FIRST AMENDMENT TO TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT (this “Amendment”) dated as of April
18, 2017, by and among ONEOK PARTNERS, L.P., a Delaware limited partnership, as borrower (the
“Borrower”), MIZUHO BANK, LTD., as administrative agent (the “Administrative Agent”), and the
Lenders party to this Amendment.
W I T N E S S E T H:
A. The Borrower, the Administrative Agent and the Lenders entered into that certain Term
Loan Agreement dated as of January 8, 2016 (the “Original Agreement”); and
B. The Borrower, the Administrative Agent and the Lenders party to this Amendment desire
to amend the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
contained herein and in the Original Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
1.01. Terms Defined in the Original Agreement; Other Defined Terms. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms defined in the Original
Agreement shall have the same meanings whenever used in this Amendment. As used herein, “Credit
Agreement” means the Original Agreement as amended hereby.
ARTICLE 2.
AMENDMENT
2.01. Amendment of the Original Agreement. The Original Agreement is hereby amended
to and restated in its entirety in the form of Annex A attached hereto.
2.02. Amendment to Exhibit E (Compliance Certificate). Exhibit E to the Original
Agreement is hereby amended and restated in its entirety as set forth on Annex B.
ARTICLE 3.
CONDITIONS TO EFFECTIVENESS
3.01. Execution and Delivery of this Amendment (Execution Date). This Amendment shall
be effective, and shall constitute a binding agreement among the parties hereto, on the date (the
“Execution Date”) when the following conditions precedent are satisfied:
(a) Receipt by the Administrative Agent of counterparts of this Amendment
executed by the Borrower and the Required Lenders and the Consent and Agreement attached
hereto duly executed and delivered by ONEOK Partners Intermediate Limited Partnership, a
Delaware limited partnership;
(b) Receipt by the Administrative Agent of a certificate of a Responsible Officer of
the Borrower stating that no consents, licenses or approvals are required to be obtained by the
16178061_7
Exhibit 10.2
Borrower as a condition to the enforceability, or the execution and delivery of this Amendment
by the Borrower; and
(c) payment of expenses required to be paid in connection with the Amendment,
including reasonable Attorney Costs of counsel to the Administrative Agent and Mizuho Bank,
Ltd., to the extent invoiced prior to the Execution Date;
provided that the amendments to the Credit Agreement set forth in Section 2 of this Amendment
shall not become effective, until the Closing Date (as defined below), and in the event that the
Closing Date has not occurred on or before the date one hundred eighty (180) days after the
Closing Date (the “Outside Date”), such amendments shall not become effective and this
Amendment shall terminate on such date and be of no further force or effect.
3.02. Conditions to Effectiveness of the Amendment (Closing Date). The amendments to the
Credit Agreement set forth in Section 2 of this Amendment shall become effective on the date
(the “Closing Date”) when the following conditions precedent are satisfied:
(a) Administrative Agent shall have received each of the following:
(i) a Guaranty Agreement, duly executed and delivered by ONEOK, Inc., an
Oklahoma corporation (“Parent Guarantor”);
(ii) certificate of a secretary or assistant secretary of each Loan Party or its
general partner (attaching resolutions and incumbency certificates as the Administrative
Agent may reasonably require) evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in connection with
this Amendment and the other Loan Documents;
(iii) a certificate from a Responsible Officer of the Borrower certifying that
the Credit Agreement among Parent Guarantor, as borrower, Citibank, N.A., as
administrative agent, and the lenders from time to time party thereto has become effective
(the “Parent Guarantor Credit Agreement”);
(iv) a certificate as to the good standing (or such other customary
functionally equivalent certificate) of each Loan Party and the general partner of each
Loan Party from the Secretary of State (or other applicable Governmental Authority) of
its jurisdiction of organization;
(v) a favorable opinion of GableGotwals (or other counsel reasonably
acceptable to the Administrative Agent), counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender as of the Closing Date, reasonably satisfactory to
the Administrative Agent and the Arrangers and Bookrunners; and
(b) the Closing Date (as defined in the Parent Guarantor Credit Agreement) shall
have occurred; and
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all
Attorney Costs (related to Haynes and Boone, LLP) of the Administrative Agent and the Left
Lead Arranger to the extent invoiced prior to or on the Closing Date.
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ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrowers. In order to induce each Lender to
enter into this Amendment, Borrower represents and warrants to the Administrative Agent and each
Lender with respect to the following matters that:
(a) The representations and warranties of the Loan Parties contained in Article V of
the Original Agreement, or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be true and correct in all
material respects on and as of the Execution Date, except to the extent that such representations
and warranties refer to an earlier date or another specific date, in which case they shall be true
and correct in all material respects as of such earlier date or other specific date, except that such
materiality qualifier shall not apply to the extent that any such representation or warranty is
qualified by materiality .
(b) Each Loan Party is duly authorized to execute and deliver this Amendment and
the Consent and Agreement, as applicable, and is duly authorized to perform its obligations under
the Loan Documents to which it is a party. Each Loan Party has duly taken all corporate or
limited partnership action necessary to authorize the execution and delivery of this Amendment
and the Consent and Agreement, as applicable, and to authorize the performance of the
obligations of the Loan Parties hereunder.
(c) The execution, delivery and performance by each Loan Party of this Amendment
and the Consent and Agreement, as applicable, has been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a) contravene the terms of such
Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention
of (i) any Contractual Obligation to which such Loan Party or any Subsidiary thereof is a party or
(ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to
which such Loan Party or any Subsidiary thereof or the property of any of the aforementioned
parties is subject; (c) violate any Law or (d) result in the creation of any Lien prohibited by this
Agreement; except in the case of clauses (b) and (c), to the extent such contravention, conflict,
breach or violation could not reasonably be expected to have a Material Adverse Effect.
(d) When duly executed and delivered, each of this Amendment and the Consent and
Agreement, as applicable, and the Credit Agreement will be a legal and binding obligation of the
Loan Parties a party thereto, enforceable in accordance with its terms, except as limited by Debtor
Relief Laws.
(e) No Default exists on the Execution Date.
ARTICLE 5.
MISCELLANEOUS
5.01. Ratification of Agreements. The Original Agreement, as hereby amended, is hereby
ratified and confirmed in all respects and shall remain in full force and effect. The Loan Documents, as
they may be amended or affected by this Amendment, are hereby ratified and confirmed in all respects.
Any reference to the Credit Agreement in any Loan Document shall be deemed to be a reference to the
Original Agreement, as hereby amended. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the
16178061_7 3
Lenders under the Original Agreement or any other Loan Document nor constitute a waiver of any
provision of the Original Agreement or any other Loan Document.
5.02. Survival of Agreements. All representations, warranties, covenants and agreements of
the Loan Parties herein shall survive the execution and delivery of this Amendment and the performance
hereof, including without limitation the making or granting of the Loans, and shall further survive until all
of the Obligations are paid in full. All statements and agreements contained in any certificate or
instrument delivered by any Loan Party hereunder or under the Original Agreement to any Lender shall
be deemed to constitute representations and warranties by, and/or agreements and covenants of, such
Loan Party under this Amendment and under the Original Agreement.
5.03. Loan Documents. This Amendment is a Loan Document, and all provisions in the
Original Agreement pertaining to Loan Documents apply hereto.
5.04. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the state of New York.
5.05. Counterparts. This Amendment maybe separately executed in counterparts and by the
different parties hereto in separate counterparts, each of which when so executed shall be deemed to
constitute one and the same Amendment. Delivery of an executed counterpart of this Amendment by e-
mail or other electronic form shall be effective as the delivery of a manually-executed counterpart.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[Remainder of Page Intentionally Blank]
16178061_7 4
[Signature Page to First Amendment to
ONEOK Partners, L.P. Term Loan Agreement]
BANK OF AMERICA, N.A.,
as a Lender
By:
Name: Adam H. Fey
Title: Director
EXECUTION VERSION
Published CUSIP Number: 68268QAG1
$1,000,000,000
TERM LOAN AGREEMENT
Dated as of January 8, 2016
among
ONEOK PARTNERS, L.P.,
as the Borrower,
MIZUHO BANK, LTD.,
as Administrative Agent
and
The Other Lenders Party Hereto
_________________________
BANK OF AMERICA, N.A.,
BARCLAYS BANK PLC,
CITIBANK, N.A.
JPMORGAN CHASE BANK, N.A.
and
TORONTO DOMINION (TEXAS) LLC,
Syndication Agents
MIZUHO BANK, LTD.,
BARCLAYS BANK PLC,
CITIGROUP GLOBAL MARKETS INC.,
J.P. MORGAN SECURITIES LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
and
TD SECURITIES (USA) LLC
Joint Lead Arrangers and Bookrunners
REGIONS BANK,
Documentation Agent
16188091_7
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS ..................................................................... 1
1.01 Defined Terms ............................................................................................................... 1
1.02 Other Interpretive Provisions ....................................................................................... 23
1.03 Accounting Terms. ...................................................................................................... 24
1.04 Rounding ..................................................................................................................... 24
1.05 References to Agreements and Laws ........................................................................... 24
1.06 Times of Day ............................................................................................................... 24
ARTICLE II. THE COMMITMENTS AND LOANS ............................................................................... 24
2.01 Loans. .......................................................................................................................... 24
2.02 Borrowings, Conversions and Continuations of Loans. .............................................. 25
2.03 [Reserved.] ................................................................................................................... 26
2.04 [Reserved.] ................................................................................................................... 26
2.05 [Reserved.] ................................................................................................................... 26
2.06 Prepayments................................................................................................................. 26
2.07 Termination or Reduction of Commitments ................................................................ 26
2.08 Repayment of Loans .................................................................................................... 27
2.09 Interest ......................................................................................................................... 27
2.10 Fees .............................................................................................................................. 27
2.11 Computation of Interest and Fees ................................................................................ 27
2.12 Evidence of Debt ......................................................................................................... 28
2.13 Payments Generally. .................................................................................................... 28
2.14 Sharing of Payments .................................................................................................... 30
2.15 Extension of Maturity Date. ........................................................................................ 30
2.16 [Reserved.] ................................................................................................................... 32
2.17 Defaulting Lenders. ..................................................................................................... 32
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY ...................................................... 33
3.01 Taxes. ........................................................................................................................... 33
3.02 Illegality ....................................................................................................................... 37
3.03 Inability to Determine Rates ........................................................................................ 38
3.04 Increased Costs; Reserves on Eurodollar Rate Loans. ................................................ 39
3.05 Compensation for Losses ............................................................................................. 40
3.06 Mitigation Obligations; Replacement of Lenders. ....................................................... 41
3.07 Survival ........................................................................................................................ 41
ARTICLE IV. CONDITIONS PRECEDENT TO BORROWINGS .......................................................... 41
4.01 Conditions to the Closing Date and Initial Advance ................................................... 41
4.02 Conditions to all Borrowings ....................................................................................... 43
ARTICLE V. REPRESENTATIONS AND WARRANTIES .................................................................... 44
5.01 Existence, Qualification and Power ............................................................................. 44
5.02 Authorization; No Contravention ................................................................................ 44
5.03 Governmental Authorization; Other Consents ............................................................ 44
5.04 Binding Effect .............................................................................................................. 44
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5.05 Financial Statements. ................................................................................................... 44
5.06 Litigation ..................................................................................................................... 45
5.07 No Default ................................................................................................................... 45
5.08 Ownership of Property; Liens ...................................................................................... 45
5.09 Environmental Compliance ......................................................................................... 45
5.10 Insurance ...................................................................................................................... 46
5.11 Taxes ............................................................................................................................ 46
5.12 ERISA Compliance. .................................................................................................... 46
5.13 Subsidiaries .................................................................................................................. 46
5.14 Margin Regulations; Investment Company Act. ......................................................... 47
5.15 Disclosure .................................................................................................................... 47
5.16 Compliance with Laws ................................................................................................ 47
5.17 [Reserved]. ................................................................................................................... 47
5.18 Intellectual Property; Licenses, Etc. ............................................................................ 47
5.19 Solvency. ..................................................................................................................... 48
5.20 OFAC .......................................................................................................................... 48
5.21 Anti-Corruption Laws .................................................................................................. 48
ARTICLE VI. AFFIRMATIVE COVENANTS ........................................................................................ 48
6.01 Financial Statements .................................................................................................... 48
6.02 Certificates; Other Information .................................................................................... 49
6.03 Notices ......................................................................................................................... 50
6.04 Payment of Obligations ............................................................................................... 51
6.05 Preservation of Existence, Etc. .................................................................................... 51
6.06 Maintenance of Properties ........................................................................................... 52
6.07 Maintenance of Insurance ............................................................................................ 52
6.08 Compliance with Laws ................................................................................................ 52
6.09 Books and Records. ..................................................................................................... 52
6.10 Inspection Rights ......................................................................................................... 52
6.11 Use of Proceeds ........................................................................................................... 53
6.12 Maintenance of Tax Status .......................................................................................... 53
6.13 Anti-Corruption Laws and Sanctions .......................................................................... 53
6.14 Additional Guarantors ................................................................................................. 53
ARTICLE VII. NEGATIVE COVENANTS .............................................................................................. 53
7.01 Liens ............................................................................................................................ 53
7.02 Investments .................................................................................................................. 56
7.03 Indebtedness of Subsidiaries........................................................................................ 57
7.04 Fundamental Changes .................................................................................................. 57
7.05 Change in Nature of Business ...................................................................................... 58
7.06 Transactions with Affiliates ......................................................................................... 58
7.07 Burdensome Agreements ............................................................................................. 59
7.08 Use of Proceeds ........................................................................................................... 59
7.09 Leverage Ratio ............................................................................................................. 59
7.10 Sanctions ...................................................................................................................... 59
16188091_7 ii
7.11 Anti-Corruption Laws .................................................................................................. 59
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES ................................................................... 60
8.01 Events of Default ......................................................................................................... 60
8.02 Remedies Upon Event of Default ................................................................................ 62
8.03 Application of Funds ................................................................................................... 62
ARTICLE IX. ADMINISTRATIVE AGENT ............................................................................................ 63
9.01 Appointment and Authority ......................................................................................... 63
9.02 Rights as a Lender ....................................................................................................... 63
9.03 Exculpatory Provisions ................................................................................................ 63
9.04 Reliance by Administrative Agent ............................................................................... 64
9.05 Delegation of Duties .................................................................................................... 64
9.06 Resignation of Administrative Agent. ......................................................................... 64
9.07 Non-Reliance on Administrative Agent and Other Lenders ........................................ 65
9.08 Administrative Agent May File Proofs of Claim......................................................... 66
9.09 [Reserved.] ................................................................................................................... 66
9.10 Other Agents; Arrangers and Managers ...................................................................... 66
ARTICLE X. MISCELLANEOUS............................................................................................................. 67
10.01 Amendments, Etc. ........................................................................................................ 67
10.02 Notices and Other Communications; Facsimile Copies. ............................................. 68
10.03 No Waiver; Cumulative Remedies; Enforcement. ...................................................... 70
10.04 Expenses; Indemnity; Damage Waiver. ...................................................................... 71
10.05 Payments Set Aside ..................................................................................................... 73
10.06 Successors and Assigns. .............................................................................................. 73
10.07 Confidentiality ............................................................................................................. 78
10.08 Set-off .......................................................................................................................... 79
10.09 Interest Rate Limitation ............................................................................................... 79
10.10 Counterparts................................................................................................................. 79
10.11 Integration .................................................................................................................... 79
10.12 Survival of Representations and Warranties ................................................................ 80
10.13 Severability .................................................................................................................. 80
10.14 Replacement of Lenders .............................................................................................. 80
10.15 Governing Law. ........................................................................................................... 81
10.16 Waiver of Right to Trial by Jury.................................................................................. 82
10.17 No Advisory or Fiduciary Responsibility .................................................................... 82
10.18 USA PATRIOT Act Notice ......................................................................................... 83
10.19 Electronic Execution of Assignments and Certain Other Documents ......................... 83
10.20 No General Partner Liability ....................................................................................... 83
10.21 ENTIRE AGREEMENT ............................................................................................. 83
10.22 Acknowledgement and Consent to Bail-In of EEA Financial Institutions .................. 83
SIGNATURES………………………………………………………………………….S-1
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SCHEDULES
1.01A Existing Sale and Leaseback Transactions
2.01 Commitments and Pro Rata Shares
5.13 Subsidiaries and Other Equity Investments
10.02 Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
Form of
A Loan Notice
B Reserved
C Reserved
D Note
E Compliance Certificate
F Assignment and Assumption
G Guaranty Agreement
H Forms of U.S. Tax Compliance Certificates
16188091_7 iv
TERM LOAN AGREEMENT
This TERM LOAN AGREEMENT (this “Agreement”) is dated as of January 8, 2016, among
ONEOK PARTNERS, L.P., a Delaware limited partnership (the “Borrower”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, a “Lender”), and MIZUHO BANK, LTD.,
as Administrative Agent.
