Managing Director | |
| By: | /s/ Arturo Prieto | |
| Name: | Arturo Prieto | |
| Title: | Managing Director | |
| U.S. BANK NATIONAL ASSOCIATION, as an Issuing Lender | ||
| By: | /s/ Michael E. Temnik | |
| Name: | Michael E. Temnik | |
| Title: | Senior Vice President | |
| U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Michael E. Temnik | |
| Name: | Michael E. Temnik | |
| Title: | Senior Vice President | |
| BARCLAYS BANK PLC, as a Lender | ||
| By: | /s/ Sydney G. Dennis | |
| Name: | Sydney G. Dennis | |
| Title: | Director | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| BNP PARIBAS, as a Lender | ||
| By: | /s/ Nicole Rodriguez | |
| Name: |
Nicole Rodriguez | |
| Title: |
Director | |
| By: | /s/ Nicolas Doche | |
| Name: |
Nicolas Doche | |
| Title: |
Vice President | |
| CITIBANK, N.A., as a Lender | ||
| By: | /s/ Justin Green | |
| Name: |
Justin Green | |
| Title: |
Vice President | |
| DEUTSCHE BANK AG NEW YORK BRANCH as a Lender | ||
| By: | /s/ Ming K. Chu | |
| Name: |
Ming K. Chu | |
| Title: |
Director | |
| By: | /s/ Annie Chung | |
| Name: |
Annie Chung | |
| Title: |
Managing Director | |
| GOLDMAN SACHS BANK USA, as an Issuing Lender | ||
| By: | /s/ Andrew Vernon | |
| Name: |
Andrew Vernon | |
| Title: |
Authorized Signatory | |
| GOLDMAN SACHS BANK USA, as a Lender | ||
| By: | /s/ Andrew Vernon | |
| Name: |
Andrew Vernon | |
| Title: |
Authorized Signatory | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| MORGAN STANLEY SENIOR, FUNDING INC., as a Lender | ||
| By: | /s/ Michael King | |
| Name: | Michael King | |
| Title: | Vice President | |
| MORGAN STANLEY BANK, N.A., as a Lender | ||
| By: | /s/ Michael King | |
| Name: | Michael King | |
| Title: | Authorized Signatory | |
| ROYAL BANK OF CANADA, as a Lender | ||
| By: | /s/ Frank Lambrinos | |
| Name: | Frank Lambrinos | |
| Title: | Authorized Signatory | |
| SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
| By: | /s/ Alkesh Nanavaty | |
| Name: | Alkesh Nanavaty | |
| Title: | Executive Director | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| TRUIST BANK, as a Lender | ||
| By: | /s/ Justin Lien | |
| Name: | Justin Lien | |
| Title: | Director | |
| THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Lender | ||
| By: | /s/ Paul Yoon | |
| Name: | Paul Yoon | |
| Title: | Director | |
| KEYBANK NATIONAL ASSOCIATION, as an Issuing Lender | ||
| By: | /s/ Patrick Whitmore | |
| Name: | Patrick Whitmore | |
| Title: | Vice President | |
| KEYBANK NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Patrick Whitmore | |
| Name: | Patrick Whitmore | |
| Title: | Vice President | |
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Ingrid J. Pavilanis | |
| Name: | Ingrid J. Pavilanis | |
| Title: | Vice President | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
| BANK OF MONTREAL, CHICAGO BRANCH, as a Lender | ||
| By: | /s/ Michael Cummings | |
| Name: | Michael Cummings | |
| Title: | Managing Director | |
| CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Lender | ||
| By: | /s/ Amit Vasani | |
| Name: | Amit Vasani | |
| Title: | Authorized Signatory, Managing Director | |
| CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Marta Jedrzejowski | |
| Name: | Marta Jedrzejowski | |
| Title: | Authorized Signatory | |
| REGIONS BANK, as a Lender | ||
| By: | /s/ Tom Scheinzbach | |
| Name: | Tom Scheinzbach | |
| Title: | Director | |
| THE BANK OF NEW YORK MELLON, as a Lender | ||
| By: | /s/ Yipeng Zhang | |
| Name: | Yipeng Zhang | |
| Title: | Vice President | |
| CITIZENS BANK, N.A., as a Lender | ||
| By: | /s/ Christopher Domanico | |
| Name: | Christopher Domanico | |
| Title: | Senior Vice President | |
[SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
Exhibit 10.2
THIRD AMENDMENT
THIRD AMENDMENT, dated as of April 8, 2025 (this “Amendment”), to the SUSTAINABILITY REVOLVING CREDIT AGREEMENT dated as of June 9, 2021 (as amended by the First Amendment dated as of October 12, 2022 and the Second Amendment dated as of June 7, 2024, the “Existing Credit Agreement” and as it may further be amended, modified and/or restated from time to time, including by this Amendment, the “Credit Agreement”) among DOMINION ENERGY, INC., a Virginia corporation (the “Borrower”), the several banks and other financial institutions from time to time parties to the Credit Agreement (each a “Lender” and, collectively, the “Lenders”) and SUMITOMO MITSUI BANKING CORPORATION, a national banking association (“SMBC”), as administrative agent for the Lenders hereunder (in such capacity, the “Administrative Agent”), and the other agents party thereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to the Existing Credit Agreement;
WHEREAS, the parties have agreed to a three (3) year extension of the Maturity Date to the Existing Credit Agreement as set forth herein, a modification of pricing terms and an increase in the Commitments as set forth herein;
WHEREAS, the parties have agreed to modify the Sustainability Use of Proceeds as set forth herein;
WHEREAS, the amendments contained herein require the consent of all Lenders directly affected thereby pursuant to Section 12.6(a) of the Existing Credit Agreement; and
WHEREAS, each of the Lenders party to the Existing Credit Agreement as of the date hereof are willing to consent to the requested extension and amendment as set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
2. Amendments. Effective as of the Third Amendment Effective Date (as defined below), the Existing 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 bold and double-underlined text (indicated textually in the same manner as the following example:
bold and double-underlined text) as set forth on the
pages of the Sustainability Revolving Credit Agreement attached as Exhibit A hereto.
3. Conditions to Effectiveness. This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the “Third Amendment Effective Date”):
(a) Executed Amendment. The Administrative Agent shall have received a counterpart of this Amendment duly executed and delivered by the Borrower and each of the Lenders party to the Credit Agreement as of the date hereof.
(b) No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date.
(c) Administrative Agent Expenses. The Administrative Agent shall have been reimbursed for all reasonable and documented, invoiced out-of-pocket costs and expenses incurred by the Administrative Agent in connection with this Amendment, including the reasonable and documented, invoiced fees and disbursements of counsel for the Administrative Agent.
(d) Secretary’s Certificate. The Administrative Agent shall have received a certificate of the Borrower dated as of the Third Amendment Effective Date, substantially in the form of Exhibit 6.1(c) of the Existing Credit Agreement, executed by the treasurer or any assistant treasurer and the secretary or any assistant secretary of the Borrower, and attaching (A) copy of the articles of incorporation of the Borrower certified to be true and complete as of a recent date by the appropriate Governmental Authority of Virginia and certified by a secretary or assistant secretary of the Borrower to be true and correct as of the Third Amendment Effective Date (or that there have been no amendments or other modifications to the articles of incorporation attached to the certificate delivered by the Borrower on the Closing Date pursuant to Section 6.1(b)(i) of the Existing Credit Agreement), (B) a copy of the bylaws of the Borrower certified by a secretary or assistant secretary of the Borrower to be true and correct as of the Third Amendment Effective Date (or that there have been no amendments or other modifications to the bylaws attached to the certificate delivered by the Borrower on the Closing Date pursuant to Section 6.1(b)(ii) of the Existing Credit Agreement), (C) a copy of resolutions of the Board of Directors of the Borrower approving the transactions contemplated herein and in the other Credit Documents and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of the Borrower to be true and correct and in force and effect as of the Third Amendment Effective Date, and (D) a copy of a certificate of good standing, existence or its equivalent with respect to the Borrower certified as of a recent date by the appropriate Governmental Authority of Virginia.
(e) Know Your Customer and Beneficial Ownership. To the extent reasonably requested at least ten (10) Business Days prior to the Third Amendment Effective Date by the Administrative Agent or any Lender, the Administrative Agent shall have received, at least three (3) Business Days prior to the Third Amendment Effective Date, all documentation and other information required by any Governmental Authority under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act and, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to each Lender so requesting a Beneficial Ownership Certification in relation to the Borrower.
(f) Opinion of Counsel. The Administrative Agent shall have received an opinion, or opinions, satisfactory in form and content to the Administrative Agent and the Lenders, addressed to the Administrative Agent and each of the Lenders and dated as of the Third Amendment Effective Date, from McGuireWoods LLP, legal counsel to the Borrower.
4. New Lenders. Upon the effectiveness of this Amendment, each Lender that is a signatory as a Lender to this Amendment and was not a Lender under the Existing Credit Agreement immediately prior to the Third Amendment Effective Date (each such Lender, a “New Lender”) shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Credit Documents. For the avoidance of doubt, upon the effectiveness of this Amendment, the Credit Exposure of each New Lender and the Commitment Percentage of all the Lenders holding Revolving Loan Commitments, shall automatically be adjusted to give effect to the Revolving Loan Commitments effectuated pursuant to this Amendment. Each New Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
5. Revolving Loan Commitments.
(a) Upon the effectiveness of this Amendment, the Revolving Loan Commitments under the Credit Agreement shall be in the total amount of $1,000,000,000 as set forth below:
| Lender |
Commitment | Commitment Percentage (rounded to nearest 1/100%) |
||||||
| Sumitomo Mitsui Banking Corporation |
$ | 115,000,000.00 | 11.50 | % | ||||
| The Bank of Nova Scotia |
$ | 115,000,000.00 | 11.50 | % | ||||
| The Toronto-Dominion Bank, New York Branch |
$ | 115,000,000.00 | 11.50 | % | ||||
| Bank of Montreal |
$ | 115,000,000.00 | 11.50 | % | ||||
| Canadian Imperial Bank of Commerce, New York Branch |
$ | 115,000,000.00 | 11.50 | % | ||||
| Regions Bank |
$ | 115,000,000.00 | 11.50 | % | ||||
| Citizens Bank, N.A. |
$ | 115,000,000.00 | 11.50 | % | ||||
| Truist Bank |
$ | 115,000,000.00 | 11.50 | % | ||||
| Atlantic Union Bank |
$ | 40,000,000.00 | 4.00 | % | ||||
| First Horizon Bank |
$ | 40,000,000.00 | 4.00 | % | ||||
|
|
|
|
|
|||||
| TOTAL: |
$ | 1,000,000,000.00 | 100.00 | % | ||||
|
|
|
|
|
|||||
(b) Upon the effectiveness of this Amendment:
(i) the Utilized Revolving Commitment immediately prior to the Third Amendment Effective Date (the “Existing Revolving Borrowings”) shall be deemed to be satisfied and repaid in full and replaced in accordance with clause (iv) below;
(ii) each New Lender shall pay to the Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Commitment Percentage (calculated after giving effect to this Amendment) multiplied by (2) the aggregate amount of the Resulting Revolving Loans (as defined below);
(iii) after the Administrative Agent receives the funds specified in clause (ii) above, the Administrative Agent shall pay to each Lender that was a Lender under the Existing Credit Agreement immediately prior to the Third Amendment Effective Date (each such Lender, an “Existing Lender”) the portion of such funds that is equal to the positive difference between:
(A) the product of (1) such Lender’s Commitment Percentage immediately prior to giving effect to this Amendment multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and
(B) the product of (1) such Lender’s Commitment Percentage immediately after giving effect to this Amendment multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as defined below);
(iv) after the effectiveness of this Amendment, the Borrower shall be deemed to have made new borrowings of Revolving Loans (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings for purposes of the reallocation of the Utilized Revolving Commitment and specified in a Notice of Borrowing delivered to Administrative Agent in accordance with Section 2.2 of the Credit Agreement (and Borrower shall deliver such Notice of Borrowing); and
(v) each Lender holding Revolving Loan Commitments shall be deemed to hold its Commitment Percentage of the Resulting Revolving Borrowing (calculated after giving effect to such effectiveness).
6. Miscellaneous.
(a) Representation and Warranties. To induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower hereby represents and warrants to the Administrative Agent and each Lender that:
(i) As of the Third Amendment Effective Date, and after giving effect to this Amendment, each of the representations and warranties made by the Borrower in or pursuant to the Credit Documents is true and correct in all material respects as if made on and as of such date (it being understood and agreed that any representation or warranty that by its terms is made as of a specific date shall be required to be true and correct in all material respects only as of such specified date); provided that any such representation and warranty that is qualified as to “materiality, “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(ii) No Default or Event of Default has occurred and is continuing immediately prior to and after giving effect to this Amendment.
(iii) The Borrower (a) has the requisite corporate power and authority to execute and deliver this Amendment and perform under this Amendment and the Credit Agreement and to incur the obligations under the Credit Agreement and under the other Credit Documents as amended by this Amendment and (b) is duly authorized to, and has been authorized by all necessary corporate action, to execute and deliver this Amendment and perform under this Amendment and the Credit Agreement.
(iv) This Amendment has been duly executed and delivered and this Amendment and the Credit Agreement each constitute a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy or insolvency laws or similar laws affecting creditors’ rights generally or by general equitable principles.
(v) Neither the execution and delivery of this Amendment and the consummation of the transactions contemplated herein, nor the performance of and compliance with the terms and provisions hereof and of the Credit Agreement by the Borrower will (a) violate or conflict with any provision of its articles of incorporation and bylaws, (b) violate, contravene or materially conflict with any law, regulation (including without limitation, Regulation U or Regulation X), order, writ, judgment, injunction, decree or permit applicable to it, (c) violate, contravene or materially conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound, the violation of which would reasonably be expected to have a Material Adverse Effect or (d) result in or require the creation of any Lien upon or with respect to its properties.
(vi) As of the Third Amendment Effective Date, the ratio of (i) Total Funded Debt to (ii) Capitalization for the Borrower is less than or equal to 0.675 to 1.00 (on a consolidated basis).
(vii) As of the Third Amendment Effective Date, except as disclosed in the Borrower’s Annual Report on Form 10-K for the year ended December 31, 2023, there are no actions, suits or legal, equitable, arbitration or administrative proceedings, pending or, to the knowledge of the Borrower, threatened against the Borrower or a Material Subsidiary in which there is a reasonable expectation of an adverse decision which would have or would reasonably be expected to have a Material Adverse Effect.
(viii) As of the Third Amendment Effective Date, except as disclosed in the Borrower’s Annual Report on Form 10-K for the year ended December 31, 2023, the Borrower and each Material Subsidiary is in compliance with all laws, rules, regulations, orders and decrees applicable to it, or to its properties, unless such failure to comply would not have a Material Adverse Effect.
(b) Effect. Except as specifically amended hereby, the Existing Credit Agreement shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Credit Documents shall remain unchanged and not waived and shall continue to be in full force and effect. This Amendment constitutes a Credit Document under the Credit Agreement. Upon the effectiveness of this Amendment: (i) each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the “Credit Agreement” shall mean and be a reference to the Credit Agreement as amended hereby, and (ii) each reference in the Credit Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby. It is the intent of the parties hereto, and the parties hereto agree, that this Amendment shall not constitute a novation of the Existing Credit Agreement, any other Credit Document or any of the rights, obligations or liabilities thereunder. Nothing contained in this Amendment shall prejudice any right or remedy that the Administrative Agent or any Lender may now have or may have in the future under or in connection with the Credit Agreement or any other Credit Document, or any other instrument or agreement referred to therein.
(c) Counterparts. This Amendment may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart. Delivery of executed counterparts by electronic means (including by e-mail with a “pdf” copy thereof attached thereto) shall be effective as an original and shall constitute a representation that an original will be delivered. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment shall be deemed to include Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. “Electronic Signatures” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
(d) Severability. If any provision of any of this Amendment is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions.
(e) Entirety. This Amendment together with the other Credit Documents represent the entire agreement of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or written, if any, including any commitment letters or correspondence relating to the Credit Documents or the transactions contemplated herein and therein.
(f) GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Borrower irrevocably consents to the service of process out of any competent court in any action or proceeding brought in connection with this Amendment by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address for notices pursuant to Section 12.1 of the Credit Agreement, such service to become effective 30 days after such mailing. Nothing herein shall affect the right of a Lender to serve process in any other manner permitted by law.
(g) CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. ALL THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. ALL THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT IN ANY COURT REFERRED TO ABOVE. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Remainder of page left blank intentionally]
IN WITNESS WHEREOF, each party hereto has caused this Amendment to be duly executed and delivered by its proper and duly authorized officer as of the day and year first above written.
