Email Address:
  
  Password:
  
  

Exhibit 10.1

EXECUTION COPY

 

 

ONCOR ELECTRIC DELIVERY COMPANY LLC, AS BORROWER

 

 

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

Dated as of October 11, 2011

 

 

JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, FRONTING BANK AND SWINGLINE LENDER

BARCLAYS BANK PLC, THE ROYAL BANK OF SCOTLAND PLC, BANK OF AMERICA, N.A. AND CITIBANK, N.A., AS FRONTING BANKS

 

 

 

BARCLAYS CAPITAL

RBS SECURITIES INC.

  

CITIGROUP GLOBAL MARKETS INC.

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

J.P. MORGAN SECURITIES LLC

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

MORGAN STANLEY SENIOR FUNDING, INC.

Joint Lead Arrangers

 

BARCLAYS CAPITAL

THE ROYAL BANK OF SCOTLAND PLC

Syndication Agents

  

BANK OF AMERICA, N.A.

CITIBANK, N.A.

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

MORGAN STANLEY SENIOR FUNDING, INC.

Documentation Agents


TABLE OF CONTENTS

 

 

 

 

  

Page

 

ARTICLE I DEFINITIONS; CONSTRUCTION

  

 

1

  

SECTION 1.01.

 

Defined Terms

  

 

1

  

SECTION 1.02.

 

Terms Generally

  

 

26

  

ARTICLE II THE CREDITS

  

 

27

  

SECTION 2.01.

 

Commitments

  

 

27

  

SECTION 2.02.

 

Revolving Credit Loans

  

 

27

  

SECTION 2.03.

 

Borrowing and Conversion Procedures

  

 

28

  

SECTION 2.04.

 

Fees

  

 

29

  

SECTION 2.05.

 

Repayment of Loans; Evidence of Indebtedness

  

 

30

  

SECTION 2.06.

 

Interest on Loans

  

 

31

  

SECTION 2.07.

 

Alternate Rate of Interest

  

 

31

  

SECTION 2.08.

 

Termination and Reduction of Commitments

  

 

32

  

SECTION 2.09.

 

Prepayment

  

 

32

  

SECTION 2.10.

 

Increased Costs

  

 

33

  

SECTION 2.11.

 

Change in Legality

  

 

34

  

SECTION 2.12.

 

Pro Rata Treatment

  

 

35

  

SECTION 2.13.

 

Sharing of Setoffs

  

 

35

  

SECTION 2.14.

 

Payments

  

 

36

  

SECTION 2.15.

 

Taxes

  

 

37

  

SECTION 2.16.

 

Mitigation Obligations; Replacement of Lenders

  

 

41

  

SECTION 2.17.

 

Letters of Credit

  

 

42

  

SECTION 2.18.

 

Swingline Loans

  

 

46

  

SECTION 2.19.

 

Increase in Commitments

  

 

48

  

SECTION 2.20.

 

Extension of Commitment Termination Date

  

 

49

  

SECTION 2.21.

 

Defaulting Lenders

  

 

51

  

ARTICLE III REPRESENTATIONS AND WARRANTIES

  

 

54

  

SECTION 3.01.

 

Organization; Powers

  

 

54

  

SECTION 3.02.

 

Authorization

  

 

54

  

SECTION 3.03.

 

Enforceability

  

 

54

  

SECTION 3.04.

 

Governmental Approvals

  

 

54

  

SECTION 3.05.

 

Financial Statements

  

 

55

  

SECTION 3.06.

 

Litigation

  

 

55

  

SECTION 3.07.

 

Federal Reserve Regulations

  

 

55

  

SECTION 3.08.

 

Investment Company Act

  

 

55

  

SECTION 3.09.

 

No Material Misstatements

  

 

55

  

SECTION 3.10.

 

Taxes

  

 

56

  

SECTION 3.11.

 

Employee Benefit Plans

  

 

56

  

SECTION 3.12.

 

Significant Subsidiaries

  

 

56

  

 

-i-


 

 

 

  

Page

 

SECTION 3.13.

 

Environmental Matters

  

 

57

  

SECTION 3.14.

 

Solvency

  

 

57

  

SECTION 3.15.

 

Properties

  

 

57

  

SECTION 3.16.

 

Lien of Mortgage

  

 

57

  

SECTION 3.17.

 

Filings and Recordings

  

 

57

  

ARTICLE IV-A EFFECTIVENESS AND INITIAL EXTENSIONS OF CREDIT

  

 

58

  

SECTION 4.01

 

Credit Documents

  

 

58

  

SECTION 4.02.

 

Security Documents.

  

 

58

  

SECTION 4.03.

 

Borrower Legal Opinions.

  

 

58

  

SECTION 4.04.

 

Agent Legal Opinion.

  

 

58

  

SECTION 4.05.

 

Prepayment of Loans Under Prior Credit Agreement

  

 

58

  

SECTION 4.06.

 

Representations and Warranties; No Default.

  

 

58

  

SECTION 4.07.

 

Closing Certificates.

  

 

58

  

SECTION 4.08.

 

Fees

  

 

59

  

SECTION 4.09.

 

Financial Information

  

 

59

  

SECTION 4.10.

 

PATRIOT Act

  

 

59

  

SECTION 4.11.

 

Flood Insurance

  

 

59

  

SECTION 4.12.

 

Other Information.

  

 

60

  

ARTICLE IV-B CONDITIONS FOR CERTAIN EXTENSIONS OF CREDIT

  

 

60

  

ARTICLE V COVENANTS

  

 

60

  

SECTION 5.01.

 

Existence

  

 

61

  

SECTION 5.02.

 

Compliance With Laws; Business and Properties

  

 

61

  

SECTION 5.03.

 

Financial Statements, Reports, Etc.

  

 

61

  

SECTION 5.04.

 

Insurance

  

 

62

  

SECTION 5.05.

 

Taxes, Etc

  

 

63

  

SECTION 5.06.

 

Maintaining Records; Access to Properties and Inspections

  

 

63

  

SECTION 5.07.

 

ERISA

  

 

63

  

SECTION 5.08.

 

Use of Proceeds

  

 

63

  

SECTION 5.09.

 

Consolidations, Mergers, Sales and Acquisitions of Assets and Investments in Subsidiaries

  

 

64

  

SECTION 5.10.

 

Limitations on Liens

  

 

64

  

SECTION 5.11.

 

Debt to Total Capitalization Ratio

  

 

66

  

SECTION 5.12.

 

Further Assurances

  

 

66

  

SECTION 5.13.

 

Certain Terms Relating to Collateral.

  

 

67

  

 

-ii-


 

 

 

  

Page

 

ARTICLE VI EVENTS OF DEFAULT

  

 

67

  

ARTICLE VII THE AGENT

  

 

70

  

ARTICLE VIII MISCELLANEOUS

  

 

73

  

SECTION 8.01.

 

Notices

  

 

73

  

SECTION 8.02.

 

Survival of Agreement

  

 

74

  

SECTION 8.03.

 

Binding Effect

  

 

74

  

SECTION 8.04.

 

Successors and Assigns

  

 

75

  

SECTION 8.05.

 

Expenses; Indemnity

  

 

79

  

SECTION 8.06.

 

Right of Setoff

  

 

81

  

SECTION 8.07.

 

Applicable Law

  

 

82

  

SECTION 8.08.

 

Waivers; Amendment and Releases

  

 

82

  

SECTION 8.09.

 

Resignation of Swingline Lender

  

 

84

  

SECTION 8.10.

 

Entire Agreement

  

 

84

  

SECTION 8.11.

 

Severability

  

 

84

  

SECTION 8.12.

 

Counterparts

  

 

85

  

SECTION 8.13.

 

Headings

  

 

85

  

SECTION 8.14.

 

Interest Rate Limitation

  

 

85

  

SECTION 8.15.

 

Jurisdiction; Venue

  

 

85

  

SECTION 8.16.

 

Confidentiality

  

 

86

  

SECTION 8.17.

 

Electronic Communications

  

 

87

  

SECTION 8.18.

 

Acknowledgements

  

 

88

  

SECTION 8.19.

 

WAIVERS OF JURY TRIAL

  

 

89

  

SECTION 8.20.

 

USA PATRIOT Act

  

 

89

  

SECTION 8.21.

 

Separateness of the Borrower from EFH and its Subsidiaries

  

 

90

  

 

-iii-


EXHIBITS AND SCHEDULES

 

Exhibit A

  

Form of Assignment and Assumption

Exhibit B-1

  

Form of Borrowing Request

Exhibit B-2

  

Form of Conversion Notice

Exhibit C

  

Form of Request for Issuance

Exhibit D

  

Form of Prepayment Notice

Exhibit E-1

  

Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Exhibit E-2

  

Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Exhibit E-3

  

Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Exhibit E-4

  

Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Exhibit F-1

  

Form of Opinion of Special New York counsel to the Borrower

Exhibit F-2

  

Form of Opinion of Associate General Counsel of the Borrower

Exhibit G

  

Form of Opinion of Special Counsel to the Agent

Schedule 2.01

  

Commitments

Schedule 2.17(i)

  

LC Fronting Bank Commitments

Schedule 5.10

  

Existing Liens

Schedule 5.12

  

Terms of Subordination

 

-iv-


AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “ Agreement ”), dated as of October 11, 2011, among Oncor Electric Delivery Company LLC, a Delaware limited liability company (the “ Borrower ”), the lenders listed in Schedule 2.01 (together with their successors and assigns, the “ Lenders ”), JPMorgan Chase Bank, N.A. (“ JPMorgan Chase ”), as administrative agent for the Lenders (in such capacity, the “ Agent ”), JPMorgan Chase, as swingline lender (in such capacity, the “ Swingline Lender ”), and JPMorgan Chase, Barclays Bank PLC (“ Barclays ”), The Royal Bank of Scotland plc (“ RBS ”), Bank of America, N.A. (“ Bank of America ”) and Citibank, N.A. (“ Citibank ”), as fronting banks for letters of credit issued hereunder.