The Borrower has requested that the Lenders provide a term loan facility, and the Lenders are
willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the
meanings set forth below:
“Acquisition Adjustment Period” means a period elected by Parent Guarantor, such election to be
exercised by Parent Guarantor by giving notice to the Administrative Agent, beginning with the funding
date of the purchase price for any Specified Acquisition and continuing through the earlier of (a) the last
day of the second fiscal quarter next succeeding the fiscal quarter in which such funding date occurred, or
(b) Parent Guarantor’s election to terminate such Acquisition Adjustment Period, such election to be
exercised by Parent Guarantor giving notice to the Administrative Agent. When an Acquisition
Adjustment Period is in effect, the next Acquisition Adjustment Period may not commence until the
termination of such Acquisition Adjustment Period then in effect.
“Adjusted Consolidated EBITDA” means, for Parent Guarantor and its Subsidiaries for any period, the
sum of (a) Consolidated EBITDA for such period plus (b) any Material Project EBITDA Adjustments for
such period.
“Administrative Agent” means Mizuho in its capacity as administrative agent under any of the Loan
Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account
as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from
time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Aggregate Commitments” means the Commitments of all the Lenders.
16188091_7
“Agreement” means this Term Loan Agreement.
“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the UK Bribery
Act 2010 and other similar anti-corruption or bribery legislation enacted or promulgated by any
Governmental Authority having jurisdiction over the Borrower or an Affiliate in other jurisdictions, in
each case to the extent applicable to the Borrower or an Affiliate.
“Applicable Rate” means, from time to time, the following percentages, set forth in basis points per
annum, based upon the Debt Rating as set forth below:
Pricing
Level
Debt Ratings
S&P/Moody’s Eurodollar Rate Base Rate
1 A-/A3 or better 100.0 0.0
2 BBB+/Baa1 112.5 12.5
3 BBB/Baa2 130.0 30.0
4 BBB-/Baa3 150.0 50.0
5 BB+/Ba1 or lower
175.0 75.0
“Debt Rating” means, as of any date of determination, the rating as determined by either S&P or Moody’s
(collectively, the “Debt Ratings”) of the Borrower’s non-credit-enhanced, senior unsecured long-term
debt; provided that if a Debt Rating is issued by each of the foregoing rating agencies, then the higher of
such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest), unless there is a split in Debt Ratings of more than one level,
in which case the Pricing Level that is one level lower than the Pricing Level of the higher Debt Rating
shall apply; provided, however, if there are no Debt Ratings, then Pricing Level 5 shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate
delivered pursuant to Section 4.01(a). Thereafter, each change in the Applicable Rate resulting from a
publicly announced change in the Debt Rating shall be effective during the period commencing on the
date of the public announcement thereof and ending on the date immediately preceding the effective date
of the next such change.
“Approved Fund” has the meaning set forth in Section 10.06(g).
“Arrangers and Bookrunners” means Barclays Bank PLC, Citigroup Global Markets Inc., J.P. Morgan
Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-
dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of
America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or
related businesses may be transferred following the date of this Agreement), TD Securities (USA) LLC,
and Mizuho, each in its capacity as joint lead arranger and joint bookrunner.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit
F.
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“Attorney Costs” means and includes all fees, expenses and disbursements of any law firm or other
external counsel.
“Attributable Indebtedness” means, on any date, in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease.
“Audited Financial Statements” means the most recent audited financial statements delivered by the
Borrower on or prior to the Closing Date pursuant to Section 6.01(a) of the Revolving Credit Agreement.
“Availability Period” means, for any Lender, the period from and including the Closing Date to the
earliest of (a) the date ninety (90) days after the Closing Date, (b) the date of termination of the Aggregate
Commitments pursuant to Section 2.07, (c) the date of termination of the commitment of each Lender to
make Loans pursuant to Section 8.02, and (d) the date upon which the Delayed Draw Advance is funded.
“Available Delayed Draw Amount” means at any time of determination, an amount equal to the greater of
(a) zero and (b) (i) the Aggregate Commitments at such time minus (ii) the amount of the Initial Advance.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA
Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the
implementing law for such EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds
Rate plus 1/2 of 1%, (b) the Prime Rate, and (c) the one-month Eurodollar Rate for such day plus 1.00%.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Partnership Agreement” means the Third Amended and Restated Agreement of Limited
Partnership of ONEOK Partners, L.P., dated as of September 15, 2006, as amended.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of
Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section
2.01.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks
are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative
Agent’s Office is located or the state of New York, and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank Eurodollar market.
16188091_7 3
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other
amounts under any lease (or other arrangement conveying the right to use) of real or personal property, or
a combination thereof, which obligations are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP. It is understood that with respect to the
accounting for leases as either operating leases or capital leases and the impact of such accounting on the
definitions and covenants herein, GAAP as in effect on the Closing Date shall be applied.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the
adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation
or treaty or in the administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive
(whether or not having the force of law) by any Governmental Authority; provided that notwithstanding
anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and
all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all
requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of Parent
Guarantor or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) after the Closing Date becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have “beneficial ownership” of all securities that such
person or group has the right to acquire (such right, an “option right”), whether such right is
exercisable immediately or only after the passage of time), directly or indirectly, of 25% or more
of the equity securities of Parent Guarantor entitled to vote for members of the board of directors
or equivalent governing body of Parent Guarantor on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire pursuant to any
option right); or
(b) during any period of 12 consecutive months, a majority of the members of the
board of directors or other equivalent governing body of Parent Guarantor cease to be composed
of individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body or (iii) whose election
or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body; or
(c) Parent Guarantor shall fail to have the power to control, directly or indirectly, the
management and policies of the Borrower; or
16188091_7 4
(d) Parent Guarantor shall fail to own, directly or indirectly through wholly owned
Subsidiaries, general partnership interests in the Borrower with voting rights that constitute a
majority of the aggregate voting rights held by all General Partners; or
(e) the Borrower, Parent Guarantor or a wholly-owned subsidiary of Parent
Guarantor shall collectively fail to own, directly or indirectly, 100% of the equity interests in
Intermediate Guarantor.
Notwithstanding the foregoing, “option right” shall not include any securities which any person or group
has a right to acquire pursuant to a merger or acquisition agreement, until such right is exercised and such
acquisition occurs pursuant to such agreement.
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01 (or, in the case of Section 4.01(b), waived by the Person entitled to receive
the applicable payment).
“Code” means the Internal Revenue Code of 1986.
“Commercial Operation Date” means the date on which a Material Project is substantially complete and
commercially operable.
“Commercial Paper Borrowing” means a Borrowing of Loans the entire proceeds of which are used,
within five (5) Business Days of disbursement, to repay commercial paper issued by the Borrower.
“Commitment” means, as to each Lender, its obligation to make Loans to the Borrower, in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s
name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Agreement.
“Common Unit” means units representing limited partner interests in the Borrower.
“Compliance Certificate” means a certificate substantially in the form of Exhibit E.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net
income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDA” means, for any period, an amount equal to the sum of (i) Consolidated Net
Income for such period plus without duplication (ii) to the extent deducted in determining Consolidated
Net Income for such period, the following: (A) Consolidated Interest Expense, (B) income tax expense
determined on a consolidated basis in accordance with GAAP, (C) depreciation and amortization
determined on a consolidated basis in accordance with GAAP, (D) charges, fees and expenses (including
any premium and acceleration of fees or discounts) in connection with any Investment, issuance of equity
interests or prepayment, purchase, amendment or refinancing of Indebtedness permitted hereunder (in
each case, whether or not consummated) for such period, (E) Transaction Expenses (as defined in the
Parent Guarantor Credit Agreement) with respect to any such period, and (F) all other non-cash
charges, minus (iii) all non-cash items increasing Consolidated Net Income for such period, determined in
each case on a consolidated basis in accordance with GAAP for such period.
16188091_7 5
For purposes of Section 7.09, (a) if Parent Guarantor or any of its Subsidiaries has acquired any assets or
another Person as a Subsidiary (including through the purchase or other acquisition of additional
ownership interests in such Person resulting in such Person becoming a Subsidiary) during the relevant
period for determining the Leverage Ratio, Consolidated EBITDA shall be calculated after giving pro
forma effect thereto, as if such acquisition had occurred on the first day of the relevant period for
determining Consolidated EBITDA and (b) for any four quarter period during which any of Parent
Guarantor’s or any of its Subsidiaries’ operations constitute discontinued operations, in accordance with
GAAP, such discontinued operations shall be excluded from the calculation of Consolidated EBITDA
and not given effect in determining Consolidated EBITDA.
“Consolidated Interest Expense” means, for Parent Guarantor and its Subsidiaries for any period
determined on a consolidated basis in accordance with GAAP, the sum of (without duplication) (i) total
interest expense, including the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually paid during such
period) plus (ii) the net amount payable (or minus the net amount receivable) under any Swap Contract
(relating to interest rates only) during such period (whether or not actually paid or received during such
period), plus (iii) amortization of debt issuance costs, debt discount or premium, plus (iv) other financing
fees and expenses incurred by Parent Guarantor or any of its Subsidiaries for such period, including any
tender or redemption premiums paid or payable in connection with the purchase, acquisition, repayment,
redemption, discharge or defeasance of any Indebtedness.
“Consolidated Net Income” means, for any period, the net income (or loss) of Parent Guarantor and its
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that
there shall be excluded therefrom (a) the income or loss of any Person accrued prior to the date it became
a Subsidiary of Parent Guarantor, or is merged or consolidated with Parent Guarantor or any of its
Subsidiaries, (b) any equity interests of Parent Guarantor or its Subsidiaries in the earnings of any Person
(other than a Subsidiary of Parent Guarantor), but including dividends and similar distributions actually
received by Parent Guarantor or any of its Subsidiaries from any such Person, (c) the undistributed
earnings of any Subsidiary of Parent Guarantor to the extent that the declaration or payment of dividends
or similar distributions by such Subsidiary is not at the time permitted by the terms of the organizational
documents or Contractual Obligations of, or requirements of Law applicable to, such Subsidiary, (d) any
extraordinary gains or losses, and (e) any gains attributable to write-ups of assets.
“Consolidated Net Tangible Assets” means, at any date of determination, the total amount of consolidated
assets of Parent Guarantor and its Subsidiaries after deducting therefrom: (a) all current liabilities
(excluding (i) any current liabilities that by their terms are extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which the amount thereof is being
computed, (ii) current maturities of the Obligations and other long-term debt and (iii) notes payable); and
(b) the value, net of any applicable reserves and accumulated amortization, of all goodwill, trade names,
trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis would be set
forth, on the consolidated balance sheet of Parent Guarantor and its Subsidiaries, prepared in accordance
with GAAP.
“Consolidated Net Worth” means, as of any date of determination, consolidated shareholders’ equity,
determined in accordance with GAAP, of Parent Guarantor and its Subsidiaries as of that date, adjusted as
16188091_7 6
follows: (a) either (i) less the absolute value of net unrealized gains resulting from Swap Contracts that
are recorded by Parent Guarantor in accumulated other comprehensive income (loss) as determined in
accordance with GAAP, or (ii) plus the absolute value of net unrealized losses resulting from Swap
Contracts that are recorded by Parent Guarantor in accumulated other comprehensive income (loss) as
determined in accordance with GAAP; and (b) either (i) less the absolute value of defined benefit plan
assets that are recorded by Parent Guarantor in accumulated other comprehensive income (loss) as
determined in accordance with GAAP, or (ii) plus the absolute value of defined benefit plan liabilities that
are recorded by Parent Guarantor in accumulated other comprehensive income (loss) as determined in
accordance with GAAP.
“Consolidated Total Debt” means, as of any date of determination, Indebtedness of Parent Guarantor and
its Subsidiaries on a consolidated basis as of such date, but excluding Indebtedness of the type described
in subsection (c) of the definition thereof.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or
of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of
its property is bound.
“Control” has the meaning specified in the definition of “Affiliate.”
“Debt Rating” has the meaning set forth in the definition of “Applicable Rate.”
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any
notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to
Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan,
the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum.
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all or any
portion of its Loans within two Business Days of the date such Loans were required to be funded
hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such
failure is the result of such Lender’s good faith determination that one or more conditions precedent to
funding (each of which conditions precedent, together with any applicable default, shall be specifically
identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within two Business Days of the date when
due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply
with its funding obligations hereunder, or has made a public statement to that effect (unless such writing
or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such
position is based on such Lender’s good faith determination that a condition precedent to funding (which
condition precedent, together with any applicable default, shall be specifically identified in such writing
16188091_7 7
or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request
by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the
Borrower that it will comply with its prospective funding obligations hereunder (provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written
confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent
company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed
for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or assets, including the Federal
Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity;
or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority so long as such ownership interest does not
result in or provide such Lender with immunity from the jurisdiction of courts within the United States or
from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender
under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such
Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written
notice of such determination to the Borrower and each Lender.
“Delayed Draw Advance” has the meaning specified in Section 2.01(a)(ii).
“Delayed Draw Advance Date” has the meaning specified in Section 2.01(a)(ii).
“Designated Jurisdiction” means any country, region or territory to the extent that such country, region or
territory itself is the subject of any Sanction.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale
and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (i) any sale, assignment, transfer or other disposal of cash or cash
equivalents and (ii) any transfer of property or assets constituting an Investment.
“Documentation Agent” means each entity named as a “Documentation Agent” on the cover page of this
Agreement.
“Dollar” and “$” mean lawful money of the United States.
“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.
16188091_7 8
“EEA Resolution Authority” means any public administrative authority or any person entrusted with
public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” has the meaning specified in Section 10.06(g).
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or governmental restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, or its
Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with
the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a
Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition
which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Borrower or any ERISA Affiliate; or (g) the application for a waiver of the minimum funding
standard under the Pension Funding Rules, a copy of such application.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan
Market Association (or any successor person), as in effect from time to time.
“Eurodollar Rate” means:
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which
16188091_7 9
rate is approved by the Administrative Agent, as published on the applicable Reuters screen page
(or such other commercially available source providing such quotations as may be designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;
and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate
per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days
prior to such date for Dollar deposits with a term of one month commencing that day;
provided, that to the extent a comparable or successor rate is approved by the Administrative
Agent in connection herewith, the approved rate shall be applied in a manner consistent with
market practice for LIBOR-based loans; provided, further that to the extent such market practice
is not administratively feasible for the Administrative Agent, such approved rate shall be applied
in a manner as otherwise reasonably determined by the Administrative Agent.
“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of
Eurodollar Rate.
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to the Administrative
Agent or any Lender or required to be withheld or deducted from a payment to the Administrative Agent
or such Lender: (a) Taxes imposed on or measured by net income (however denominated), franchise
Taxes, and branch profits Taxes, in each case, (i) imposed as a result of the Administrative Agent or such
Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its
Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or
(ii) that are Other Connection Taxes, (b) 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 a Loan
or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in
the Loan or Commitment (other than pursuant to an assignment request by the Borrower
under Section 10.14) or (ii) such Lender changes its Lending Office, except in each case to the extent that,
pursuant to Section 3.01(a)(ii), (a)(iii) or (c), 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, (c) Taxes attributable to the Administrative Agent’s or
such Lender’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed
pursuant to FATCA.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any
amended or successor version that is substantively comparable and not materially more onerous to
comply with), and any current or future regulations or official interpretations thereof and any agreements
entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such
16188091_7 10
day shall be such rate on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to Mizuho on such day on such transactions most closely
resembling such overnight Federal funds transactions as reasonably determined by the Administrative
Agent.