| DOMINION ENERGY, INC. | ||
| By: | /s/ David M. McFarland | |
| Name: | David M. McFarland | |
| Title: | Vice President – Investor Relations and Treasurer | |
| SUMITOMO MITSUI BANKING CORPORATION, as Administrative Agent | ||
| By: | /s/ Alkesh Nanavaty | |
| Name: | Alkesh Nanavaty | |
| Title: | Executive Director | |
| SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
| By: | /s/ Alkesh Nanavaty | |
| Name: | Alkesh Nanavaty | |
| Title: | Executive Director | |
| THE BANK OF NOVA SCOTIA, as a Lender | ||
| By: | /s/ David Dewar | |
| Name: | David Dewar | |
| Title: | Director | |
| THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Lender | ||
| By: | /s/ Paul Yoon | |
| Name: | Paul Yoon | |
| Title: | Director | |
| BANK OF MONTREAL, as a Lender | ||
| By: | /s/ Michael Cummings | |
| Name: | Michael Cummings | |
| Title: | Managing Director | |
| CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Lender | ||
| By: | /s/ Amit Vasani | |
| Name: | Amit Vasani | |
| Title: | Authorized Signatory, Managing Director | |
| REGIONS BANK, as a Lender | ||
| By: | /s/ Tom Scheinzbach | |
| Name: | Tom Scheinzbach | |
| Title: | Director | |
| CITIZENS BANK, N.A., as a New Lender | ||
| By: | /s/ Christopher Domanico | |
| Name: | Christopher Domanico | |
| Title: | Senior Vice President | |
| TRUIST BANK, as a New Lender | ||
| By: | /s/ Justin Lien | |
| Name: | Justin Lien | |
| Title: | Director | |
| ATLANTIC UNION BANK, as a New Lender | ||
| By: | /s/ Matthew Sawyer | |
| Name: | Matthew Sawyer | |
| Title: | Managing Director | |
| FIRST HORIZON BANK, as a New Lender | ||
| By: | /s/ Todd Warrick | |
| Name: | Todd Warrick | |
| Title: | Executive Vice President | |
Exhibit A
CREDIT AGREEMENT
(attached)
Conformed to the First Amendment dated as of October 12, 2022
Conformed to the Second Amendment dated as of June 7, 2024
Conformed to the Third Amendment dated as of April 8, 2025
$900,000,0001,000,000,000
SUSTAINABILITY REVOLVING CREDIT AGREEMENT
among
DOMINION ENERGY, INC.,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent and Sustainability Coordinator
SUMITOMO MITSUI BANKING CORPORATION,
THE BANK OF NOVA SCOTIA and
THE TORONTO-DOMINION BANK, NEW YORK BRANCH
as Joint Lead Arrangers and Joint Bookrunners
Dated as of June 9, 2021
Table of
ContentsTABLE OF CONTENTS
| Page | ||||||
| SECTION 1. DEFINITIONS AND ACCOUNTING TERMS |
1 | |||||
| 1.1 |
Definitions | 1 | ||||
| 1.2 |
Computation of Time Periods; Other Definitional Provisions | 22 | ||||
| 1.3 |
Accounting Terms | |||||
| 1.4 |
Time | |||||
| 1.5 |
Interest Rates; Benchmark Notifications | 23 | ||||
| 1.6 |
Divisions | 23 | ||||
| 1.7 |
Sustainability Adjustments | |||||
| SECTION 2. LOANS |
25 | |||||
| 2.1 |
Revolving Loan Commitment | 25 | ||||
| 2.2 |
Method of Borrowing for Revolving Loans | 25 | ||||
| 2.3 |
Funding of Revolving Loans | 26 | ||||
| 2.4 |
Minimum Amounts of Revolving Loans | 27 | ||||
| 2.5 |
Reductions of Revolving Loan Commitment | 27 | ||||
| 2.6 |
[Reserved] | 27 | ||||
| 2.7 |
Notes | 27 | ||||
| 2.8 |
[Reserved] | |||||
| SECTION 3. PAYMENTS |
28 | |||||
| 3.1 |
Interest | 28 | ||||
| 3.2 |
Prepayments | 28 | ||||
| 3.3 |
Payment in Full at Maturity | |||||
| 3.4 |
Fees | |||||
| 3.5 |
Place and Manner of Payments | 29 | ||||
| 3.6 |
Pro Rata Treatment | 29 | ||||
| 3.7 |
Computations of Interest and Fees | |||||
| 3.8 |
Sharing of Payments | 30 | ||||
| 3.9 |
Evidence of Debt | 31 | ||||
| 3.10 |
Obligation to Return Erroneous Payment | 32 | ||||
| SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS |
34 | |||||
| 4.1 |
Term SOFR Loan Provisions | 34 | ||||
| 4.2 |
Capital Adequacy | 37 | ||||
| 4.3 |
Compensation | 38 | ||||
| 4.4 |
Taxes | 38 | ||||
| 4.5 |
Mitigation; Mandatory Assignment | 42 | ||||
i
| SECTION 5. [RESERVED.] |
42 | |||||
| SECTION 6. CONDITIONS PRECEDENT |
42 | |||||
| 6.1 |
Closing Conditions | 42 | ||||
| 6.2 |
Conditions to Loans | 44 | ||||
| SECTION 7. REPRESENTATIONS AND WARRANTIES |
45 | |||||
| 7.1 |
Organization and Good Standing | 45 | ||||
| 7.2 |
Due Authorization | 45 | ||||
| 7.3 |
No Conflicts | 45 | ||||
| 7.4 |
Consents | 45 | ||||
| 7.5 |
Enforceable Obligations | 46 | ||||
| 7.6 |
Financial Condition | 46 | ||||
| 7.7 |
No Default | 46 | ||||
| 7.8 |
Indebtedness | 46 | ||||
| 7.9 |
Litigation | 46 | ||||
| 7.10 |
Taxes | 46 | ||||
| 7.11 |
Compliance with Law | 47 | ||||
| 7.12 |
ERISA | 47 | ||||
| 7.13 |
Government Regulation | 47 | ||||
| 7.14 |
Solvency | 47 | ||||
| 7.15 |
Anti-Corruption Laws and Sanctions | 47 | ||||
| 7.16 |
Affected Financial Institutions | 48 | ||||
| SECTION 8. AFFIRMATIVE COVENANTS |
48 | |||||
| 8.1 |
Information Covenants | 48 | ||||
| 8.2 |
Preservation of Existence and Franchises | 49 | ||||
| 8.3 |
Books and Records | 50 | ||||
| 8.4 |
Compliance with Law | 50 | ||||
| 8.5 |
Payment of Taxes | 50 | ||||
| 8.6 |
Insurance | 50 | ||||
| 8.7 |
Performance of Obligations | 50 | ||||
| 8.8 |
ERISA | 50 | ||||
| 8.9 |
Use of Proceeds | 51 | ||||
| 8.10 |
Audits/Inspections | |||||
| 8.11 |
Total Funded Debt to Capitalization | 51 | ||||
| 8.12 |
Anti-Corruption Laws and Sanctions | 52 | ||||
| SECTION 9. NEGATIVE COVENANTS |
52 | |||||
| 9.1 |
Nature of Business | 52 | ||||
| 9.2 |
Consolidation and Merger | 52 | ||||
| 9.3 |
Sale or Lease of Assets | 53 | ||||
| 9.4 |
Limitation on Liens | 53 | ||||
| 9.5 |
Fiscal Year | 53 | ||||
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| 9.6 |
Use of Proceeds | 53 | ||||
| SECTION 10. EVENTS OF DEFAULT |
53 | |||||
| 10.1 |
Events of Default | 53 | ||||
| 10.2 |
Acceleration; Remedies | 55 | ||||
| 10.3 |
Allocation of Payments After Event of Default | 56 | ||||
| SECTION 11. AGENCY PROVISIONS |
57 | |||||
| 11.1 |
Appointment | 57 | ||||
| 11.2 |
Delegation of Duties | |||||
| 11.3 |
Exculpatory Provisions | 58 | ||||
| 11.4 |
Reliance on Communications | 58 | ||||
| 11.5 |
Notice of Default | 59 | ||||
| 11.6 |
Non-Reliance on Administrative Agent and Other Lenders | 59 | ||||
| 11.7 |
Indemnification | 59 | ||||
| 11.8 |
Administrative Agent in Its Individual Capacity | 60 | ||||
| 11.9 |
Successor Administrative Agent | 60 | ||||
| 11.10 |
ERISA Matters | 61 | ||||
| SECTION 12. MISCELLANEOUS |
63 | |||||
| 12.1 |
Notices | 63 | ||||
| 12.2 |
Right of Set-Off; Adjustments | 63 | ||||
| 12.3 |
Benefit of Agreement | 64 | ||||
| 12.4 |
No Waiver; Remedies Cumulative | |||||
| 12.5 |
Payment of Expenses, Indemnity, Limitation of Liability, etc. | 68 | ||||
| 12.6 |
Amendments, Waivers and Consents | 69 | ||||
| 12.7 |
Counterparts; |
|||||
| 12.8 |
Headings | 72 | ||||
| 12.9 |
Defaulting Lenders | 72 | ||||
| 12.10 |
Survival of Indemnification and Representations and Warranties | 73 | ||||
| 12.11 |
GOVERNING LAW | 73 | ||||
| 12.12 |
WAIVER OF JURY TRIAL | 73 | ||||
| 12.13 |
Severability | 73 | ||||
| 12.14 |
Entirety | |||||
| 12.15 |
Binding Effect | 74 | ||||
| 12.16 |
Submission to Jurisdiction | 74 | ||||
| 12.17 |
Confidentiality | 74 | ||||
| 12.18 |
Designation of SPVs | 75 | ||||
| 12.19 |
USA Patriot Act | 76 | ||||
| 12.20 |
No Fiduciary Duty | 76 | ||||
| 12.21 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions | |||||
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SCHEDULES
| Schedule 1.1 | Commitments | |
| Schedule 12.1 | Notices |
EXHIBITS
| Exhibit 1.7 | Form of Annual Sustainability Report | |
| Exhibit 2.2(a) | Form of Notice of Borrowing | |
| Exhibit 2.2(c) | Form of Notice of Conversion/Continuation | |
| Exhibit 2.7(a) | Form of Revolving Loan Note | |
| Exhibit 6.1(c) | Form of Closing Certificate | |
| Exhibit 8.1(c) | Form of Officer’s Certificate | |
| Exhibit 12.3 | Form of Assignment Agreement |
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SUSTAINABILITY REVOLVING CREDIT AGREEMENT
SUSTAINABILITY REVOLVING CREDIT AGREEMENT (this “Credit Agreement”), dated as of June 9, 2021 among DOMINION ENERGY, INC., a Virginia corporation, (the “Borrower”), the several banks and other financial institutions from time to time parties to this Credit Agreement (each a “Lender” and, collectively, the “Lenders”) and SUMITOMO MITSUI BANKING CORPORATION, a national banking association (“SMBC”), as administrative agent for the Lenders hereunder (in such capacity, the “Administrative Agent”).
The Borrower, the Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires. Defined terms herein shall include in the singular number the plural and in the plural the singular:
“Adjusted Daily Simple SOFR” means Daily Simple SOFR, plus 0.10%. Notwithstanding the foregoing, if Adjusted Daily Simple SOFR at any time shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“Adjusted Term SOFR Rate” means the Term SOFR Rate plus the Applicable Percentage for Term SOFR Loans plus 0.10%. Notwithstanding the foregoing, if the Adjusted Term SOFR Rate at any time shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“Administrative Agent” means SMBC and any successors and assigns in such capacity.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling (including but not limited to all directors and officers of such Person), controlled by or under direct or indirect common control with such Person. A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power (i) to vote 20% or more of the securities having ordinary voting power for the election of directors of such corporation or (ii) to direct or cause direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise.
“Ancillary Document” has the meaning set forth in Section 12.7(b).
“Annual Sustainability Report” means a certificate substantially in the form of Exhibit 1.7 executed by the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, Treasurer, any Assistant Treasurer, Controller or Vice President - Finance of the Borrower and delivered to the Administrative Agent annually pursuant to Section 1.7(e) certifying, with respect to each Sustainability Loan borrowed during the period commencing on January 1 of the calendar year then most recently ended and ending on the date immediately preceding the date of such certificate, (i) that the net proceeds of such Loan were (or are reasonably expected to be)
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allocated to one or more Green Investment Use of Proceeds and/or Social Investment Use of Proceeds, and (ii) providing a brief description of such Sustainability Use of Proceeds, the allocated amount, and the expected impact of such use in qualitative and/or quantitative terms for such Sustainability Use of Proceeds or, in either case, including updates or certifying as to no changes with respect to any information about such Sustainability Loan previously included in the immediately preceding Annual Sustainability Report.
“Anti-Corruption Laws” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and all similar laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Percentage” means, for Revolving Loans made to the Borrower and the calculation of Facility Fees, the appropriate applicable percentages corresponding to the Rating in effect from time to time as shown below:
| Pricing Level |
Rating of Borrower |
Applicable Percentage for Term SOFR Loans |
Applicable Percentage for Base Rate Loans |
Applicable Percentage for Facility Fees |
||||||||||
| I. |
≥A-from S&P or A3 from Moody’s or A-from Fitch | % | 0.000 | % | % | |||||||||
| II. |
BBB+ from S&P or Baa1 from Moody’s or BBB+ from Fitch | % | 0.000 | % | % | |||||||||
| III. |
BBB from S&P or Baa2 from Moody’s or BBB from Fitch | % | 0.000 | % | % | |||||||||
| IV. |
BBB- from S&P or Baa3 from Moody’s or BBB-from Fitch or lower | % | 0.075 | % | % | |||||||||
Notwithstanding the above, if at any time there is a split in Ratings among S&P, Moody’s and Fitch and (i) two Ratings are equal and higher than the third, the higher Rating will apply, (ii) two Ratings are equal and lower than the third, the lower Rating will apply or (iii) no Ratings are equal, the intermediate Rating will apply. In the event that the Borrower shall maintain Ratings from only two of S&P, Moody’s and Fitch and the Borrower is split-rated and (x) the Ratings differential is one level, the higher Rating will apply and (y) the Ratings differential is two levels or more, the level one level lower than the higher Rating will apply.
The Applicable Percentages shall be determined and adjusted on the date of any applicable change in the Rating. Any adjustment in the Applicable Percentages shall be applicable to all existing Loans (commencing with the succeeding Interest Period, if any) as well as any new Loans.
The Applicable Percentage for the Facility Fees payable by the Borrower shall be the appropriate applicable percentages from time to time, as
shown above, calculated based on the Ratings at such time, as published by S&P, Moody’s and Fitch. It is understood that the Applicable Percentages as of the Closing Date for Facility Fees payable by the Borrower are based on Pricing Level
III (as shown above) and shall remain at Pricing Level III until an applicable change in the Ratings of the lowest rated Borrower. The Borrower shall at all times maintain a Rating from at least two of S&P, Moody’s and Fitch.
If at any time the Borrower does not have a Rating from at least two of S&P, Moody’s and Fitch, the Applicable Percentages shall be set at Pricing Level IV.
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The Borrower shall promptly deliver to the Administrative Agent, at the address set forth on Schedule 12.1, information regarding any change in the Rating that would change the existing Pricing Level (as set forth in the chart above) and/or the Facility Fees.
Notwithstanding the foregoing, the Applicable Percentages for Sustainability Loans, whether Base Rate Loans or Term SOFR Loans, shall be the rate set forth above that would have otherwise been applicable at the time of the drawing of such Sustainability Loan as decreased by the Sustainability Margin Adjustment as set forth in Section 1.7. For the avoidance of doubt, the Facility Fee shall not be reduced by the Sustainability Margin Adjustment.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Credit Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (a)(v) of Section 4.1.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the greatest of
(a) the Prime Rate for such day, (b) the sum of one-half of one percent (0.50%) plus the NYFRB Rate for such day or (c) the Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior
to such day (or if such day is not a Business Day, the immediately preceding Business Day) plus one percent (1.00%), in each case plus the Applicable Percentage for Base Rate Loans; provided that if any such rate shall be less than zero, such
rate shall be deemed to be zero. Each change in the Base Rate based upon a change in the Prime Rate, the NYFRB Rate or the Term SOFR Rate shall take effect at the time of such change in the Prime Rate, the Federal
FundsNYFRB Rate, or the Term SOFR Rate,
respectively.
3
“Base Rate Loan” means a Loan that bears interest at a Base Rate.
“Benchmark” means, initially, Term SOFR Rate; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (ii) of Section 4.1(a).
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date;
(1) Adjusted Daily Simple SOFR;
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Credit Agreement and the other Credit Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement for purposes of clause (2) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar denominated syndicated credit facilities.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term SOFR Revolving Loan, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,”, the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest,
4
timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Credit Agreement and the other Credit Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark
5
(or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 4.1 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 4.1.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Part 4 of Subtitle B of Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies or (c) any Person whose assets include (within the meaning of the Plan Asset Regulations) the assets of any such “employee benefit plan” or “plan”.
“Borrower” has the meaning set forth in the preamble hereof.
“Business Day” means any day other than a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or other governmental action to close in New York City or Chicago; provided that, in relation to the calculation or computation of Term SOFR, any day which is a U.S. Government Securities Business Day.
6
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Capitalization” means the sum of (a) Total Funded Debt plus (b) Net Worth.
“Change of Control” means the direct or indirect acquisition by any person (as such term is defined in Section 13(d) of the Exchange Act) of beneficial ownership of more than 50% of the outstanding shares of the capital stock of the Borrower entitled to vote generally for the election of directors of the Borrower.
“Closing Date” means June 9, 2021.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means, with respect to each Lender, such Lender’s share of the Revolving Loan Commitment based upon such Lender’s Commitment Percentage.
“Commitment Percentage” means, for each Lender, the percentage identified as its Commitment Percentage opposite such Lender’s name on Schedule 1.1, as such percentage may be modified in accordance with the terms of this Credit Agreement. For purposes of Section 12.9, when a Defaulting Lender shall exist, “Commitment Percentage” shall mean the percentage of total Revolving Loan Commitments represented by such Lender’s Commitment disregarding any Defaulting Lender’s Commitments.
“Commitment Period” means the period from the Closing Date to the Maturity Date.
“Consolidated Affiliate” means, as to any Person, each Affiliate of such Person (whether now existing or hereafter created or acquired), the financial statements of which are consolidated with the financial statements of such Person in accordance with GAAP, including principles of consolidation.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Documents” means this Credit Agreement, the Notes (if any), the Fee Letter and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto.
“Credit Exposure” has the meaning set forth in the definition of “Required Lenders” below.
7
“Credit Party” means the Administrative Agent or any other Lender.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Default” means any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default the Borrower.
“Defaulting Lender” means, at any time, any Lender that, at such time (a) has failed, within three Business Days of the date required to be funded or paid, to (i) make a Loan required pursuant to the terms of this Credit Agreement, or (ii) pay to any Credit Party any other amount required to be paid hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and with supporting facts) has not been satisfied, or, in the case of clause (ii), such amount is the subject of a good faith dispute; (b) notified the Borrower or any Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its future funding obligations under this Credit Agreement (unless such writing or public statement states that such position is based on such Lender’s good faith determination that a condition precedent to funding a Loan under this Credit Agreement, specifically identified and with reasonable supporting facts, cannot be met) or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after a request by the Borrower or a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender in the jurisdiction of such Lender’s lending office that it will comply with its obligations to fund prospective Loans under this Credit Agreement, provided, however, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Borrower’s or such Credit Party’s receipt of such certification, or (d) has, or has a direct or indirect parent company that has, (i) been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, (ii) has become subject to a bankruptcy, insolvency, receivership, conservatorship or other similar proceedings, or has had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Persons charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such capacity or (iii) becomes the subject of a Bail-in Action; provided, that a Lender shall not become a Defaulting Lender solely as the result of the acquisition or maintenance of an ownership interest in such Lender or in any Person controlling such Lender, or the exercise of control over such Lender or over any Person controlling such Lender, by a Governmental Authority or an instrumentality thereof.
“Dollar”, “dollar” and “$” means lawful currency of the United States.
8
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Eligible Assignee” means (a) any Lender or Affiliate or Subsidiary of a Lender and (b) any other commercial bank, financial institution or “accredited investor” (as defined in Regulation D) that is either a bank organized or licensed under the laws of the United States of America or any State thereof or that has agreed to provide the information listed in Section 4.4(f) to the extent that it may lawfully do so and that is approved by the Administrative Agent and the Borrower (such approval not to be unreasonably withheld or delayed); provided that (i) the Borrower’s consent is not required pursuant to clause (a) or, with respect to clause (b), during the existence and continuation of a Default or an Event of Default, and (ii) neither the Borrower nor any Affiliate or Subsidiary of the Borrower shall qualify as an Eligible Assignee. In no event may a natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) or a Defaulting Lender be an Eligible Assignee.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.
“ERISA Affiliate” means with respect to the Borrower each person (as defined in Section 3(9) of ERISA) which together with the Borrower or any Subsidiary of the Borrower would be deemed to be a member of the same “controlled group” within the meaning of Section 414(b), (c), (m) and (o) of the Code or under common control within the meaning of Section 4001(a)(14) of ERISA.
“Erroneous Payment” has the meaning set forth in Section 3.10(a).
“Erroneous Payment Deficiency Assignment” has the meaning set forth in Section 3.10(d).
“Erroneous Payment Impacted Loans” has the meaning set forth in Section 3.10(d).
9
“Erroneous Payment Return Deficiency” has the meaning set forth in Section 3.10(d).
“Erroneous Payment Subrogation Rights” has the meaning set forth in Section 3.10(d).
“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.
“Event of Default” has the meaning specified in Section 10.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Facility Fees” has the meaning set forth in Section 3.4(a).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any law, regulation, rule, promulgation, guidance notes, practices or official agreement implementing an official government agreement with respect to the foregoing.
“Federal Funds Rate” means for any day the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time), as published by the NYFRB on the Business Day next succeeding such day; provided that if the Federal Funds Rate at any time shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“Fee Letter” means that certain Administrative Agent and Arranger Fee Letter, dated as of May 3, 2021, between the Borrower and SMBC.
“Fee Payment Date” shall mean (a) the first Business Day of each January, April, July and October and (b) the Maturity Date.
“Fiduciary Rule” has the meaning set forth in Section 11.10(b)(ii).
“Fitch” means Fitch Ratings Ltd., or any successor or assignee of the business of such company in the business of rating securities.
“Floor” means the benchmark rate floor, if any, provided in this Credit Agreement initially (as of the execution of this Credit Agreement, the modification, amendment or renewal of this Credit Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate, as applicable. For the avoidance of doubt the initial Floor for the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate shall be zero.