WITNESSETH:

WHEREAS, the Borrower has requested that the Lenders, the Agent, the Swingline Lender and the Fronting Banks agree, on the terms and conditions set forth herein, to amend and restate the Revolving Credit Agreement, dated as of October 10, 2007, as amended as of August 4, 2011 (as amended, the “ Prior Credit Agreement ”), among the Borrower, JPMorgan Chase, as administrative agent, and the banks, financial institutions and other institutional lenders party thereto. The Lenders, the Agent, the Swingline Lender and the Fronting Banks have indicated their willingness to amend and restate the Prior Credit Agreement on the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree that the Prior Credit Agreement is amended and restated as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

SECTION 1.01. Defined Terms .

As used in this Agreement, the following terms shall have the meanings specified below:

ABR Borrowing ” shall mean a Borrowing comprised of ABR Loans.

ABR Loan ” shall mean any Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II or any Eurodollar Loan Converted to a Loan bearing interest at a rate determined by reference to the Alternate Base Rate and in any event shall include all Swingline Loans.

Additional Commitment Lender ” shall have the meaning given such term in Section 2.20(d).

Additional Lender ” shall have the meaning given such term in Section 2.19(a).

Administrative Fees ” shall have the meaning given such term in Section 2.04(e).


Affiliate ” shall mean, when used with respect to a specified Person, another Person that directly or indirectly controls or is controlled by or is under common control with the Person specified.

Agent ” shall have the meaning given such term in the preamble hereto.

Agent Party and Agent Parties shall have the meaning given such terms in Section 8.17(e).

Agreement ” shall have the meaning given such term in the preamble hereto.

Alternate Base Rate ” shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (i) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%, (ii) the Prime Rate in effect on such day and (iii) BBA LIBOR for deposits in dollars at approximately 11:00 a.m. (London time) on such day for a term of one month plus 1% (the “ One-Month LIBO Rate ”). For purposes hereof, “ Prime Rate ” shall mean the rate of interest per annum publicly announced from time to time by JPMorgan Chase as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective on the date such change is publicly announced as effective; and “ Federal Funds Effective Rate ” shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as released on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so released for any day which is a Business Day, the arithmetic average (rounded upwards to the next 1/100th of 1%), as determined by JPMorgan Chase, of the quotations for the day of such transactions received by JPMorgan Chase from three Federal funds brokers of recognized standing selected by it. If for any reason JPMorgan Chase shall have determined (which determination shall be conclusive absent manifest error; provided that JPMorgan Chase shall, upon request, promptly provide to the Borrower a certificate setting forth in reasonable detail the basis for such determination) that it is unable to ascertain the Federal Funds Effective Rate or the One-Month LIBO Rate for any reason, including the inability of JPMorgan Chase to obtain sufficient quotations in accordance with the terms thereof, the Alternate Base Rate shall be determined without regard to clause (i) or (iii), as applicable, of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the One-Month LIBO Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the One-Month LIBO Rate, respectively.

Anniversary Date ” shall have the meaning given such term in Section 2.20(a)

Applicable Law ” shall mean, as to any Person, any law (including common law), statute, regulation, ordinance, rule, order, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority (including the PUCT, ERCOT and FERC), in each case applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property or assets is subject. Applicable Law shall also include commitments, undertakings and stipulations set forth in the final Order on Rehearing in PUCT Docket No. 34077 (April 24, 2008) and final Order Authorizing Disposition of Jurisdictional Facilities in FERC Docket No. EC07-87-000 (September 6, 2007).

 

-2-


Applicable Margin ” shall mean, at any time and for any Type of Loan, the percentage per annum set forth below corresponding to such Type of Loan in the column under the Applicable Rating Level at such time. At any time an Event of Default has occurred and is continuing, the Applicable Margins set forth below shall be increased for each Applicable Rating Level by 2.00% with respect to overdue principal.

 

Applicable Rating Level

  

1

 

 

2

 

 

3

 

 

4

 

 

5

 

Percentage Per Annum

  

 

 

 

 

Eurodollar Loan

  

 

1.000

 

 

1.125

 

 

1.250

 

 

1.500

 

 

1.750

ABR Loan

  

 

0

 

 

0.125

 

 

0.250

 

 

0.500

 

 

0.750

Applicable Rating Level ” shall mean, at any time, the level set forth below in the row next to the then applicable Debt Ratings. If there is a difference of one level in the Debt Ratings, then the higher Debt Rating shall be used for purposes of determining the Applicable Rating Level, and if there is a difference of more than one level in the Debt Ratings, then the Debt Rating one level higher than the lower Debt Rating will be used for purposes of determining the Applicable Rating Level. Any change in the Applicable Rating Level shall be effective on the date on which the applicable rating agency announces any change in the applicable Debt Rating.

 

S&P Debt Rating
Moody’s Debt Rating

  

Applicable
Rating Level

A or better A2 or better

  

1

A- or better A3 or better

  

2

BBB+ Baal

  

3

BBB Baa2

  

4

Equal to or below BBB-* Equal to or below Baa3*

  

5

 

*

or unrated

Approved Fund ” shall mean any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.

 

-3-


Assignment and Assumption ” shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 8.04), and accepted by the Agent, in substantially the form of Exhibit A.

Authorized Officer ” shall mean the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Treasurer, the Assistant Treasurer, with respect to certain limited liability companies or partnerships that do not have officers, any manager, managing member or general partner thereof, any other senior officer of the Borrower designated as such in writing to the Agent by the Borrower and, with respect to any document delivered on the Closing Date, the Secretary or the Assistant Secretary of the Borrower. Any document delivered hereunder that is signed by an Authorized Officer shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of the Borrower and such Authorized Officer shall be conclusively presumed to have acted on behalf of the Borrower.

Auto-Extension Letter of Credit ” shall have the meaning given such term in Section 2.17(j).

Available Commitment ” shall mean, for each Lender, the excess of such Lender’s Commitment over such Lender’s Outstanding Credits.

Available Commitments ” shall refer to the aggregate of the Lenders’ Available Commitments.

Bankruptcy Code ” shall have the meaning given such term in Section 2.13(a).

Bankruptcy Event ” shall mean, with respect to any Person, such Person has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority, provided , further , that such ownership interest does not result in or provide such Person 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 Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Bank of America ” shall have the meaning given such term in the preamble hereto.

Barclays ” shall have the meaning given such term in the preamble hereto.

BBA LIBOR ” shall have the meaning given such term in the definition of LIBO Rate.

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

 

-4-


Borrower ” shall have the meaning given such term in the preamble hereto.

Borrower Information ” shall have the meaning given to such term in Section 3.05(b).

Borrowing ” shall mean (i) the incurrence of a Swingline Loan from the Swingline Lender on a given date and (ii) a group of Loans of a single Type made or Converted by the Lenders on a single date and as to which a single Interest Period is in effect.

Borrowing Request ” shall mean a request made pursuant to Section 2.03(a) substantially in the form of Exhibit B-1.

Business Day ” shall mean any day (other than a day that is a Saturday, Sunday or legal holiday in the City of New York) on which banks are open for business in New York City; provided , however , that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

Capitalization ” shall mean the total of all the following items appearing on, or included in, the Borrower’s unconsolidated balance sheet: (i) liabilities for Indebtedness maturing more than 12 months from the date of determination, and (ii) common stock, common stock expense, accumulated other comprehensive income or loss, preferred stock, preference stock, premium on common stock and retained earnings (however the foregoing may be designated), less, to the extent not otherwise deducted, the cost of shares of the Borrower’s capital stock held in the Borrower’s treasury, if any. Capitalization shall be determined in accordance with GAAP and practices applicable to the type of business in which the Borrower is engaged, and may be determined as of the date not more than 60 days prior to the happening of the event for which the determination is being made.

Cash Collateral Account ” shall have the meaning given such term in Article VI.

“Cash Management Agreement ” shall mean any agreement or arrangement to provide Cash Management Services.

Cash Management Bank ” shall mean any Person that either (x) at the time it enters into a Cash Management Agreement or provides Cash Management Services is a Lender or an Affiliate of a Lender or (y) with respect to Cash Management Agreements entered into prior to the Closing Date, was, immediately prior to the Closing Date, a Lender or an Affiliate of a Lender (as such terms were defined in the Prior Credit Agreement), in each case, in its capacity as a party to such Cash Management Agreement or a provider of such Cash Management Services.