“Financing Vehicle” has the meaning set forth in the definition of “Hybrid Securities”.
“First Amendment” means the First Amendment to Term Loan Agreement dated as of [__], 2017 among
the Borrower, Administrative Agent, and certain Lenders party thereto.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in
which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each
State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fund” has the meaning specified in Section 10.06(g).
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or such
other principles as may be approved by a significant segment of the accounting profession in the United
States, that are applicable to the circumstances as of the date of determination, consistently applied.
“General Partner” means each general partner of the Borrower. As of the Closing Date, ONEOK Partners
GP, L.L.C. is the sole general partner of the Borrower.
“Governmental Authority” means any nation or government, any state or other political subdivision
thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central
bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.
“Granting Lender” has the meaning specified in Section 10.06(i).
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or
lease property, securities or services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the
obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to
16188091_7 11
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of
such Person securing any Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means, collectively, Parent Guarantor and Intermediate Guarantor and each other Person
that executes a Guaranty Agreement pursuant to Section 6.14.
“Guaranty Agreements” shall mean the Guaranty Agreements, substantially in the form of Exhibit G,
made by each Guarantor in favor of the Administrative Agent for the benefit of the Lenders.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-
containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hybrid Securities” means any trust preferred securities, or deferrable interest subordinated debt with a
maturity of at least 20 years, which provides for the optional (at the option of the issuer thereof) or
mandatory deferral of interest or distributions, issued by Parent Guarantor, or any business trusts, limited
liability companies, limited partnerships or similar entities (each, a “Financing Vehicle”) (i) substantially
all of the common equity, general partner or similar interests of which are owned (either directly or
indirectly through one or more wholly-owned Subsidiaries) at all times by Parent Guarantor, (ii) that have
been formed for the purpose of issuing trust preferred securities or deferrable interest subordinated debt,
and (iii) substantially all the assets of which consist of (A) subordinated debt of Parent Guarantor, and (B)
payments made from time to time on the subordinated debt.
“Hydrocarbon Interests” means all rights, titles, interests and estates now owned or hereafter acquired by
the Borrower or any of its Subsidiaries in any and all oil, gas and other liquid or gaseous hydrocarbon
properties and interests, including without limitation, mineral fee or lease interests, production sharing
agreements, concession agreements, license agreements, service agreements, risk service agreements or
similar Hydrocarbon interests granted by an appropriate Governmental Authority, farmout, overriding
royalty and royalty interests, net profit interests, oil payments, production payment interests and similar
interests in Hydrocarbons, including any reserved or residual interests of whatever nature.
“Hydrocarbons” means oil, gas, casing head gas, condensate, distillate, liquid hydrocarbons, gaseous
hydrocarbons, all products refined, separated, settled and dehydrated therefrom, including, without
limitation, kerosene, liquefied petroleum gas, refined lubricating oils, diesel fuel, drip gasoline, natural
gasoline, helium, sulfur and all other minerals.
“Immaterial Subsidiary” on any date shall mean any Subsidiary of the Borrower that (a) does not have, as
of such date, assets with a value in excess of 5.0% of the total assets of the Borrower and its Subsidiaries,
and did not, as of the last day of the fiscal quarter of the Borrower most recently ended, have revenues
representing in excess of 5.0% of total revenues of the Borrower and its Subsidiaries, in each case, on a
16188091_7 12
consolidated basis, and (b) taken together with all Immaterial Subsidiaries does not have, as of such date,
assets with a value in excess of 5.0% of the total assets of the Borrower and its Subsidiaries, and as of the
last day of the fiscal quarter of the Borrower most recently ended, did not have revenues representing in
excess of 5.0% of total revenues of the Borrower and its Subsidiaries, in each case, on a consolidated
basis.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following,
whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) Capital Lease Obligations and Synthetic Lease Obligations;
(g) Off-Balance Sheet Liabilities;
(h) Guarantees of such Person in respect of any of the foregoing; and
(i) Hybrid Securities.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership
or joint venture (other than a joint venture that is itself a corporation or limited liability company) in
which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date
shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any
payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to
the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning set forth in Section 10.04(b).
“Initial Advance” has the meaning set forth in Section 2.01(a)(i).
16188091_7 13
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest
Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months
after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.
“Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on
the date one, two, three or six months (in each case, subject to availability) thereafter, as selected by the
Borrower in its Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate
Loan, such Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
“Intermediate Guarantor” means ONEOK Partners Intermediate Limited Partnership, a Delaware limited
partnership.
“Intermediate Guarantor Partnership Agreement” means that certain Second Amended and Restated
Agreement of Limited Partnership of Intermediate Guarantor dated as of May 17, 2006, as amended.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition of capital stock or other securities of another
Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that constitute a business unit. For
purposes of covenant compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such Investment.
“IRS” means the United States Internal Revenue Service.
“Joint Venture” means an entity, other than a Subsidiary, in which the Borrower or a Subsidiary owns an
equity interest.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders, directed
16188091_7 14
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
“Left Lead Arranger” means Mizuho.
“Lender” has the meaning specified in the introductory paragraph hereto.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such
Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time
notify the Borrower and the Administrative Agent.
“Leverage Ratio” means, as of the last day of any fiscal quarter, the ratio of (i) Consolidated Total Debt
as of such date (excluding any amount of Hybrid Securities not to exceed a total of 15% of Total Capital)
to (ii) Adjusted Consolidated EBITDA for the four consecutive fiscal quarters ending on such date.
“Lien” means any mortgage, pledge, hypothecation, assignment for security, deposit arrangement, lien
(statutory or other), charge, or preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any
financing lease having substantially the same economic effect as any of the foregoing).
“Limited Partnership Units” means Common Units and any other units representing limited partner
interests in the Borrower.
“Loan” has the meaning specified in Section 2.01.
“Loan Documents” means this Agreement, each Note, and the Guaranty Agreements.
“Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other,
or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
“Loan Parties” means the Borrower and the Guarantors.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the
operations, properties or financial condition of the Borrower and its Subsidiaries taken as a whole;
provided however, (i) a downgrade by S&P and/or Moody’s of their respective Debt Rating shall not, in
and of itself, be deemed to be a Material Adverse Effect, and (ii) the fact that the Borrower is unable to
borrow in the commercial paper market shall not, in and of itself, be deemed to be a Material Adverse
Effect; but for purposes of clarity in interpreting the foregoing clauses (i) and (ii), it is agreed that the
event(s), change(s), circumstance(s) or condition(s) that causes such downgrade (or an announcement of a
potential downgrade or a review for possible ratings change) of the Debt Rating or that causes such
inability of the Borrower to borrow in the commercial paper market, and the effect or change caused by
such downgrade (or an announcement of a potential downgrade or a review for possible ratings change)
of the Debt Rating or by such inability to borrow, will be considered in determining whether there has
been a Material Adverse Effect; (b) a material impairment of the ability of any Loan Party to perform its
payment obligations, under any Loan Document to which it is a party; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document
to which it is a party.
16188091_7 15
“Material Project” means the construction or expansion of a capital project of Parent Guarantor or any of
its Subsidiaries which has a budgeted capital cost exceeding $25,000,000.
“Material Project EBITDA Adjustments” means, with respect to each Material Project,
(A) prior to the Commercial Operation Date of the Material Project (but including the fiscal quarter in
which such Commercial Operation Date occurs), a percentage (based on the then-current completion
percentage of the Material Project) of an amount to be approved by the administrative agent of the Parent
Guarantor Credit Agreement (which shall be conclusive absent manifest error) as the projected
Consolidated EBITDA attributable to such Material Project for the twelve month period following the
scheduled Commercial Operation Date of such Material Project which may, at Parent Guarantor’s option,
be added to actual Consolidated EBITDA for Parent Guarantor and its Subsidiaries for the fiscal quarter
in which construction of such Material Project commences and for each fiscal quarter thereafter until the
Commercial Operation Date of the Material Project (including the fiscal quarter in which such
Commercial Operation Date occurs, but without duplication of any actual Consolidated EBITDA
attributable to such Material Project following such Commercial Operation Date); provided that if the
actual Commercial Operation Date does not occur by the scheduled Commercial Operation Date, then the
foregoing amount shall be reduced, for quarters ending after the scheduled Commercial Operation Date to
(but excluding) the first full quarter after its Commercial Operation Date, by the following percentage
amounts depending on the period of delay (based on the period of actual delay or then-estimated delay,
whichever is longer): (i) longer than 90 days, but not more than 180 days, 25%, (ii) longer than 180 days
but not more than 270 days, 50%, and (iii) longer than 270 days, 100%; and
(B) beginning with the first full fiscal quarter following the Commercial Operation Date of the
Material Project and for the two immediately succeeding fiscal quarters, an amount to be approved by the
administrative agent of the Parent Guarantor Credit Agreement (which shall be conclusive absent
manifest error) as the projected Consolidated EBITDA attributable to the Material Project for the balance
of the four full fiscal quarter period following such Commercial Operation Date, which may, at Parent
Guarantor’s option, be added to the actual Consolidated EBITDA attributable to the Material Project for
such fiscal quarter or quarters.
Notwithstanding the foregoing, (a) if the Parent Guarantor Credit Agreement terminates prior to this
Agreement, (i) the Administrative Agent shall assume the responsibilities of the administrative agent
under the Parent Guarantor Credit Agreement related to the calculation of “Material Project EBITDA
Adjustments”, and (ii) Parent Guarantor shall deliver to the Administrative Agent all information,
documentation and calculations that would have otherwise been provided to the administrative agent of
the Parent Guarantor Credit Agreement related to the calculation of “Material Project EBITDA
Adjustments” at such times and on such other terms as set forth in the Parent Guarantor Credit
Agreement, and (b) the aggregate amount of all Material Project EBITDA Adjustments during any period
shall be limited to 20% of the total actual Consolidated EBITDA for such period (which total actual
Consolidated EBITDA shall be determined without including any Material Project EBITDA Adjustments
or any pro forma adjustments for acquisitions).
“Maturity Date” means, with respect to any Lender, the later of (a) the third anniversary of the Closing
Date and (b) if maturity is extended pursuant to Section 2.15 with the consent of such Lender, such
16188091_7 16
extended maturity date as determined pursuant to such Section; provided, however, that, in each case, if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Mizuho” means Mizuho Bank, Ltd.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or
during the preceding five plan years, has made or been obligated to make contributions.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extending Lender” has the meaning set forth in Section 2.15(b).
“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by
such Lender, substantially in the form of Exhibit D.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan
Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person
as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Off-Balance Sheet Liabilities” means, with respect to the Borrower as of any date of determination
thereof, without duplication and to the extent not included as a liability on the consolidated balance sheet
of the Borrower and its Subsidiaries in accordance with GAAP: (a) with respect to any asset securitization
transaction (including any accounts receivable purchase facility) (i) the unrecovered investment of
purchasers or transferees of assets so transferred and (ii) any other payment, recourse, repurchase, hold
harmless, indemnity or similar obligation of the Borrower or any of its Subsidiaries in respect of assets
transferred or payments made in respect thereof, other than limited recourse provisions that are customary
for transactions of such type and that neither (x) have the effect of limiting the loss or credit risk of such
purchasers or transferees with respect to payment or performance by the obligors of the assets so
transferred nor (y) impair the characterization of the transaction as a true sale under applicable Laws
(including Debtor Relief Laws); (b) any Synthetic Lease Obligation; (c) the monetary obligations under
any sale and leaseback transaction which does not create a liability on the consolidated balance sheet of
the Borrower and its Subsidiaries, provided that Off-Balance Sheet Liabilities of the Borrower and its
Subsidiaries shall not include the existing sale and leaseback transactions described
on Schedule 1.01A provided that the documents governing such transactions are not amended after the
Closing Date so as to increase the amount of the Borrower’s or its Subsidiaries’ total payment obligations
thereunder; or (d) any other monetary obligation arising with respect to any other transaction which
(i) upon the application of any Debtor Relief Law to the Borrower or any of its Subsidiaries, would be
characterized as indebtedness or (ii) is the functional equivalent of or takes the place of borrowing but
16188091_7 17
which, in each such case does not constitute a liability on the consolidated balance sheet of the Borrower
and its Subsidiaries (for purposes of this clause (d), any transaction structured to provide tax deductibility
as interest expense of any dividend, coupon or other periodic payment will be deemed to be the functional
equivalent of a borrowing).
“Oil and Gas Agreements” means operating agreements, processing agreements, farm-out and farm-in
agreements, development agreements, area of mutual interest agreements, contracts for the terminalling,
gathering and/or transportation of oil and natural gas, unitization agreements, pooling arrangements, joint
bidding agreements, joint venture agreements, participation agreements, surface use agreements, service
contracts, leases and subleases of Oil and Gas Properties or other similar agreements which are customary
in the oil and gas business, howsoever designated, in each case made or entered into in the ordinary
course of the oil and gas business as conducted by the Borrower and its Subsidiaries.
“Oil and Gas Properties” means (a) Hydrocarbon Interests; (b) the Property now or hereafter pooled or
unitized with Hydrocarbon Interests; (c) all presently existing or future unitization, pooling agreements
and declarations of pooled units and the units created thereby (including, without limitation, all units
created under orders, regulations and rules of any Governmental Authority) which may affect all or any
portion of the Hydrocarbon Interests; (d) all operating agreements, contracts and other agreements which
relate to any of the Hydrocarbon Interests or the production, sale, purchase, exchange or processing of
Hydrocarbons from or attributable to such Hydrocarbon Interest; (e) all Hydrocarbons in and under and
which may be produced and saved or attributable to the Hydrocarbon Interests, the lands covered thereby
and all oil in tanks and all rents, issues, profits, proceeds, products, revenues and other income from or
attributable to the Hydrocarbon Interests; and (f) all tenements, hereditaments, appurtenances and
property in any manner appertaining, belonging, affixed or incidental to the Hydrocarbon Interests, and
any and all property, now owned or hereinafter acquired and situated upon, used, held for use or useful in
connection with the operating, working or development of any of such Hydrocarbon Interests or property
(excluding drilling rigs, automotive equipment or other personal property which may be on such premises
for the purpose of drilling a well or for other similar temporary uses) and including any and all oil wells,
gas wells, injection wells or other wells, buildings, structures, fuel separators, liquid extraction plants,
plant compressors, pumps, pumping units, field gathering systems, tanks and tank batteries, fixtures,
valves, fittings, machinery and parts, engines, boilers, meters, apparatus, equipment, appliances, tools,
implements, cables, wires, towers, casing, tubing and rods, surface leases, rights-of-way, easements and
servitudes together with all additions, substitutions, replacements, accessions and attachments to any and
all of the foregoing.
“ONEOK Partners Unit Acquisition” means the acquisition by Parent Guarantor or one or more of its
Subsidiaries of all of the 171.5 million outstanding common units of Borrower not already owned by
Parent Guarantor or one or more of its Subsidiaries at a fixed exchange ratio of a 0.985 share of common
stock of Parent Guarantor for each publicly-held common unit of Borrower.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other applicable agreement of
16188091_7 18
formation or organization and any agreement, instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or
organization of such entity.
“Other Connection Taxes” means, with respect to the Administrative Agent or any Lender, Taxes
imposed as a result of a present or former connection between the Administrative Agent or such Lender
and the jurisdiction imposing such Tax (other than connections arising from the Administrative Agent or
such Lender having executed, delivered, become a party to, performed its obligations under, received
payments under, received or perfected a security interest under, engaged in any other transaction pursuant
to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or
similar Taxes that arise from any payment made under or, from the execution, delivery, performance,
enforcement or registration of, or from the receipt or perfection of a security interest under, or otherwise
with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to Section 3.06).
“Outstanding Amount” means with respect to Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or repayments of Loans.
“Parent Guarantor” means ONEOK, Inc., an Oklahoma corporation.