10
“Funded Debt” means, as to any Person, without duplication: (a) all
Indebtedness of such Person for borrowed money or which has been incurred in connection with the acquisition of assets (excluding letters of credit, bankers’ acceptances, Non-Recourse Debt, Mandatorily Convertible Securities, Trust Preferred
Securities and Hybrid Equity Securities), (b) all
capitalfinance
lease obligations of such Person (including Synthetic Lease Obligations only to the extent actually included on such Person’s balance sheet delivered pursuant to Sections 8.1(a) or 8.1(b)) and
(c) all Guaranty Obligations of Funded Debt of other Persons (including Guaranty Obligations of Funded Debt consisting of Synthetic Lease Obligations only to the extent such Guaranty Obligations are actually included on such Person’s
balance sheet delivered pursuant to Sections 8.1(a) or 8.1(b)). Notwithstanding the foregoing (and without limiting the Borrower’s rights under Section 1.3), all obligations of the Borrower under a lease or other arrangement (other than
Synthetic Lease Obligations) that is determined by the Borrower to be an operating lease under GAAP (as in effect as of the Closing Dateon December 31, 2018 (whether or not such operating lease or arrangement was in effect on such date) and any replacement of such lease or such other arrangement on substantially consistent terms regarding the amount thereof, use of proceeds provisions and economic provisions (subject to prevailing market
conditions at the time of such replacement) and therefore not Funded Debt shall continue to be excluded from this definition notwithstanding any changes in applicable accounting rules effective after the date of such determination by the Borrower.
“GAAP” means generally accepted accounting principles in the United States applied on a consistent basis and subject to Section 1.3.
“Governmental Authority” means any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
“Granting Lender” has the meaning set forth in Section 12.18 hereof.
“Green Investment Use of Proceeds” means the allocated use of the proceeds of a Loan by the Borrower or any of
its Affiliates to finance (or to refinance a financing the proceeds of which were used during the eighteen months prior to the making of such Loan to finance), in
whole or in part, investments in, and
working capital, capital and operational expenditures and other general corporate purposes relating to, existing (at the time of such use) and future solar, wind, hydro, storage battery, renewable natural gas, and
other renewable energy as well as pollution prevention and control, biodiversity conservation, or :
(a) solar and wind power, including and limited to (i) the purchase of solar and wind energy, pursuant to long-term (i.e., minimum tenor of five years) physical power purchase agreements (PPAs) or virtual power purchase agreements (VPPAs) entered prior to the commencement, or in the case of rehabilitated projects, the recommencement of commercial operation of the applicable facility or (ii) development and operation of offshore wind installation vessels;
(b) hydropower, including and limited to (i) the acquisition, construction and development of new hydro facilities (operational on or after 2020) that have a lifecycle emissions intensity < 50 gCO2e/kWh (and with no significant negative impact identified through environmental impact assessment) or (ii) the refurbishment of existing hydro facilities (operational before 2020) that do not increase the size of the dam/reservoir and have a lifecycle emissions intensity < 100 gCO2e/kWh;
11
(c) grid modernization and energy storage, including and limited to (i) technological investments that support renewable energy, including grid modernization, microgrid and energy storage (including pumped storage facilities) or (ii) transmission & distribution (T&D) grid modernization that directly support the integration of renewable energy sources, including the development of underground infrastructure and installation of demand-side management equipment that will improve the efficiency of the system;
(d) nuclear power, including and limited to (i) the acquisition, operation, maintenance and/or refurbishment of existing nuclear power to extend the lifetime or capacity of facilities, while maintaining or improving the operational safety of such facilities or (ii) research and development of innovative reactor technologies, and construction and operation of advanced nuclear facilities, subject to best available technologies;
(e) bioenergy and renewable natural gas, including and limited to the development, construction and operation of advanced bioenergy or renewable natural gas production facilities from biogenic wastes;
(f) hydrogen energy, including and limited to the development, construction, installation, maintenance and storage of low-carbon hydrogen produced from the electrolysis process powered by renewables or nuclear energy;
(g) energy efficiency, including and limited to the deployment of advanced metering infrastructure, including smart electric meters and related communication networks;
(h) pollution prevention and control, including and limited to expenditures related to decarbonizing the gas network and construction, development, renovation and maintenance of infrastructure designed to mitigate and eliminate emissions and/or produce cleaner energy, including: (i) retrofit and replacement of pipelines to facilitate the reduction of methane leakage or integration of hydrogen and other low-carbon gases, (ii) compressor station modernization or (iii) advanced fugitive and vented emissions elimination technologies;
(i) sustainable water and wastewater management, including and limited to the development of water and wastewater treatment facilities;
(j) biodiversity, including and limited to the preservation and conservation of habitat and wildlife protection, including studies conducted on wildlife in their natural habitats, systems and measures, including wildlife exclusion system and pollinator gardens;
(k)
sustainable building projects, including and limited to installations, and improvements and businesses and purposes reasonably related or ancillary
thereto.in commercial buildings that received or are expected to receive recognized third-party
certification schemes, including LEED Gold or above, or equivalent; and
(l) clean transportation, including electric vehicles (EVs) and associated infrastructure, including and limited to (i) the procurement of EVs for company fleets or (ii) the installation of EV charging stations and infrastructure.
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“Guaranty Obligations” means, in respect of any Person, any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Indebtedness of another Person, including, without limitation, any obligation (a) to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness or (b) entered into primarily for the purpose of assuring the owner of such Indebtedness of the payment thereof (such as, for example, but without limitation, an agreement to advance or provide funds or other support for the payment or purchase of such Indebtedness or to maintain working capital, solvency or other balance sheet conditions of such other Person, including, without limitation, maintenance agreements, comfort letters or similar agreements or arrangements, or to lease or purchase property, securities or services) if such obligation would constitute an indirect guarantee of indebtedness of others and the disclosure of such obligation would be required in such Person’s financial statements under GAAP; provided, however, that the term Guaranty Obligations shall not include (i) endorsements for deposit or collection in the ordinary course of business, (ii) obligations under purchased power contracts or (iii) obligations of such Person otherwise constituting Guaranty Obligations under this definition to provide contingent equity support, to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise in respect of any Subsidiary or Affiliate of such Person in connection with the non-utility non-recourse financing activities of such Subsidiary or Affiliate.
“Hybrid Equity Securities” means any securities issued by the Borrower or a financing vehicle of the Borrower that (i) are classified as possessing a minimum of “minimal equity content” by S&P, Basket B equity credit by Moody’s, and 25% equity credit by Fitch and (ii) require no repayments or prepayments and no mandatory redemptions or repurchases, in each case, prior to at least 91 days after the repayment in full of the Revolving Loans and all other amounts due under this Credit Agreement.
“Indebtedness” means, as to any Person, without duplication: (a) all obligations of such Person for borrowed money or
evidenced by bonds, debentures, notes or similar instruments; (b) all obligations of such Person for the deferred purchase price of property or services (except trade accounts payable arising in the ordinary course of business, customer
deposits, provisions for rate refunds, deferred fuel expenses and obligations in respect of pensions and other post-retirement benefits); (c) all
capitalfinance
lease obligations of such Person; (d) all Indebtedness of others secured by a Lien on any properties, assets or revenues of such Person (other than stock, partnership interests or other equity
interests of the Borrower or any of its Subsidiaries in other entities) to the extent of the lesser of the value of the property subject to such Lien or the amount of such Indebtedness; (e) all Guaranty Obligations; and (f) all
non-contingent obligations of such Person under any letters of credit or bankers’ acceptances.
“Interest Payment Date” means (a) as to Base Rate Loans, the last day of each fiscal quarter of the Borrower and the Maturity Date and (b) as to Term SOFR Loans, the last day of each applicable Interest Period and the Maturity Date and, in the case of any Interest Period longer than three months, the respective dates that fall every three months after the first day of such Interest Period. If an Interest Payment Date falls on a date which is not a Business Day, such Interest Payment Date shall be deemed to be the next succeeding Business Day, except that in the case of Term SOFR Loans where the next succeeding Business Day falls in the next succeeding calendar month, then such Interest Payment Date shall be deemed to be the immediately preceding Business Day.
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“Interest Period” means as to Term SOFR Loans, a period of one, three or six months’ duration, as the Borrower may elect, commencing, in each case, on the date of the borrowing (including continuations and conversions of Term SOFR Revolving Loans); provided, however, (i) if any Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then such Interest Period shall end on the next preceding Business Day), (ii) no Interest Period shall extend beyond the Maturity Date and (iii) with respect to Term SOFR Loans, where an Interest Period begins on a day for which there is no numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest Period shall end on the last Business Day of such calendar month.
“ ISDA Definitions” means
the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published
from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Joint Lead Arrangers” means SMBC, The Bank of Nova Scotia and The Toronto-Dominion Bank, New York Branch.
“Lender-Related Person” has the meaning set forth in Section 12.5(c).
“Lenders” means those banks and other financial institutions identified as such on the signature pages hereto and such other institutions that may become Lenders pursuant to Section 12.3(b) or pursuant to an amendment or joinder agreement acceptable to the Borrower and the Administrative Agent.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the Uniform Commercial Code as adopted and in effect in the relevant jurisdiction or other similar recording or notice statute, and any lease in the nature thereof).
“Loan” means any loan made by any Lender pursuant to this Credit Agreement.
“Mandatorily Convertible Securities” means any mandatorily convertible equity-linked securities issued by the Borrower, so long as the terms of such securities require no repayments or prepayments and no mandatory redemptions or repurchases (other than repayments, prepayments, redemptions or repurchases that are to be settled by the issuance of equity securities by the Borrower or the proceeds of which are concurrently applied to purchase equity securities from the Borrower), in each case prior to at least 91 days after the later of the termination of the Commitments and the repayment in full of the Loans and all other amounts due under this Credit Agreement.
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“March 5 Announcement” has the meaning set forth in Section
1.5.
“Material Adverse Effect” means material adverse effect, after taking into account applicable insurance, if any, on (a) the operations, financial condition or business of the Borrower and its subsidiaries taken as a whole, (b) the ability of the Borrower to perform its obligations under this Credit Agreement or (c) the validity or enforceability of this Credit Agreement or any of the other Credit Documents against the Borrower, or the rights and remedies of the Lenders against the Borrower hereunder or thereunder; provided, however, that a transfer of assets permitted under and in compliance with Section 9.3 shall not be considered to have a Material Adverse Effect.
“Material Subsidiary” shall mean a Subsidiary of the Borrower whose total assets (as determined in accordance with GAAP) represent at least 20% of the total assets of the Borrower, on a consolidated basis.
“Maturity Date” means June 9April
8,
20252028
.
“Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities.
“Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any ERISA Affiliate is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a ERISA Affiliate during such five year period but only with respect to the period during which such Person was a ERISA Affiliate.
“Net Worth” means as of any date, the shareholders’ equity or net worth of the Borrower and its Consolidated Affiliates (including, but not limited to, the value of any Mandatorily Convertible Securities, Trust Preferred Securities, Hybrid Equity Securities and Preferred Stock; but, excluding (1) the accumulated other comprehensive income or loss component of shareholders’ equity (“AOCI”), such AOCI to be computed assuming that the Borrower was entitled to utilize hedge accounting treatment for applicable interest expense and interest income items identified by the Borrower), and (2) any impact resulting directly from any change in the Borrower’s accounting policies after January 1, 2024 (including any change in any accounting policy after January 1, 2024 that causes any impact to accounting periods on or prior to such date) that is (A) in accordance with GAAP and (B) agreed to by the Borrower’s independent auditor), on a consolidated basis, as determined in accordance with GAAP except as otherwise noted above.
“Non-Recourse Debt” means Indebtedness (a) as to which the Borrower (i) does not provide credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (ii) is not directly or indirectly liable as a guarantor or otherwise, or (iii) does not constitute the lender; (b) no default with respect to which would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or the Notes) of the Borrower to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders will not have any recourse to the stock or assets of the Borrower (other than the specific assets pledged to secure such Indebtedness) and the relevant legal documents so provide.
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“Non-Regulated Assets” means with respect to the Borrower, the operations that are not regulated by a Governmental Authority with respect to ratemaking (i.e., merchant generation, exploration and production, producer services or retail supply assets of the Borrower).
“Notes” means the reference to the Revolving Loan Notes of the Borrower.
“Notice of Borrowing” means a request by the Borrower for a Loan in the form of Exhibit 2.2(a), and, if the Borrower has determined the Loan will be a Sustainability Loan as set forth in Section 1.7, the Borrower shall include therein notice to the Administrative Agent that the requested Loan will be a Sustainability Loan.
“Notice of Continuation/Conversion” means a request by the Borrower for the continuation or conversion of a Loan in the form of Exhibit 2.2(c).
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any date that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates is published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Other Taxes” has the meaning set forth in Section 4.4(b) hereof.
“Overnight Bank Funding Rate” means, for any date, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
“Patriot Act” has the meaning set forth in Section 12.19 hereof.
“Payment Recipient” has the meaning set forth in Section 3.10(a).
“PBGC” means the Pension Benefit Guaranty Corporation established under ERISA and any successor thereto.
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“Pension Plans” has the meaning set forth in Section 8.8 hereof.
“Person” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise (whether or not incorporated), or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means any single-employer plan as defined in Section 4001(a)(5) of ERISA, which is maintained, or at any time during the five calendar years preceding the date of this Credit Agreement was maintained, for employees of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of the Borrower.
“Plan Asset Regulation” means the regulations issued by the United States Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the United States Code of Federal Regulations, as modified by Section 3(42) of ERISA, as the same may be amended from time to time.
“Preferred Stock” means any Capital Stock issued by the Borrower that is entitled to preference or priority over any other Capital Stock of the Borrower in respect of the payment of dividends or distribution of assets upon liquidation, or both.
“Prime Rate” means the per annum rate of interest established and publicly announced from time to time by SMBC at its principal office in New York, New York as its “prime rate”. Any change in the interest rate resulting from a change in the Prime Rate shall become effective as of 12:01 a.m. of the Business Day on which each change in the Prime Rate is announced by the Administrative Agent. The Prime Rate is not necessarily the lowest rate that SMBC is charging any corporate customer.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Rating” means the rating assigned by S&P, Moody’s or Fitch to the Borrower based on the Borrower’s senior, unsecured, non-credit-enhanced obligations or, if no such rating is assigned to the Borrower by at least two of S&P, Moody’s or Fitch, the issuer rating assigned to the Borrower by S&P, Moody’s or Fitch.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business Days preceding the date of such setting and (2) if such Benchmark is not the Term SOFR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Register” has the meaning set forth in Section 12.3(c).
“Relevant Governmental Body” means the Federal Reserve Board of the NYFRB and/or the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board of the NYFRB, or any successor thereto.
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“Reportable Event” means a “reportable event” as defined in Section 4043 of ERISA with respect to which the notice requirements to the PBGC have not been waived.
“Required Lenders” means Lenders whose aggregate Credit Exposure (as hereinafter defined) constitutes more than 50% of the aggregate Credit Exposure of all Lenders at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Lenders the aggregate principal amount of Credit Exposure of such Lender at such time. For purposes of the preceding sentence, the term “Credit Exposure” as applied to each Lender shall mean (a) at any time prior to the termination of the Commitments, the Commitment Percentage of such Lender multiplied by the Revolving Loan Commitment and (b) at any time after the termination of the Commitments, the sum of the outstanding amount of Loans owed to such Lender.
“Resolution Authority” means, (i) with respect to any Lender that is a UK Financial Institution, a UK Resolution Authority and (ii) with respect to any Lender that is a EEA Financial Institution, an EEA Resolution Authority.
“Responsible Officer” means the Chief Financial Officer, the Treasurer, any Vice President—Finance and any Assistant Treasurer – Corporate Finance of the Borrower.
“Revolving Loan” means a Standard Revolving Loan and/or a Sustainability Loan, as the context may require.
“Revolving Loan Commitment” means each Lender’s commitment
hereunder to make Standard Revolving Loans and Sustainability Loans in an aggregate amount of Nine Hundred MillionOne Billion Dollars ($900,000,0001,000,000,000
), as such amount may be otherwise reduced in accordance with Section 2.5 or increased in accordance with Section 2.6.
“Revolving Loan Notes” means with respect to the Borrower the promissory notes of the Borrower in favor of each Lender evidencing such Revolving Loans and substantially in the form of Exhibit 2.7(a), as such promissory notes may be amended, modified, supplemented or replaced from time to time.
“S&P” means S&P Global Ratings, a division of S&P Global Inc. or any successor in the business of rating securities.
“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any
comprehensive
Sanctions (which at the time of this Credit Agreement,the
Third Amendment Effective Date include the so-called Donetsk Peoples’s Republic, the so-called Luhansk People’s Republic, the Crimea region of Ukraine, Cuba, Iran, North Korea and
Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person described in clause (a) or (b) above.
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“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by OFAC or the U.S. Department of State.
“SMBC” has the meaning set forth in the preamble hereof.
“Social Investment Use of Proceeds” means the allocated use of the proceeds of a Loan by the Borrower or any of its
Affiliates to finance (or to refinance a financing the proceeds of which were used during the eighteen months prior to the making of such Loan to
finance), in whole or in part, investments in, and working capital, capital expenditures, operational expenditures and other general corporate purposes relating
to, existing (at the time of such use) and future projects, installations, improvements and businesses and purposes reasonably related or ancillary
to: socioeconomic advancement and empowerment including and limited to (i) supporting small and medium sizedmedium-sized businesses and/or diverse owned businesses, (ii) COVID 19 and emergency related community response,
(iii) measures to increase diversity among new hires and the retention and promotion of
women and minority employees
and, (iviii) solidarity with vulnerable, underrepresented, underserved and/or marginalized populations including without limitation, foregoing arrearages or donations/grants made to community support organizations or to
support educational programs serving underrepresented minority populations (including, but not limited to, historically black colleges and
universities)., and
(iv) access to essential services including and limited to deployment and/or extension of infrastructure for fixed or wireless telecommunications (e.g., broadband) for identified remote or underserved communities.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Solvent” means, with respect to any Person as of a particular date, that on such date (a) the fair saleable value (on a going concern basis) of such Person’s assets exceeds its liabilities, contingent or otherwise, fairly valued, (b) such Person will be able to pay its debts as they become due, (c) such Person does not have unreasonably small capital with which to satisfy all of its current and reasonably anticipated obligations and (d) such Person does not intend to incur nor does it reasonably anticipate that it will incur debts beyond its ability to pay as such debts become due.
“SPV” has the meaning set forth in Section 12.18 hereof.
“Standard Revolving Loan” means a Loan made by the Lenders to the Borrower pursuant to Section 2.1(a) hereof, other than any Sustainability Loan.
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“Subsidiary” means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Credit Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Sustainability Coordinator” means SMBC, as sustainability coordinator hereunder.
“Sustainability Loan” means any Loan that is requested by the Borrower in accordance with Section 1.7 hereof for Green Investment Use of Proceeds or Social Investment Use of Proceeds.
“Sustainability Margin Adjustment” means a five basis points adjustment with respect to the Applicable Percentage of any Sustainability Loan.
“Sustainability Use of Proceeds” means a Green Investment Use of Proceeds and/or a Social Investment Use of Proceeds.
“Synthetic Lease” means each arrangement, however described, under which the obligor accounts for its interest in the property covered thereby under GAAP as lessee of a lease and accounts for its interest in the property covered thereby for federal income tax purposes as the owner.
“Synthetic Lease Obligation” means, as to any Person with respect to any Synthetic Lease at any time of
determination, the amount of the liability of such Person in respect of such Synthetic Lease that would (if such lease was required to be classified and accounted for as a
capitalfinance
lease on a balance sheet of such Person in accordance with GAAP) be required to be capitalized on the balance sheet of such Person at such time.