Cash Management Services ” shall mean treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer (including automated clearing house fund transfer services) and other cash management services.

Change in Control ” shall mean and be deemed to have occurred if any Person or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial ownership of a percentage

 

-5-


of the voting power of the outstanding Voting Shares of the Borrower that exceeds 35% thereof, unless the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the board of directors of EFH.

Change in Law ” shall mean the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (iii) 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.

Charges ” shall have the meaning given such term in Section 8.14(a).

Citibank ” shall have the meaning given such term in the preamble hereto.

Closing Date ” shall mean October 11, 2011.

Code ” shall mean the Internal Revenue Code of 1986, as the same may be amended from time to time.

Collateral ” shall mean all property pledged, mortgaged or purported to be pledged or mortgaged pursuant to the Security Documents.

Collateral Agent ” shall mean The Bank of New York Mellon Trust Company, N.A., as successor to The Bank of New York Mellon (formerly The Bank of New York) as collateral agent under the Mortgage, or any other successor collateral agent.

Commitment ” shall mean, with respect to any Lender, the commitment of such Lender in an amount set forth in Schedule 2.01 hereto to make Revolving Credit Loans and in the case of the Swingline Lender, Swingline Loans, and to purchase participations in Letters of Credit and Swingline Loans as such Commitment may be permanently terminated or reduced from time to time pursuant to Section 2.08, increased pursuant to Section 2.19, extended pursuant to Section 2.20 or modified from time to time pursuant to Section 8.04. The Commitment of each Lender shall automatically and permanently terminate on the Commitment Termination Date of such Lender if not terminated earlier pursuant to the terms hereof.

Commitment Fee ” shall have the meaning given such term in Section 2.04(a).

Commitment Fee Percentage ” shall mean, at any time, the percentage per annum set forth below in the column under the Applicable Rating Level at such time.

 

-6-


Applicable Rating Level

  

1

 

 

2

 

 

3

 

 

4

 

 

5

 

Percentage Per Annum

  

 

 

 

 

Commitment Fee

  

 

0.100

 

 

0.125

 

 

0.175

 

 

0.225

 

 

0.275

Commitment Termination Date ” shall mean October 11, 2016 or such later date that may be established for any Lender pursuant to Section 2.20.

Communications ” shall have the meaning given such term in Section 8.17(a).

Confidential Information ” shall have the meaning given such term in Section 8.16.

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 Senior Debt ” shall mean the Senior Debt (other than the Qualified Transition Bonds) of the Borrower and its Consolidated Subsidiaries determined on a consolidated basis.

Consolidated Shareholders’ Equity ” shall mean the sum (without duplication) of (i) total common stock or common members’ interest plus (ii) preferred and preference stock or preferred members’ interest not subject to mandatory redemption, each (in the case of clauses (i) and (ii)) determined with respect to the Borrower and its Consolidated Subsidiaries on a consolidated basis, plus (iii) Equity-Credit Preferred Securities in an aggregate liquidation preference amount not in excess of $1,000,000,000; provided , however , that in computing Consolidated Shareholders’ Equity at any time, the following shall be added to the extent that the following decreased total common members’ interest: any cash and non-cash charges, in an amount of up to $250,000,000 (calculated on an aggregate basis throughout the term of this Agreement), as a result of (x) rulings by state regulatory bodies having jurisdiction over the Borrower or its Consolidated Subsidiaries and (y) the early retirement, repurchase or termination of debt or other securities or financing arrangements, including premiums, relating to liability management activities.

Consolidated Subsidiary ” of any Person shall mean at any date any Subsidiary or other entity the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements as of such date; provided , however , that Qualified Transition Bond Issuers and Subsidiaries of Qualified Transition Bond Issuers shall not be deemed to be Consolidated Subsidiaries of the Borrower.

Consolidated Total Capitalization ” shall mean the sum of (i) Consolidated Shareholders’ Equity, (ii) Consolidated Senior Debt and (iii) Subordinated Obligations excluded from the calculation of Senior Debt.

 

-7-


Controlled Group ” shall mean all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414(b) or 414(c) of the Code.

Conversion Notice ” shall mean a request made pursuant to Section 2.03(b) substantially in the form of Exhibit B-2.

Convert ”, “ Conversion ” and “ Converted ” each shall refer to a conversion of Revolving Credit Loans of one Type into Revolving Credit Loans of the other Type (or a combination of Types) or Revolving Credit Loans of the same Type having the same or a new Interest Period or the selection of a new, or the renewal of the same, Interest Period for Eurodollar Loans, pursuant to Section 2.03, 2.07 or 2.11(a)(ii).

Credit Documents ” shall mean this Agreement, the Security Documents, the Letter Agreements and any promissory notes issued by the Borrower hereunder.

Credit Parties ” shall mean the Agent, the Collateral Agent, the Swingline Lender, the Fronting Banks and the Lenders.

Debt Ratings ” shall mean the ratings (whether explicit or implied) assigned by S&P and Moody’s to the senior secured non-credit enhanced long term debt of the Borrower.

Default ” shall mean any event or condition, which upon notice, lapse of time or both would constitute an Event of Default.

Defaulting Lender ” shall mean any Lender that (i) has failed, within three Business Days of the date required to be funded or paid, to (A) fund any portion of its Loans, (B) fund any portion of its participations in Letters of Credit or Swingline Loans or (C) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (A) above, such Lender notifies the Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) has notified any Borrower or the Agent, any Fronting Bank or the Swingline Lender in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied), (iii) has failed, within three Business Days after written request by the Agent, any Fronting Bank or the Swingline Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet its obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon the Agent’s, such Fronting Bank’s or such Swingline Lender’s (as applicable) receipt of such certification in form and substance reasonably satisfactory to it and the Agent, or (iv) has, or has a Lender Parent that has, become the subject of a Bankruptcy Event.

 

-8-


Designated Cash Management Agreement ” shall mean a Cash Management Agreement entered into on or after the Closing Date with respect to which the obligations of the Borrower or any of its Subsidiaries thereunder are designated by the parties thereto as constituting “Obligations” hereunder.

Designated Hedging Agreement ” shall mean a Hedging Agreement entered into on or after the Closing Date with respect to which the obligations of the Borrower or any of its Subsidiaries thereunder are designated by the parties thereto as constituting “Obligations” hereunder.

dollars ” or “ $ ” shall mean lawful money of the United States of America.

Drawing ” shall mean a drawing by a beneficiary under any Letter of Credit.

EFH ” shall mean Energy Future Holdings Corp., a Texas corporation, and its successors.

Eligible Assignee ” shall mean any Person that meets the requirements to be an assignee under Section 8.04(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 8.04(b)(iii)).

Equity-Credit Preferred Securities ” shall mean securities, however denominated, (i) issued by the Borrower or a Consolidated Subsidiary of the Borrower, (ii) that are not subject to mandatory redemption or the underlying securities, if any, of which are not subject to mandatory redemption, (iii) that are perpetual or mature no less than 30 years from the date of issuance, (iv) the indebtedness issued in connection with which, including any guaranty, is subordinate in right of payment to the unsecured and unsubordinated indebtedness of the issuer of such indebtedness or guaranty, and (v) the terms of which permit the deferral of the payment of interest or distributions thereon to a date occurring after the latest Commitment Termination Date of the Lenders.

Equity Interests ” of any Person shall mean the shares of common stock and other voting capital stock or other voting ownership interests having ordinary voting power to vote in the election of the board of directors or other governing body performing similar functions (except directors’ qualifying shares) of such Person.

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

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

ERISA Affiliate ” shall mean any trade or business (whether or not incorporated) that is a member of a group of (i) organizations described in Section 414(b) or (c) of the Code and (ii) solely for purposes of the Lien created under Section 412(n) of the Code, organizations described in Section 414(m) or (o) of the Code of which the Borrower or any Subsidiary is a member.

 

-9-


ERISA Event ” shall mean (i) any Reportable Event; (ii) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; (iii) the receipt by the Borrower or any ERISA Affiliate from the PBGC of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (iv) the receipt by the Borrower or any ERISA Affiliate of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; and (v) the occurrence of a nonexempt “prohibited transaction” as defined in Section 4975(c) of the Code or Section 406 of ERISA with respect to which the Borrower or any of its Subsidiaries is liable.

Eurocurrency Liabilities ” shall have the meaning given such term in Regulation D of the Board, as in effect from time to time.

Eurodollar Borrowing ” shall mean a Borrowing comprised of Eurodollar Loans.

Eurodollar Loan ” shall mean any Revolving Credit Loan bearing interest at a rate determined by reference to the LIBO Rate in accordance with the provisions of Article II.

Event of Default ” shall have the meaning given such term in Article VI.

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

Excluded Taxes ” shall mean any of the following Taxes imposed on or with respect to a Credit Party or required to be withheld or deducted from a payment to a Credit Party, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (A) imposed as a result of such Credit Party being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (B) that are Other Connection Taxes, (ii) in the case of a Lender (which for purposes of this clause (ii) shall include any Fronting Bank and the Swingline 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 (A) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment requested by the Borrower under Section 2.16) or (B) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.15, 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, (iii) Taxes attributable to such Credit Party’s failure to comply with Section 2.15(g) and (iv) any U.S. federal withholding Taxes imposed under FATCA.