“Parent Guarantor Credit Agreement” means that certain Credit Agreement, dated as of [__], 2017, by
and among Parent Guarantor, Citibank, N.A., as administrative agent, and the lenders party thereto, as the
same may be amended, restated, or otherwise modified from time to time.
“Participant” has the meaning specified in Section 10.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required
contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect
to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section
302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and
436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during the immediately
preceding five plan years.
“Person” means any natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.
16188091_7 19
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established
by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of
ERISA, that is maintained, or contributed to, by the Borrower or any ERISA Affiliate.
“Platform” has the meaning set forth in Section 6.02(d).
“Prime Rate” means the rate of interest per annum from time to time published in the “Money Rates” or
successor section of The Wall Street Journal as being the “Prime Lending Rate” or, if more than one rate
is published as the “Prime Lending Rate”, then the highest of such rates (each change in the Prime Rate to
be effective as of the date of publication in The Wall Street Journal of a “Prime Lending Rate” that is
different from that published on the preceding Business Day); provided that in the event that The Wall
Street Journal shall, for any reason, fail or cease to publish the “Prime Lending Rate”, the Administrative
Agent shall choose a reasonably comparable index or source to use as the basis for the “Prime Lending
Rate”.
“Pro Rata Share” means, with respect to each Lender (a) at any time during the Availability Period, a
fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the
amount of the Commitment of such Lender at such time and the denominator of which is the amount of
the Aggregate Commitments at such time, subject to adjustment as provided in Section 2.17, and (b) at
any time after the Availability Period, a fraction (expressed as a percentage carried out to the ninth
decimal place), the numerator which is the principal amount of the Loans of such Lender at such time and
the denominator of which is the principal amount of the Loans of all Lenders at such time, provided, that
if the principal amount of the Loans has been repaid in full but other Obligations (other than any
contingent indemnification Obligations) remain outstanding, then the “Pro Rata Share” with respect to
each Lender shall be a fraction (expressed as a percentage carried out to the ninth decimal place), the
numerator which is the Obligations (other than any contingent indemnification Obligations) owed to such
Lender at such time and the denominator of which is the Obligations (other than any contingent
indemnification Obligations) owed to all Lenders at such time. The initial Pro Rata Share of each Lender
is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.
“Register” has the meaning set forth in Section 10.06(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors,
officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for
which the 30 day notice period has been waived.
“Required Lenders” means, (a) as of any date of determination during the Availability Period, Lenders
having more than 50% of the sum of (i) the unused portion of the Aggregate Commitments and (ii) the
Total Outstandings, or (b) as of any date of determination after the Availability Period, Lenders holding in
the aggregate more than 50% of the Total Outstandings; provided that the Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
16188091_7 20
“Responsible Officer” of a Loan Party means the chief executive officer, president, vice president with
responsibility for financial matters, chief financial officer, treasurer or assistant treasurer of such Loan
Party (or, if such Loan Party is a limited partnership, of the general partner of such Loan Party). Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action
on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
“Revolving Credit Agreement” means that certain Amended and Restated Credit Agreement, effective as
of January 31, 2014, by and among Borrower, Citibank, N.A., as administrative agent, and the lenders
party thereto, as the same may be amended, restated, or otherwise modified from time to time.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and
any successor thereto.
“Sanction(s)” means any sanction administered or enforced by the United States Government (including
OFAC and the U.S. Department of State), the United Nations Security Council, the European Union or
Her Majesty’s Treasury (“HMT”) (in each instance, to the extent applicable to Borrower or its
Subsidiaries) or other relevant sanctions authority.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to
any of its principal functions.
“Solvent” mean, with respect to any Person on any date of determination, that on such date (a) the fair
value of the property of such Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, and (d) such
Person is not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
“SPC” has the meaning specified in Section 10.06(i).
“Specified Acquisition” means one or more acquisitions of assets, equity interests, entities, operating lines
or divisions in any fiscal quarter for an aggregate purchase price of not less than $25,000,000.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or
other business entity of which a majority of the shares of securities or other interests having ordinary
voting power for the election of directors or other governing body (other than securities or interests
having such power only by reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a
“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
16188091_7 21
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options (excluding stock options granted to directors, employees, management, and
consultants), bond or bond price or bond index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any combination of any
of the foregoing (including any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and (b) any and all transactions of any
kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such obligations or
liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into
account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate
of a Lender).
“Syndication Agent” means each entity named as a “Syndication Agent” on the cover page of this
Agreement.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to
accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including
backup withholding), assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto.
“Threshold Amount” means $100,000,000.
“Total Capital” means, at any time, the sum of (a) Consolidated Total Debt and (b) Consolidated Net
Worth.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans.
“Type” means with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
16188091_7 22
“Unfunded Pension Liability” means the amount (if any) by which the present value of a Pension Plan’s
benefit liabilities under Section 4001(a)(16) of ERISA, determined using actuarial assumptions for
funding purposes which are equal to the assumptions used by the Pension Plan's actuary for funding said
Pension Plan pursuant to Section 412 of the Code for the applicable plan year, exceeds the current fair
market value of such Pension Plan's assets.
“United States” and “U.S.” mean the United States of America.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the
Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B) (3).
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-
down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down and conversion powers are
described in the EU Bail-In Legislation Schedule.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.
(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar
import when used in any Loan Document shall refer to such Loan Document as a whole and not to any
particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.
(iii) The words “include,” “includes” and “including” are by way of example and not
limitation.
(iv) The term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced, whether
in physical or electronic form.
(v) The words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(c) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and
the word “through” means “to and including.”
(d) Section headings herein and in the other Loan Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
16188091_7 23
1.03 Accounting Terms.
(a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP as in
effect from time to time. Notwithstanding the foregoing, for purposes of determining compliance with
any covenant (including the computation of any financial covenant) contained herein, Indebtedness of
the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal
amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall
be disregarded.
(b) If at any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Loan Document, such ratio or requirement shall continue to be computed
in accordance with GAAP prior to such change therein until such time, if any, as such financial ratio or
requirement are adjusted or reset to reflect such changes in GAAP and such adjustments or resets are
agreed to in writing by the Borrower, the Administrative Agent and the Required Lenders.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant
to this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein
and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.05 References to Agreements and Laws. Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such amendments, restatements,
extensions, supplements and other modifications are not prohibited by any Loan Document; and (b)
references to any Law shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.
1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall
be references to Central time (daylight or standard, as applicable).
ARTICLE II.
THE COMMITMENTS AND LOANS
2.01 Loans.
(a) Subject to the terms and conditions set forth herein, each Lender severally agrees to
make term loans (each a “Loan” and collectively, the “Loans”) to the Borrower as follows:
(i) on the Closing Date, each Lender severally agrees to make a Loan to the
Borrower in a single advance (the “Initial Advance”) in an amount not to exceed such Lender’s
Commitment, provided that the aggregate principal of all Loans made by the Lenders on such
date shall not exceed the Aggregate Commitments (before giving effect to mandatory reductions
in the Aggregate Commitments under Section 2.07(b)); and
16188091_7 24
(ii) on any other Business Day during the Availability Period, each Lender severally
agrees to make a Loan to the Borrower in a single advance (the “Delayed Draw Advance”) in an
amount not to exceed such Lender’s Pro Rata Share of the Available Delayed Draw
Amount, provided that (A) the Borrower may not request more than one advance pursuant to
this Section 2.01(a)(ii) and (B) the sum of (x) the aggregate principal amount of all Loans made
on such date (the “Delayed Draw Advance Date”) plus (y) the aggregate principal amount of all
Loans by the Lenders made on the Closing Date shall not exceed the Aggregate Commitments
(before giving effect to mandatory reductions in the Aggregate Commitments under Section
2.07(b)).
(b) Amounts borrowed under Section 2.01(a) and repaid or prepaid may not be reborrowed.
The Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 10:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate
Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from
one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or
if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each
Lender of the details of any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the
16188091_7 25
Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than
1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the Initial Advance, Section
4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds
as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books
of Mizuho with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence
of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such
interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive
in the absence of manifest error.
(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than six Interest Periods
in effect with respect to Loans.
2.03 [Reserved.]
2.04 [Reserved.]
2.05 [Reserved.]
2.06 Prepayments. The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Loans in whole or in part without premium or
penalty; provided that (a) such notice must be received by the Administrative Agent not later than 11:00
a.m. (i) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (ii) on the date
of prepayment of Base Rate Loans; (b) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (c) any prepayment of
Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, unless such notice is made conditional on a transaction or financing,
in which case the obligation of the Borrower to make such prepayment (and to pay such payment amount)
shall be subject to such conditions. Any prepayment of a Eurodollar Rate Loan shall be accompanied by
all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05.
Subject to Section 2.17, each such prepayment shall be applied to the Loans of the Lenders in accordance
with their respective Pro Rata Shares.
2.07 Termination or Reduction of Commitments.
16188091_7 26
(a) The Borrower may, upon notice to the Administrative Agent (which notice may be
conditioned on the consummation of a transaction or financing), terminate the Aggregate Commitments,
or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice
shall be received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments. The
Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of
the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Pro Rata Share.
(b) Mandatory. The Aggregate Commitments shall be automatically and permanently
reduced to zero (0) upon the earlier of (i) the funding of the Delayed Draw Advance and (ii) the
expiration of the Availability Period.
2.08 Repayment of Loans. The Borrower shall repay to each Lender on its Maturity Date
the aggregate principal amount of Loans outstanding on such date.
2.09 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum
equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b) If any amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest
on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due
and payable in accordance with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.10 Fees. The Borrower shall pay to the Arrangers and Bookrunners, the Administrative
Agent and the Lenders for their own respective accounts such fees as shall have been separately agreed
upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever.
2.11 Computation of Interest and Fees. All computations of interest for Base Rate
Loans determined by reference to the Prime Rate shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the
16188091_7 27
day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it
is made shall, subject to Section 2.13(a), bear interest for one day.
2.12 Evidence of Debt. The Borrowings made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Borrowings made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing
with respect to the Obligations. In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon
the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
2.13 Payments Generally.
(a) All payments to be made by the Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and
in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 p.m. on the date of such Borrowing of Base Rate Loans) that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with Section 2.02 (or,
in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of
16188091_7 28
the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment
to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the
Borrower for such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may
have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender, in immediately available
funds with interest thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the conditions to the applicable
Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to make payments pursuant
to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan or to fund any
such participation or to make any payment under Section 10.04(c) on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its Loan or purchase its participation or to
make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
16188091_7 29
2.14 Sharing of Payments. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans
made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their
respective Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or subparticipations
shall be rescinded and the purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a Defaulting
Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans to any assignee or participant, other than to the Borrower or
any Affiliate thereof (as to which the provisions of this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such participation.
2.15 Extension of Maturity Date.
(a) Requests for Extension. The Borrower may, by notice to the Administrative Agent (who
shall promptly notify the Lenders) not earlier than 90 days and not later than 35 days prior to an
anniversary of the Closing Date (each, an “Applicable Anniversary Date”), request that each Lender
extend such Lender’s Maturity Date for an additional year from the Maturity Date then in effect for such
Lender hereunder (such Lender’s “Existing Maturity Date”). The Borrower may request such an
extension no more than two times.
(b) Lender Elections to Extend. Each Lender, acting in its sole and individual discretion,
shall, by notice to the Administrative Agent not later than the date (the “Notice Date”) that is 20 days
prior to such Applicable Anniversary Date, advise the Administrative Agent whether or not such Lender
agrees to such extension (and each Lender that determines not to so extend its Maturity Date (a
“Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after such
determination (but in any event no later than the Notice Date)) and any Lender that does not so advise
the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender.
The election of any Lender to agree to such extension (each such Lender is herein called an “Extending
Lender”) shall not obligate any other Lender to so agree.
(c) Notification by Administrative Agent. The Administrative Agent shall notify the
Borrower of each Lender’s determination under this Section no later than the date that is 15 days prior to
16188091_7 30
the Applicable Anniversary Date (or, if such date is not a Business Day, on the next preceding Business
Day).
(d) Additional Lenders. The Borrower shall have the right, on or before the Maturity Date
applicable to any Non-Extending Lender, to replace such Non-Extending Lender with, and add as
“Lenders” under this Agreement in place thereof, one or more Eligible Assignees (each, an “Additional
Lender”) as provided in Section 10.14, each of which Additional Lenders shall have entered into an
Assignment and Assumption pursuant to which each such Additional Lender shall, effective as of such
Existing Maturity Date, acquire the Outstanding Amounts of the Non-Extending Lender (and, if any
such Additional Lender is already a Lender, the Non-Extending Lender’s Outstanding Amounts shall be
in addition to such Lender’s Outstanding Amounts hereunder on such date).
(e) Minimum Extension Requirement. If (and only if) the aggregate (x) Total Outstandings
of the Lenders that have agreed to extend their Maturity Date and (y) Total Outstandings of Additional
Lenders shall be more than 50% of the Total Outstandings in effect immediately prior to an Applicable
Anniversary Date, then, effective as of the Existing Maturity Date of each such Extending Lender, the
Maturity Date of each such Extending Lender and of each such Additional Lender shall be extended to
the date falling one year after the Existing Maturity Date of each such Extending Lender (except that, if
such date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business
Day) and each Additional Lender shall thereupon become a “Lender” for all purposes of this Agreement.
(f) Additional Agreements Regarding Extensions.
(i) As a condition precedent to the extension of the Maturity Date pursuant to this
Section, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower
signed by a Responsible Officer certifying that (A) no Default exists on the date of such certificate,
either before or after giving effect to such extension; (B) the representations and warranties of the
Loan Parties contained in this Agreement and the other Loan Documents are true and correct in
all material respects on and as of the date of such extension and after giving effect thereto (or, if
any such representation or warranty is expressly stated to have been made as of a specific date, as
of such specific date and except that such materiality qualifier shall not apply to the extent that
any such representation or warranty is qualified by materiality); and (C) there has been no event
or circumstance since the Closing Date that has had or could be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect; and
(ii) on the Maturity Date applicable to each Non-Extending Lender, the Borrower
shall prepay, on a non pro rata basis with respect to Extending Lenders, any Loans outstanding on
such date (and pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to satisfy in full the Obligations due to such Non-Extending Lender under the Loan
Documents as of such date.
(g) Conflicting Provisions. This Section shall supersede any provisions in Section 2.14
or Section 10.01 to the contrary.
16188091_7 31
2.16 [Reserved.]
2.17 Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in
this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no
longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted
as set forth in the definition of Required Lenders and in Section 10.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received
by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied
at such time or times as may be determined by the Administrative Agent as follows: first, to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent
hereunder; second, as the Borrower may request (so long as no Default or Event of Default
exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund
its portion thereof as required by this Agreement, as determined by the Administrative Agent;
third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit
account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding
obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts
owing to the Lenders, as a result of any judgment of a court of competent jurisdiction obtained by
any Lender, against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of
such Defaulting Lender's breach of its obligations under this Agreement; and sixth, to such
Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if
(x) such payment is a payment of the principal amount of any Loans in respect of which such
Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a
time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be
applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are
held by the Lenders pro rata in accordance with the Commitments. Any payments, prepayments
or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts
owed by a Defaulting Lender pursuant to this Section 2.17(a)(ii) shall be deemed paid to and
redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b) Defaulting Lender Cure. If the Borrower and the Administrative Agent, agree in writing
that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth
therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of
the other Lenders or take such other actions as the Administrative Agent may determine to be necessary
16188091_7 32
to cause the Loans to be held pro rata by the Lenders in accordance with the Commitments, whereupon
such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that
Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of any Loan Party
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be
made without deduction or withholding for any Taxes. If, however, applicable Laws require any
Loan Party or the Administrative Agent to withhold or deduct any Tax as determined by a Loan
Party or the Administrative Agent, as the case may be, then the Administrative Agent or such
Loan Party shall be entitled to make such deduction or withholding, upon the basis of the
information and documentation to be delivered pursuant to subsection (e) below.