“Taxes” has the meaning set forth in Section 4.4(a).
“Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Loan” means a Loan that bears interest at the Adjusted Term SOFR Rate.
“Term SOFR Rate” means with respect to any Term SOFR Loan, for the Interest Period applicable thereto, the Term SOFR Reference Rate at approximately 5:00 a.m. (Chicago time), two U.S. Government Securities Business Days prior to the commencement of such Interest Period, as such rate is published by the CME Term SOFR Administrator.
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“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term SOFR Loan, for the Interest Period applicable thereto, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 p.m. (New York City time) on the fifth U.S. Government Securities Business Day immediately following any Term SOFR Determination Day, the “Term SOFR Reference Rate” has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five Business Days prior to such Term SOFR Determination Day.
“Term SOFR Revolving Loan” means a Revolving Loan bearing interest at a rate of interest determined by reference to the Adjusted Term SOFR Rate.
“Third Amendment Effective Date” means April 8, 2025.
“Total Funded Debt” means all Funded Debt of the Borrower and its Consolidated Affiliates, on a consolidated basis, as determined in accordance with GAAP except as otherwise provided in this Credit Agreement.
“Trust Preferred Securities” means the preferred securities issued by a subsidiary capital trust established by the Borrower outstanding on the date hereof and reflected as Unsecured Junior Subordinated Notes Payable to Affiliated Trust, 8.4%, due 2031, in the financial statements of the Borrower for the fiscal year ended December 31, 2020, and any additional trust preferred securities that are substantially similar thereto, along with the junior subordinated debt obligations of the Borrower, so long as (a) the terms thereof require no repayments or prepayments and no mandatory redemptions or repurchases, in each case prior to at least 91 days after the later of the termination of the Commitments and the repayment in full of the Loans and all other amounts due under this Credit Agreement, (b) such securities are subordinated and junior in right of payment to all obligations of the Borrower for or in respect of borrowed money and (c) the obligors in respect of such preferred securities and subordinated debt have the right to defer interest and dividend payments, in each case, to substantially the same extent as such currently outstanding preferred securities or on similar terms customary for trust preferred securities and not materially less favorable to the interests of the Borrower or the Lenders.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended formfrom time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom
Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
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“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Utilized Revolving Commitment” means, for any day from the Closing Date to the Maturity Date, an amount equal to the sum of the aggregate principal amount of all Loans outstanding on such day.
“Wholly -Owned Subsidiary” means, as to any Person, any other Person all of the Capital Stock of which (other than de minimis directors’ qualifying shares or local ownership shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
“Withholding Agent” means the Borrower or the Administrative Agent, as determined by applicable law.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Computation of Time Periods; Other Definitional Provisions.
For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. References in this Credit Agreement to “Sections”, “Schedules” and “Exhibits” shall be to Sections, Schedules or Exhibits of or to this Credit Agreement unless otherwise specified.
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis. All calculations made for the purposes of determining compliance with this Credit Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 8.1; provided, however, if (a) the Borrower shall object to determining such compliance on such basis at the time of delivery of such financial statements due to any change in GAAP or the rules promulgated with respect thereto or (b) the Administrative Agent or the Required Lenders shall so object in writing within 30 days after delivery of such financial statements, then such calculations shall be made on a basis consistent with the most recent financial statements delivered by the Borrower to the Lenders as to which no such objection shall have been made.
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1.4 Time.
All references to time herein shall be references to Eastern Standard Time or Eastern Daylight Time, as the case may be, unless specified otherwise.
1.5 Interest Rates; Benchmark Notifications.
The interest rate on Term SOFR Loans is determined by reference to the Term SOFR Reference Rate, which may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 4.1 provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to any interest rate used in this Credit Agreement or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, any such alternative, successor or replacement rate implemented pursuant to Section 4.1), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as any interest rate prior to its discontinuance or unavailability.
1.6 Divisions.
For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
1.7 Sustainability Adjustments.
(a) The Borrower may include in a Notice of Borrowing an election and certificate that an amount equal to the net proceeds of the Loan requested under such Notice of Borrowing will be allocated to one or more Sustainability Use of Proceeds and that such Loan qualifies as a Sustainability Loan entitled to the Sustainability Margin Adjustment. The eligibility of the Borrower’s allocated use of proceeds of any Sustainability Loan as a Green Investment Use of Proceeds or Social Investment Use of Proceeds shall be determined at the sole discretion of the Borrower via an internal process coordinated by the Borrower’s treasury and sustainability management teams and other relevant stakeholders internal to the Borrower. If the Borrower so delivers a Notice of Borrowing, the Loan requested thereunder shall be a Sustainability Loan and the Applicable Percentage for such Sustainability Loan shall be the percentage equal to the Applicable Percentage (whether Base Rate Loan or Term SOFR Loan) that would have otherwise been applicable at the time of the drawing of such Sustainability Loan minus the Sustainability Margin Adjustment.
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(b) The Borrower will establish and maintain a register to record on an ongoing basis the allocated Green Investment Use of Proceeds and/or Social Use of Proceeds of each Sustainability Loan, and shall share such register with the Sustainability Coordinator and Administrative Agent upon reasonable request therefor. For the avoidance of doubt, proceeds from any Sustainability Loan are not required to be kept in any segregated account prior to being allocated to any applicable Sustainability Use of Proceeds. All payments of principal, interest, fees, expenses and other amounts required to be made by the Borrower under this Credit Agreement will be paid from the Borrower’s general account and are not subject to the Borrower achieving returns on any applicable Sustainability Use of Proceeds.
(c) Notwithstanding anything to the contrary herein, any amendment, modification or other supplement to the definitions of Sustainability Loan, Green Investment Use of Proceeds or Social Investment Use of Proceeds included in this Credit Agreement may be entered into or amended in a writing executed only by the Borrower and the Sustainability Coordinator in its sole discretion, and acknowledged by the Administrative Agent, and shall not require the consent of any Lender.
(d) Each party hereto hereby agrees that neither the Administrative Agent nor the Sustainability Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any representation, use of proceeds or reporting by the Borrower with respect to any Sustainability Loan or Sustainability Margin Adjustment set forth in any Notice of Borrowing or Annual Sustainability Report (and the Administrative Agent and the Sustainability Coordinator may rely conclusively on any such certificate, without further inquiry). Each party hereto hereby agrees that the Administrative Agent and the Sustainability Coordinator make no assurances as to (i) whether this Credit Agreement meets any Borrower or Lender criteria or expectations with regard to environmental or social impact or sustainability performance, or (ii) whether the definitions of Sustainability Loan, Green Investment Use of Proceeds or Social Investment Use of Proceeds included in the Agreement meet any industry standards for sustainability-linked or green or social use of proceeds credit facilities.
(e) As soon as available and
in any event within 120 days following the end of each calendar year (commencing with the calendar year ending December 31, 20212025) (each such date an “Annual Reporting Date”), the
Borrower shall use commercially reasonable efforts to provide an Annual Sustainability Report for the period commencing on January 1 of the then most recently-ended calendar year and ending on the date prior to the date of such Annual
Sustainability Report; provided, that, if the Borrower is unable to or does not make the certifications set forth in clause (i) of the definition of Annual Sustainability Report with respect to any Sustainability Loan borrowed during
such period, then the Sustainability Margin Adjustment will cease to apply as to such Sustainability Loan from such Annual Reporting Date (or the date on which the Borrower provided such Annual Sustainability Report, if earlier) until the date on
which the Borrower provides such certification; provided, further, that if the Borrower repays any Sustainability Loan in respect of which it did not allocate an amount equal to such Sustainability Loan’s net proceeds to a Green
Investment Use of Proceeds or Social Investment Use of Proceeds, then the Borrower shall pay to the Administrative Agent for the
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account of the Lenders concurrently with such repayment an amount equal to the excess of (1) the amount of interest that would have accrued in respect of such Sustainability Loan for the period such Loan was outstanding had the Sustainability Margin Adjustment not been applied over (2) the amount of interest actually accrued for such period with respect to such Sustainability Loan; and provided, further, that none of (i) the failure to provide the Annual Sustainability Report, (ii) the failure to provide any certification contemplated to be provided in any Annual Sustainability Report or (iii) the failure to allocate an amount equal to the proceeds of any requested Sustainability Loan to any Sustainability Use of Proceeds shall constitute a Default or Event of Default.
SECTION 2. LOANS
2.1 Revolving Loan Commitment.
(a) Revolving Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make revolving loans to the Borrower in Dollars, at any time and from time to time, during the Commitment Period (each a “Loan” and collectively the “Loans” (including, for the avoidance of doubt, both Standard Revolving Loans and Sustainability Loans)); provided that (i) the Utilized Revolving Commitments of the Borrower on any day shall not exceed the Revolving Loan Commitment and (ii) with respect to each individual Lender, the Lender’s pro rata share of the sum of outstanding Revolving Loans shall not exceed such Lender’s Commitment Percentage of the Revolving Loan Commitment. Subject to the terms and conditions of this Credit Agreement, the Borrower may borrow, repay and reborrow the amount of the Revolving Loan Commitment made to it.
(b) [Reserved].
2.2 Method of Borrowing for Revolving Loans.
(a) Base Rate Loans. By no later than 11:00 a.m. (or,
subject to Section 2.3, 12:00 p.m.) on
the date of the Borrower’s request for funding of the borrowing (or for the conversion of Term SOFR Revolving Loans to Base Rate Loans), the Borrower shall submit a Notice of Borrowing to the Administrative Agent setting forth (i) the
amount requested, (ii) the desire to have such Revolving Loans accrue interest at the Base Rate and (iii) except in the case of conversions of Term SOFR Revolving Loans to Base Rate Loans, complying in all respects with Section 6.2
hereof.
(b) Term SOFR Revolving Loans. By no later than 11:00 a.m12:00
p.m. three Business Days prior to the date of the Borrower’s request for funding of the borrowing (or for the conversion of Base Rate Loans to Term SOFR Revolving Loans or the continuation of
existing Term SOFR Loans), the Borrower shall submit a Notice of Borrowing to the Administrative Agent setting forth (i) the amount requested, (ii) the desire to have such Revolving Loans accrue interest at the Adjusted Term SOFR Rate,
(iii) the Interest Period applicable thereto, and (iv) except in the case of conversions of Base Rate Loans to Term SOFR Revolving Loans or the continuation of existing Term SOFR Loans, complying in all respects with Section 6.2
hereof.
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(c) Continuation and Conversion. The Borrower shall have the option, on any Business
Day, to continue existing Term SOFR Revolving Loans made to it for a subsequent Interest Period, to convert Base Rate Loans made to it into Term SOFR Revolving Loans or to convert Term SOFR Revolving Loans made to it into Base Rate Loans. By no
later than 11:00
a.m12:00 p.m. (a) on the date of the
requested conversion of a Term SOFR Revolving Loan to a Base Rate Loan or (b) three Business Days prior to the date for a requested continuation of a Term SOFR Revolving Loan or conversion of a Base Rate Loan to a Term SOFR Revolving Loan, the
Borrower shall provide telephonic notice to the Administrative Agent, followed promptly by a written Notice of Continuation/Conversion, setting forth (i) whether the Borrower wishes to continue or convert such Loans and (ii) if the request
is to continue a Term SOFR Revolving Loan or convert a Base Rate Loan to a Term SOFR Revolving Loan, the Interest Period applicable thereto. Notwithstanding anything herein to the contrary, (i) except as provided in Section 4.1 hereof,
Term SOFR Revolving Loans may be converted to Base Rate Loans only on the last day of an Interest Period applicable thereto; (ii) Term SOFR Revolving Loans may be continued and Base Rate Loans may be converted to Term SOFR Revolving Loans only
if no Default or Event of Default is in existence on the date of such extension or conversion; (iii) any continuation or conversion must comply with Sections 2.2(a) or 2.2(b) hereof, as applicable; and (iv) failure by the Borrower to properly
continue Term SOFR Revolving Loans at the end of an Interest Period shall be deemed a conversion to Base Rate Loans.
2.3 Funding of Revolving Loans.
Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly inform the Lenders as to
the terms thereof. Each Lender will make its pro rata share of the Revolving Loans available to the Administrative Agent by 1:00 p.m. (if the Notice of
Borrowing was received not later than 11:00 a.m. on the date of the Borrower’s request) or by 2:00 p.m. (if the Notice of Borrowing was received not later than 12:00 p.m. on the date of the Borrower’s request)2:00 p.m. on the date specified in the Notice of Borrowing by deposit
(in Dollars) of immediately available funds at the offices of the Administrative Agent at its principal office in New York, New York, or at such other address as the Administrative Agent may designate in writing. All Revolving Loans shall be made by
the Lenders pro rata on the basis of each Lender’s Commitment Percentage.
No Lender shall be responsible for the failure or delay by any other Lender in its obligation to make Loans hereunder; provided, however, that the failure of any Lender to fulfill its obligations hereunder shall not relieve any other Lender of its obligations hereunder. The Administrative Agent will make the proceeds of such Revolving Loans available to the Borrower promptly after it receives funds from the Lenders as described in the preceding paragraph. Unless the Administrative Agent shall have been notified by any Lender prior to the time of any such Loan that such Lender does not intend to make available to the Administrative Agent its portion of the Loans to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on the date of such Loans, and the Administrative Agent in reliance upon such assumption, may (in its sole discretion without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent, the Administrative Agent shall be able to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent will promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The
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Administrative Agent shall also be entitled to recover from the Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent at a per annum rate equal to (a) the applicable rate for such Loan pursuant to the Notice of Borrowing, if recovered from the Borrower, and (b) the Federal Funds Rate, if recovered from a Lender.
2.4 Minimum Amounts of Revolving Loans.
Each request for Revolving Loans shall be, in the case of Term SOFR Revolving Loans, in an aggregate principal amount that is not less than the lesser of $10,000,000 or the remaining amount available to be borrowed and, in the case of Base Rate Loans, in an aggregate principal amount that is not less than the lesser of $5,000,000 or the remaining amount available to be borrowed. Any Revolving Loan requested shall be in an integral multiple of $1,000,000 unless the request is for all of the remaining amount available to be borrowed.
2.5 Reductions of Revolving Loan Commitment.
Upon at least three Business Days’ notice, the Borrower shall have the right to permanently terminate or reduce the aggregate unused
amount of the Revolving Loan Commitment available to it at any time or from time to time; provided that (a) each partial reduction shall be in an aggregate amount at least equal to $10,000,000 and in integral multiples of $1,000,000
above such amount, and (b) no reduction shall be made which would reduce the Revolving Loan Commitment to an amount less than the Utilized Revolving Commitment. Any reduction in (or termination of) the Revolving Loan Commitment shall be
permanent and may not be reinstated (except as may be otherwise provided pursuant to Section 2.6).
2.6 [Reserved].
2.7 Notes.
(a) Revolving Loan Notes. The Revolving Loans made by the Lenders to the Borrower shall be evidenced, upon request by any Lender, by a promissory note of the Borrower payable to such Lender in substantially the form of Exhibit 2.7(a) hereto (the “Revolving Loan Notes”) and in a principal amount equal to the amount of such Lender’s Commitment Percentage of the Revolving Loan Commitment as originally in effect.
(b) Recordation of Loan Information. The date, amount, type, interest rate and duration of Interest Period (if applicable) of each Loan made by each Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by such Lender on its books; provided that the failure of such Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower to make a payment when due of any amount owing hereunder or under any Note in respect of the Loans to be evidenced by such Note, and each such recordation or endorsement shall be conclusive and binding absent manifest error.
2.8 [Reserved].
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SECTION 3. PAYMENTS
3.1 Interest.
(a) Interest Rate.
(i) All Base Rate Loans shall accrue interest at the Base Rate.
(ii) All Term SOFR Loans shall accrue interest at the Adjusted Term SOFR Rate.
(b) Default Rate of Interest. Upon the occurrence, and during the continuance, of an Event of Default under Section 10.1(a) or 10.1(e), the principal of and, to the extent permitted by law, interest on the Loans outstanding to the Borrower and any other amounts owing by the Borrower hereunder or under the other Credit Documents shall bear interest, payable on demand, at a per annum rate equal to 2% plus the rate which would otherwise be applicable (or if no rate is applicable, then the rate for Base Rate Loans plus 2% per annum).
(c) Interest Payments. Interest on Loans shall be due and payable in arrears on each Interest Payment Date.
3.2 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay Loans made to it in whole or in part from time to time without premium or penalty; provided, however, that (i) Term SOFR Loans may only be prepaid on three Business Days’ prior written notice to the Administrative Agent and any prepayment of Term SOFR Loans will be subject to Section 4.3 hereof and (ii) each such partial prepayment of Loans shall be in the minimum principal amount of $10,000,000. Amounts prepaid hereunder shall be applied as the Borrower may elect; provided that if the Borrower fails to specify the application of a voluntary prepayment then such prepayment shall be applied first to Standard Revolving Loans and then to Sustainability Loans and, in either case, first to Base Rate Loans and then to Term SOFR Loans in direct order of Interest Period maturities.
(b) Mandatory Prepayments. If at any time the amount of the Utilized Revolving Commitment exceeds the Revolving Loan Commitment, the Borrower shall immediately make a principal payment to the Administrative Agent in the manner and in an amount necessary to be in compliance with Section 2.1 hereof. Any payments made under this Section 3.2(b) shall be subject to Section 4.3 hereof and shall be applied first to Standard Revolving Loan and then to Sustainability Loans and, in either case, first to Base Rate Loans and then to Term SOFR Loans in direct order of Interest Period maturities, in each case, pro rata among all Lenders.
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3.3 Payment in Full at Maturity.
On the Maturity Date, the entire outstanding principal balance of all Loans, together with accrued but unpaid interest and all other sums owing under this Credit Agreement, shall be due and payable in full, unless accelerated sooner pursuant to Section 10 hereof.
3.4 Fees.
(a) Facility Fees.
(i) In consideration of the Revolving Loan Commitment being made available by the Lenders hereunder, the Borrower agrees to pay to the Administrative Agent, for the pro rata benefit of each Lender (except as otherwise provided in Section 12.9 with respect to a Defaulting Lender), a per annum fee equal to the Applicable Percentage for Facility Fees multiplied by the Revolving Loan Commitment (the “Facility Fees”).
(ii) The accrued Facility Fees shall be due and payable in arrears on each Fee Payment Date (as well as on any date that the Revolving Loan Commitment is reduced) for the immediately preceding fiscal quarter (or portion thereof), beginning with the first of such dates to occur after the Closing Date.
(b) Administrative Fees. The Borrower agrees to pay to the Administrative Agent an annual fee as agreed to between the Borrower and the Administrative Agent.
3.5 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other amounts to be made by the Borrower under this Credit Agreement shall be received not later than 2:00 p.m. on the date when due in Dollars and in immediately available funds, without setoff, deduction, counterclaim or withholding of any kind, by the Administrative Agent at its offices in New York, New York. The Borrower shall, at the time it makes any payment under this Credit Agreement, specify to the Administrative Agent, the Loans, fees or other amounts payable by the Borrower hereunder to which such payment is to be applied (and in the event that it fails to specify, or if such application would be inconsistent with the terms hereof, the Administrative Agent, shall distribute such payment to the Lenders in such manner as it reasonably determines in its sole discretion).
3.6 Pro Rata Treatment.
Except to the extent otherwise provided herein, all Revolving Loans, each payment or prepayment of principal of any Revolving Loan, each payment of interest on the Revolving Loans, each payment of Facility Fees, each reduction of the Revolving Loan Commitment, and each conversion or continuation of any Revolving Loans, shall be allocated pro rata among the Lenders in accordance with the respective Commitment Percentages.