Existing Commitment Termination Date ” shall have the meaning given such term in Section 2.20(a).

 

-10-


Existing Notes ” shall mean:

 

 

 

$375,595,000 aggregate principal amount of the Borrower’s 6.375% Senior Secured Notes due 2012;

 

 

 

$523,722,000 aggregate principal amount of the Borrower’s 5.950% Senior Secured Notes due 2013;

 

 

 

$500,000,000 aggregate principal amount of the Borrower’s 6.375% Senior Secured Notes due 2015;

 

 

 

$324,405,000 aggregate principal amount of the Borrower’s 5.000% Senior Secured Notes due 2017;

 

 

 

$550,000,000 aggregate principal amount of the Borrower’s 6.800% Senior Secured Notes due 2018;

 

 

 

$126,278,000 aggregate principal amount of the Borrower’s 5.750% Senior Secured Notes due 2020;

 

 

 

$800,000,000 aggregate principal amount of the Borrower’s 7.000% Debentures due 2022;.

 

 

 

$500,000,000 aggregate principal amount of the Borrower’s 7.000% Senior Secured Notes due 2032;

 

 

 

$350,000,000 aggregate principal amount of the Borrower’s 7.250% Senior Secured Notes due 2033;

 

 

 

$300,000,000 aggregate principal amount of the Borrower’s 7.500% Senior Secured Notes due 2038; and

 

 

 

$475,000,000 aggregate principal amount of the Borrower’s 5.250% Senior Secured Notes due 2040.

Extension Date shall have the meaning given such term in Section 2.20(d).

Extension of Credit ” shall mean (i) the making of a Revolving Credit Loan, (ii) the issuance of a Letter of Credit or the amendment of any Letter of Credit having the effect of extending the stated termination date thereof or increasing the maximum amount available to be drawn thereunder or (iii) the making of a Swingline Loan.

FATCA ” shall mean 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.

Federal Funds Effective Rate ” shall have the meaning given such term in the definition of “Alternate Base Rate”.

 

-11-


Fee Letters shall mean (i) the Amended and Restated Fee Letter, dated as of October 7, 2011, among Barclays, RBS, RBS Securities Inc. and the Borrower, (ii) the Fee Letter, dated as of September 7, 2011, among J.P. Morgan Securities LLC, JPMorgan Chase and the Borrower, relating to agency fees, (iii) the Fee Letter, dated as of September 7, 2011, among J.P. Morgan Securities LLC, JPMorgan Chase and the Borrower, relating to arrangement fees, (iv) the Fee Letter, dated as of September 6, 2011, among Bank of America, Merrill Lynch, Pierce, Fenner & Smith Incorporated and the Borrower, (v) the Fee Letter, dated as of September 7, 2011, between Citigroup Global Markets Inc. and the Borrower, (vi) the Fee Letter, dated as of September 9, 2011, between Credit Suisse AG, Cayman Islands Branch and the Borrower, and (vii) the Fee Letter, dated as of September 8, 2011, among Morgan Stanley Bank, N.A., Morgan Stanley Senior Funding, Inc. and the Borrower, each as amended, modified or supplemented from time to time.

Fees ” shall mean the Commitment Fee, the Administrative Fees, the Fronting Fees, the LC Fee and any other fees provided for in the Fee Letters.

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

Financial Officer ” of any corporation or limited liability company shall mean the chief financial officer, principal accounting officer, treasurer, associate or assistant treasurer, or any responsible officer designated by one of the foregoing Persons, of such corporation or limited liability company.

Foreign Lender ” shall mean a Lender that is not a U.S. Person.

Fronting Bank Termination Date ” shall mean, with respect to any Fronting Bank, the date that is three Business Days before the Commitment Termination Date in effect for the Lender (or its Affiliate) that is also such Fronting Bank or such earlier date designated by such Fronting Bank pursuant to Section 2.20(h) in connection with any extension of the Commitment Termination Date.

Fronting Banks ” shall mean (i) JPMorgan Chase, Barclays, RBS, Bank of America and Citibank and (ii) any Affiliate of any Person listed in clause (i) as may be designated by such Person and any other Lender or Affiliate of any Lender, in each case, having a long-term credit rating acceptable to the Borrower (and, in the case of any such Affiliate, being otherwise reasonably acceptable to the Borrower) that delivers an instrument in form and substance satisfactory to the Borrower and the Agent whereby such other Lender or Affiliate agrees to act as a “Fronting Bank” hereunder and states the amount of its LC Fronting Bank Commitment.

Fronting Fee ” shall have the meaning given such term in Section 2.04(c).

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

GAAP ” shall mean generally accepted accounting principles, applied on a consistent basis.

 

-12-


Governmental Authority ” shall mean any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.

Hedge Bank ” shall mean any Person (other than the Borrower or any Subsidiary of the Borrower) that, either (x) at the time it enters into a Hedging Agreement is a Lender or an Affiliate of a Lender or (y) with respect to any Hedging Agreement entered into prior to the Closing Date, was, immediately prior to the Closing Date, a Lender or an Affiliate of a Lender (as such terms were defined in the Prior Credit Agreement), in its capacity as a party to a Hedging Agreement.

Hedging Agreements ” shall mean (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, equity or equity index swaps or options, 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 (ii) 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.

Hedging Obligations ” shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.

Holdings ” shall mean Oncor Electric Delivery Holdings Company LLC.

Increase Effective Date ” shall have the meaning given such term in Section 2.19(a).

Increase Joinder ” shall have the meaning given such term in Section 2.19(c).

Incremental Commitment Increase ” shall have the meaning given such term in Section 2.19(a).

Indebtedness ” of any Person shall mean (without duplication) all indebtedness of such Person (i) for borrowed money or evidenced by bonds, indentures, notes or other similar instruments, (ii) to pay the deferred purchase price of property or services (excluding trade payables in the ordinary course of business that are not more than 60 days overdue) that in accordance with GAAP would be included as a liability on the balance sheet of such Person, (iii) as lessee for the principal component of all leases that are recorded as capital leases, (iv) under reimbursement agreements or similar agreements with respect to the issuance of letters of credit (other than obligations in respect of letters of credit opened to provide for the payment of goods or services purchased in the ordinary course of business), (v) in respect of Indebtedness of others secured by a Lien on any asset of such Person (with the Indebtedness of such Person described in this clause (v) deemed to be equal to the lesser of (a) the aggregate unpaid amount of such Indebtedness and (b) the fair market value of the property encumbered thereby as determined by such Person in

 

-13-


good faith), (vi) all net payment obligations of such Person in respect of interest rate swap agreements, currency swap agreements and other similar agreements designed to hedge against fluctuations in interest rates or foreign exchange rates and (vii) under direct or indirect guaranties in respect of, and to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, liabilities, obligations or indebtedness of others of the kinds referred to in clauses (i) through (vi) above (provided that this clause (vii) shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness)); provided , however , that for all purposes, the following shall be excluded from the definition of “Indebtedness”: (A) Qualified Transition Bonds (including interest rate swaps entered into by any Qualified Transition Bond Issuer of the Borrower in connection with Qualified Transition Bonds issued by such Qualified Transition Bond Issuer), (B) amounts payable from the Borrower to an Affiliate in connection with nuclear decommissioning costs, retail clawback or other regulatory transition issues and (C) any Indebtedness defeased by such Person or by any Subsidiary of such Person.

Indemnified Taxes ” shall mean (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Credit Document and (ii) to the extent not otherwise described in (i), Other Taxes.

Indemnitee ” shall have the meaning given such term in Section 8.05(c).

Indentures ” shall mean the indentures for the Existing Notes and any supplements, amendments or replacements of such indentures.

Interest Payment Date ” shall mean, with respect to any Loan (including any Swingline Loan), the last day of the Interest Period applicable thereto and, in the case of a Eurodollar Loan with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date for such Loan had successive Interest Periods of three months’ duration or 90 days’ duration, as the case may be, been applicable to such Loan and, in addition, the date of any prepayment of such Loan or Conversion of such Revolving Credit Loan to a Revolving Credit Loan of a different Type.

Interest Period ” shall mean (i) as to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 (or, if agreed to by all Lenders hereunder, 9 or 12) months (or, if agreed to by all Lenders hereunder, a period shorter than 1 month) thereafter, and (ii) as to any ABR Borrowing, the period commencing on the date of such Borrowing and ending on the earliest of (A) the next succeeding March 31, June 30, September 30 or December 31, (B) the Commitment Termination Date of any Lender, and (C) the date such Borrowing is repaid or prepaid in accordance with Section 2.05, Section 2.08(b) or Section 2.09; provided , however , that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of Eurodollar Loans only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

 

-14-


Joint Lead Arranger ” shall have the meaning given such term in the Letter Agreements.

JPMorgan Chase ” shall have the meaning given such term in the preamble hereto.

LC Fee ” shall have the meaning given such term in Section 2.04(b).