(ii) If any Loan Party or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make
such deductions as are determined by the Administrative Agent to be required based upon the
information and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the withholding
or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan
Party shall be increased as necessary so that after any required withholding or the making of all
required deductions (including deductions applicable to additional sums payable under this
Section) the Administrative Agent or Lender, as the case may be, receives an amount equal to the
sum it would have received had no such withholding or deduction been made.
(iii) If any Loan Party or the Administrative Agent shall be required by any
applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then
(A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or
make such deductions as are determined by it to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) such Loan Party or the
Administrative Agent, to the extent required by such Laws, shall timely pay the full amount
withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and
(C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the
sum payable by the applicable Loan Party shall be increased as necessary so that after any
required withholding or the making of all required deductions (including deductions applicable to
16188091_7 33
additional sums payable under this Section 3.01) the applicable Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such withholding or deduction
been made.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection
(a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with
applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any
Other Taxes.
(c) Tax Indemnifications.
(i) Without limiting the provisions of subsection (a) or (b) above, each of the Loan
Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent and each
Lender, and shall make payment in respect thereof within 10 days after demand therefor, for the
full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section) withheld or deducted by any Loan Party or the
Administrative Agent or paid by the Administrative Agent or such Lender, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.
(ii) Each Lender shall, and does hereby, severally indemnify, and shall make
payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent
against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan
Party has not already indemnified the Administrative Agent for such Indemnified Taxes and
without limiting the obligation of the Loan Parties to do so), (y) the Administrative Agent and the
Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with
the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (z) the
Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes
attributable to such Lender, that are payable or paid by the Administrative Agent or a Loan Party
in connection with any Loan Document, and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.
Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts
at any time owing to such Lender under this Agreement or any other Loan Document against any
amount due to the Administrative Agent under this clause (ii). The agreements in this clause (ii)
shall survive the resignation and/or replacement of the Administrative Agent, any assignment of
rights by, or the replacement of, a Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all other Obligations. Each of the Loan Parties shall, and
does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment
in respect thereof within 10 days after demand therefor, for any amount which a Lender fails to
pay to the Administrative Agent as required by this clause (ii).
(d) Evidence of Payments. Upon request by any Loan Party or the Administrative Agent, as
the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a
16188091_7 34
Governmental Authority as provided in this Section 3.01, such Loan Party shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to such Loan Party, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax
with respect to payments made under any Loan Document shall deliver to the Borrower and to the
Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested
by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed
by applicable law or reasonably requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements. Notwithstanding anything
to the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), 3.01(e)(ii)(B)
and 3.01(e)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to any material unreimbursed
cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is
a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying
that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), whichever of the
following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed originals of IRS Form W-8BEN-E
(or W-8BEN, as applicable) establishing an exemption from, or reduction of,
U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty
and (y) with respect to any other applicable payments under any Loan Document,
16188091_7 35
IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is
not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10
percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B)
of the Code, or a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and
(y) executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to the extent a Foreign Lender is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate
substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or
other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect
partners of such Foreign Lender are claiming the portfolio interest exemption,
such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit H-4 on behalf of each such direct and indirect
partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed originals of
any other form prescribed by applicable law as a basis for claiming exemption from or a
reduction in U.S. federal withholding Tax, duly completed, together with such
supplementary documentation as may be prescribed by applicable law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction
required to be made; and
(D) if a payment made to a Lender under any Loan Document would be
subject to U.S. federal 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
16188091_7 36
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 (D), “FATCA” shall include any amendments made to
FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered
pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall
update such form or certification or promptly notify the Borrower and the Administrative Agent
in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the
Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have
any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the
account of such Lender. If the Administrative Agent or any Lender determines, in its sole discretion,
exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by
any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this
Section, it shall pay to the Loan Party an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by a Loan Party under this Section with respect
to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender, as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to the Loan Party (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this
subsection, in no event will the Administrative Agent or any Lender be required to pay any amount to
the Loan Party pursuant to this subsection to the extent such payment would place the Administrative
Agent or any Lender in a less favorable net after-Tax position than the Administrative Agent or any
Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not
been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts
with respect to such Tax had never been paid. This subsection shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to any Loan Party or any other Person.
(g) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation
or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a
Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other
Obligations.
3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office
to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to
determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through
16188091_7 37
the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or
to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the
illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined
by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate
Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative
Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such
Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from
such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar
Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such
Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without
reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if
such notice asserts the illegality of such Lender determining or charging interest rates based upon the
Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base
Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates. If in connection with any request for a Eurodollar
Rate Loan or a conversion to or continuation thereof, (a) the Administrative Agent determines that (i)
Dollar deposits are not being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurodollar Rate Loan, or (ii) adequate and reasonable
means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each
case with respect to clause (a) above, “Impacted Loans”), or (b) the Administrative Agent or the Required
Lenders determine for any reason that the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of
a determination described in the preceding sentence with respect to the Eurodollar Rate component of the
Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be
suspended in each case until the Administrative Agent (upon the instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans suspended (to the extent of the
affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
Notwithstanding the foregoing, if the Administrative Agent has made the determination described
in clause (a)(i) of this Section, the Administrative Agent, in consultation with the Borrower and the
affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such
alternative rate of interest shall apply with respect to the Impacted Loans (unless the Borrower elects to
maintain the Impacted Loans as Base Rate Loans) until (1) the Administrative Agent revokes the notice
delivered with respect to the Impacted Loans under clause (a) of the first sentence of this Section, (2) the
Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that
such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the
Impacted Loans, or (3) as to any Lender, such Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable
16188091_7 38
Lending Office to make, maintain or fund Loans whose interest is determined by reference to such
alternative rate of interest or to determine or charge interest rates based upon such rate or any
Governmental Authority has imposed material restrictions on the authority of such Lender to do any of
the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e));
(ii) subject any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes
described in clause (a) of the definition of Excluded Taxes to the extent resulting from changes in
tax rates, and Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or
(C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or
other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the London interbank market any other condition, cost
or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing,
converting to or maintaining any Loan the interest on which is determined by reference to the Eurodollar
Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender, the Borrower will pay to such Lender, such additional amount or amounts as
will compensate such Lender, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such
Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding
capital or liquidity requirements has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that
which such Lender or such Lender’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s policies and the policies of such Lender’s holding company
with respect to capital adequacy), then from time to time the Borrower will pay to such Lender, such
additional amount or amounts as will compensate such Lender or such Lender’s holding company for
any such reduction suffered.
(c) Certificates for Reimbursement. The Borrower shall pay such Lender the amount shown
as due on a certificate from such Lender setting forth the amounts necessary to compensate such Lender
or its holding company to the extent required by subsection (a) or (b) of this Section within 10 days after
receipt thereof. Each Lender agrees that it will not claim, and that it shall not be entitled to claim, from
the Borrower the payment of any of the amounts referred to in Section 3.04(a), (b) or (e) if it is not
generally claiming similar compensation from its other similar customers in similar circumstances.
16188091_7 39
(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation
pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to
demand such compensation, provided that the Borrower shall not be required to compensate a Lender
pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long as
such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional
interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower shall have received at least 15 days’ prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.14;
including any loss or expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained,
but excluding loss of Applicable Rate or loss of profit. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in
fact so funded.
16188091_7 40
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender, or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a
notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different
Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01
or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in
accordance with Section 10.14.
3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO BORROWINGS
4.01 Conditions to the Closing Date and Initial Advance. The effectiveness of this
Agreement, and the obligation of each Lender to make its Initial Advance hereunder is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals,
facsimiles or “pdf” electronic copies (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the Borrower or the Guarantor, as applicable, each dated
the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing
Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ii) a certificate of a secretary or assistant secretary of each Loan Party or its general
partner (attaching resolutions and incumbency certificates as the Administrative Agent may
reasonably require) evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents;
(iii) a certificate as to the good standing (or such other customary functionally
equivalent certificate) of each Loan Party and the general partner of each Loan Party from the
16188091_7 41
Secretary of State (or other applicable Governmental Authority) of its jurisdiction of
organization;
(iv) a favorable opinion of GableGotwals (or other counsel reasonably acceptable to
the Administrative Agent), counsel to the Loan Parties, addressed to the Administrative Agent
and each Lender as of the Closing Date, reasonably satisfactory to the Administrative Agent and
the Arrangers and Bookrunners;
(v) a certificate of a Responsible Officer of the Borrower either (A) attaching copies
of all consents, licenses and approvals required in connection with the execution, delivery and
performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents
and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
no Default exists, (B) that the representations and warranties of the Borrower contained in Article
V are true and correct in all material respects, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct in all
material respects as of such earlier date, except that such materiality qualifier shall not apply to
the extent that any such representation or warranty is qualified by materiality, (C) that there has
been no event or circumstance since the date of the Audited Financial Statements that has had or
could be reasonably expected to have, either individually or in the aggregate, (1) a material
adverse change in, or a material adverse effect upon, the operations, assets or financial condition
of the Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P
and/or Moody’s of their respective Debt Ratings shall not, in and of itself, be deemed “materially
adverse”, and (y) the fact that the Borrower is unable to borrow in the commercial paper market
shall not, in and of itself, be deemed to be “materially adverse”, (2) a material impairment of the
ability of the Borrower to perform its payment obligations under any Loan Document to which it
is a party; or (3) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document to which it is a party and (D) as to the
Debt Ratings of the Borrower; and
(vii) a certificate signed by a Responsible Officer of the Guarantor certifying that
there has been no event or circumstance since the date of the Audited Financial Statements that
has had or could be reasonably expected to have, either individually or in the aggregate, (A) a
material adverse change in, or a material adverse effect upon, the operations, assets or financial
condition of the Guarantor and its Subsidiaries, taken as a whole; provided however (x) a
downgrade by S&P and/or Moody’s of their respective Debt Ratings shall not, in and of itself, be
deemed “materially adverse”, and (y) the fact that the Borrower is unable to borrow in the
commercial paper market shall not, in and of itself, be deemed to be “materially adverse”, (B) a
material impairment of the ability of the Guarantor to perform its payment obligations under any
Loan Document to which it is a party, or (C) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Guarantor of any Loan Document to which it is a
party.
16188091_7 42
(b) Any fees and expenses required to be paid by the Borrower on or before the Closing
Date shall have been paid, including upfront fees payable to Lenders and fees and expenses payable to
the Joint Lead Arrangers and Bookrunners and the Administrative Agent.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney
Costs (related to Haynes and Boone, LLP) of the Administrative Agent and the Left Lead Arranger to
the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of Attorney Costs (related to Haynes and Boone, LLP) incurred or
to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left
Lead Arranger).
Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance
with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter
required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date. Such notice
shall be binding and conclusive.
4.02 Conditions to all Borrowings. The obligation of each Lender to honor any Loan
Notice (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Loan Parties contained in Article V (other
than, in the case of a Commercial Paper Borrowing, Section 5.06), or any other Loan Document, or
which are contained in any document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects on and as of the date of such Borrowing, except to the
extent that such representations and warranties refer to an earlier date or another specific date, in which
case they shall be true and correct in all material respects as of such earlier date or other specific date,
except that such materiality qualifier shall not apply to the extent that any such representation or
warranty is qualified by materiality.
(b) No Default shall exist, or would result from such proposed Borrowing.
(c) The Administrative Agent shall have received a Loan Notice in accordance with the
requirements hereof.
Each Loan Notice (other than a Loan Notice requesting only a conversion of Loans to the other
Type, or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a), (b) and (c) have been
satisfied on and as of the date of the applicable Borrowing.
16188091_7 43
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof
(a) is a corporation, partnership or limited liability company duly organized or formed, validly existing
and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses, authorizations, consents and
approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in each case referred to
in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect. Each General Partner is a corporation, partnership or limited liability company
duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and performance by
each Loan Party of each Loan Document to which it is a party has been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a) contravene the terms of such Loan
Party’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any
Contractual Obligation to which such Loan Party or any Subsidiary thereof is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party
or any Subsidiary thereof or the property of any of the aforementioned parties is subject; (c) violate any
Law or (d) result in the creation of any Lien prohibited by this Agreement; except in the case of clauses
(b) and (c), to the extent such contravention, conflict, breach or violation could not reasonably be
expected to have a Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No material approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or
any other Person is necessary or required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan Document to which it is a
party.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by the each Loan Party party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal,
valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Parties in
accordance with its terms, subject to Debtor Relief Laws and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
5.05 Financial Statements.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted therein;
(ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and
their results of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein.
16188091_7 44
(b) The unaudited consolidated financial statements of the Borrower and its Subsidiaries
most recently delivered pursuant to Section 6.01(b) and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
5.06 Litigation. Except as disclosed in the Borrower’s annual report on Form 10-K for
the year ended December 31, 2014 and in any other Form 10-Q or Form 8-K delivered prior to the date of
this Agreement, there are no actions, suits, proceedings, investigations, claims or disputes pending or, to
the knowledge of the Borrower, threatened in writing, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their
properties or revenues that (a) challenge the legality, validity or enforceability of this Agreement or any
other Loan Document and are non-frivolous in the reasonable judgment of the Administrative Agent and
the Arrangers and Bookrunners, or (b) as to which there is a reasonable probability of an adverse
determination and that, if determined adversely, either individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect; provided that this representation, when made, shall not
constitute an admission that any action, suit, proceeding, investigation, claim or dispute set forth or
disclosed in any annual report on Form 10-K or on any Form 10-Q or Form 8-K referred to above could
reasonably be expected to result in a Material Adverse Effect due to an adverse determination, if any.
5.07 No Default. Neither Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result
from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in (or other right to occupy), all
real property necessary or used in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
The property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted
by Section 7.01.
5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the
ordinary course of business a review of claims alleging potential liability or responsibility for violation
of any Environmental Law on their respective businesses, operations and properties, and as a result
thereof, the Borrower has reasonably concluded that, except as disclosed in the Borrower’s annual report
on Form 10-K for the year ended December 31, 2014, such claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Borrower and its Subsidiaries
are in compliance with applicable Environmental Laws except to the extent non-compliance could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
Borrower and each of its Subsidiaries have obtained or have applied for all material licenses, permits,
authorizations and registrations required under any Environmental Law (“Environmental Permits”)
necessary for its operations, and all such Environmental Permits are in good standing, and the Borrower
and each of its Subsidiaries is in compliance with all terms and conditions of such Environmental
Permits, except to the extent that the failure to possess, or be in compliance with, any of the foregoing
would not reasonably be expected to have a Material Adverse Effect.
16188091_7 45
5.10 Insurance. The properties of the Borrower and its Subsidiaries are either covered by
self-insurance meeting the criteria set forth in Section 6.07 or are insured with financially sound and
reputable insurance companies (determined at the time the applicable insurance was obtained), in such
amounts, with such deductibles and covering such risks as are customarily carried by companies engaged
in similar businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.
5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal and other material
tax returns and reports required to be filed, and have paid all material Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except (i) those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP or (ii) where the failure to make such filing or payment would not reasonably be
expected to have a Material Adverse Effect. There is no proposed tax assessment against any Loan Party
or any Subsidiary thereof that would, if made, have a Material Adverse Effect.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS or an application for such
a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the
Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. The
Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to the
Pension Funding Rules, and no application for a funding waiver under the Pension Funding Rules or an
extension of any amortization period pursuant to the Pension Funding Rules has been made with respect
to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability which, when aggregated with the Unfunded Pension Liability
of all other Pension Plans, could reasonably be expected to have a Material Adverse Effect; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the giving of notice under Section
4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction
that could be subject to Sections 4069 or 4212(c) of ERISA.
5.13 Subsidiaries. As of the Closing Date, the Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13 and has no equity investments in any other Joint
Venture other than those specifically disclosed in Part (b) of Schedule 5.13.
16188091_7 46
5.14 Margin Regulations; Investment Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U
issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing, not more than 25% of the value of the
assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis)
subject to the provisions of Section 7.01 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness
and within the scope of Section 8.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is or
is required to be registered as an “investment company” under the Investment Company Act of 1940, or
(ii) is subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public
utilities code or any other Federal or state statute or regulation limiting its ability to incur Indebtedness
hereunder.