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3.7 Computations of Interest and Fees.
(a) Except for Base Rate Loans, on which interest shall be computed on the basis of a 365 or 366 day year as the case may be, all computations of interest and fees hereunder shall be made on the basis of the actual number of days elapsed over a year of 360 days.
(b) It is the intent of the Lenders and the Borrower to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between the Lenders and the Borrower are hereby limited by the provisions of this paragraph which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral. In no way, nor in any event or contingency (including but not limited to prepayment or acceleration of the maturity of any obligation), shall the interest taken, reserved, contracted for, charged, or received under this Credit Agreement, under the Notes or otherwise, exceed the maximum non-usurious amount permissible under applicable law. If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum non-usurious amount, any such construction shall be subject to the provisions of this paragraph and such documents shall be automatically reduced to the maximum non-usurious amount permitted under applicable law, without the necessity of execution of any amendment or new document. If any Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum lawful amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans and not to the payment of interest, or refunded to the Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of the Loans or any other indebtedness evidenced by any of the Credit Documents does not include the right to receive any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand. All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such indebtedness does not exceed the maximum non-usurious amount permitted by applicable law.
3.8 Sharing of Payments.
Each Lender agrees that, in the event that any Lender shall obtain payment in respect of any Revolving Loan owing to such Lender under this Credit Agreement through the exercise of a right of set-off, banker’s lien, counterclaim or otherwise (including, but not limited to, pursuant to the Bankruptcy Code) in excess of its pro rata share as provided for in this Credit Agreement, such Lender shall promptly purchase from the other Lenders a participation in such Loans, in such amounts and with such other adjustments from time to time, as shall be equitable in order that all Lenders share such payment in accordance with their respective ratable shares as provided for in this Credit Agreement. Each Lender further agrees that if a payment to a Lender (which is obtained by such Lender through the exercise of a right of set-off, banker’s lien, counterclaim or otherwise) shall be rescinded or must otherwise be restored, each Lender which shall have shared the benefit of such payment shall, by repurchase of a participation theretofore
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sold, return its share of that benefit to each Lender whose payment shall have been rescinded or otherwise restored. The Borrower agrees that any Lender so purchasing such a participation in Loans made to the Borrower may, to the fullest extent permitted by law, exercise all rights of payment, including set-off, banker’s lien or counterclaim, with respect to such participation as fully as if such Lender were a holder of such Loan or other obligation in the amount of such participation. Except as otherwise expressly provided in this Credit Agreement, if any Lender shall fail to remit to the Administrative Agent or any other Lender an amount payable by such Lender to the Administrative Agent or such other Lender pursuant to this Credit Agreement on the date when such amount is due, such payments shall accrue interest thereon, for each day from the date such amount is due until the day such amount is paid to the Administrative Agent or such other Lender, at a rate per annum equal to the Federal Funds Rate.
3.9 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing each Loan made by such Lender to the Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender by or for the account of the Borrower from time to time under this Credit Agreement. Each Lender will make reasonable efforts to maintain the accuracy of its account or accounts and to promptly update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register for the Borrower pursuant to Section 12.3(c), and a subaccount for each Lender, in which Registers and subaccounts (taken together) shall be recorded (i) the amount, type and Interest Period of each such Loan hereunder in accordance with the documents submitted by the Borrower under Section 2.2, (ii) the amount of any principal or interest due and payable or to become due and payable to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from or for the account of the Borrower and each Lender’s share thereof. The Administrative Agent will make reasonable efforts to maintain the accuracy of the subaccounts referred to in the preceding sentence and to promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Registers and subaccounts maintained pursuant to subsection (b) of this Section 3.9 (and, if consistent with the entries of the Administrative Agent, subsection (a)) shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain any such account, such Registers or such subaccounts, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay the Loans made by such Lender to the Borrower in accordance with the terms hereof.
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3.10 Obligation to Return Erroneous Payment.
(a) If the Administrative Agent notifies a Lender and any other Person who has received funds on behalf of such Lender (any such Lender and any such other recipient on behalf of such Lender, each a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Lender and any other related Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender, on behalf of itself and any other Person who has received funds on behalf of such Lender, hereby further agrees that, if it or any related Payment Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case:
(i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (z), an error has been made, in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender shall (and shall cause any other Payment Recipient that receives funds on its behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 3.10(b).
(c) Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender by the Borrower or any other Credit Party under any Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Credit Agreement.
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(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on behalf of such Lender) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Loans”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Loans, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment Agreement (or, to the extent applicable, an agreement incorporating an Assignment Agreement by reference pursuant to an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Credit Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any Payment Recipient that receives funds on such Lender’s behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Credit Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under the Credit Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
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(e) The parties hereto agree that an Erroneous Payment received by a Lender or another Payment Recipient on behalf of such Lender shall not pay, prepay, repay, discharge or otherwise satisfy any amounts owed by the Borrower or any other Credit Party to such Lender, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Credit Party for the purpose of making a payment to the Administrative Agent for the account of one or more Credit Parties and the Administrative Agent expressly consents in writing to the application of a specified amount of such Erroneous Payment to satisfy such amount due to such Lender.
(f) To the extent permitted by applicable law, except as expressly agreed by the Administrative Agent in accordance with the immediately preceding clause (e), no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine
(g) Each party’s obligations, agreements and waivers under this Section 3.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Loans (or any portion thereof) under any Credit Document.
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS
4.1 Term SOFR Loan Provisions.
(a) Unavailability.
(i) If, prior to the commencement of any Interest Period for a Term SOFR Loan:
(A) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Term SOFR Rate for such Interest Period; or
(B) the Administrative Agent is advised by the Required Lenders that the Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans for such Interest Period;
then the Administrative Agent shall
give notice thereof to the Borrower and the Lenders by telephone or
telecopyemail
as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of
Continuation/Conversion that requests the conversion of any Revolving Loan to, or continuation of any Revolving Loan as, a Term SOFR Loan shall be ineffective and such Loan shall remain or convert to a Base Rate Loan and (B) if any Notice of
Borrowing requests a Term SOFR Loan, such Loan shall be made as a Base Rate Loan.
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(ii) Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Credit Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Credit Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(iii) Notwithstanding anything to the contrary herein or in any other Credit Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Credit Agreement or any other Credit Document.
(iv) The Administrative Agent will promptly notify the Borrower and the Lenders of (1) any occurrence of a Benchmark Transition Event (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes, (4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (vi) below and (5) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.1, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Credit Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 4.1.
(v) Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (x) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (y) the regulatory supervisor for the administrator of such Benchmark
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has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (x) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (y) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(vi) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted such request into a request for a borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
(b) Change in Legality.
(i) Notwithstanding any other provision herein, if any change in any law or regulation or in the interpretation thereof by any Governmental Authority charged with the administration or interpretation thereof shall make it unlawful for any Lender to make or maintain any Term SOFR Loan or to give effect to its obligations as contemplated hereby with respect to any Term SOFR Loan, then, by written notice to the Borrower and to the Administrative Agent, such Lender may:
(A) declare that Term SOFR Loans, and conversions to or continuations of Term SOFR Loans, will not thereafter be made by such Lender to the Borrower hereunder, whereupon any request by the Borrower for, or for conversion into or continuation of, Term SOFR Loans shall, as to such Lender only, be deemed a request for, or for conversion into or continuation of, Base Rate Loans, unless such declaration shall be subsequently withdrawn; and
(B) require that all outstanding Term SOFR Loans made by it to the Borrower be converted to Base Rate Loans in which event all such Term SOFR Loans shall be automatically converted to Base Rate Loans.
In the event any Lender shall exercise its rights under clause (A) or (B) above, all payments and prepayments of principal which would otherwise have been applied to repay the Term SOFR Loans that would have been made by such Lender to the Borrower or the converted Term SOFR Loans of such Lender to the Borrower shall instead be applied to repay the Base Rate Loans made by such Lender to the Borrower in lieu of, or resulting from the conversion of, such Term SOFR Loans.
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(c) Increased Costs. If at any time a Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to the making, continuing or converting, the commitment to make or the maintaining of any Term SOFR
Loan or the issuance, including subjecting any Lender to any taxes (other than Taxes, Other Taxes and the
excluded taxes described in the definition of Taxes) on its loans, loan principal, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, because of any change since the date of this Credit Agreement in any applicable law, governmental rule, regulation, guideline or order
(or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, guideline or such order) including, without limitation, the imposition, modification or deemed applicability of any
reserves, deposits, liquidity or similar requirements (such as, for example, but not limited to, a change in official reserve requirements, but, in all events, excluding reserves required to the extent included in the computation of the Adjusted
Term SOFR Rate); then the Borrower shall pay to such Lender promptly upon written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender may determine
in its sole discretion) as may be required to compensate such Lender for such increased costs or reductions in amounts receivable hereunder.
Each determination and calculation made by a Lender under this Section 4.1 shall, absent manifest error, be binding and conclusive on the parties hereto.
Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the date enacted, adopted, issued or implemented.
4.2 Capital Adequacy.
If any Lender determines that the adoption or effectiveness, after the date hereof, of any applicable law, rule or regulation regarding capital adequacy or liquidity, or any change therein, or any change 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 such Lender (or its parent corporation) with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to the Borrower to a level below that which such Lender (or its parent corporation) could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital
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adequacy or liquidity), then, upon notice from such Lender, the Borrower shall pay to such Lender such additional amount or amounts (but without duplication of any amounts payable under Section 4.1(c)) as will compensate such Lender (or its parent corporation) for such reduction. Each determination by any such Lender of amounts owing under this Section 4.2 shall, absent manifest error, be conclusive and binding on the parties hereto.
4.3 Compensation.
The Borrower shall compensate each Lender, upon its written request, for all reasonable losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by the Lender to fund its Term SOFR Loans to the Borrower) which such Lender may sustain:
(a) if for any reason (other than a default by such Lender or the Administrative Agent) a borrowing of Term SOFR Loans by the Borrower does not occur on a date specified therefor in a Notice of Borrowing submitted by the Borrower;
(b) if any repayment, continuation or conversion of any Term SOFR Loan by the Borrower occurs on a date which is not the last day of an Interest Period applicable thereto, including, without limitation, in connection with any demand, acceleration, mandatory prepayment, assignment or otherwise (including any demand under this Section 4); or
(c) if the Borrower fails to repay its Term SOFR Loans when required by the terms of this Credit Agreement.
Calculation of all amounts payable to a Lender under this Section 4.3 shall be made as though the Lender has actually funded its relevant Term SOFR Loan through the purchase of a Term SOFR Rate deposit bearing interest at the Adjusted Term SOFR Rate in an amount equal to the amount of that Loan, having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund each of its Term SOFR Loans in any manner it sees fit and the foregoing assumption shall be utilized only for the calculation of amounts payable under this Section 4.3.
4.4 Taxes.
(a) Tax Liabilities. Any and all payments by the Borrower hereunder or under any of the Credit Documents shall be made, in accordance with the terms hereof and thereof, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, and all liabilities with respect thereto, excluding taxes measured by net income and franchise taxes imposed on the Administrative Agent or any Lender by the jurisdiction under the laws of which the Administrative Agent or such Lender is organized or transacting business or any political subdivision thereof, any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which Borrower is located, in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in this Credit Agreement pursuant to a law in effect on the date on which (y) such Lender acquires such
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interest in this Credit Agreement (other than pursuant to an assignment request by the Borrower under Section 4.5 below) or (z) such Lender changes its lending office, except in each case to the extent that, pursuant to this Section 4.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, and any withholding Taxes imposed under FATCA (all such non-excluded taxes, being hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes or Other Taxes (as defined in Section 4.4(b)) from or in respect of any sum payable hereunder to the Administrative Agent or any Lender, as applicable, as determined in good faith by the applicable Withholding Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.4) the Administrative Agent or such Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law, and (iv) the Borrower shall deliver to the Administrative Agent or such Lender, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment to the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence of such payment reasonably satisfactory to the Administrative Agent or such Lender.
(b) Other Taxes. In addition, the Borrower agrees to pay, upon notice from a Lender and prior to the date when penalties attach thereto, all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies of the United States or any state or political subdivision thereof or any applicable foreign jurisdiction that arise from any payment made hereunder by the Borrower or from the execution, delivery or registration of, or otherwise from the Borrower’s participation with respect to, this Credit Agreement or any other Credit Document, including any interest, addition to tax or penalties applicable thereto (collectively, the “Other Taxes”) to the relevant Governmental Authority in accordance with applicable law.
(c) If (i) the Borrower fails to pay any Taxes or Other Taxes when due to the appropriate taxing authority, (ii) the Borrower fails to comply with Section 4.4(a)(iii) above or (iii) any Taxes or Other Taxes are imposed directly upon the Administrative Agent or any Lender, the Borrower shall indemnify the Administrative Agent or the Lenders, as the case may be, for such amounts and any incremental taxes, interest or penalties paid by the Administrative Agent or any Lender, as the case may be, solely as a result of any such failure, in the case of (i) and (ii), or any such direct imposition, in the case of (iii). Notwithstanding the foregoing, no amounts shall be payable by the Borrower pursuant to Section 4.4(a)(i) or this Section 4.4(c) to the extent that such Taxes or Other Taxes resulted solely from the applicable Lender’s failure to submit to the Borrower and the Administrative Agent on or before the Closing Date (or, in the case of a Person that becomes a Lender after the Closing Date by assignment, promptly upon such assignment) the applicable forms described in Section 4.4(f).
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(d) Without duplication of any amounts paid to the Administrative Agent pursuant to Section 11.7, each Lender shall indemnify the Administrative Agent for the full amount of any taxes, levies, imposts, duties, charges, fees, deductions, withholdings or similar charges imposed by any Governmental Authority that are attributable to such Lender and that are payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs and expenses arising therefrom or with respect thereto, as determined by the Administrative Agent in good faith. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.
(e) Refunds. If a Lender or the Administrative Agent (as the case may be) shall become aware that it is entitled to claim a refund (or a refund in the form of a credit) (each, a “Refund”) from a Governmental Authority (as a result of any error in the amount of Taxes or Other Taxes paid to such Governmental Authority or otherwise) of Taxes or Other Taxes which the Borrower has paid, or with respect to which the Borrower has paid additional amounts, pursuant to this Section 4.4, it shall promptly notify the Borrower of the availability of such Refund and shall, within 30 days after receipt of written notice by the Borrower, make a claim to such Governmental Authority for such Refund at the Borrower’s expense if, in the judgment of such Lender or the Administrative Agent (as the case may be), the making of such claim will not be otherwise materially disadvantageous to it; provided that nothing in this subsection (e) shall be construed to require any Lender or the Administrative Agent to institute any administrative proceeding (other than the filing of a claim for any such Refund) or judicial proceeding to obtain such Refund.
If a Lender or the Administrative Agent (as the case may be) receives a Refund from a Governmental Authority (as a result of any error in the amount of Taxes or Other Taxes paid to such Governmental Authority or otherwise) of any Taxes or Other Taxes which have been paid by the Borrower, or with respect to which the Borrower has paid additional amounts pursuant to this Section 4.4, it shall promptly pay to the Borrower the amount so received (but only to the extent of payments made, or additional amounts paid, by the Borrower under this Section 4.4 with respect to Taxes or Other Taxes giving rise to such Refund), net of all reasonable out-of-pocket expenses (including the net amount of taxes, if any, imposed on such Lender or the Administrative Agent with respect to such Refund) of such Lender or Administrative Agent, and without interest (other than interest paid by the relevant Governmental Authority with respect to such Refund); provided, however, that the Borrower, upon the request of Lender or the Administrative Agent, agrees to repay the amount paid over to the Borrower (plus penalties, interest or other charges) to such Lender or the Administrative Agent in the event such Lender or the Administrative Agent is required to repay such Refund to such Governmental Authority. Nothing contained in this Section 4.4(e) shall require any Lender or the Administrative Agent to make available any of its tax returns (or any other information that it deems to be confidential or proprietary).
Notwithstanding anything to the contrary in this paragraph (e), in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower pursuant to this paragraph (e) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.
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(f) Tax Forms. (i) (i) Each Lender (which, for purposes of this
Section 4.4, shall include any Affiliate of a Lender that makes any Term SOFR Loan pursuant to the terms of this Credit Agreement) that is not a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) shall
submit to the Borrower and the Administrative Agent on or before the Closing Date (or, in the case of a Person that becomes a Lender after the Closing Date by
assignment or joinder, promptly upon such assignment or joinder), twoone duly completed and signed
copiescopy
, as applicable, of (A) Form W-8BEN-E (or W-BEN if applicable), or any applicable successor form, of the United States Internal Revenue Service entitling such Lender to a complete exemption from
withholding on all amounts to be received by such Lender pursuant to this Credit Agreement and/or the Notes, (B) Form W-8ECI or W-8IMY, or any applicable successor form, of the United States Internal Revenue Service relating to all amounts to
be received by such Lender pursuant to this Credit Agreement and/or the Notes and (C) Form W-8BEN-E (or W-BEN if applicable) of the United States Internal Revenue Service entitling such Lender to receive a complete exemption from United States
backup withholding tax. Each such Lender shall, from time to time after submitting any such form, submit to the Borrower and the Administrative Agent such additional duly completed and signed copies of such forms (or such successor forms), along
with any other documents or certifications as shall be adopted from time to time by the relevant United States taxing authorities, in each case as may be reasonably requested in writing by the Borrower or the Administrative Agent and appropriate
under then current United States laws or regulations.
(ii) Each Lender that is a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower and the Administrative Agent on or before the Closing Date (or, in the case of a Person that becomes a Lender after the Closing Date by assignment, promptly upon such assignment), two duly completed and signed copies of Form W-9, or any applicable successor form, of the United States Internal Revenue Service certifying that such Lender is exempt from United States federal withholding and backup withholding tax. Each such Lender shall, from time to time after submitting such form, submit to the Borrower and the Administrative Agent such additional duly completed and signed copies of such forms (or such successor forms or other documents as shall be adopted from time to time by the relevant United States taxing authorities) as may be (1) reasonably requested in writing by the Borrower or the Administrative Agent and (2) appropriate under then current United States laws or regulations.
(iii) If a payment made to a Lender under any Credit Document would be subject to withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the 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 (iii), “FATCA” shall include any amendments made to FATCA after the date of this Credit Agreement.
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4.5 Mitigation; Mandatory Assignment.
The Administrative Agent and each Lender shall use reasonable efforts to avoid or mitigate any increased cost or suspension of the availability
of an interest rate under Sections 4.1 through 4.4 above to the greatest extent practicable (including transferring the Loans to another lending office or Affiliate of a Lender) unless, in the opinion of the Administrative Agent or such Lender, such
efforts would be likely to have an adverse effect upon it. In the event a Lender makes a request to the Borrower for additional payments in accordance with, or exercises any of its rights under, Section 4.1, 4.2 or 4.4, then, provided that no
Default or Event of Default has occurred and is continuing at such time, the Borrower may, at its own expense (such expense to include any transfer fee payable to the Administrative Agent under Section 12.3(b) and any expense pursuant to
Section 4 hereof) and in its sole discretion, require such Lender to transfer and assign in whole (but not in part), without recourse (in accordance with and subject to the terms and conditions of Section 12.3(b)), all of its interests,
rights and obligations under this Credit Agreement to an Eligible Assignee which shall assume such assigned obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that (a) such
assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority and (b) the Borrower or such Eligible Assignee shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the portion of the Loans hereunder held by such assigning Lender and all other amounts owed to such assigning Lender hereunder, including amounts owed pursuant to Sections 4.1 through
4.4 hereof. Notwithstanding anything contained herein to the contrary,
nothe Borrower shall not be required to make any additional payments to a Lender pursuant to any
of Sections 4.1 through 4.4 unless such Lender has notified the Borrower of such Lender’s claim for such payments within 180 days after the occurrence of the event giving rise to the same; provided that, if any change in law giving rise to such
payment is retroactive, then such 180-day period shall be extended to include the period of retroactive effect thereof.