LC Fronting Bank Commitment ” shall mean, with respect to any Fronting Bank, the aggregate stated amount of all Letters of Credit that such Fronting Bank agrees to issue, as modified from time to time pursuant to agreement among such Fronting Bank, the Borrower and the Agent. With respect to each Person that is a Fronting Bank on the date hereof, such Fronting Bank’s LC Fronting Bank Commitment shall equal such Fronting Bank’s “LC Fronting Bank Commitment” listed on Schedule 2.17(i) (as modified from time to time in a written agreement between such LC Fronting Bank and the Borrower) and, with respect to any Person that becomes a Fronting Bank after the date hereof, such Person’s LC Fronting Bank Commitment shall equal the amount agreed upon between the Borrower and such Person at the time such Person becomes a Fronting Bank.

LC Outstandings ” shall mean, on any date of determination, the sum of (i) the Stated Amounts of all Letters of Credit that are outstanding on such date and (ii) the aggregate principal amount of all unpaid reimbursement obligations of the Borrower on such date with respect to payments made by the Fronting Banks under Letters of Credit (excluding reimbursement obligations that have been repaid with the proceeds of any Loan). A Lender’s “LC Outstandings” shall mean such Lender’s participation interest in the Stated Amount of Letters of Credit and its Percentage of all unpaid reimbursement obligations in respect of the Letters of Credit.

LC Payment Notice ” shall have the meaning given such term in Section 2.17(d).

Lender Extension Notice Date ” shall have the meaning given such term in Section 2.20(b).

Lender Parent ” shall mean, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a Subsidiary.

Lenders ” shall have the meaning given such term in the preamble hereto. Unless the context clearly indicates otherwise, the term “Lenders” shall include the Swingline Lender.

Letter Agreements ” shall mean (i) the Commitment Letter, dated as of September 2, 2011, among Barclays, RBS, RBS Securities Inc. and the Borrower, (ii) the Joinder Agreement, dated as of September 7, 2011, among J.P. Morgan Securities LLC, JPMorgan Chase and the Borrower, (iii) the Joinder Agreement, dated as of September 6, 2011, among Bank of America, Merrill Lynch, Pierce, Fenner & Smith Incorporated and the Borrower, (iv) the Joinder Agreement, dated as of September 7, 2011, between Citigroup Global Markets Inc. and the Borrower, (v) the Joinder Agreement, dated as of September 9, 2011, between Credit Suisse AG, Cayman Islands Branch and the Borrower, (vi) the Joinder Agreement, dated as of September 8, 2011, among Morgan Stanley Bank, N.A., Morgan Stanley Senior Funding, Inc. and the Borrower, and (vii) the Fee Letters, each as amended, modified or supplemented from time to time.

 

-15-


Letter of Credit ” shall mean a standby letter of credit that is issued by a Fronting Bank pursuant to a Request for Issuance, as such letter of credit may from time to time be amended, modified or extended in accordance with the terms of this Agreement.

LIBO Rate ” shall mean, for any Interest Period with respect to a Eurodollar Borrowing, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the 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 deposits in dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be a rate per annum as may be agreed upon by the Borrower and the Agent to be a rate at which deposits in dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Borrowing being made, continued or converted by the Agent and with a term equivalent to such Interest Period would be offered by the Agent’s London Branch to major banks in the applicable London interbank Eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

Lien ” shall mean, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, any Person shall be deemed to own subject to a Lien any asset which it has acquired or holds (other than pursuant to an ordinary course consignment) subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

Loan ” shall mean a Revolving Credit Loan or a Swingline Loan.

Mandatory Borrowing ” shall have the meaning given such term in Section 2.18(d).

Material Adverse Change ” shall mean any circumstances or conditions affecting the business, assets, operations, properties or financial condition of the Borrower and its Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially adversely affect (a) the ability of the Borrower to perform its obligations under this Agreement or any of the other Credit Documents or (b) the rights and remedies of the Credit Parties under this Agreement or any of the other Credit Documents.

Maximum Rate ” shall have the meaning given such term in Section 8.14(a).

Moody’s ” shall mean Moody’s Investors Service, Inc.

Mortgage ” shall mean the Deed of Trust, Security Agreement and Fixture Filing, dated as of May 15, 2008 (as amended, modified and supplemented from time to time), by the Borrower as grantor, to and for the benefit of the Collateral Agent.

 

-16-


Mortgaged Property ” shall have the meaning given such term in the Mortgage.

Multiemployer Plan ” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any of the Borrower, any Subsidiary or any ERISA Affiliate is making, or accruing an obligation to make, contributions or with respect to which the Borrower, any Subsidiary or any ERISA Affiliate could incur liability under Title IV of ERISA.

Net Tangible Assets ” shall mean the amount shown as total assets on the Borrower’s unconsolidated balance sheet, less (i) intangible assets including, but without limitation, such items as goodwill, trademarks, trade names, patents, unamortized debt discount and expense and other regulatory assets carried as an asset on the Borrower’s unconsolidated balance sheet, and (ii) appropriate adjustments, if any, on account of minority interests. Net Tangible Assets shall be determined in accordance with GAAP and practices applicable to the type of business in which the Borrower is engaged.

Non-Consenting Lender ” shall mean any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders in accordance with the terms of Section 8.08 and (ii) has been approved by the Required Lenders.

Non-Dilutive Subsidiary ” of any Person and with respect to any Subsidiary of such Person (the “ original Subsidiary ”) shall mean any other Subsidiary of such Person if the percentage of the Equity Interests held by such Person in such other Subsidiary is at least as great as the percentage of the Equity Interests held by such Person in such original Subsidiary.

Non-Extending Lender ” shall have the meaning given such term in Section 2.20(b).

Non-Extension Notice Date ” shall have the meaning given such term in Section 2.17(j).

Obligations ” shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower and any of its Subsidiaries arising under any Credit Document or otherwise with respect to any Loan or Letter of Credit or under any Secured Cash Management Agreement or Secured Hedging Agreement, in each case, entered into with the Borrower or any Subsidiary of the Borrower, 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 the Borrower or such Subsidiary of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Borrower under the Credit Documents (and any of its Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by the Borrower under any Credit Document.

One-Month LIBO Rate ” shall have the meaning given such term in the definition of “Alternate Base Rate”.

 

-17-


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

Other Taxes ” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).

Outstanding Credits ” of any Lender shall mean, on any date of determination, an amount equal to (i) the aggregate principal amount of all outstanding Revolving Credit Loans made by such Lender plus (ii) such Lender’s LC Outstandings on such date plus (iii) such Lender’s Swingline Outstandings on such date.

Participant ” shall have the meaning given such term in Section 8.04(d).

Participant Register ” shall have the meaning given such term in Section 8.04(d).

Participating Receivables Grantor ” shall mean the Borrower or any Subsidiary that is or that becomes a participant or originator in a Permitted Receivables Financing.

Patriot Act ” shall have the meaning given such term in Section 8.20.

Payment Date ” shall mean the date on which payment of a Drawing is made by a Fronting Bank.

PBGC ” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

Percentage ” shall mean, for any Lender on any date of determination, the percentage obtained by dividing such Lender’s Commitment on such date by the Total Commitment on such date.

Permitted Encumbrances ” shall mean, as to any Person at any date, any of the following:

(i) (A) Liens for taxes, assessments or governmental charges not then delinquent and Liens for workers’ compensation awards and similar obligations not then delinquent and undetermined Liens or charges incidental to construction, Liens for taxes, assessments or governmental charges then delinquent but the validity of which is being contested at the time by such Person in good faith against which an adequate reserve has been established, with respect to which levy and execution thereon have been stayed and

 

-18-


continue to be stayed and that do not impair the use of the property or the operation of such Person’s business, (B) Liens incurred or created in connection with or to secure the performance of bids, tenders, contracts (other than for the payment of money), leases, statutory obligations, surety bonds or appeal bonds, and mechanics’ or materialmen’s Liens, assessments or similar encumbrances, the existence of which does not impair the use of the property subject thereto for the purposes for which it was acquired, and other Liens of like nature incurred or created in the ordinary course of business;

(ii) Liens securing indebtedness, neither assumed nor guaranteed by such Person nor on which it customarily pays interest, existing upon real estate or rights in or relating to real estate acquired by such Person for any substation, transmission line, transportation line, distribution line, right of way or similar purpose;

(iii) rights reserved to or vested in any municipality or public authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to terminate such right, power, franchise, grant, license or permit or to purchase or recapture or to designate a purchaser of any of the property of such Person;

(iv) rights reserved to or vested in others to take or receive any part of the power, gas, oil, coal, lignite or other minerals or timber generated, developed, manufactured or produced by, or grown on, or acquired with, any property of such Person and Liens upon the production from property of power, gas, oil, coal, lignite or other minerals or timber, and the by-products and proceeds thereof, to secure the obligations to pay all or a part of the expenses of exploration, drilling, mining or development of such property only out of such production or proceeds;

(v) easements, licenses, restrictions, exceptions or reservations in any property and/or rights of way of such Person for the purpose of roads, pipe lines, substations, transmission lines, transportation lines, distribution lines, removal of oil, gas, lignite, coal or other minerals or timber, and other like purposes, or for the joint or common use of real property, rights of way, facilities and/or equipment, and defects, irregularities and deficiencies in titles of any property and/or rights of way, which do not materially impair the use of such property and/or rights of way for the purposes for which such property and/or rights of way are held by such Person;

(vi) rights reserved to or vested in any municipality or public authority to use, control or regulate any property of such Person;

(vii) any obligations or duties, affecting the property of such Person, to any municipality or public authority with respect to any franchise, grant, license or permit;

(viii) as of any particular time any controls, Liens, restrictions, regulations, easements, exceptions or reservations of any municipality or public authority applying particularly to space satellites or nuclear fuel;

(ix) any judgment Lien against such Person securing a judgment for an amount not exceeding 25% of Consolidated Shareholders’ Equity of such Person, so long as the finality of such judgment is being contested by appropriate proceedings conducted in good faith and execution thereon is stayed;

 

-19-


(x) any Lien arising by reason of deposits with or giving of any form of security to any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, for any purpose at any time as required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege or license, or to enable such Person to maintain self-insurance or to participate in any fund for liability on any insurance risks or in connection with workers’ compensation, unemployment insurance, old age pensions or other social security or to share in the privileges or benefits required for companies participating in such arrangements;

(xi) any landlords’ Lien on fixtures or movable property located on premises leased by such Person in the ordinary course of business so long as the rent secured thereby is not in default; or

(xii) any Lien of the Agent on the Cash Collateral Account.