5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. For purposes of this Section 5.15,
information that is disclosed in a Form 10-K, 10-Q, 8-K, or definitive proxy materials filed by the
Borrower with the SEC shall be deemed to have been disclosed to the Administrative Agent and the
Lenders. No written report, financial statement, certificate or other information (excluding projections,
industry or general economic data or information and other forward looking information) furnished (in
writing) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any material misstatement of fact
or omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading; provided that, with respect to
projected financial information, the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time such projected financial information
was prepared.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in
compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.17 [Reserved].
5.18 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, intellectual property licenses and other intellectual property rights that are reasonably
necessary for the operation of their respective businesses, and, to the knowledge of the Borrower, such
ownership or right to use is without conflict with the rights of any other Person (except to the extent such
conflict would not reasonably be expected to have a Material Adverse Effect). To the knowledge of the
16188091_7 47
Borrower, no slogan or other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary
infringes upon any rights held by any other Person (except to the extent such infringement would not
reasonably be expected to have a Material Adverse Effect). No claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.19 Solvency. As of the Closing Date, after giving effect to the transactions (including
each Loan) to be consummated on such date, each Loan Party, individually and together with its
Subsidiaries, is Solvent.
5.20 OFAC. Neither the Loan Parties, nor any of their Subsidiaries, nor, to the
knowledge of the Borrower, any director, officer, employee, agent, affiliate or representative thereof, is an
individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the
subject of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals or HMT’s
Consolidated List of Financial Sanctions Targets and the Investment Ban List or listed in any Sanctions-
related list of designated Persons maintained by the U.S. Department of State, the United Nations
Security Council or the European Union (to the extent applicable to Borrower or its Subsidiaries), or (iii)
located, operating, organized or resident in a Designated Jurisdiction.
5.21 Anti-Corruption Laws. The Loan Parties and their Affiliates are in material
compliance with Anti-Corruption Laws, and have instituted and maintained policies and procedures
designed to promote and achieve compliance with such laws. To the knowledge of the Borrower, (a) the
Loan Parties’ and their Affiliates’ respective directors, officers and employees have materially complied
with Anti-Corruption Laws in the course of performing their duties for the Loan Parties or their Affiliates
(as applicable), and (b) the Loan Parties’ and their Affiliates’ respective agents have materially complied
with Anti-Corruption Laws while acting in such capacity and at the direction of the Loan Parties or their
Affiliates (as applicable).
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agent:
(a) as soon as available, but in any event within 90 days after the end of each fiscal year of
Parent Guarantor, a consolidated balance sheet of Parent Guarantor and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public accountant of nationally
recognized standing, which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like qualification or exception or
any qualification or exception as to the scope of such audit;
(b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of Parent Guarantor, a consolidated balance sheet of Parent
16188091_7 48
Guarantor and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion
of Parent Guarantor’s fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Parent Guarantor as
fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of
Parent Guarantor and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 6.02(c), Borrower shall not be
separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not
be in lieu of the obligation of the Borrower to furnish the information and materials described
in subsections (a) and (b) above at the times specified therein.
6.02 Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a)
and (b), (or if such financial statements are delivered electronically, within two (2) Business Days of
such electronic delivery) a duly completed Compliance Certificate signed by a Responsible Officer of
Parent Guarantor (which delivery may, unless the Administrative Agent, or a Lender requests executed
originals, be by electronic communication including fax or email and shall be deemed to be an original
authentic counterpart thereof for all purposes);
(b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors (or the
audit committee of the board of directors) of a General Partner by independent accountants in connection
with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the public holders of shares of common stock in
Parent Guarantor, and copies of all annual, regular, periodic and special reports, and all registration
statements which any Loan Party may file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;
(d) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably request; and
(e) to the extent the Parent Guarantor Credit Agreement terminates prior to this Agreement,
the information set forth in clause (a) in the last sentence of the definition of “Material Project EBITDA
Adjustments” at such times as the same would have been delivered to the administrative agent of the
Parent Guarantor Credit Agreement.
provided that disclosure of confidential information pursuant to subsections (b) and (d) of this Section
shall be subject to (x) such attorney-client privilege exceptions that the Borrower reasonably determines
are necessary in order to avoid loss of its attorney-client privilege and (y) compliance with reasonable
16188091_7 49
conditions to disclosure under non-disclosure agreements between the Borrower and Person(s) other than
Affiliates thereof, and to the extent that the Administrative Agent or a Lender is required to produce any
such information to a regulatory authority, the Borrower shall cooperate with the Administrative Agent or
such Lender in efforts to obtain any required consents to disclosure.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the
extent any such documents are included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date (i) (A) after which
the Borrower or Parent Guarantor, as applicable, posts such documents, or provides a link thereto on the
Borrower’s or Parent Guarantor, as applicable, website on the Internet at the website address listed
on Schedule 10.02; or (B) after which such documents are posted on the Borrower’s behalf on
DebtDomain or another relevant website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the Administrative Agent),
and (ii) the Borrower notifies (which may be by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such documents; provided that the Borrower shall deliver paper
copies or soft copies (by electronic mail) of such documents to the Administrative Agent or any Lender
that requests the Borrower to deliver such paper copies or soft copies until a written request to cease
delivering paper copies or soft copies is given by the Administrative Agent or such Lender. The
Administrative Agent shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (1) the Administrative Agent and/or the Arrangers and
Bookrunners will make available to the Lenders materials and/or information provided by or on behalf of
the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
DebtDomain or another similar electronic system (the “Platform”) and (2) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with
respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that
(w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall
be deemed to have authorized the Administrative Agent, the Arrangers and Bookrunners and the Lenders
to treat such Borrower Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes
of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent and the Arrangers and Bookrunners shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform
not designated “Public Investor,” provided, however, that notwithstanding the foregoing, the Borrower
shall not have any obligation to mark any Borrower Materials as “PUBLIC.”
6.03 Notices. Notify the Administrative Agent and each Lender:
(a) promptly, of the occurrence of any Default and the action which the Borrower is taking
or proposes to take with respect thereto;
(b) promptly, and in any event within five (5) days:
(i) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (to the extent resulting or such matter could reasonably be
16188091_7 50
expected to result in a Material Adverse Effect) (A) breach or non-performance of, or any default
under, a Contractual Obligation of the Borrower or any Subsidiary; (B) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; or (C) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(ii) of the commencement of, or any material development in, any litigation or
proceeding affecting the Borrower or any Subsidiary (A) in which the amount of damages
claimed is $100,000,000 (or its equivalent in another currency or currencies) or more, (B) in
which injunctive or similar relief is sought and which could reasonably be expected to result in a
Material Adverse Effect, or (C) in which the relief sought is an injunction or other stay of the
performance of this Agreement or any Loan Document;
(iii) of any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary; and
(iv) of any announcement by Moody’s or S&P of a downgrade in a Debt Rating;
(c) promptly, and in any event within 30 days:
(i) of the occurrence of any ERISA Event; or
(ii) upon determining that any Pension Plan is considered an at-risk plan or a plan in
endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or
Sections 303, 304 and 305 of ERISA (in such case, notice shall include a certification of funding
status from the enrolled actuary for the Pension Plan).
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action
the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and any other Loan Document
that have been breached.
6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable, its Indebtedness and tax liabilities but excluding Indebtedness (other than the Obligations) that is
not in excess of the Threshold Amount, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Borrower or such Subsidiary or failure to do so would not reasonably be expected to result in a
Material Adverse Effect.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in
a transaction permitted by Section 7.04, (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-
preservation of which could reasonably be expected to have a Material Adverse Effect.
16188091_7 51
6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and condition,
ordinary wear and tear, force majeure and casualty events excepted; and (b) make all necessary repairs
thereto and renewals and replacements thereof except where, in each case, the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies (determined at the time the applicable insurance is maintained or renewed), or
through self-insurance, insurance with respect to its properties and business against loss or damage of the
kinds customarily insured against by Persons engaged in the same or similar business, of such types and
in such amounts as are customarily carried under similar circumstances by such other Persons. Such
insurance may include self-insurance or be subject to co-insurance, deductibility or similar clauses which,
in effect, result in self-insurance of certain losses, provided that such self-insurance is in accord with the
approved practices of business enterprises of established reputation similarly situated and adequate
insurance reserves are maintained in connection with such self-insurance, and, notwithstanding the
foregoing provisions of this Section 6.07, the Borrower may effect workers’ compensation or similar
insurance in respect of operations in any state or other jurisdiction any through an insurance fund operated
by such state or other jurisdiction or by causing to be maintained a system or systems of self-insurance in
accord with applicable laws.
6.08 Compliance with Laws. Comply in all material respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in
such instances in which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records. (a) Maintain proper books of record and account, in which
full, true and correct entries in conformity in all material respects with GAAP consistently applied shall
be made of all financial transactions and matters involving the assets and business of the Borrower or
such Subsidiary, as the case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its officers and independent public accountants (provided Borrower has the
opportunity to participate in such meetings), all at the expense of the Borrower and at such reasonable
times during normal business hours and as often as may be reasonably desired, upon reasonable advance
notice to the Borrower; provided, however, that (x) when an Event of Default exists the Administrative
Agent or any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice and (y) disclosure of confidential information pursuant to this Section shall be subject to
(x) such attorney-client privilege exceptions that the Borrower reasonably determines are necessary in
order to avoid loss of its attorney-client privilege and (y) compliance with reasonable conditions to
disclosure under non-disclosure agreements between the Borrower and Person(s) other than Affiliates
thereof, and to the extent that the Administrative Agent or a Lender is required to produce any such
information to a regulatory authority, the Borrower shall cooperate with the Administrative Agent or such
Lender in efforts to obtain any required consents to disclosure.
16188091_7 52
6.11 Use of Proceeds. Use the proceeds of the Borrowings for working capital, capital
expenditures, acquisitions, mergers, and for other general partnership purposes (including repayment of
Indebtedness and payments of distributions), not in contravention of any Law or of any Loan
Document; provided however, no portion of the proceeds of any Borrowing will be used in any manner
prohibited by Sections 7.08, 7.10 and 7.11.
6.12 Maintenance of Tax Status. The Borrower shall take all action necessary to prevent
the Borrower and Intermediate Guarantor from being, and will take no action which would have the effect
of causing either of the Borrower or Intermediate Guarantor to be, treated as an association taxable as a
corporation or otherwise to be taxed as an entity for federal income tax purposes.
6.13 Anti-Corruption Laws and Sanctions. The Loan Parties will, and will cause their
Subsidiaries to, conduct their businesses in material compliance with Anti-Corruption Laws and
Sanctions, and maintain policies and procedures designed to promote and achieve compliance with such
laws and Sanctions.
6.14 Additional Guarantors. In the event any Subsidiary of Parent Guarantor or
Borrower that is not a Guarantor as of the Execution Date (as defined in the First Amendment)
Guarantees any of the Parent Guarantor’s senior, unsecured, long-term Indebtedness or any other senior,
unsecured, long-term Indebtedness of Borrower, the Parent Guarantor or Borrower (as applicable) will,
within 30 days thereof, (i) cause such Subsidiary to Guarantee the Obligations by executing and
delivering to the Administrative Agent a Guaranty Agreement substantially in the form of Exhibit G, and
(ii) deliver certificates and other documentation substantially similar to those required to be delivered on
the Closing Date with respect to the Intermediate Guarantor pursuant to Section 4.01(a)(ii)
and 4.01(a)(iv), in form and substance reasonably satisfactory to the Administrative Agent.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied:
7.01 Liens. The Borrower shall not, and shall not permit any Subsidiary to, create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books
of the applicable Person in accordance with GAAP;
(c) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person;
(d) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;
16188091_7 53
(e) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(f) any right which any municipal or governmental body or agency may have by virtue of
any franchise, license, contract or status to purchase or designate a purchaser of, or order the sale of, any
property of the Borrower or a Subsidiary upon payment of reasonable compensation therefor or to
terminate any franchise, license or other rights or to regulate the property and business of the Borrower
or a Subsidiary;
(g) any Liens, neither assumed by the Borrower or a Subsidiary nor on which it customarily
pays interest, existing upon real estate or rights in or relating to real estate acquired by the Borrower or a
Subsidiary for sub-station, measuring station, regulating station, gas purification station, compressor
station, transmission line, distribution line or right-of-way purposes;
(h) easements or reservations in any property of the Borrower or a Subsidiary for the
purpose of roads, pipe lines, gas transmission and distribution lines, electric light and power transmission
and distribution lines, water mains and other like purposes, and zoning ordinances, regulations and
restrictions which do not impair the use of such property in the operation of the business of the Borrower
or a Subsidiary;
(i) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case materially
interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(j) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(k) (i) Liens securing Indebtedness in respect of Capital Lease Obligations, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets, provided that (A) such Liens do
not at any time encumber any property other than the property financed by such Indebtedness, (B) the
Indebtedness secured thereby does not exceed the cost of the property being acquired on the date of
acquisition, and (C) such Liens attach to such property concurrently with or within 90 days after the
acquisition thereof, and (ii) Liens securing any refinancing (including successive refinancings) of such
Indebtedness, provided that such Liens do not extend to additional property and the amount of the
Indebtedness is not increased (except by an amount not to exceed fees, premiums and interest relating to
such refinancing); provided further that the unpaid principal balance of Indebtedness secured by Liens
permitted by this clause (k) shall not in the aggregate at any time exceed 2.5% of Total Capital;
(l) Liens on property of a Person existing at the time such Person is merged with or into or
consolidated with or acquired by the Borrower or any Subsidiary of the Borrower; provided that such
Liens were not granted in contemplation of, and were in existence prior to, such merger, consolidation or
acquisition and do not extend to any assets other than those of the Person merged into or consolidated
with the Borrower or the Subsidiary that were encumbered prior to such merger, consolidation or
acquisition;
16188091_7 54
(m) Liens on property existing at the time of acquisition of the property by the Borrower or
any Subsidiary of the Borrower; provided that such Liens were not granted in contemplation of, and
were in existence prior to, the contemplation of such acquisition and no such Lien may encumber any
other property of the Borrower or any Subsidiary;
(n) Liens incurred to refinance any Indebtedness of the Borrower or its Subsidiaries which
has been secured by Liens otherwise permitted hereunder under clauses (l) and (m); provided that such
Liens do not extend to any property other than the property securing the Indebtedness refinanced and the
amount of the Indebtedness secured thereby is not increased (except by an amount not to exceed fees,
premiums and interest relating to such refinancing);
(o) Liens on cash and cash equivalents granted pursuant to master netting agreements
entered into in the ordinary course of business in connection with Swap Contracts; provided that (i) the
transactions secured by such Liens are governed by standard International Swaps and Derivatives
Association, Inc. documentation, and (ii) such Swap Contracts consist of derivative transactions
contemplated to be settled in cash and not by physical delivery and are designed to minimize the risk of
fluctuations in oil and gas prices with respect to the Borrower’s and its Subsidiaries’ operations in the
ordinary course of its business;
(p) Liens pursuant to master netting agreements entered into in the ordinary course of
business in connection with Swap Contracts, in each case pursuant to which the Borrower or a
Subsidiary of the Borrower, as a party to such master netting agreement and as pledgor, pledges or
otherwise transfers to the other party to such master netting agreement, as pledgee, in order to secure the
Borrower’s or such Subsidiary’s obligations under such master netting agreement, a Lien upon and/or
right of set off against, all right, title, and interest of the pledgor in any obligations of the pledgee owed
to the pledgor, together with all accounts and general intangibles and payment intangibles in respect of
such obligations and all dividends, interest, and other proceeds from time to time received, receivable, or
otherwise distributed in respect of, or in exchange for, any or all of the foregoing;
(q) Liens arising in the ordinary course of business under Oil and Gas Agreements to secure
compliance with such agreements, provided that any such Lien referred to in this clause are for claims
which are not delinquent or which are being contested in good faith by appropriate action and for which
adequate reserves have been maintained in accordance with GAAP, and provided further that any such
Lien referred to in this clause does not materially impair the use of the property covered by such Lien for
the purposes for which such property is held by the Borrower or any Subsidiary or materially impair the
value of such property subject thereto, and provided further that such Liens are limited to property that is
the subject of the relevant Oil and Gas Agreement;
(r) bankers' Liens, rights of setoff and other similar Liens existing with respect to cash and
cash equivalents on deposit in one or more accounts maintained by the Borrower or any Subsidiary, in
each case arising in the ordinary course of business in favor of the bank or banks with which such
accounts are maintained;
(s) Liens on equity interests of any Joint Venture owned by a Subsidiary to the extent such
Liens secure Indebtedness that is otherwise non-recourse to such Subsidiary, all other Subsidiaries and
the Borrower; and
16188091_7 55
(t) Liens on cash collateral required to be granted to the administrative agent or letter of
credit issuer under the Parent Guarantor Credit Agreement to cover exposure arising in respect of
Defaulting Lenders’ (as therein defined) obligations in connection with letters of credit issued under the
Parent Guarantor Credit Agreement; and
(u) Liens not otherwise permitted by this Section 7.01 securing Indebtedness of the
Borrower or its Subsidiaries, provided that the aggregate outstanding principal amount of all such
Indebtedness does not at any time exceed 15% of Consolidated Net Tangible Assets.