SECTION 5. [RESERVED.]
SECTION 6. CONDITIONS PRECEDENT
6.1 Closing Conditions. The obligation of the Lenders to enter into the Credit Documents as of the Closing Date is subject to satisfaction of the following conditions (all documents described below to be in form and substance acceptable to the Lenders), on or before the Closing Date:
(a) Credit Agreement. Receipt by the Administrative Agent of duly executed copies of (i) this Credit Agreement and (ii) the other Credit Documents.
(b) Corporate Documents. Receipt by the Administrative Agent of the following:
(i) Charter Documents. A copy of the articles of incorporation of the Borrower certified to be true and complete as of a recent date by the appropriate Governmental Authority of Virginia and certified by a secretary or assistant secretary of the Borrower to be true and correct as of the Closing Date.
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(ii) Bylaws. A copy of the bylaws of the Borrower certified by a secretary or assistant secretary of the Borrower to be true and correct as of the Closing Date.
(iii) Resolutions. A copy of resolutions of the Board of Directors of the Borrower approving the transactions contemplated herein and in the other Credit Documents and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of the Borrower to be true and correct and in force and effect as of the Closing Date.
(iv) Good Standing. A copy of a certificate of good standing, existence or its equivalent with respect to the Borrower certified as of a recent date by the appropriate Governmental Authority of Virginia.
(c) Closing Certificate. Receipt by the Administrative Agent of a certificate of the Borrower, dated the Closing Date, substantially in the form of Exhibit 6.1(c), executed by the Treasurer or any Assistant Treasurer and the Secretary or any Assistant Secretary of the Borrower, and attaching the documents referred to in subsection 6.1(b).
(d) Fees. The Lenders, the Administrative Agent and the Joint Lead Arrangers shall have received all fees required to be paid, and all expenses for which invoices have been presented.
(e) Opinion of Counsel. Receipt by the Administrative Agent of an opinion, or opinions, satisfactory in form and content to the Administrative Agent and the Lenders, addressed to the Administrative Agent and each of the Lenders and dated as of the Closing Date, from McGuireWoods LLP, legal counsel to the Borrower.
(f) Consents. Receipt by the Administrative Agent of a written representation from the Borrower that (i) all governmental, shareholder and third party consents and approvals necessary or, in the reasonable opinion of the Administrative Agent, advisable in connection with the transactions contemplated hereby have been received and are in full force and effect and (ii) no condition or requirement of law exists which could reasonably be likely to restrain, prevent or impose any material adverse condition on the transactions contemplated hereby.
(g) No Default; Representations and Warranties. As of the Closing Date (i) there shall exist no Default or Event of Default by the Borrower and (ii) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects.
(h) Material Adverse Effect. No event or condition shall have occurred since the latest date of the financial statements delivered pursuant to Section 6.1(i) below that has or would be likely to have a Material Adverse Effect.
(i) Financial Statements. Receipt by the Administrative Agent and the Lenders of the audited financial statements of the Borrower and its Consolidated Affiliates for the fiscal year ended as of December 31, 2020 (it being agreed that the Borrower may make available such items on its corporate website, any Securities and Exchange Commission website or any such other publicly available website and will notify the Administrative Agent and Lenders of the availability on such website).
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(j) KYC. To the extent reasonably requested at least ten Business Days prior to the Closing Date by the Administrative Agent or any Lender, the Administrative Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information required by any Governmental Authority under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act and, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to each Lender so requesting a Beneficial Ownership Certification in relation to the Borrower.
(k) Other. Receipt by the Lenders of such other documents, instruments, agreements or information as reasonably requested by any Lender.
6.2 Conditions to Loans.
In addition to the conditions precedent stated elsewhere herein, the Lenders shall not be obligated to make new Loans (including the initial Loans to be made hereunder) unless:
(a) Request. The Borrower shall have timely delivered a duly executed and completed Notice of Borrowing in conformance with all the terms and conditions of this Credit Agreement.
(b) Representations and Warranties. The representations and warranties made by the Borrower in or pursuant to this Credit Agreement are true and correct in all material respects at and as if made as of the date of the funding of the Loans or, if any such representation and warranty was made as of a specific date, such representation and warranty was true and correct in all material respects as of such date; provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects; provided, however, that the representations and warranties set forth in (x) clause (ii) of the second paragraph of Section 7.6 hereof and (y) Section 7.9 hereof need not be true and correct as a condition to the making of any Loans made after the Closing Date.
(c) No Default. On the date of the funding of the Loans, no Default or Event of Default has occurred and is continuing or would be caused by making the Loans.
(d) Availability. Immediately after giving effect to the making of a Loan (and the application of the proceeds thereof), the Utilized Revolving Commitment shall not exceed the Revolving Loan Commitment.
The delivery of each Notice of Borrowing shall constitute a representation and warranty by the Borrower of the correctness of the matters specified in subsections (b), (c) and (d) above.
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SECTION 7. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender that:
7.1 Organization and Good Standing.
The Borrower and each Material Subsidiary (other than any such Material Subsidiary that is not a corporation) (a) is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation, (b) is duly qualified and in good standing as a foreign corporation authorized to do business in every jurisdiction where the failure to so qualify would have a Material Adverse Effect and (c) has the requisite corporate power and authority to own its properties and to carry on its business as now conducted and as proposed to be conducted. Each Material Subsidiary that is not a corporation (a) is a limited liability company or other legal entity duly organized and validly existing under the laws of its jurisdiction of organization, (b) is registered or qualified as a limited liability company or other entity authorized to do business in every jurisdiction where the failure to be so registered or qualified would have a Material Adverse Effect and (c) has the requisite power and authority to own its properties and to carry on its business as now conducted and as proposed to be conducted.
7.2 Due Authorization.
The Borrower (a) has the requisite corporate power and authority to execute, deliver and perform this Credit Agreement and the other Credit Documents and to incur the obligations herein and therein provided for and (b) is duly authorized to, and has been authorized by all necessary corporate action, to execute, deliver and perform this Credit Agreement and the other Credit Documents.
7.3 No Conflicts.
Neither the execution and delivery of the Credit Documents and the consummation of the transactions contemplated therein, nor the performance of and compliance with the terms and provisions thereof by the Borrower will (a) violate or conflict with any provision of its articles of incorporation or bylaws, (b) violate, contravene or materially conflict with any law, regulation (including without limitation, Regulation U or Regulation X), order, writ, judgment, injunction, decree or permit applicable to it, (c) violate, contravene or materially conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound, the violation of which could have a Material Adverse Effect or (d) result in or require the creation of any Lien upon or with respect to its properties.
7.4 Consents.
No consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party is required to be obtained or made by the Borrower in connection with the Borrower’s execution, delivery or performance of this Credit Agreement or any of the other Credit Documents that has not been obtained or made, other than any filings with the Securities and Exchange Commission and other Governmental Authorities that may be required to be made after the date hereof.
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7.5 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have been duly executed and delivered and constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy or insolvency laws or similar laws affecting creditors’ rights generally or by general equitable principles.
7.6 Financial Condition.
The financial statements provided to the Lenders pursuant to Section 6.1(i) and pursuant to Section 8.1(a) and (b) present fairly the financial condition, results of operations and cash flows of the Borrower and its Consolidated Affiliates as of the dates stated therein.
In addition, (i) such financial statements were prepared in accordance with GAAP and (ii) since the latest date of such financial statements, there have occurred no changes or circumstances which have had or would be reasonably expected to have a Material Adverse Effect.
7.7 No Default.
Neither the Borrower nor any of its Material Subsidiaries is in default in any respect under any contract, lease, loan agreement, indenture, mortgage, security agreement or other agreement or obligation to which it is a party or by which any of its properties is bound which default would have or would be reasonably expected to have a Material Adverse Effect.
7.8 Indebtedness.
As of the Closing Date, the ratio of (i) Total Funded Debt to (ii) Capitalization for the Borrower is less than or equal to 0.675 to 1.00 (on a consolidated basis).
7.9 Litigation.
As of the Closing Date, except as disclosed in the Borrower’s Annual Report on Form 10-K for the year ended December 31, 2020, there are no actions, suits or legal, equitable, arbitration or administrative proceedings, pending or, to the knowledge of the Borrower, threatened against the Borrower or a Material Subsidiary in which there is a reasonable expectation of an adverse decision which would have or would reasonably be expected to have a Material Adverse Effect.
7.10 Taxes.
The Borrower and each Material Subsidiary has filed, or caused to be filed, all material tax returns (federal, state, local and foreign) required to be filed by it and paid all material amounts of taxes shown thereon to be due (including interest and penalties) and has paid all other material taxes, fees, assessments and other governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes which are not yet delinquent or that are being contested in good faith and by proper proceedings, and against which adequate reserves are being maintained in accordance with GAAP.
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7.11 Compliance with Law.
Except as disclosed in the Borrower’s Annual Report on Form 10-K for the year ended December 31, 2020, the Borrower and each Material Subsidiary is in compliance with all laws, rules, regulations, orders and decrees applicable to it, or to its properties, unless such failure to comply would not have a Material Adverse Effect.
7.12 ERISA.
To the extent that it would have or would be reasonably expected to have a Material Adverse Effect, (a) no Reportable Event has occurred and is continuing with respect to any Plan of the Borrower; (b) no Plan of the Borrower has an accumulated funding deficiency determined under Section 412 of the Code; (c) no proceedings have been instituted, or, to the knowledge of the Borrower, planned to terminate any Plan of the Borrower; (d) neither the Borrower, nor any ERISA Affiliate including the Borrower, nor any duly-appointed administrator of a Plan of the Borrower has instituted or intends to institute proceedings to withdraw from any Multiemployer Pension Plan (as defined in Section 3(37) of ERISA); and (e) each Plan of the Borrower has been maintained and funded in all material respects in accordance with its terms and with the provisions of ERISA applicable thereto.
7.13 Government Regulation.
The Borrower is not an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and is not controlled by such a company, nor is otherwise subject to regulation under the Investment Company Act.
7.14 Solvency.
The Borrower is and, after the consummation of the transactions contemplated by this Credit Agreement and the other Credit Documents, will be Solvent.
7.15 Anti-Corruption Laws and Sanctions.
The Borrower has implemented and maintains in effect policies and procedures designed to promote and achieve compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and the Sanctions, if any, applicable to such Persons. The Borrower and its Subsidiaries, and to the knowledge of the Borrower, its and their respective directors, officers and employees, are in compliance in all material respects with Anti-Corruption Laws and the Sanctions, if any, applicable to such Persons. Neither the Borrower nor any of its Subsidiaries nor, to the knowledge of the Borrower, any of its or their respective directors, officers or employees, is a Sanctioned Person.
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7.16 Affected Financial Institutions.
NoThe Borrower is not
an Affected Financial Institution.
SECTION 8. AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit Agreement is in effect and until the Loans, together with interest, fees and other obligations hereunder, have been paid in full and the Commitments hereunder shall have terminated:
8.1 Information Covenants.
The Borrower will furnish, or cause to be furnished, to the Administrative Agent and each Lender:
(a) Annual Financial Statements. As soon as available, and in any event within 120 days after the close of each fiscal year of the Borrower, a Form 10-K as required to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and the Exchange Act, which includes financial information required by such Form 10 K, such financial information to be in reasonable form and detail and audited by Deloitte & Touche or another independent registered public accounting firm of recognized national standing reasonably acceptable to the Administrative Agent and whose opinion shall be to the effect that such financial statements have been prepared in accordance with GAAP (except for changes with which such accountants concur) and shall not be limited as to the scope of the audit or qualified in any respect.
(b) Quarterly Financial Statements. As soon as available, and in any event within 60 days after the close of each of the first three fiscal quarters of the Borrower, a Form 10 Q as required to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and the Exchange Act, which includes the financial information required by such Form 10 Q, such financial information to be in reasonable form and detail and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and have been prepared in accordance with GAAP, subject to changes resulting from audit and normal year-end audit adjustments.
(c) Officer’s Certificate. At the time of delivery of the financial statements provided for in Sections 8.1(a) and 8.1(b) above, a certificate of a Responsible Officer, substantially in the form of Exhibit 8.1(c), (i) demonstrating compliance with the financial covenant contained in Section 8.11 by calculation thereof as of the end of each such fiscal period and (ii) stating that no Default or Event of Default by the Borrower exists, or if any such Default or Event of Default does exist, specifying the nature and extent thereof and what action the Borrower proposes to take with respect thereto.
(d) Reports. Promptly upon transmission or receipt thereof, copies of any publicly available filings and registrations with, and reports to or from, the Securities and Exchange Commission, or any successor agency, and copies of all publicly available financial statements, proxy statements, notices and reports as the Borrower shall send to its shareholders.
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(e) Notices. Upon the Borrower obtaining knowledge thereof, written notice to the Administrative Agent immediately of (i) the occurrence of an event or condition consisting of a Default or Event of Default, specifying the nature and existence thereof and what action the Borrower proposes to take with respect thereto and (ii) the occurrence of any of the following: (A) the pendency or commencement of any litigation, arbitral or governmental proceeding against the Borrower or a Material Subsidiary which, if adversely determined, is likely to have a Material Adverse Effect, (B) the institution of any proceedings against the Borrower or a Material Subsidiary with respect to, or the receipt of notice by such Person of potential liability or responsibility for violation, or alleged violation of any federal, state or local law, rule or regulation, the violation of which would likely have a Material Adverse Effect or (C) any notice or determination concerning the imposition of any withdrawal liability by a Multiemployer Plan against the Borrower or any of its ERISA Affiliates, or the termination of any Plan of the Borrower.
(f) Other Information. With reasonable promptness upon any such request, such other information regarding the business, properties or financial condition of the Borrower as the Administrative Agent or the Required Lenders may reasonably request, including information as may reasonably be requested from time to time for purposes of compliance with applicable laws (including without limitation the Patriot Act, the Financial Crimes Enforcement Network of the U.S. Department of the Treasury, the Beneficial Ownership Regulation and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrative Agent or Lender to comply therewith.
In lieu of furnishing the Lenders the items referred to in this Section 8.1, the Borrower may make available such items on the Borrower’s corporate website, any Securities and Exchange Commission website (including, for the avoidance of doubt, a Form 10-K or Form 10-Q, as applicable, as required to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, and the Exchange Act, with respect to Sections 8.1(a) or (b), as the case may be) or any such other publicly available website as notified to the Administrative Agent and the Lenders.
8.2 Preservation of Existence and Franchises.
The Borrower will do (and will cause each Material Subsidiary to do) all things necessary to preserve and keep in full force and effect its (i) existence (in the case of the Borrower, in a United States jurisdiction) and (ii) to the extent material to the conduct of the business of the Borrower or any Material Subsidiary, its rights, franchises and authority; provided that nothing in this Section 8.2 shall prevent any transaction otherwise permitted under Section 9.2 or Section 9.3 or any change in the form of organization (by merger or otherwise) of any Material Subsidiary so long as such change shall not have an adverse effect on the Borrower’s ability to perform its obligations hereunder.
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8.3 Books and Records.
The Borrower will keep (and will cause each Material Subsidiary to keep) complete and accurate books and records of its transactions in accordance with good accounting practices on the basis of GAAP (including the establishment and maintenance of appropriate reserves).
8.4 Compliance with Law.
The Borrower will comply (and will cause each Material Subsidiary to comply) with all laws, rules, regulations and orders, and all applicable restrictions imposed by all Governmental Authorities, applicable to it and its property if noncompliance with any such law, rule, regulation, order or restriction would be reasonably expected to have a Material Adverse Effect.
8.5 Payment of Taxes.
The Borrower will pay and discharge all material taxes, assessments and governmental charges or levies imposed upon it, or upon its income or profits, or upon any of its properties, before they shall become delinquent; provided, however, that the Borrower shall not be required to pay any such tax, assessment, charge, levy, or claim which is being contested in good faith by appropriate proceedings and as to which adequate reserves therefor have been established in accordance with GAAP.
8.6 Insurance.
The Borrower will at all times maintain in full force and effect insurance (including worker’s compensation insurance, liability insurance and casualty insurance) in such amounts, covering such risks and liabilities and with such deductibles or self-insurance retentions as are in accordance with normal industry practice.
8.7 Performance of Obligations.
The Borrower will perform (and will cause each Material Subsidiary to perform) in all material respects all of its obligations under the terms of all agreements that are material to the conduct of the business of the Borrower or any of its Material Subsidiaries, including all such material indentures, mortgages, security agreements or other debt instruments to which it is a party or by which it is bound, if nonperformance would be reasonably expected to have a Material Adverse Effect.
8.8 ERISA.
The Borrower and each of its ERISA Affiliates will (a) at all times make prompt payment of all contributions (i) required under all employee pension benefit plans (as defined in Section 3(2) of ERISA) (“Pension Plans”) and (ii) required to meet the minimum funding standard set forth in ERISA with respect to each of its Plans; (b) promptly upon request, furnish the Administrative Agent and the Lenders copies of each annual report/return (Form 5500 Series), as well as all schedules and attachments required to be filed with the Department of Labor and/or the Internal Revenue Service pursuant to ERISA, and the regulations promulgated thereunder, in connection with each of its Pension Plans for each Plan Year (as defined in
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ERISA); (c) notify the Administrative Agent immediately of any fact, including, but not limited to, any Reportable Event arising in connection with any of its Plans, which might constitute grounds for termination thereof by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan, together with a statement, if requested by the Administrative Agent, as to the reason therefor and the action, if any, proposed to be taken in respect thereof; and (d) furnish to the Administrative Agent, upon its request, such additional information concerning any of its Plans as may be reasonably requested. The Borrower will not nor will it permit any of its ERISA Affiliates to (A) terminate a Plan if any such termination would have a Material Adverse Effect or (B) cause or permit to exist any Reportable Event under ERISA or other event or condition which presents a material risk of termination at the request of the PBGC if such termination would have a Material Adverse Effects.
8.9 Use of Proceeds.
The proceeds of the Loans made to the Borrower hereunder may be used for general corporate purposes, including for Green Investment Use of Proceeds and Social Investment Use of Proceeds.
None of the proceeds of the Loans made to the Borrower hereunder will be used for the purpose of purchasing or carrying any “margin stock” which violates Regulation U or Regulation X or for the purpose of reducing or retiring in violation of Regulation U or Regulation X any Indebtedness which was originally incurred to purchase or carry “margin stock” or for any other purpose which might constitute this transaction a “purpose credit” in violation of Regulation U or Regulation X.
8.10 Audits/Inspections.
Upon reasonable notice, during normal business hours and in compliance with the reasonable security procedures of the Borrower (and subject to applicable confidentiality restrictions and limitations), the Borrower will permit representatives appointed by the Administrative Agent or the Required Lenders (or, upon a Default or Event of Default, any Lender), including, without limitation, independent accountants, agents, attorneys, and appraisers to visit and inspect the Borrower’s property, including its books and records, its accounts receivable and inventory, the Borrower’s facilities and its other business assets, and to make photocopies or photographs thereof and to write down and record any information such representative obtains and shall permit the Required Lenders (or, upon a Default or Event of Default, any Lender) or the Administrative Agent or its representatives to investigate and verify the accuracy of information provided to the Lenders and to discuss all such matters with the officers, employees and representatives of the Borrower.
8.11 Total Funded Debt to Capitalization.
The ratio of (a) Total Funded Debt to (b) Capitalization shall be less than or equal to 0.675 to 1.00 (on a consolidated basis) as of the last day of any fiscal quarter of the Borrower.