Permitted Holders ” shall mean any of Kohlberg Kravis Roberts & Co., L.P., KKR Associates, L.P., TPG Capital, L.P., J.P. Morgan Ventures Corporation, Citigroup Global Markets Inc., Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co. and LB I Group, and each of their respective Affiliates, but excluding portfolio companies of any of the foregoing.

Permitted Receivables Financing ” shall mean any of one or more receivables financing programs as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are limited recourse (except for representations, warranties, covenants and indemnities made in connection with such facilities) to the Borrower and its Subsidiaries (other than a Receivables Entity) providing for the sale, conveyance, or contribution to capital of Receivables Facility Assets by Participating Receivables Grantors in transactions purporting to be sales of Receivables Facility Assets to either (i) a Person that is not a Subsidiary or (ii) a Receivables Entity that in turn funds such purchase by the direct or indirect sale, transfer, conveyance, pledge, or grant of participation or other interest in such Receivables Facility Assets to a Person that is not a Subsidiary.

Permitted Sale Leaseback ” shall mean any Sale Leaseback existing on the Closing Date or consummated by the Borrower or any Subsidiary after the Closing Date; provided that any such Sale Leaseback consummated after the Closing Date not between the Borrower and one of its Subsidiaries is consummated for fair value as determined at the time of consummation in good faith by (i) the Borrower or such Subsidiary and (ii) in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $100,000,000, the board of directors of the Borrower or such Subsidiary (which such determination may take into account any retained interest or other investment of the Borrower or such Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

 

-20-


Permitted Transaction ” shall mean a transaction (i) for which all required approvals from each applicable Governmental Authority have been duly obtained, (ii) after which the Borrower will remain subject to “ring-fencing” measures substantially the same as the ring-fencing measures in effect on the Closing Date, unless such ring-fencing measures are (x) no longer required by the PUCT or (y) are modified by the PUCT, provided that, in the case of clause (y), the Borrower will maintain “ring-fencing” measures as required by the PUCT, (iii) that does not result in the Borrower’s Debt Rating issued by S&P being lower than BBB- (stable) or the Borrower’s Debt Rating issued by Moody’s being lower than Baa3 (stable), and (iv) at the time of and after giving effect to which, no Default shall have occurred and be continuing.

Person ” shall mean any natural person, corporation, business trust, joint venture, association, company, limited liability company, partnership or government, or any agency or political subdivision thereof.

Plan ” shall mean any employee pension benefit plan described under Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA that is maintained by the Borrower or any ERISA Affiliate.

“Platform” shall have the meaning given such term in Section 8.17(d).

Post-Increase Revolving Lenders ” shall have the meaning given such term in Section 2.19(d).

Pre-Increase Revolving Lenders ” shall have the meaning given such term in Section 2.19(d).

Prepayment Notice ” shall mean a notice given pursuant to Section 2.09(a) in substantially the form of Exhibit D.

Prime Rate” shall have the meaning given such term in the definition of “Alternate Base Rate”.

Prior Credit Agreement ” shall have the meaning given such term in the recital hereto.

“PUCT” shall mean the Public Utility Commission of Texas or any successor.

Qualified Transition Bond Issuer ” shall mean, with respect to the Borrower, (i) Oncor Electric Delivery Transition Bond Company LLC, (ii) the Borrower, (iii) a Subsidiary of the Borrower formed and operating solely for the purpose of (A) purchasing and owning transition property created under a “financing order” (as such term is defined in the Texas Utilities Code) issued by the PUCT, (B) issuing such securities pursuant to such order, (C) pledging its interests in such transition property to secure such securities and (D) engaging in activities ancillary to those described in (A), (B) and (C) or (iv) any directly or indirectly held Subsidiary of the Borrower formed and operating for purposes that include owning Oncor Electric Delivery Transition Bond Company LLC.

 

-21-


Qualified Transition Bonds ” of the Borrower shall mean securities, however denominated, that are (i) issued by a Qualified Transition Bond Issuer, (ii) secured by or otherwise payable from transition charges authorized pursuant to the financing order referred to in clause (iii) (A) of the definition of “Qualified Transition Bond Issuer”, and (iii) non-recourse to the Borrower or any of its Consolidated Subsidiaries (other than the issuer of such securities).

RBS ” shall have the meaning given such term in the preamble hereto.

Receivables Entity ” shall mean any Person formed solely for the purpose of (i) facilitating or entering into one or more Permitted Receivables Financings, and (ii) in each case, engaging in activities reasonably related or incidental thereto.

Receivables Facility Assets ” shall mean presently existing and hereafter arising or originated Accounts, Payment Intangibles and Chattel Paper (as each such term is defined in the Uniform Commercial Code in effect in the State of New York from time to time) owed or payable to any Participating Receivables Grantor, and to the extent related to or supporting any Accounts, Chattel Paper or Payment Intangibles, or constituting a receivable, all General Intangibles and other forms of obligations and receivables owed or payable to any Participating Receivables Grantor, including the right to payment of any interest, finance charges, late payment fees or other charges with respect thereto (the foregoing, collectively, being “receivables”), all of such Participating Receivables Grantor’s rights as an unpaid vendor (including rights in any goods the sale of which gave rise to any receivables), all security interests or liens and property subject to such security interests or liens from time to time purporting to secure payment of any receivables or other items described in this definition, all guarantees, letters of credit, security agreements, insurance and other agreements or arrangements from time to time supporting or securing payment of any receivables or other items described in this definition, all customer deposits with respect thereto, all rights under any contracts giving rise to or evidencing any receivables or other items described in this definition, and all documents, books, records and information (including computer programs, tapes, disks, data processing software and related property and rights) relating to any receivables or other items described in this definition or to any obligor with respect thereto, and all proceeds of the foregoing.

Register ” shall have the meaning given such term in Section 8.04(c).

Related Parties ” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.

Reportable Event ” shall mean any reportable event as defined in Sections 4043(c)(1)-(8) of ERISA or the regulations issued thereunder (other than a reportable event for which the 30 day notice requirement has been waived) with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).

 

-22-


Request for Issuance ” shall mean a request for issuance of a Letter of Credit given pursuant to Section 2.17(a) in substantially the form of Exhibit C.

Required Lenders ” shall mean, at any time, Lenders having Commitments representing in excess of 50% of the Total Commitment or, (i) for purposes of acceleration pursuant to clause (ii) of the first paragraph of Article VI, or (ii) if the Total Commitment has been terminated, Lenders with Outstanding Credits in excess of 50% of the aggregate amount of Outstanding Credits.

Required Reimbursement Date ” shall have the meaning given such term in Section 2.17(c)(i).

Revolving Credit Loan ” shall mean a Loan made pursuant to Section 2.02, whether made as a Eurodollar Loan or as an ABR Loan.

S&P ” shall mean Standard & Poor’s Ratings Services (a division of The McGraw-Hill Companies, Inc.).

Sale Leaseback ” shall mean any transaction or series of related transactions pursuant to which the Borrower or one of its Subsidiaries (i) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (ii) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

SEC ” shall mean the Securities and Exchange Commission.

“Secured Cash Management Agreement ” shall mean any Cash Management Agreement that (i) is entered into by and between the Borrower or any Subsidiary of the Borrower and any Cash Management Bank and (ii) either (x) was entered into prior to the Closing Date and remains in effect on the Closing Date or (y) is a Designated Cash Management Agreement.

Secured Hedging Agreement ” shall mean any Hedging Agreement that (i) is entered into by and between the Borrower or any Subsidiary of the Borrower and any Hedge Bank and (ii) either (x) was entered into prior to the Closing Date and remains in effect on the Closing Date or (y) is a Designated Hedging Agreement.

Secured Parties ” shall mean the Agent, the Collateral Agent, the Fronting Banks, each Lender, each Hedge Bank that is party to any Secured Hedging Agreement, each Cash Management Bank that is party to a Secured Cash Management Agreement and each other Person that is a “Secured Party”, as defined in the Mortgage.