7.02 Investments. The Borrower shall not, and shall not permit any Subsidiary to, make
any Investments, except:
(a) Investments in the form of cash and cash equivalents;
(b) advances to officers, directors and employees of the Borrower and Subsidiaries in the
ordinary course of business in accordance with applicable law for travel, entertainment, relocation and
analogous ordinary business purposes;
(c) Investments of the Borrower in any wholly-owned Subsidiary and Investments of any
wholly-owned Subsidiary in the Borrower and any wholly-owned Subsidiary;
(d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Investments in Subsidiaries, Joint Ventures or other Persons, in each case which are
engaged principally in the business of the purchasing, gathering, compression, transportation,
distribution, marketing, terminalling or storage of crude oil, natural gas, compressed natural gas, natural
gas liquids and refined products, the exploration or production of crude oil, natural gas or oil or the
processing or fractionation of natural gas or natural gas liquids, the underground piping of natural gas
distribution systems, the generation or marketing of electricity or other businesses related to or incidental
to any of the foregoing; provided that such Investments are not opposed by the board of directors or
management of such Person;
(f) Investments of a Person acquired after the Closing Date or of a Person merged or
consolidated with or into Borrower or a Subsidiary; provided that such Investments were not made in
contemplation of, and were in existence prior to, such acquisition, merger or consolidation;
(g) the Guarantee by Intermediate Guarantor or any other Subsidiary that executes a
Guaranty Agreement pursuant to Section 6.14 under its Guaranty Agreement or a Guaranty Agreement
(as defined in the Parent Guarantor Credit Agreement) under the Parent Guarantor Credit Agreement;
and
(h) other Investments, if at the time of, and after giving effect to, such Investments, the
aggregate book value of all such Investments does not exceed $100,000,000 in the aggregate;
16188091_7 56
provided, however that the Borrower shall not own, directly or indirectly, equity interests in any
Subsidiaries other than Financing Vehicles, Intermediate Guarantor, the general partner of Intermediate
Guarantor and Subsidiaries of Intermediate Guarantor.
7.03 Indebtedness of Subsidiaries. The Borrower shall not permit any Subsidiary to
create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness owed to the Borrower or to another Subsidiary; provided, however, that
any Indebtedness of Intermediate Guarantor owed to another Subsidiary shall be subordinated on terms
and conditions satisfactory to Administrative Agent and the Required Lenders in right of payment to its
obligations under the Guaranty Agreement;
(b) obligations under Swap Contracts;
(c) Indebtedness existing at the time of acquisition of any new Subsidiary by the Borrower
or by a then-existing Subsidiary of the Borrower; provided that such Indebtedness was not incurred in
contemplation of, and was in existence prior to, such acquisition and that neither the Borrower nor any
other Subsidiary of the Borrower has any liability under such Indebtedness (other than a Subsidiary of
any Person so acquired);
(d) guaranty by Intermediate Guarantor of the Borrower’s Indebtedness or Parent
Guarantor’s indebtedness under the Parent Guarantor Credit Agreement;
(e) Indebtedness of Guardian Pipeline, L.L.C. (“Guardian”) pursuant to the Master Shelf
Agreement, dated as of November 8, 2001, among Guardian, Prudential Insurance Company of America
and the other parties thereto, as amended from time to time, together with any renewals, extensions or
refinancings thereof, provided that any renewal, extension or refinancing thereof is not greater than the
principal amount of the Indebtedness being renewed, extended or refinanced, and does not shorten the
weighted average life to maturity of such Indebtedness; and
(f) Indebtedness of Subsidiaries (excluding Indebtedness otherwise permitted in
this Section 7.03) which does not exceed at any time an aggregate principal amount outstanding equal to
fifteen percent (15%) of Consolidated Net Tangible Assets.
7.04 Fundamental Changes. The Borrower shall not and shall not permit any Subsidiary
to, directly or indirectly: merge, dissolve, liquidate, consolidate with or into another Person, or Dispose
of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the
Borrower and its Subsidiaries taken as a whole (whether now owned or hereafter acquired) to or in favor
of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, Parent Guarantor or a wholly-owned
Subsidiary of Parent Guarantor, provided that the Borrower, Parent Guarantor or the wholly-owned
Subsidiary of Parent Guarantor shall be the continuing or surviving Person, or (ii) any one or more other
Subsidiaries, provided further that when a Guarantor is merging with another Subsidiary, such Guarantor
shall be the continuing or surviving Person and when any wholly-owned Subsidiary is merging with
another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person; and
16188091_7 57
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation, dissolution or otherwise) to the Borrower, Parent Guarantor or to another
Subsidiary; provided that if the transferor in such a transaction is a wholly-owned Subsidiary, then the
transferee must be the Borrower, Parent Guarantor or a wholly-owned Subsidiary and; provided further
that if the transferor is a Guarantor, then the transferee must be the Borrower, another Guarantor or
another Subsidiary that executes a Guaranty Agreement and satisfies the other conditions set forth
in Section 6.14; and
(c) the Borrower or any Subsidiary may consolidate or merge with another corporation or
entity, and a Person may consolidate with or merge into the Borrower or any Subsidiary, provided that
(x) if the merger involves a Subsidiary but does not involve the Borrower, a Guarantor or a wholly-
owned Subsidiary of Parent Guarantor, a Subsidiary shall be the surviving entity, and (y) if the merger
involves the Borrower, the Borrower shall be the ultimate surviving entity (unless the Borrower is
merging with or into Parent Guarantor or a wholly-owned Subsidiary of Parent Guarantor and Parent
Guarantor or such wholly-owned Subsidiary assumes each of the obligations of the Borrower under the
Loan Documents pursuant to an agreement executed and delivered to the Lenders in a form reasonably
satisfactory to the Required Lenders) and if the merger involves a Guarantor, such Guarantor shall be the
surviving entity (unless such Guarantor is merging with or into Borrower, Parent Guarantor or a wholly-
owned Subsidiary of Parent Guarantor that executes a Guaranty Agreement and satisfies the other
conditions set forth in Section 6.14), and (z) in each such case (i) the surviving entity shall be after the
merger a solvent entity and existing under the laws of the United States of America, any State thereof or
the District of Columbia, (ii) immediately after giving effect to such transaction and treating any
Indebtedness which becomes an obligation of the Borrower or a Subsidiary as a result of such
transaction as having been incurred by the Borrower or such Subsidiary at the time of such transaction,
no Default shall have happened and be continuing, and (iii) if the merger or consolidation involves the
Borrower or a Guarantor, the Borrower has delivered to the Administrative Agent a certificate signed by
a Responsible Officer of the Borrower and an opinion of counsel, each stating that such consolidation or
merger complies with this Section 7.04; and
(d) any Subsidiary (other than a Guarantor) may dissolve in connection with any
Disposition otherwise permitted by this Section 7.04.
provided, however, that nothing contained in this Section 7.04 shall be or be deemed to permit any
merger, dissolution, liquidation, consolidation or Disposition which would result in a Change of Control.
7.05 Change in Nature of Business. The Borrower, Intermediate Guarantor and their
respective Subsidiaries shall not engage in any material line of business substantially different from those
lines of business described in Section 7.02(e) or any business substantially related or incidental to such
lines of business.
7.06 Transactions with Affiliates. The Borrower shall not, and shall not permit any
Subsidiary to, enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in
the ordinary course of business, other than (a) on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in
a comparable arm’s length transaction with a Person other than an Affiliate, (b) transactions between or
among the Borrower or any Subsidiary and Parent Guarantor, any Subsidiary of Parent Guarantor, or any
Subsidiary of the Borrower, or (c) transactions with any Joint Venture, provided that such transactions
16188091_7 58
described in this clause (c) shall be consistent with prior practices and could not reasonably be expected
to have a Material Adverse Effect.
7.07 Burdensome Agreements. The Borrower shall not, and shall not permit any
Subsidiary to, enter into or permit any Contractual Obligation that limits the ability of any Subsidiary to
pay dividends or make other payments or distributions to the Borrower or to any other Subsidiary or to
otherwise transfer property to the Borrower or to any other Subsidiary; unless (a) none of such
limitations, either individually or in the aggregate, would (i) materially restrict the ability of the
Subsidiaries taken as a whole to pay dividends, make other payments or distributions or transfer property
to the Borrower, or (ii) materially restrict the ability of the Subsidiaries of Intermediate Guarantor taken
as a whole to pay dividends, make other payments or distributions or transfer property to Intermediate
Guarantor, and (b) each such limitation, individually and in the aggregate with all other such limitations,
could not reasonably be expected to impair the ability of the Borrower to perform its monetary obligations
hereunder.
7.08 Use of Proceeds. The Borrower shall not:
(a) Use the proceeds of any Borrowing, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose; provided that the foregoing shall
not restrict the repurchase of limited partnership units of the Borrower by the Borrower or any of its
Subsidiaries; or
(b) use the proceeds of any Borrowing in connection with the acquisition of a voting interest
of five percent or more in any Person if such acquisition is opposed by the board of directors or
management of such Person.
7.09 Leverage Ratio. The Borrower shall not permit the Leverage Ratio (a) as of the end
of the fiscal quarter in which the ONEOK Partners Unit Acquisition is consummated and the two fiscal
quarters immediately thereafter to exceed 5.75:1.00, (b) as of the end of the two fiscal quarters
immediately thereafter to exceed 5.50:1.00; and (c) as of the end of each fiscal quarter thereafter, to
exceed 5.00:1.00 (the “Required Threshold”); provided, however, that during an Acquisition Adjustment
Period, the Required Threshold shall be increased to 5.50:1.00.
7.10 Sanctions. The Loan Parties will not, and not permit any of their Subsidiaries to use
directly or, to the Loan Parties’ knowledge, indirectly the proceeds of any Borrowing, or lend, contribute
or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or
entity, to fund any activities of or business with any individual or entity, or in any Designated
Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will
result in a material violation by the Loan Parties or their Subsidiaries or any Lender, Arranger and
Bookrunner, or the Administrative Agent, of Sanctions.
7.11 Anti-Corruption Laws. The Loan Parties will not, and not permit any of their
Subsidiaries to use directly or, to the Loan Parties’ knowledge, indirectly the proceeds of any Borrowing
in a manner that would breach any Anti-Corruption Law.
16188091_7 59
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. An “Event of Default” shall exist if any one or more of the
following events (herein collectively called “Events of Default”) shall occur and be continuing:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii) within five days after the same
becomes due, any interest on any Loan or other fee due hereunder, or (iii) within five Business Days
after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 6.03(a), 6.05(a), 6.11, 7.01, 7.03 or 7.09 or clause (y) of Section
7.04(c); or
(c) Other Defaults. A Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to
be performed or observed and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or the Guarantors herein or in
any other Loan Document, or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made (except that such materiality
qualifier shall not apply to the extent that any such representation or warranty is qualified by
materiality); or
(e) Payment Cross-Default and Cross-Acceleration. (i) A Loan Party or any Subsidiary of a
Loan Party (A) fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee of
Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee of Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause the acceleration of the final stated maturity of such
Indebtedness or require such Indebtedness to be prepaid prior to the stated maturity thereof; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary of a
Loan Party is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as
so defined) under such Swap Contract as to which a Loan Party or any Subsidiary of a Loan Party is an
Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan
Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. A Loan Party, any Subsidiary (other than any Immaterial
Subsidiary) of a Loan Party or one or more General Partners holding more than 50% of the Borrower’s
general partner interests institutes or consents to the institution of any proceeding under any Debtor
16188091_7 60
Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for
it or for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person
and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or a Loan Party, any Subsidiary (other than
any Immaterial Subsidiary) of a Loan Party or any such General Partner shall take any corporate action
in furtherance of any of the foregoing; or
(g) Inability to Pay Debts; Attachment. (i) A Loan Party or any Subsidiary (other than any
Immaterial Subsidiary) of a Loan Party becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against a Loan Party, any Subsidiary (other than any
Immaterial Subsidiary) of a Loan Party or one or more General Partners holding in the aggregate more
than 50% of the Borrower’s general partner interests (i) one or more final judgments or orders for the
payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance), or (ii) any one or more non-
monetary final judgments that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (B) there is a period of ten (10) consecutive days during
which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in
effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of a Loan Party or any
Subsidiary of a Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and
delivery and for any reason other than as permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or a Loan Party or any of its Affiliates contests in any
manner the validity or enforceability of any Loan Document; or a Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any
Loan Document other than pursuant to the terms thereof; or
(k) Change of Control. There occurs any Change of Control; or
16188091_7 61
(l) Guaranty. Any material provision of a Guaranty Agreement shall for any reason cease
to be valid and binding on, or enforceable against any Guarantor, or a Guarantor shall so state in writing,
or a Guarantor shall seek to terminate a Guaranty Agreement.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing,
the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take
any or all of the following actions:
(a) declare the commitment of each Lender to make Loans to be terminated, whereupon
such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to
be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and remedies available to it and the
Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with
respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to
make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and payable, in each case without
further act of the Administrative Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable), any amounts received on
account of the Obligations shall, subject to the provisions of Section 2.17, be applied by the
Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including Attorney Costs and amounts payable under Article III) payable to the
Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders (including Attorney Costs and amounts
payable under Article III), ratably among them in proportion to the amounts described in this
clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on
the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans,
ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by
them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the
Borrower or as otherwise required by Law.
16188091_7 62
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints
Mizuho to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as
are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary
of any of such provisions (except with respect to Section 9.06). It is understood and agreed that the use of
the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market
custom, and is intended to create or reflect only an administrative relationship between contracting
parties.
9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty to account therefor to
the Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or
in the other Loan Documents), provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability
or that is contrary to any Loan Document or applicable law including for the avoidance of doubt any
action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor
Relief Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
16188091_7 63
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or
willful misconduct as determined by a court of competent jurisdiction by final and nonappealable
judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and
until notice describing such Default is given in writing to the Administrative Agent by the Borrower or a
Lender.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made by the proper Person,
and shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender prior to the making of
such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for herein as well
as activities as Administrative Agent. The Administrative Agent shall not be responsible for the
negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction
determines in a final and nonappealable judgment that the Administrative Agent acted with gross
negligence or willful misconduct in the selection of such sub-agents.
9.06 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders
and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, with the prior written consent of the Borrower (provided such consent shall not be unreasonably
withheld or delayed and no such consent shall be required if an Event of Default has occurred and is
16188091_7 64
continuing), to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by
the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may on
behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause
(d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by
notice in writing to the Borrower and such Person remove such Person as Administrative Agent and,
with the prior written consent of the Borrower (provided such consent shall not be unreasonably
withheld or delayed and no such consent shall be required if an Event of Default has occurred and is
continuing), appoint a successor. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed
by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become
effective in accordance with such notice on the Removal Effective Date. As used in this Section 9.06,
the terms “retiring” and “retired” shall include “removed”.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable) (1) the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any collateral security held by
the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided
for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation
or removal, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting
as Administrative Agent.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Administrative Agent or any other
16188091_7 65
Lender or any of their Related Parties and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether
the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Administrative Agent shall have made any demand on the Borrower or
any other Loan Party) shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders and the Administrative Agent under Sections 2.10, and 10.04) allowed
in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.10 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.09 [Reserved.]