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8.12 Anti-Corruption Laws and Sanctions.
The Borrower will maintain in effect and enforce policies and procedures designed to promote and achieve compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and the Sanctions, if any, applicable to such Persons.
SECTION 9. NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit Agreement is in effect and until the Loans, together with interest, fees and other obligations hereunder, have been paid in full and the Commitments hereunder shall have terminated:
9.1 Nature of Business.
The Borrower will not alter the character of its business from that conducted as of the Closing Date and activities reasonably related thereto and similar and related businesses; provided, however, that the Borrower may transfer Non-Regulated Assets to one or more Wholly-Owned Subsidiaries of the Borrower to the extent permitted under Section 9.3.
9.2 Consolidation and Merger.
The Borrower will not enter into any transaction of merger or consolidation or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution); provided that notwithstanding the foregoing provisions of this Section 9.2, the following actions may be taken if, after giving effect thereto, no Default or Event of Default by the Borrower exists:
(a) a Subsidiary or Consolidated Affiliate of the Borrower may be merged or consolidated with or into the Borrower; provided that the Borrower shall be the continuing or surviving entity; and
(b) the Borrower may merge or consolidate with any other Person if either (i) the Borrower shall be the continuing or surviving entity or (ii) the Borrower shall not be the continuing or surviving entity and the entity so continuing or surviving (A) is an entity organized and duly existing under the law of any state of the United States and (B) executes and delivers to the Administrative Agent and the Lenders an instrument in form satisfactory to the Required Lenders pursuant to which it expressly assumes the Loans and all of the other obligations of the Borrower under the Credit Documents and procures for the Administrative Agent and each Lender an opinion in form satisfactory to the Required Lenders and from counsel satisfactory to the Required Lenders in respect of the due authorization, execution, delivery and enforceability of such instrument and covering such other matters as the Required Lenders may reasonably request.
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9.3 Sale or Lease of Assets.
The Borrower will not convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets whether now owned or hereafter acquired, it being understood and agreed that the Borrower (or any Material Subsidiary) may transfer Non-Regulated Assets to one or more Wholly-Owned Subsidiaries of the Borrower, provided that (i) each such Wholly-Owned Subsidiary remains at all times a Wholly-Owned Subsidiary of the Borrower and (ii) the Ratings of the Borrower will not be lowered to less than BBB by S&P, Baa2 by Moody’s or BBB by Fitch in connection with or as a result of such transfer.
9.4 Limitation on Liens.
If the Borrower shall pledge as security for any indebtedness or obligations, or permit any Lien as security for Indebtedness or obligations upon, any capital stock owned by it on the date hereof or thereafter acquired, of any Material Subsidiary, the Borrower will secure the outstanding Loans ratably with the indebtedness or obligations secured by such pledge, except for Liens incurred or otherwise arising in the ordinary course of business.
9.5 Fiscal Year.
The Borrower will not change its fiscal year without prior notification to the Lenders.
9.6 Use of Proceeds.
The Borrower will not request any borrowing, and the Borrower shall not use, directly or, to the knowledge of the Borrower, indirectly, the proceeds of any borrowing in any manner, that violates Anti-Corruption Laws or the Sanctions, if any, applicable to the Borrower and its Subsidiaries.
SECTION 10. EVENTS OF DEFAULT
10.1 Events of Default.
An Event of Default shall exist upon the occurrence and continuation of any of the following specified events with respect to the Borrower (each an “Event of Default”):
(a) Payment. The Borrower shall:
(i) default in the payment when due of any principal of any of the Loans; or
(ii) default, and such default shall continue for five or more Business Days, in the payment when due of any interest on the Loans or of any fees or other amounts owing hereunder, under any of the other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement made or deemed to be made by the Borrower herein, in any of the other Credit Documents, or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in any material respect on the date as of which it was deemed to have been made.
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(c) Covenants. The Borrower shall:
(i) default in the due performance or observance of any term, covenant or agreement contained in Sections 8.2, 8.9, 8.11, 9.1, 9.2, 9.3 or 9.5; or
(ii) default in the due performance or observance by it of any term, covenant or agreement contained in Section 8.1(a), (b) or (c), 9.4 or 9.6 and such default shall continue unremedied for a period of five Business Days after the earlier of a Responsible Officer becoming aware of such default or notice thereof given by the Administrative Agent; or
(iii) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in subsections (a), (b), (c)(i), or (c)(ii) of this Section 10.1) contained in this Credit Agreement or any other Credit Document and such default shall continue unremedied for a period of at least 30 days after the earlier of a Responsible Officer of the Borrower becoming aware of such default or notice thereof given by the Administrative Agent.
(d) Invalidity of Credit Documents. Any Credit Document shall fail to be in full force and effect in all material respects with respect to the Borrower or to give the Administrative Agent and/or the Lenders all material security interests, liens, rights, powers and privileges purported to be created thereby and relating to the Borrower.
(e) Bankruptcy, etc. The occurrence of any of the following with respect to the Borrower or a Material Subsidiary: (i) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of the Borrower or a Material Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Borrower or a Material Subsidiary or for any substantial part of its property or ordering the winding up or liquidation of its affairs; or (ii) an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect is commenced against the Borrower or a Material Subsidiary and such petition remains unstayed and in effect for a period of 60 consecutive days; or (iii) the Borrower or a Material Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or any substantial part of its property or make any general assignment for the benefit of creditors; or (iv) the Borrower or a Material Subsidiary shall admit in writing its inability to pay its debts generally as they become due or any action shall be taken by such Person in furtherance of any of the aforesaid purposes.
(f) Defaults under Other
Agreements. With respect to any Indebtedness (other than Indebtedness of the Borrower outstanding under this Credit Agreement) of the Borrower or a Material Subsidiary in a principal amount in excess of $100,000,000250,000,000
, (i) the Borrower or a Material Subsidiary shall (A) default in any payment (beyond the applicable grace period with respect thereto, if any) with respect to any such Indebtedness, or
(B) default (after giving effect to any applicable grace period) in the observance or performance of any covenant or agreement relating to such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event or condition shall occur or condition exist, the
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effect of which default or other event or condition under (A) or (B) above is to cause, or permit,
the holder or holders of such Indebtedness (or trustee or agent on behalf of such holders) to cause any such Indebtedness to become due prior to its stated maturity; or (ii) any such Indebtedness shall be declared due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment or mandatory redemption, prior to the stated maturity thereof; or (iii) any such Indebtedness matures and is not paid at maturity.; provided, that clauses
(i)(B) and (ii) above shall not apply to any event that permits (x) holders of any such Indebtedness constituting convertible indebtedness of the Borrower to convert such Indebtedness pursuant to its terms or (y) the conversion of any such Indebtedness constituting convertible
indebtedness of the Borrower pursuant to its terms, in either case, into common stock of the Borrower (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower), cash or a
combination thereof, unless, in either case, such conversion results from a default thereunder (or an event of the type that constitutes an Event of Default).
(g) Judgments. One or more judgments, orders, or decrees shall be entered against the Borrower or a Material Subsidiary in an
outstanding amount of $50,000,000
or150,000,000 or more, in the aggregate (to the
extent not paid or covered by insurance provided by a carrier who has acknowledged coverage), and such judgments, orders or decrees shall continue unsatisfied, undischarged and unstayed for a period ending on the 30th day after such judgment, order
or decree becomes final and unappealable.
(h) ERISA. (i) The Borrower, or a Material Subsidiary or any ERISA Affiliate
including the Borrower shall fail to pay when due an amount or amounts aggregating in excess of $50,000,000150,000,000 which it shall have become liable to pay under Title IV of
ERISA; or (ii) notice of intent to terminate a Plan or Plans of the Borrower which in the aggregate have unfunded liabilities in excess of
$50,000,000150,000,000
(individually and collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or ERISA Affiliate including the Borrower, any plan administrator or any
combination of the foregoing; or (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan of the Borrower; or (iv) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan of the Borrower must be terminated; or
(v) there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more ERISA Affiliate including the
Borrower to incur a current payment obligation in excess of
$50,000,000150,000,000
unless paid by the Borrower on the date such payment is due.
(i) Change of Control. The occurrence of any Change of Control.
10.2 Acceleration; Remedies.
(a) Upon the occurrence of an Event of Default, and at any time thereafter unless and until such Event of Default has been waived by the Required Lenders or cured to the reasonable satisfaction of the Required Lenders, the Administrative Agent may with the consent of the Required Lenders, and shall, upon the request and direction of the Required Lenders, by written notice to the Borrower take any of the following actions without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against the Borrower, except as otherwise specifically provided for herein:
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(i) Termination of Commitments. Declare the Commitments with respect to the Borrower terminated whereupon the Commitments with respect to the Borrower shall be immediately terminated.
(ii) Acceleration of Loans. Declare the unpaid principal of and any accrued interest in respect of all Loans made to the Borrower and any and all other indebtedness or obligations of any and every kind owing by the Borrower to any of the Lenders or the Administrative Agent hereunder to be due whereupon the same shall be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and interests created and existing under the Credit Documents, including, without limitation, all rights of set-off, as against the Borrower.
(b) Notwithstanding the foregoing, if an Event of Default specified in Section 10.1(e) shall occur, then the Commitments shall automatically terminate and all Loans, all accrued interest in respect thereof, all accrued and unpaid fees and other indebtedness or obligations owing by the Borrower to the Lenders and the Administrative Agent hereunder shall immediately become due and payable without the giving of any notice or other action by the Administrative Agent or the Lenders.
10.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement, after the occurrence and during the continuance of an Event of Default, all amounts collected from the Borrower or received by the Administrative Agent or any Lender on account of amounts outstanding under any of the Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable outside attorneys’ fees other than the fees of in-house counsel) of the Administrative Agent or any of the Lenders in connection with enforcing the rights of the Lenders under the Credit Documents against the Borrower and any protective advances made by the Administrative Agent or any of the Lenders, pro rata as set forth below;
SECOND, to payment of any fees owed to the Administrative Agent or any Lender by the Borrower, pro rata as set forth below;
THIRD, to the payment of all accrued interest payable to the Lenders by the Borrower hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of the Loans, pro rata as set forth below;
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FIFTH, to all other obligations which shall have become due and payable of the Borrower under the Credit Documents and not repaid pursuant to clauses “FIRST” through “FOURTH” above; and
SIXTH, the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided above until exhausted prior to application to the next succeeding category and (b) each of the Lenders shall receive an amount equal to its pro rata share (based on each Lender’s Commitment Percentages) of amounts available to be applied.
SECTION 11. AGENCY PROVISIONS
11.1 Appointment.
Each
Lender hereby designates and appoints SMBC as administrative agent of such Lender to act as specified herein and the other Credit Documents, and each such Lender hereby authorizes the Administrative Agent, as the agent for such Lender, to take such
action on its behalf under the provisions of this Credit Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated by the terms hereof and of the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other Credit Documents, the Administrative Agent shall not have any duties or responsibilities, except those expressly
set forth herein and therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Credit Agreement or any of the other Credit Documents, or
shall otherwise exist against the Administrative Agent. The provisions of this Section are solely for the benefit of the Administrative Agent and the Lenders and
nothe Borrower shall not have any rights as a third party beneficiary of the provisions hereof.
In performing its functions and duties under this Credit Agreement and the other Credit Documents, the Administrative Agent shall act solely as agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Borrower.
11.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder or under the other Credit Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
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11.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection herewith or in connection with any of the other Credit Documents (except for its or such Person’s own gross negligence or willful misconduct), or responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by the Borrower contained herein or in any of the other Credit Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection herewith or in connection with the other Credit Documents, or enforceability or sufficiency therefor of any of the other Credit Documents, or for any failure of the Borrower to perform its obligations hereunder or thereunder. The Administrative Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Credit Agreement, or any of the other Credit Documents or for any representations, warranties, recitals or statements made herein or therein or made by the Borrower in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Administrative Agent to the Lenders or by or on behalf of the Borrower to the Administrative Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Default or Event of Default or to inspect the properties, books or records of the Borrower. The Administrative Agent is not a trustee for the Lenders and owes no fiduciary duty to the Lenders. None of the Lenders identified on the facing page or signature pages of this Credit Agreement as “Syndication Agents” or “Joint Bookrunners” shall have any right, power, obligation, liability, responsibility or duty under this Credit Agreement other than those applicable to all Lenders as such, nor shall they have or be deemed to have any fiduciary relationship with any Lender.
11.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram,
telecopyemail
, telex or teletype message, statement, order or other document or conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without limitation, counsel to the Borrower, independent accountants and other experts selected by the Administrative Agent with reasonable care). The Administrative Agent may deem and treat
the Lenders as the owner of its interests hereunder for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent in accordance with Section 12.3(b). The
Administrative Agent shall be fully justified in failing or refusing to take any action under this Credit Agreement or under any of the other Credit Documents unless it shall first receive such advice or concurrence of the Required Lenders (or to
the extent specifically provided in Section 12.6, all the Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Credit Documents in accordance with a request of the Required
Lenders (or to the extent specifically provided in Section 12.6, all the Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders (including their successors and assigns).
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11.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or the Borrower referring to the Credit Document, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be directed by the Required Lenders (or, to the extent specifically provided in Section 12.6, all the Lenders).
11.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the Administrative Agent or any affiliate thereof hereinafter taken, including any review of the affairs of the Borrower, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower and made its own decision to make its Loans hereunder and enter into this Credit Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Credit Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower. Except for (i) delivery of the Credit Documents and (ii) notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Borrower which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
11.7 Indemnification.
Each Lender agrees to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to its Revolving Loan Commitment, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including without limitation at any time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent in its capacity as such in any way relating to or arising out of this Credit Agreement or the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or
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omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder and under the other Credit Documents.
11.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrower as though the Administrative Agent were not Administrative Agent hereunder. With respect to the Loans made by it, the Administrative Agent shall have the same rights and powers under this Credit Agreement as any Lender and may exercise the same as though they were not Administrative Agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity.
11.9 Successor Administrative Agent.
The Administrative Agent may, at any time, resign upon 30 days written notice to the Lenders. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent that is, except during the existence of a Default or Event of Default, reasonably satisfactory to the Borrower. If no successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment, within 30 days after the notice of resignation, then the retiring Administrative Agent shall select a successor Administrative Agent provided such successor is reasonably satisfactory to the Borrower and an Eligible Assignee (or if no Eligible Assignee shall have been so appointed by the retiring Administrative Agent and shall have accepted such appointment, then the Lenders shall perform all obligations of the retiring Administrative Agent until such time, if any, as a successor Administrative Agent shall have been so appointed and shall have accepted such appointment as provided for above). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations as Administrative Agent, as appropriate, under this Credit Agreement and the other Credit Documents and the provisions of this Section 11.9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Credit Agreement.
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11.10 ERISA Matters
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Joint Lead Arrangers and their respective Affiliates, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), and the conditions for exemptive relief thereunder will be satisfied in connection with respect to, such Lender’s entrance into, participation in, administration of and performance of the Loans or the Commitments,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans or the Commitments and this Credit Agreement, (C) the entrance into, participation in, administration of and performance of the Loans or the Commitments and this Credit Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to, and the conditions for exemptive relief under PTE 84-14 will be satisfied in connection with, such Lender’s entrance into, participation in, administration of and performance of the Loans or the Commitments and this Credit Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender to the effect that such Lender’s entrance into, participation in, administration of and performance of the Loans or the Commitments and this Credit Agreement will not give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Joint Lead Arrangers and their respective Affiliates that:
(i) none of the Administrative Agent or the Joint Lead Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Credit Agreement, any Credit Document or any documents related hereto or thereto),
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(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans or the Commitments and this Credit Agreement is independent (within the meaning of 29 CFR § 2510.3-21, as amended from time to time (the “Fiduciary Rule”)) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans or the Commitments and this Credit Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies, within the meaning of the Fiduciary Rule,
(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans or the Commitments and this Credit Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans or the Commitments and this Credit Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent, the Joint Lead Arrangers or any of their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans or the Commitments or this Credit Agreement.
(c) The Administrative Agent and the Joint Lead Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans or the Commitments and this Credit Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Credit Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
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SECTION 12. MISCELLANEOUS
12.1 Notices.
Except as
otherwise expressly provided herein, all notices and other communications shall have been duly given and shall be effective (a) when delivered, (b) when transmitted via telecopy (or other facsimile
device)email, (c) the Business Day following
the day on which the same has been delivered prepaid (or pursuant to an invoice arrangement) to a reputable national overnight air courier service, or (d) the third Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at the address or telecopy numbersemails set forth on Schedule 12.1, or at such other address as
such party may specify by written notice to the other parties hereto; provided, that, in the case of a notice or other communication given pursuant to clause (a) or (b) above, if such notice or other communication is not delivered or
transmitted during the normal business hours of the recipient, such notice or communication shall be deemed to be effective on the next Business Day for the recipient.
Notices and other communications to any Lender hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
12.2 Right of Set-Off; Adjustments.
In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence of an Event of Default by the Borrower and the commencement of remedies described in Section 10.2, each Lender and each of its Affiliates is authorized at any time and from time to time, without presentment, demand, protest or other notice of any kind (all of which rights being hereby expressly waived), to set-off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by such Lender (including, without limitation branches, agencies or Affiliates of such Lender wherever located) to or for the credit or the account of the Borrower against obligations and liabilities of the Borrower to the Lenders hereunder, under the Notes, the other Credit Documents or otherwise, irrespective of whether the Administrative Agent or the Lenders shall have made any demand hereunder and although such obligations, liabilities or claims, or any of them, may be contingent or unmatured, and any such set-off shall be deemed to have been made immediately upon the occurrence of an Event of Default even though such charge is made or entered on the books of such Lender subsequent thereto. The Borrower hereby agrees that any Person purchasing a participation in the Loans and Commitments to it hereunder pursuant to Section 12.3(e) may exercise all rights of set-off with respect to its participation interest as fully as if such Person were a Lender hereunder.
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Except to the extent that this Credit Agreement expressly provides for payments to be allocated to a particular Lender, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the obligations owing to it by the Borrower under this Credit Agreement, receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 10.1(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the obligations owing to such other Lender by the Borrower under this Credit Agreement, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
12.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided that the Borrower may not assign and transfer any of its interests hereunder (except as permitted by Section 9.2) without prior written consent of the Lenders; and provided further that the rights of each Lender to transfer, assign or grant participations in its rights and/or obligations hereunder shall be limited as set forth in this Section 12.3.
(b) Assignments. Each Lender may assign all or a portion of its rights and obligations under this Credit Agreement (including, without limitation, all or a portion of its Loans, its Notes, and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) the Administrative Agent (other than in the case of an Eligible Assignee that is a Lender) shall have provided written consent (not to be unreasonably withheld or delayed);
(iii) To the extent required in the definition of “Eligible Assignee,” the Borrower shall have provided its written consent (not to be unreasonably withheld or delayed) which consent shall not be required during the existence of a Default or Event of Default; provided, however, that the Borrower shall be deemed to have consented to any proposed assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof;
(iv) any such partial assignment shall be in an amount at least equal to $5,000,000 (or, if less, the remaining amount of the Commitment being assigned by such Lender) or an integral multiple of $5,000,000 in excess thereof;
(v) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its rights and obligations under this Credit Agreement and the Notes;
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(vi) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment Agreement in substantially the form of Exhibit 12.3, together with a processing fee from the assignor of $4,000; and
(vii) without the prior written consent of the Administrative Agent, no assignment shall be made to a prospective assignee that bears a relationship to the Borrower described in Section 108(e)(4) of the Code.