Security Documents ” shall mean, collectively, (i) the Mortgage and (ii) each other instrument or document executed and delivered pursuant to Section 5.12 or pursuant to any other such Security Documents or otherwise to secure or perfect the security interest in any or all of the Obligations.

 

-23-


Senior Debt ” of any Person shall mean (without duplication) (i) all Indebtedness of such Person described in clauses (i) through (iii) of the definition of “Indebtedness,” (ii) all Indebtedness of such Person described in clause (iv) of the definition of “Indebtedness” in respect of unreimbursed drawings under letters of credit described in such clause (iv), and (iii) all direct or indirect guaranties of such Person in respect of, and to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, liabilities, obligations or indebtedness of others of the kinds referred to in clauses (i) and (ii) above; provided , however , that in calculating “Senior Debt” of the Borrower, (x) any amount of Equity-Credit Preferred Securities not included in the definition of “Consolidated Shareholders Equity” shall be included and (y) all Subordinated Obligations shall be excluded.

Significant Disposition ” shall mean a sale, lease, disposition or other transfer by a Person, or any Subsidiary of such Person, during the period from the Closing Date until the latest Commitment Termination Date, of assets constituting, either individually or in the aggregate with all other assets sold, leased, disposed or otherwise transferred by such Person and its Consolidated Subsidiaries during such period, 30% or more of the assets of such Person and its Consolidated Subsidiaries taken as a whole, as reported on the most recent consolidated balance sheet of such Person prior to the date of such sale, lease, disposition or other transfer, excluding (i) any such sale, lease, disposition or other transfer to a Non-Dilutive Subsidiary of such Person, (ii) dispositions of accounts receivable in connection with the collection or compromise thereof, (iii) any dispositions of Receivables Facility Assets in connection with any Permitted Receivables Financing, and (iv) (A) any disposition of any assets required by any Governmental Authority or (B) other dispositions (other than dispositions of Collateral) pursuant to Permitted Sale Leaseback transactions so long as the aggregate consideration for all dispositions consummated pursuant to this clause (iv) after the Closing Date does not exceed $500,000,000.

Significant Subsidiary ” shall mean, at any time, any Subsidiary of the Borrower that as of such time has total assets in excess of 10% of the total assets of the Borrower and its Consolidated Subsidiaries.

Solvent ” shall mean, with respect to any Person as of a particular date, that on such date such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed as the amount which, in 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.

Specified Date ” shall have the meaning given that term in Section 2.20(c).

Stated Amount ” of any Letter of Credit at any time shall mean the maximum amount available to be drawn by the beneficiary under such Letter of Credit at such time, without regard to whether the applicable conditions for drawing have been met.

Subordinated Obligations ” shall mean obligations of any Person that are subordinate in right of payment and enforcement to the prior payment of the Obligations arising under the Credit Documents on the terms set forth in Schedule 5.12 or such other terms as are acceptable to the Required Lenders.

 

-24-


Subsidiary ” shall mean, with respect to any Person (the “ parent ”), any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such parent; provided , however , that Qualified Transition Bond Issuers and Subsidiaries of Qualified Transition Bond Issuers shall not be deemed to be Subsidiaries of the Borrower.

Substantial ” shall mean an amount in excess of l0% of the consolidated assets of the Borrower and its Consolidated Subsidiaries taken as a whole.

Swingline Commitment ” shall mean the commitment of the Swingline Lender to make loans pursuant to Section 2.18, as the same may be reduced from time to time pursuant to Section 2.08 or Section 2.18. The amount of the Swingline Commitment shall initially be $200,000,000, but shall in no event exceed the Total Commitment.

Swingline Lender ” shall have the meaning given such term in the preamble hereto and any successor thereto designated in accordance with Section 8.09.

Swingline Loan ” shall mean any Loan made by the Swingline Lender pursuant to Section 2.18.

Swingline Outstandings ” shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Outstandings of any Lender at any time shall equal its Percentage of the aggregate Swingline Outstandings at such time.

Swingline Termination Date ” shall mean the date that is three Business Days before the Commitment Termination Date in effect for the Lender that is also the Swingline Lender or such earlier date (i) designated at the option of the Swingline Lender pursuant to Section 2.20(h) in connection with any extension of the Commitment Termination Date or (ii) upon the resignation of the Swingline Lender pursuant to Section 8.09.

Taxes ” shall mean 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.

Total Commitment ” shall mean, at any time, the aggregate amount of Commitments of all the Lenders, as in effect at such time (including the Incremental Commitment Increase of any Lender that becomes a Post-Increase Revolving Lender pursuant to Section 2.19). The initial amount of the Total Commitment is $2,000,000,000.

Type ”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, “ Rate ” shall include the LIBO Rate and the Alternate Base Rate.

 

-25-


U.S. Person ” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate ” shall have the meaning given such term in Section 2.15(g)(ii)(B)(3).

Voting Shares ” shall mean, as to shares or other Equity Interests of a particular corporation or other type of Person, outstanding shares of stock or other Equity Interests of any class of such corporation or other Person entitled to vote in the election of directors or other comparable managers of such Person, excluding shares or other interests entitled so to vote only upon the happening of some contingency.

Wholly Owned Subsidiary ” of any Person shall mean any Consolidated Subsidiary of such Person all the shares of common stock and other Voting Shares (except directors’ qualifying shares) of which are at the time directly or indirectly owned by such Person.

Withdrawal Liability ” shall mean liability of the Borrower established under Section 4201 of ERISA as a result of a complete or partial withdrawal from a Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Withholding Agent ” shall mean the Borrower and the Agent.

SECTION 1.02. Terms Generally .

The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided , however , that for purposes of determining compliance with any covenant set forth in Article V, such terms shall be construed in accordance with GAAP as in effect on the date hereof applied on a basis consistent with the application used in preparing the Borrower’s audited financial statements referred to in Section 3.05. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Borrower or the Required Lenders shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

-26-


ARTICLE II

THE CREDITS

SECTION 2.01. Commitments .

(a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender and each Fronting Bank (as applicable) agrees, severally and not jointly, as follows: (i) each Lender agrees to make Revolving Credit Loans to the Borrower at any time and from time to time until the Commitment Termination Date of such Lender up to the amount of such Lender’s Available Commitment; (ii) each Fronting Bank agrees to issue Letters of Credit for the account of the Borrower at any time and from time to time until such Fronting Bank’s Fronting Bank Termination Date in an aggregate stated amount at any time outstanding not to exceed such Fronting Bank’s LC Fronting Bank Commitment; and (iii) each Lender agrees to purchase participations in such Letters of Credit as more fully set forth in Section 2.17.

Notwithstanding the foregoing, at no time shall (A) the aggregate amount of Outstanding Credits exceed the Total Commitment, (B) any Lender’s Outstanding Credits exceed the amount of such Lender’s Commitment and (C) any Fronting Bank make any Extension of Credit relating to a Letter of Credit if such Extension of Credit would cause (x) the aggregate amount of Outstanding Credits to exceed the Total Commitment or (y) the aggregate LC Outstandings relating to such Fronting Bank to exceed such Fronting Bank’s LC Fronting Bank Commitment.

(b) Within the foregoing limits, the Borrower may borrow, pay or prepay Revolving Credit Loans and request new Extensions of Credit on and after the date hereof and prior to the latest Commitment Termination Date subject to the terms, conditions and limitations set forth herein.

SECTION 2.02. Revolving Credit Loans .

(a) Each Revolving Credit Loan shall be made as part of a Borrowing consisting of Revolving Credit Loans made or Converted by the Lenders ratably in accordance with their respective Commitments; provided , however , that the failure of any Revolving Credit Lender to make any Revolving Credit Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Revolving Credit Loan required to be made by such other Lender). The Revolving Credit Loans comprising any Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $10,000,000 (or an aggregate principal amount equal to the remaining balance of the Available Commitments).

(b) Each Borrowing under this Section 2.02 shall be comprised entirely of Eurodollar Loans or ABR Loans, as the Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Revolving Credit Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Revolving Credit Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time. No more than 18 Eurodollar Borrowings may be outstanding at any time.

 

-27-


(c) Each Lender shall make each Revolving Credit Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to the Agent in New York, New York, not later than noon, New York City time, and the Agent shall by 2:00 p.m., New York City time, credit the amounts so received to the account or accounts specified from time to time in one or more notices delivered by the Borrower to the Agent or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met or otherwise waived, return the amounts so received to the respective Lenders. Revolving Credit Loans shall be made by the Lenders pro rata in accordance with Section 2.12. Unless the Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Agent such Lender’s portion of such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with this subsection (c) and the Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have made such portion available to the Agent, such Lender and the Borrower (without waiving any claim against such Lender for such Lender’s failure to make such portion available) severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to the Revolving Credit Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Effective Rate. If such Lender shall repay to the Agent such corresponding amount, such amount shall constitute such Lender’s Revolving Credit Loan as part of such Borrowing for purposes of this Agreement.

SECTION 2.03. Borrowing and Conversion Procedures .