9.10 Other Agents; Arrangers and Managers. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a “syndication agent,”
“documentation agent,” “joint lead arranger and joint bookrunner,” or “joint lead arranger” shall have any
right, power, obligation, liability, responsibility or duty under this Agreement except in its capacity, as
applicable, as the Administrative Agent or a Lender hereunder. Without limiting the foregoing, none of
the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with
any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in taking or not taking action
hereunder.
16188091_7 66
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing, signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and a copy thereof is provided to the Administrative Agent, or
signed by the Borrower and the applicable Loan Party and the Administrative Agent with the consent of
the Required Lenders, and each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such amendment, waiver or consent
shall:
(a) waive any condition set forth in Section 4.01 without the written consent of each
Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any
payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or
any of them) or any mandatory reduction of the Aggregate Commitments hereunder or under any other
Loan Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject
to clause (v) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend
the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default
Rate;
(e) change Section 2.14, Section 8.03 or the definition of “Pro Rata Share” in a manner that
would alter the pro rata sharing of payments required thereby without the written consent of each
Lender;
(f) change any provision of this Section or the percentages contained in the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; or
(g) release a Guarantor from liability under the applicable Guaranty Agreement without the
written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and (ii) Section 10.06(i) may
not be amended, waived or otherwise modified without the consent of each Granting Lender all or any
part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other
modification. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right
to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or
16188091_7 67
consent which by its terms requires the consent of all Lenders or each affected Lender may be effected
with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of a Defaulting Lender may not be increased or extended, nor the principal amount of any
Loan or any interest thereon, or any other amounts payable hereunder, owed to such Defaulting Lender
reduced or the date for payment thereof extended, without the consent of such Defaulting Lender, (y) any
waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by
its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the
consent of such Defaulting Lender, and (z) any waiver, amendment or modification changing the voting
rights of a Defaulting Lender shall require the consent of each Lender that is a Defaulting Lender at the
time that such waiver, amendment or modification becomes effective.
If, in connection with any proposed change, waiver, consent, discharge or termination of or to any of the
provisions of this Agreement as contemplated by this Section 10.01, the consent of the Required Lenders
is obtained but the consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right, to replace each such non-consenting Lender or Lenders
with one or more (so long as all non-consenting Lenders are so replaced) persons pursuant to Section
10.14 so long as at the time of such replacement, each such new Lender consents to the proposed change,
waiver, consent, discharge or termination. Each Lender agrees that, if the Borrower elects to replace such
Lender in accordance with this Section, it shall promptly execute and deliver to the Administrative Agent
an Assignment and Assumption to evidence such sale and purchase and shall deliver to the
Administrative Agent any Note (if Notes have been issued in respect of such Lender’s Loans) subject to
such Assignment and Assumption; provided that the failure of any such non-consenting Lender to execute
an Assignment and Assumption shall not render such sale and purchase (and the corresponding
assignment) invalid and such assignment shall be recorded in the Register.
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission). All
such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or
(subject to subsection (c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:
(i) if to the Borrower or the Administrative Agent, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on Schedule 10.02 or to
such other address, facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrower and the Administrative Agent.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices and other communications
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 and other communications delivered through electronic
16188091_7 68
communications to the extent provided in subsection (b) below, shall be effective as provided in
such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to procedures
approved by it, provided that approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent
to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient, 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 of notification that such notice
or communication is available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender (as defined in Section 6.02) agrees to cause at least one individual at or on behalf of such
Public Lender to at all times have selected the “Private Investor” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and applicable Law, including United States Federal
and state securities Laws, to make reference to Borrower Materials that are not made available through
the “Public Investor” portion of the Platform and that may contain material non-public information with
respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other form of notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.
The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower except to the extent such losses, costs,
16188091_7 69
expenses and liabilities are determined by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of such Person. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording.
(e) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES AND THE ARRANGER PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF
THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. 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 ANY AGENT PARTY OR ANY
ARRANGER PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) or any Arranger and Bookrunner or any of their respective Related Parties (collectively,
the “Arranger Parties”) have any liability to the Borrower, any Lender or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of
the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party or Arranger Party; provided, however, that in no event shall
any Agent Party or Arranger Party have any liability to the Borrower or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
10.03 No Waiver; Cumulative Remedies; Enforcement.
(a) No failure by any Lender or the Administrative Agent to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
(b) Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents
against Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the
Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from
exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising
setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.14), or (c) any Lender
from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any
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time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents,
then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent
pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding
proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce
any rights and remedies available to it and as authorized by the Required Lenders.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out of pocket expenses
incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and
disbursements of outside counsel for the Administrative Agent), in connection with the syndication of
the credit facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all out of pocket expenses incurred by the Administrative Agent
and any Lender (including the fees, charges and disbursements of one primary outside counsel for the
Administrative Agent and the Lenders and in the case of actual or potential conflict of interest, separate
counsel for Indemnitees to the extent needed to avoid such conflict, and one firm of local counsel, as
applicable, in any relevant jurisdiction, and in the case of actual or potential conflict of interest, separate
local counsel for Indemnitees to the extent needed to avoid such conflict), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder,
including all such out of pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Arranger and Bookrunner, and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of one primary outside counsel for the Indemnitees and,
in the case of actual or potential conflict of interest, separate counsel for Indemnitees to the extent
needed to avoid such conflict), incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan 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, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the
comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
16188091_7 71
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence, willful misconduct, bad faith or material breach by
of such Indemnitee of its obligations under this Agreement; and provided further that no Indemnitee
(other than the Administrative Agent, each Arranger, each Arranger and Bookrunner, each
Documentation Agent, and each Syndication Agent, in each case in its capacity as such) will have a right
to indemnification for such losses, claims, damages, liabilities or expenses to the extent they result from
disputes among the Lenders other than as a result of any act or omission by the Borrower or any of its
Affiliates. Without limiting the provisions of Section 3.01(c), this Section 10.04(b) shall not apply with
respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-
Tax claim.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof), or any Related Party of any of the foregoing (and
without limiting the obligation of the Borrower to do so), each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), or such Related Party, as the case may be, such Lender’s
Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as, or against any Related Party of any of
the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such
capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions
of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
law, the parties to this Agreement shall not assert, and hereby waive, any claim against any other party or
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof, provided that, nothing in
this Section 10.04(d) shall relieve the Borrower of any obligation it may have to indemnify an
Indemnitee against special, indirect, consequential or punitive damages actually paid by such Indemnitee
to a third party. No Indemnitee referred to in subsection (b) above shall be liable for any damages
arising from the use by unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except
to the extent caused by such Person’s gross negligence or willful misconduct of such Indemnitee as
determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section 10.04 shall be payable not later than ten
Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.
16188091_7 72
10.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief
Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if such payment had not been
made or such set-off had not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders
under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation
in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment
of a security interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (i) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject
to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of
16188091_7 73
the date the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed); provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement
with respect to the Loans or the Commitment assigned;
(iii) Required Consents. No consent shall be required for any assignment except to
the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed
to have consented to any such assignment unless it shall object thereto by written notice
to the Administrative Agent within ten (10) Business Days after having received notice
thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a Person that
is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such
Lender.
(iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the
Borrower or any of the Borrower’s Subsidiaries or Affiliates, or (B) to any Defaulting Lender or
any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute
any of the foregoing Persons described in this clause (B), or (C) to a natural person.
(vi) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and
until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
16188091_7 74
make such additional payments to the Administrative Agent in an aggregate amount sufficient,
upon distribution thereof as appropriate (which may be outright payment, purchases by the
assignee of participations or subparticipations, or other compensating actions, including funding,
with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of
Loans previously requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all
payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any
Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full
pro rata share of all Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing,
in the event that any assignment of rights and obligations of any Defaulting Lender hereunder
shall become effective under applicable Law without compliance with the provisions of this
paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all
purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment
and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment provided, that except to the extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary
agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information
regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The
Register shall be available for inspection by the Borrower and any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a
Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
16188091_7 75
“Participant”) in all or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 10.01 that directly affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of, and subject to the obligations of, Sections 3.01, 3.04 and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section; provided that such Participant agrees to be subject to the provisions
of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section. Each Lender that
sells a participation agrees, at the Borrower's request and expense, to use reasonable efforts to cooperate
with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the
Borrower, maintain a register on which it enters the name and address of each Participant and the
principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register (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 Loan Document) to any Person 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 absent manifest error, and such Lender shall treat each Person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its
capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.
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(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or
any other central bank having jurisdiction over such Lender; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(g) Certain Definitions. As used herein, the following terms have the following meanings:
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor
“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), and (v) (subject to such consents, if any, as may be required
under Section 10.06(b)(iii)).
“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
(h) Electronic Execution of Assignments. An Assignment and Assumption may be signed
electronically as provided in Section 10.19.
(i) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary contained
herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as
such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower
(an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.13(c)(ii). Each party hereto hereby agrees that (i) neither the grant
to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise
increase or change the obligations of the Borrower under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other modification of any provision of any Loan
Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this 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 debt of any SPC, it will
not institute against, or join any other Person in instituting against, such SPC any bankruptcy,
16188091_7 77
reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or
any State thereof. Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment
of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative
Agent in its sole discretion), assign all or any portion of its right to receive payment with respect to any
Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating
to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.
10.07 Confidentiality. Each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that (a) Information may be
disclosed (i) to its and its Affiliates' Related Parties (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed to keep
such Information confidential); (ii) to the extent requested by any regulatory authority or self-regulatory
authority; (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process; (iv) to any other party to this Agreement; (v) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder; (vi) subject to an agreement containing provisions
substantially the same as those of this Section, to any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement;
(vii) with the consent of the Borrower; (viii) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this Section or (B) becomes available to the Administrative
Agent or any Lender on a nonconfidential basis from a source other than the Borrower; (ix) to the
National Association of Insurance Commissioners or any other similar organization exercising regulatory
authority over a Lender; (x) on a confidential basis to the CUSIP Service Bureau or any similar agency in
connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect
to the credit facility provided hereunder; or (xi) any ratings agency; and (b) subject to an agreement
containing provisions substantially the same as those of this Section, Information other than the
Projections (as hereinafter defined) may be disclosed to any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional
advisor) to any swap or credit derivative transaction relating to obligations of the Borrower. In addition,
the Administrative Agent and the Lenders may disclose the existence of this Agreement and general
information about this Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the Commitments, and the
Borrowings. For the purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary of Borrower, or any officer, director, employee, counsel, or agent of
Borrower or any of its Subsidiaries relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent or any Lender
on a nonconfidential basis prior to disclosure by the Borrower. As used herein, “Projections” means all
financial projections prepared by the Borrower and furnished to the Lenders in connection with this
Agreement. Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord to its
own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b)
it has developed compliance procedures regarding the use of material non-public information and (c) it
16188091_7 78
will handle such material non-public information in accordance with applicable Law, including Federal
and state securities Laws.
10.08 Set-off. In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates are
authorized at any time and from time to time, without prior notice to the Borrower, any such notice being
waived by the Borrower to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by, and other indebtedness at
any time owing by, such Lender or any such Affiliate to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the applicable deposit or
indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of
setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section 2.17 and, pending such payment, shall be
segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and its
respective Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender or its respective Affiliates may have. Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such set-off and application made by such Lender or
any of its Affiliates; provided, however, that the failure to give such notice shall not affect the validity of
such set-off and application.
10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
10.11 Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict
between the provisions of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto
and shall be construed neither against nor in favor of any party, but rather in accordance with the fair
meaning thereof.
16188091_7 79
10.12 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto
or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Administrative Agent and each
Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or
knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long
as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
10.13 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and
(b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the
illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the
foregoing provisions of this Section 10.13, if and to the extent that the enforceability of any provisions in
this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the
extent not so limited.
10.14 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, or if the
Borrower exercises its right to replace non-consenting Lenders pursuant to Section 10.01, or if any other
circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee specified
in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation
under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will
result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws;
(e) in the case of any assignment resulting from a Lender becoming a non-consenting
Lender pursuant to Section 10.01, the applicable assignee shall have consented to the applicable
amendment, assignment or consent; and
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
10.15 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN
PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT
COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION,
WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE,
AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY RELATED PARTY OF THE
FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM
OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF
MANHATTAN IN NEW YORK CITY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY
OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
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NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.16 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any related arranging or
other services in connection therewith (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between
the Borrower, on the one hand, and the Administrative Agent, the Lenders and the Arrangers and
Bookrunners, on the other hand, and the Borrower is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by
the other Loan Documents (including any amendment, waiver or other modification hereof or thereof);
(ii) in connection with the process leading to such transaction, the Administrative Agent, each Lender and
each Arranger and Bookrunner is and has been acting solely as a principal with respect to the financing
contemplated hereby and is not the financial advisor, agent or fiduciary, for the Borrower or any of its
Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the Administrative
Agent, any Lender or any Arranger and Bookrunner has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Borrower with respect to any aspect of the financing contemplated
hereby or the process leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent or
any Lender or Arranger and Bookrunner has advised or is currently advising the Borrower or any of its
Affiliates on other matters) and none of the Administrative Agent, any Lender or any Arranger and
Bookrunner has any obligation to the Borrower or any of its Affiliates with respect to the financing
contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents;
(iv) the Administrative Agent, the Lenders and the Arrangers and Bookrunners and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of
the Borrower and its Affiliates, and none of the Administrative Agent, any Lender or any Arranger and
Bookrunner has any obligation to disclose any of such interests by virtue of any advisory, agency or
fiduciary relationship; and (v) the Administrative Agent, the Lenders and the Arrangers and Bookrunners
have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any
of the transactions contemplated hereby (including any amendment, waiver or other modification hereof
or of any other Loan Document) and the Borrower has consulted its own legal, accounting, regulatory and
tax advisors to the extent it has deemed appropriate. The Borrower hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against the Administrative Agent, the Lenders
and the Arrangers and Bookrunners with respect to any breach or alleged breach of agency or fiduciary
duty.
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10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any 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 “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 or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Act. The Borrower shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other information that the
Administrative Agent or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
10.19 Electronic Execution of Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures 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 or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
10.20 No General Partner Liability. No General Partner shall have personal liability as
General Partner for the payment of any amount owing or to be owing hereunder or under the other Loan
Documents. The Administrative Agent and Lenders agree that any claim against the Borrower which may
arise under any Loan Document shall be made only against and shall be limited to the assets of the
Borrower and any Guarantor, and that no judgment, order or execution entered in any suit, action or
proceeding, whether legal or equitable, on this Agreement or any of the other Loan Documents shall be
obtained or enforced against any General Partner or its assets for the purpose of obtaining satisfaction and
payment of the Obligations. Nothing in this Section 10.20, however, shall be construed so as to prevent
the Administrative Agent, any Lender or any other holder of any Note from commencing any action, suit
or proceeding with respect to or causing legal papers to be served upon any General Partner of the
Borrower for the purpose of obtaining jurisdiction over the Borrower, and nothing in this Section 10.20
shall be construed to modify or supersede any obligation of a General Partner to restore any negative
balance in its capital account maintained by the Borrower pursuant to the Partnership Agreement upon
liquidation of its interest in the Borrower.
10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES.
10.22 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
or understanding among any such parties, each party hereto acknowledges that any liability of any Lender
that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is
unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority
and agrees and consents to, and acknowledges and agrees to be bound by:
16188091_7 83
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an
EEA 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 EEA Financial Institution, its parent undertaking, or a bridge institution that
may be issued to it or otherwise conferred on it, and that such shares or other instruments of
ownership will be accepted by it in lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the
Write-Down and Conversion Powers of any EEA Resolution Authority.
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