Upon execution, delivery, and acceptance of such Assignment Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Lender hereunder and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Credit Agreement. Upon the consummation of any assignment pursuant to this Section 12.3(b), the assignor, the Administrative Agent and the Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the assignee. If the assignee is not incorporated under the laws of the United States of America or a State thereof, it shall deliver to the Borrower and the Administrative Agent certification as to exemption from deduction or withholding of taxes in accordance with Section 4.4.
By executing and delivering an assignment agreement in accordance with this Section 12.3(b), the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and the assignee warrants that it is an Eligible Assignee; (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto or the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto; (C) such assignee represents and warrants that it is legally authorized to enter into such assignment agreement; (D) such assignee confirms that it has received a copy of this Credit Agreement, the other Credit Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such assignment agreement; (E) such assignee will independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement and the other Credit Documents; (F) such assignee appoints and authorizes the Administrative Agent to take such action on its behalf and to exercise such powers under this Credit Agreement or any other Credit Document as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto; (G) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Credit Agreement and the other Credit Documents are required to be performed by it as a Lender; and (H) such assignee represents and warrants that it does not bear a relationship to the Borrower described in Section 108(e)(4) of the Code (provided that such representation shall not be required where the Administrative Agent has been made aware of such relationship existing between the assignee and the Borrower and has given its consent to such assignment pursuant to Section 12.3(b)(vii)).
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For avoidance of doubt, the parties to this Credit Agreement acknowledge that the provisions of this Section 12.3 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or assignment by a Lender to any Federal Reserve Bank or other central bank having jurisdiction over such Lender in accordance with applicable law.
(c) Register. The Administrative Agent shall maintain a copy of each Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender from time to time by the Borrower (collectively, the “Registers”). The entries in the Registers shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the relevant Register as a Lender hereunder for all purposes of this Credit Agreement. The Registers shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an assignment agreement executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment Agreement has been completed and is in substantially the form of Exhibit 12.3, (i) accept such assignment agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the parties thereto.
(e) Participations. Each Lender may sell, transfer, grant or assign participations in all or any part of such Lender’s interests and obligations hereunder; provided that (i) such selling Lender shall remain a “Lender” for all purposes under this Credit Agreement (such selling Lender’s obligations under the Credit Documents remaining unchanged) and the participant shall not constitute a Lender hereunder, (ii) no Lender shall grant to any such participant rights to approve any amendment or waiver relating to the Credit Documents, except to the extent any such amendment or waiver would (A) reduce the principal of or rate of interest on or fees in respect of any Loans in which the participant is participating, or (B) postpone the date fixed for any payment of principal (including extension of the Maturity Date or the date of any mandatory prepayment), interest or fees in respect of any Loans in which the participant is participating, (iii) such selling Lender shall deliver notice to the Borrower of any sub-participations by the participant (except to an Affiliate, parent company or Affiliate of a parent company of the participant) and (iv) without the prior written consent of the Administration Agent, no participation shall be sold to a prospective participant that bears a relationship to the Borrower described in Section 108(e)(4) of the Code. In the case of any such participation and notwithstanding the foregoing, (i) the participant shall not have any rights under this Credit Agreement or the other Credit Documents (the participant’s rights against the selling Lender in respect of such participation to be those set forth in the participation agreement with such Lender creating such participation in a manner consistent with this Section 12.3(e)),
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(ii) the Borrower, the Administrative Agent and the other Lenders shall be entitled to deal solely with the Lender who has sold a participation with respect to all matters arising under this Credit Agreement, and (iii) all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation; provided, however, that such participant shall be entitled to receive additional amounts under Section 4 to the same extent that the Lender from which such participant acquired its participation would be entitled to the benefit of such cost protection provisions.
Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower (solely for tax purposes), shall maintain a register for the recordation of the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Credit Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or its other obligations under any Credit Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and such Lender and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Credit Agreement.
(f) Payments. No Eligible Assignee, participant or other transferee of any Lender’s rights shall be entitled to receive any greater payment under Section 4 than such Lender would have been entitled to receive with respect to the rights transferred.
(g) Nonrestricted Assignments. Notwithstanding any other provision set forth in this Credit Agreement, any Lender may at any time assign and pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank or other central bank having jurisdiction over such Lender as collateral security pursuant to Regulation A and any operating circular issued by such Federal Reserve Bank or such other central bank having jurisdiction over such Lender. No such assignment shall release the assigning Lender from its obligations hereunder.
(h) Information. Any Lender may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants) who is notified of the confidential nature of the information and agrees to use its reasonable best efforts to keep confidential all non-public information from time to time supplied to it.
12.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower and the Administrative Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise
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of any other right, power or privilege hereunder or thereunder. The rights and remedies provided herein are cumulative and not exclusive of any rights or remedies which the Administrative Agent or any Lender would otherwise have. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or the Lenders to any other or further action in any circumstances without notice or demand.
12.5 Payment of Expenses, Indemnity, Limitation of Liability, etc.
(a) The Borrower agrees to pay all reasonable out-of-pocket costs and expenses of (i) the Administrative Agent, the Joint Lead Arrangers and the Sustainability Coordinator in connection with the negotiation, preparation, execution and delivery of this Credit Agreement and the other Credit Documents and the documents and instruments referred to therein (including, without limitation, the reasonable fees and expenses of outside legal counsel to the Administrative Agent) and any amendment, waiver or consent relating hereto and thereto including, but not limited to, any such amendments, waivers or consents resulting from or related to any work-out, renegotiation or restructure relating to the performance by the Borrower under this Credit Agreement, (ii) of the Administrative Agent and the Lenders in connection with enforcement of the Credit Documents and the documents and instruments referred to therein (including, without limitation, in connection with any such enforcement, the reasonable fees and disbursements of outside counsel for the Administrative Agent and each of the Lenders) against the Borrower.
(b) The Borrower agrees to indemnify the Administrative Agent, the Joint Lead Arrangers, the Sustainability Coordinator and each Lender and its Affiliates, their respective officers, directors, employees, representatives and agents from and hold each of them harmless against any and all losses (including intraparty claims), liabilities, claims, damages or reasonable expenses incurred by any of them as a result of, or arising out of, or in any way related to, or by reason of, any investigation, litigation or other proceeding (whether or not the Administrative Agent, the Joint Lead Arrangers, the Sustainability Coordinator or any Lender or its Affiliates is a party thereto, or whether or not such investigation, litigation or other proceeding was initiated by the Borrower, its Affiliates or any other party, other than in the case of any investigation, litigation or other proceeding (i) initiated by the Borrower in connection with a material breach of obligations (as determined by a final, non-appealable judgment of a court of competent jurisdiction) by the Administrative Agent, the Joint Lead Arrangers, the Sustainability Coordinator or any Lender hereunder or (ii) solely between or among any such indemnitees (other than any thereof in this clause (ii) either (A) against the Administrative Agent, acting in such capacity, or (B) to the extent arising out of any act or omission of the Borrower)) related to the entering into of this Credit Agreement, any Credit Document, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, any Loans or the use of proceeds therefrom or the consummation of any other transactions contemplated in any Credit Document by the Borrower, including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any such investigation, litigation or other proceeding (but excluding any such losses, liabilities, claims, damages or expenses to the extent incurred by reason of gross negligence or willful misconduct on the part of the Person to be indemnified, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction).
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(c) To the extent permitted by applicable law (i) the Borrower shall not assert, and the Borrower hereby waives, any claim against the Administrative Agent, any Joint Lead Arranger, any Sustainability Coordinator, and any Lender and its Affiliates, their respective officers, directors, employees, representatives and agents of any of the foregoing (each such Person being called a “Lender-Related Person”) for any losses (including intraparty claims), liabilities, claims, damages or reasonable expenses arising from the use by others of information or other materials (including, without limitation, any personal data) obtained through telecommunications, electronic or other information transmission systems (including the Internet) other than for direct, actual damages resulting from the gross-negligence or willful misconduct of such Lender-Related Persons in connection with the use of information or other materials so obtained as determined by a final, non-appealable judgment of a court of competent jurisdiction, and (ii) no party hereto shall assert, and each such party hereby waives, any losses (including intraparty claims), liabilities, claims, damages or reasonable expenses against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Credit Agreement, any other Credit Document, or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof; provided that, nothing in this Section 12.5(c) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee, as provided in Section 12.5(b), against any special, indirect, consequential or punitive damages asserted by a third party against the Administrative Agent, any Joint Lead Arranger, any Sustainability Coordinator and any Lender or their respective Affiliates, their respective officers, directors, employees, representatives and agents.
12.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of the terms hereof or thereof may be amended, changed, waived, discharged or terminated unless such amendment, change, waiver, discharge or termination is in writing and signed by the Required Lenders and the Borrower; provided that no such amendment, change, waiver, discharge or termination shall without the consent of each Lender affected thereby:
(a) extend the Maturity Date;
(b) reduce the rate or extend the time of payment of interest (other than as a result of waiving the applicability of any post-default increase in interest rates) thereon or fees hereunder;
(c) reduce or forgive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender over the amount thereof in effect (it being understood and agreed that a waiver of any Default or Event of Default or a waiver of any mandatory reduction in the Commitments shall not constitute a change in the terms of any Commitment of any Lender);
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(e) release the Borrower from its obligations under the Credit Documents or consent to the transfer or assignment of such obligations;
(f) amend, modify or waive any provision of this Section or Section 3.6, 3.8, 10.1(a), 10.3, 11.7, 12.2, 12.3, 12.5 or 12.9(b); or
(g) reduce any percentage specified in, or otherwise modify, the definition of Required Lenders or other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any provision hereof.
Notwithstanding the above, no provisions of Section 11 may be amended or modified without the consent of the Administrative Agent, and no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent without the prior written consent of the Administrative Agent.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein.
Notwithstanding the above, the definitions of Sustainability Loan, Green Investment Use of Proceeds and Social Investment Use of Proceeds may be amended with only the consent of the Borrower and the Sustainability Coordinator as set forth in Section 1.7(c). Notwithstanding the above, no such agreement shall amend, modify or otherwise affect the rights or duties of the Sustainability Coordinator without the prior written consent of the Sustainability Coordinator.
In the event any proposed amendment or waiver of the terms of this Credit Agreement or any other Credit Document requires the consent of all Lenders or of all Lenders directly affected thereby, and such proposed amendment or waiver is approved by Required Lenders, the Borrower may, in its sole discretion, require any Lender that has failed to consent to such proposed amendment or waiver (the “Non-Consenting Lender”) to transfer and assign its interests, rights and obligations under this Credit Agreement in a manner consistent with the terms and conditions of Section 4.5 to an Eligible Assignee that shall assume such assigned obligations; provided, however, that the Borrower shall have given written notice to the Administrative Agent in the case of an assignee that is not a Lender. The Borrower shall not be permitted to require a Non-Consenting Lender to assign any part of its interests, rights and obligations under this Credit Agreement pursuant to this Section 12.6 unless the Borrower has notified such Non-Consenting Lender of its intention to require the assignment thereof at least ten days prior to the proposed assignment date.
12.7 Counterparts; Telecopy; Electronic Delivery.
(a) This Credit Agreement may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Credit Agreement to produce or account for more than one such counterpart. Delivery of executed counterparts by facsimile or other electronic means (including by e-mail with a “pdf” copy thereof attached thereto) shall be effective as an original and shall constitute a representation that an original will be delivered.
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(b) Delivery of an executed counterpart of a signature page of (x) this Credit
Agreement, (y) any other Credit Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 12.1), certificate, request,
statement, disclosure or authorization related to this Credit Agreement, any other Credit Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted
by telecopy,
emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Credit
Agreement, such other Credit Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Credit Agreement, any
other Credit Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed
pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of
a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved
by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic
Signature purportedly given by or on behalf of the Borrower without further verification thereof and without any obligation to review the appearance or form of any such Electronic signature and (ii) upon the request of the Administrative Agent
or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrower hereby (A) agrees that, for all purposes, including without limitation, in
connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and the Borrower, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page
and/or any electronic images of this Credit Agreement, any other Credit Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (B) agrees that the Administrative Agent and
each of the Lenders may, at its option, create one or more copies of this Credit Agreement, any other Credit Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the
ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper
record), (C) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Credit Agreement, any other Credit Document and/or any Ancillary Document based solely on the lack of paper original copies of
this Credit Agreement, such other Credit Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (D) waives any claim against any Lender-Related Person for any Liabilities arising solely
from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page,
including any Liabilities arising as a result of the failure of the Borrower to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
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12.8 Headings.
The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Credit Agreement.
12.9 Defaulting Lenders.
Notwithstanding any provision of this Credit Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) no Facility Fees shall accrue on the unfunded portion of any Commitment of any Defaulting Lender pursuant to Section 3.4(a)(i).
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.6), provided that any waiver, amendment or modification requiring the consent of each affected Lender pursuant to Section 12.6(a)-(d) or any waiver, amendment or modification of this Section 12.9(b) shall require the consent of such Defaulting Lender if such Defaulting Lender would be directly adversely affected thereby.
(c) [Reserved.]
(d) [Reserved.]
(e) except as otherwise provided in this Credit Agreement, any amount payable to or for the account of any Defaulting Lender in its capacity as a Lender hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Lender) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, and (2) second to the funding of such Defaulting Lender’s Commitment Percentage of any Loans in respect of which such Defaulting Lender shall have failed to fund such share as required hereunder, (B) to the extent not applied as aforesaid, be held, if so determined by the Administrative Agent, as cash collateral for funding obligations of such Defaulting Lender in respect of future Loans hereunder, (C) to the extent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to the Borrower or any non-Defaulting Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any non-Defaulting Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction.
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(f) The Borrower may, in its sole discretion, require any Defaulting Lender to transfer and
assign its interests, rights and obligations under this Credit Agreement in a manner consistent with the terms and conditions of Section 4.5 (but at the expense of such Defaulting Lender) to an Eligible Assignee that shall assume such assigned
obligations; provided, however, that the Borrower shall have given written notice to the Administrative Agent in the case of an assignee that is not a Lender. The Borrower shall not be permitted to require a Defaulting Lender to assign
any part of its interests, rights and obligations under this Credit Agreement pursuant to this Section 10.12.9(f) unless the Borrower has notified such Defaulting Lender of their
intention to require the assignment thereof at least ten days prior to the proposed assignment date.
12.10 Survival of Indemnification and Representations and Warranties.
All indemnities set forth herein, the agreements contained in Sections 4.1(c), 4.2, 4.3 and 4.4 and all representations and warranties made herein shall survive the execution and delivery of this Credit Agreement, the making of the Loans, and the repayment of the Loans and other obligations and the termination of the Commitments hereunder.
12.11 GOVERNING LAW.
THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Borrower irrevocably consents to the service of process out of any competent court in any action or proceeding brought in connection with this Credit Agreement by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address for notices pursuant to Section 12.1, such service to become effective 30 days after such mailing. Nothing herein shall affect the right of a Lender to serve process in any other manner permitted by law.
12.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.13 Severability.
If any provision of any of the Credit Documents is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions.
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12.14 Entirety.
This Credit Agreement together with the other Credit Documents represent the entire agreement of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or written, if any, including any commitment letters or correspondence relating to the Credit Documents or the transactions contemplated herein and therein.
12.15 Binding Effect.
This Credit Agreement shall become effective at such time when all of the conditions set forth in Section 6.1 have been satisfied or waived by the Lenders and this Credit Agreement shall have been executed by the Borrower and the Administrative Agent, and the Administrative Agent shall have received copies (telefaxed or otherwise) which, when taken together, bear the signatures of each Lender, and thereafter this Credit Agreement shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each Lender and their respective successors and permitted assigns.
12.16 Submission to Jurisdiction.
The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusiveexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Credit Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Credit Agreement shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Credit Agreement against the Borrower or its properties in the courts of any jurisdiction. The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Credit Agreement in any court referred to above. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each of
theThe Borrower also hereby irrevocably and
unconditionally waives any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.
12.17 Confidentiality. Each of the Administrative Agent and each Lender agrees to keep confidential all non-public information provided to it by the Borrower pursuant to this Credit Agreement that is designated by the Borrower as confidential; provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such information (a) to the Administrative Agent, any other Lender or any of its Affiliates and other parties hereto, (b) subject to an agreement to comply with the provisions of this
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Section 12.17 (or terms substantially consistent with and no less restrictive than this Section 12.17), to (i) any actual or prospective Assignee or participant, (ii) credit insurance providers requiring access to such information in connection with credit insurance issued for the benefit of such Lender, and (iii) any contractual counterparties (or the professional advisors thereto) to any swap, derivative or securitization transaction relating directly to obligations of parties under this Credit Agreement, (c) to its employees, directors, agents, attorneys and accountants or those of any of its affiliates, (d) upon the request or demand of any Governmental Authority or any self-regulatory organization claiming jurisdiction or oversight over the Administrative Agent or such Lender or any of their respective affiliates, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any requirement of law, (f) if required to do so in connection with any litigation or similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (i) in connection with the exercise of any remedy hereunder or under any other Credit Document, (j) market data collectors, league table providers and similar service providers to the lending industry, such information to consist of deal terms and other information customarily provided by arrangers to league table providers or found in Gold Sheets and similar industry publications, and (k) with the written consent of the Borrower.
12.18 Designation of SPVs.
Notwithstanding anything to the contrary contained herein, any Lender, (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by such Granting Lender to the Administrative Agent and the Borrower, the option to fund all or any part of any Loan that such Granting Lender would otherwise be obligated to fund pursuant to this Credit Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to fund any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to fund all or any part of such Loan, the Granting Lender shall be obligated to fund such Loan pursuant to the terms hereof, (iii) no SPV shall have any voting rights pursuant to Section 12.6 and (iv) with respect to notices, payments and other matters hereunder, the Borrower, the Administrative Agent and the Lenders shall not be obligated to deal with an SPV, but may limit their communications and other dealings relevant to such SPV to the applicable Granting Lender. The funding of a Loan by an SPV hereunder shall utilize the Revolving Loan Commitment of the Granting Lender to the same extent that, and as if, such Loan were funded by such Granting Lender.
As to any Loans or portion thereof made by it, each SPV shall have all the rights that its applicable Granting Lender making such Loans or portion thereof would have had under this Credit Agreement; provided, however, that each SPV shall have granted to its Granting Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Credit Agreement (and any related documents) and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Credit Agreement. No additional Note shall be required to evidence the Loans or portion thereof made by an SPV; and the related Granting Lender shall be deemed to hold its Note as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Granting Lender as agent for such SPV.
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Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Credit Agreement for which a Lender would otherwise be liable for so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Credit Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof.
In addition, notwithstanding anything to the contrary contained in this Credit Agreement, any SPV may (i) at any time and without paying
any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Granting Lender or to any financial institutions providing liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to
such SPV. This
Section
12.1712.18 may not be amended without the written consent of any Granting Lender affected thereby.
12.19 USA Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”)), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Patriot Act.
12.20 No Fiduciary Duty.
The Borrower agrees that nothing in the Credit Documents will be deemed to create an advisory, fiduciary, agency relationship or other similar
duty between any Credit Party and its Affiliates, on the one hand, and the Borrower, its stockholders or its affiliates on the other with respect to the transactions contemplated hereby (irrespective of whether any Credit Party or its Affiliates has
advised, is currently advising or will advise the Borrower on other unrelated matters), or any other obligation by a Credit Party or its Affiliates to the Borrower its stockholders or its affiliates except the obligations expressly set forth in the
Credit Documents. The Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in connection with the transactions contemplated hereby or the
process leading thereto. Each Credit Party and their respective Affiliates may have economic interests that conflict with those of the Borrower, theirits stockholders, and/or their respective Affiliates.
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12.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties,
each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion
powersWrite-Down and Conversion Powers of the
applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Credit Agreement or any other Credit Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
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