(a) Borrowing Procedure . In order to request a Borrowing (other than a Swingline Loan, a Mandatory Borrowing or a Conversion), the Borrower shall hand deliver or send via facsimile (which facsimile may be delivered via the recipient’s electronic mail system) to the Agent a duly completed Borrowing Request (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before such Borrowing, and (ii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before such Borrowing. Such notice shall be irrevocable and shall in each case specify (A) whether the Borrowing then being requested is to be a Eurodollar Borrowing or an ABR Borrowing, (B) the date of such Borrowing (which shall be a Business Day) and the amount thereof, (C) if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect thereto, which shall not end after any Commitment Termination Date and (D) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of this Agreement.

(b) Voluntary Conversion Procedure . The Borrower may on any Business Day, upon delivery of a duly completed Conversion Notice given to the Agent not later than 11:00 a.m., New York City time, three Business Days prior to the date of any proposed Conversion into or resulting in Eurodollar Loans, and one Business Day prior to the date of any proposed Conversion into or resulting in ABR Loans, Convert all Revolving Credit Loans of one Type made in connection with the same Borrowing into Revolving Credit Loans of another Type (or combination of Types) or Revolving Credit Loans of the same Type having the same or a new Interest

 

-28-


Period; provided , however , that any Conversion of, or with respect to, any Eurodollar Loans shall be made on, and only on, the last day of an Interest Period for such Eurodollar Loans, unless the Borrower shall also reimburse the Lenders in respect thereof pursuant to Section 8.05(b) on the date of such Conversion. Each such Conversion Notice shall be irrevocable and shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Revolving Credit Loans to be Converted, and (iii) if such Conversion is into, or with respect to, Eurodollar Loans, the duration of the Interest Period for each such resulting Eurodollar Loan.

(c) Mandatory Conversion, Etc . If in any Borrowing Request delivered under subsection (a) above or any Conversion Notice delivered under subsection (b) above, the Borrower shall fail to select the Type of any Revolving Credit Loan, or if any proposed Borrowing or Conversion of a Borrowing that is to comprise Eurodollar Loans upon such Borrowing or Conversion shall not occur as a result of the circumstances described in subsection (d) below, then (unless, in the case of any Conversion, the applicable Borrowing is repaid at the end of the then effective Interest Period) the Agent will forthwith so notify the Borrower and the Lenders, and such Loans will automatically, on the last day of the then existing Interest Period therefor, be made as, or Convert into, as the case may be, ABR Loans. If no Interest Period with respect to any Eurodollar Borrowing is specified in any such Borrowing Request or Conversion Notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration (subject to the limitations set forth in the definition of “Interest Period”).

(d) General Provisions . Notwithstanding any other provision of this Agreement to the contrary, the Borrower may not borrow Loans at the Eurodollar Rate or Convert Loans resulting in Eurodollar Loans at any time an Event of Default has occurred and is continuing. Notwithstanding any other provision of this Agreement to the contrary, no Eurodollar Borrowing shall be requested or Converted if the Interest Period with respect thereto would end after any Commitment Termination Date. The Agent shall promptly advise the Lenders of any notice given pursuant to this Section and of each Lender’s portion of the requested Borrowing.

SECTION 2.04. Fees .

(a) The Borrower agrees to pay to the Agent, for the account of each Lender, a commitment fee (a “ Commitment Fee ”), at a rate per annum equal to the Commitment Fee Percentage from time to time in effect on the daily average Available Commitment of such Lender (calculated, for purposes of this provision, without regard to such Lender’s Swingline Outstandings) during the preceding quarter (or other period commencing on the date of this Agreement or ending on the Commitment Termination Date of such Lender or any other date on which the Commitment of such Lender shall be terminated).

(b) The Borrower agrees to pay to the Agent, for the account of the Lenders, a fee (the “ LC Fee ”) on the daily average Stated Amount of each Letter of Credit issued by any Fronting Bank during the preceding quarter, calculated at a rate per annum equal to the Applicable Margin for Eurodollar Loans (regardless of whether any such Revolving Credit Loans are then outstanding).

 

-29-


(c) The Borrower agrees to pay the Agent, for the account of the Fronting Bank that issued any Letter of Credit, a fronting fee equal as separately agreed by the Borrower and such Fronting Bank (a “ Fronting Fee ”) and such other charges with respect to such Letter of Credit as are agreed upon with such Fronting Bank and as are customary.

(d) The Commitment Fee shall be computed on the basis of the actual number of days elapsed in a year of 360 days and shall be payable in arrears on each March 31, June 30, September 30 and December 31 (with the first payment being due on December 31, 2011) and on each date on which the Commitment of such Lender shall be terminated or reduced as provided herein. The Commitment Fee due to each Lender shall commence to accrue on the date of this Agreement, and shall cease to accrue on the date of termination of such Lender’s Commitment, as provided herein. All Fronting Fees and LC Fees shall be computed on the basis of the actual number of days that each Letter of Credit is outstanding, assuming a year of 360 days, and shall be payable in arrears on each March 31, June 30, September 30 and December 31 (with the first payment being due on December 31, 2011), and on the date that such Letter of Credit expires or is drawn in full.

(e) The Borrower agrees to pay the Agent the fees from time to time payable to it in its capacity as Agent pursuant to the Fee Letters (the “ Administrative Fees ”).

(f) All Fees shall be paid on the dates due, in immediately available funds, to the Agent for distribution, if and as appropriate, among the Lenders. Once paid, none of the Fees shall be refundable under any circumstances.

SECTION 2.05. Repayment of Loans; Evidence of Indebtedness .

(a) The outstanding principal balance of each (i) Revolving Credit Loan made by any Lender shall be due and payable on the Commitment Termination Date of such Lender and (ii) Swingline Loan shall be due and payable on the earlier of the Swingline Termination Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made.

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness to such Lender resulting from each Extension of Credit made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(c) The Agent shall maintain accounts in which it will record (i) the amount of each Extension of Credit made hereunder, the Type of each Loan made and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder from the Borrower and each Lender’s share thereof.

(d) The entries made in the accounts maintained pursuant to subsections (b) and (c) above shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations therein recorded; provided , however , that the failure of any Lender or the Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Outstanding Credits in accordance with their terms.

 

-30-


SECTION 2.06. Interest on Loans .

(a) The Loans comprising each Eurodollar Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a rate per annum equal to the LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin from time to time in effect for Eurodollar Borrowings.

(b) The Loans comprising each ABR Borrowing, including each Swingline Loan, shall bear interest (computed on the basis of the actual number of days elapsed over a year of (i) 365 or 366 days, as the case may be, for periods during which the Alternate Base Rate is determined by reference to the Prime Rate and (ii) 360 days for other periods) at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin from time to time in effect for ABR Borrowings.

(c) Interest on each Loan shall be payable on each Interest Payment Date applicable to such Loan except as otherwise provided in this Agreement. The applicable LIBO Rate or Alternate Base Rate for each Interest Period or day within an Interest Period, as the case may be, shall be determined by JPMorgan Chase, and such determination shall be conclusive absent manifest error; provided that JPMorgan Chase shall, upon request, promptly provide to the Borrower a certificate setting forth in reasonable detail the basis for such determination.

SECTION 2.07. Alternate Rate of Interest .

In the event, and on each occasion, that on the day two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing the Agent shall have determined (i) that dollar deposits in the principal amounts of the Eurodollar Loans comprising such Borrowing are not generally available in the London interbank market or (ii) that reasonable means do not exist for ascertaining the LIBO Rate, the Agent shall, as soon as practicable thereafter, give facsimile notice of such determination to the Borrower and the Lenders. In the event of any such determination under clause (i) or (ii) above, until the Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.03 shall be deemed to be a request for an ABR Borrowing. In the event the Required Lenders notify the Agent that the rates at which dollar deposits are being offered will not adequately and fairly reflect the cost to such Lenders of making or maintaining Eurodollar Loans during such Interest Period, the Agent shall notify the Borrower of such notice and until the Required Lenders shall have advised the Agent that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a Eurodollar Borrowing shall be deemed a request for an ABR Borrowing. Each determination by the Agent hereunder shall be made in good faith and shall be conclusive absent manifest error; provided that the Agent, shall, upon request, promptly provide to the Borrower a certificate setting forth in reasonable detail the basis for such determination.

 

-31-


SECTION 2.08. Termination and Reduction of Commitments .

(a) The Swingline Commitment shall terminate on the Swingline Termination Date. The Commitment of each Lender shall terminate automatically on the Commitment Termination Date of such Lender. The obligation of each Fronting Bank to issue, amend and extend Letters of Credit shall terminate on such Fronting Bank’s Fronting Bank Termination Date.

(b) Upon at least two Business Days’ prior written notice to the Agent, the Borrower may, without premium or penalty, at any time in whole permanently terminate, or from time to time in part permanently reduce, the Commitments; provided , however , that (i) each partial reduction of the Commitments shall be in an integral multiple of $5,000,000 and in a minimum principal amount of $10,000,000 and (ii) no such termination or reduction shall be made that would reduce the Commitments to an amount less than (1) the aggregate amount of Outstanding Credits on the date of such termination or reduction (after giving effect to any prepayment made pursuant to Section 2.09) or (2) $50,000,000, unless the result of such termination or reduction referred to in this clause (2) is to reduce the Commitments to $0. The Agent shall advise the Lenders of any notice given pursuant to this subsection (b)


This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more