termloancreditagreement2






EXECUTION VERSION  CREDIT AGREEMENT  DATED AS OF MARCH 31, 2021  AMONG  PORTLAND GENERAL ELECTRIC COMPANY,  THE BORROWER;  THE LENDERS;  U.S. BANK NATIONAL ASSOCIATION,  AS ADMINISTRATIVE AGENT;  and  COBANK, ACB  AS SYNDICATION AGENT  _______________________________________________________________________________________________________  U.S. BANK NATIONAL ASSOCIATION AND COBANK, ACB  AS CO-LEAD ARRANGERS AND JOINT BOOKRUNNERS  Published CUSIP number (Deal): 73651GAU7  Published CUSIP number (Term Loans): 73651GAT0  Exhibit 10.1 





 






i  TABLE OF CONTENTS  Page  ARTICLE I DEFINITIONS ....................................................................................................1  ARTICLE II THE CREDITS .................................................................................................18  ARTICLE III YIELD PROTECTION; TAXES ......................................................................23  ARTICLE IV CONDITIONS PRECEDENT ..........................................................................31  ARTICLE V REPRESENTATIONS AND WARRANTIES .................................................33  ARTICLE VI COVENANTS ..................................................................................................36  ARTICLE VII DEFAULTS ......................................................................................................43  ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES ...........45  ARTICLE IX GENERAL PROVISIONS ...............................................................................46  ARTICLE X THE AGENT ....................................................................................................50  ARTICLE XI SETOFF; RATABLE PAYMENTS .................................................................55  ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS ..........56  ARTICLE XIII NOTICES ..........................................................................................................61  ARTICLE XIV COUNTERPARTS ...........................................................................................62  ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION .....................................62  SCHEDULES  SCHEDULE 2 COMMITMENTS  SCHEDULE 3 INDEBTEDNESS EXCEPTIONS  SCHEDULE 5.2 LITIGATION  SCHEDULE 5.9 SUBSIDIARIES  SCHEDULE 5.16 ANTI-TERRORISM; ANTI-MONEY LAUNDERING  SCHEDULE 13.1 NOTICE ADDRESSES  EXHIBITS  EXHIBIT A FORM OF ASSIGNMENT AGREEMENT  EXHIBIT B FORM OF OPINION OF BORROWER’S COUNSEL  EXHIBIT C FORM OF COMPLIANCE CERTIFICATE  EXHIBIT D FORM OF NOTE  EXHIBIT E FORM OF BORROWING NOTICE  EXHIBIT F FORM OF CHANGE NOTICE  





 






   1    This CREDIT AGREEMENT, dated as of March 31, 2021, is among Portland General  Electric Company (the “Borrower”), the Lenders party hereto and U.S. Bank National Association,  as administrative agent for the Lenders.  The parties hereto agree as follows:  ARTICLE I    DEFINITIONS  As used in this Agreement:  “Additional Credit Facility” means any new credit facility entered into, or term loans issued  by, the Borrower (in each case whether issued or entered into under an existing document or credit  facility or otherwise) prior to the date that is sixty (60) days following the Effective Date; provided,  however, that none of the following shall constitute an “Additional Credit Facility” hereunder: (a)  the Borrower's Mortgage and Deed of Trust, dated July 1, 1945; (b) any borrowing under, or  extension or renewal of, an existing credit facility or agreement, in each case, to the extent such  borrowing, extension, or renewal relates solely to commitments and facilities existing on the  Effective Date, including that certain Credit Agreement, dated as of April 9, 2020, among the  Borrower, the lenders party thereto, and U.S. Bank National Association, as administrative agent  for the Lenders; (c) any credit facility or agreement primarily secured by the real property and  related assets located in Portland, Oregon, at (i) One World Trade Center, 121 SW Salmon Street,  (ii) Two Word Trade Center, 25 SW Salmon Street, or (iii) Three World Trade Center, 26 SW  Salmon Street; or (d) credit arrangements either (x) maturing after the Scheduled Termination Date  or (y) in respect of letters of credit and commercial paper to support daily and power operations,  in each case, in the ordinary course of Borrower's business.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.   “Affected Lender” is defined in Section 2.13.  “Affiliate” of any Person means any other Person directly or indirectly controlling,  controlled by or under common control with such Person.  “Agent” means U.S. Bank National Association, in its capacity as administrative agent for  and contractual representative of the Lenders pursuant to Article X, and not in its individual  capacity as a Lender, and any successor Agent appointed pursuant to Article X.  “Aggregate Commitment” means the aggregate of the Commitments of all the Lenders, as  changed from time to time pursuant to the terms hereof. The Aggregate Commitment as of the date  of this Agreement is TWO HUNDRED MILLION DOLLARS ($200,000,000).  “Aggregate Outstanding Credit Exposure” means, at any time, the aggregate of the  Outstanding Credit Exposure of all the Lenders.  





 






   2    “Agreement” means this Credit Agreement, as amended or otherwise modified from time  to time.  “Agreement Accounting Principles” means United States generally accepted accounting  principles as in effect from time to time, applied in a manner consistent with that used in preparing  the financial statements referred to in Section 5.11; provided, that notwithstanding any other  provision herein, the definitions set forth in this Agreement and any financial calculations required  by the Loan Documents shall be computed to exclude assets and liabilities associated with leases  classified as Operating Leases as defined pursuant to Financial Accounting Standards Board  Accounting Standards Codification 842 (Leases).  “Alternative Margin” is defined in the definition of “Applicable Margin”.  “Anti-Terrorism Laws” is defined in Section 5.16.  “Applicable Margin” means for any day a percentage rate per annum of 0.70%; provided,  that:  (a) in the event that either (i) the Moody’s Rating is Baa2 or below or the S&P  Rating is BBB- or below, or (ii) the Moody’s Rating is Baa1 and the S&P Rating is BBB,  the Applicable Margin shall, as of the date of occurrence of the events in either clauses (i)  or (ii), be increased to 0.95% per annum; and  (b) in the event that the Borrower enters into any Additional Credit Facility and  the spread or margin above LIBOR (or the applicable relevant definition thereof or  benchmark substitute rate therefor as used in the documentation evidencing such  Additional Credit Facility) (the “Alternative Margin”) for such Additional Credit Facility  is greater than the Applicable Margin otherwise in effect hereunder, the Applicable Margin  shall be increased, effective as of the effective date of such Additional Credit Facility, to  be the same as the Alternative Margin.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a  Lender.  “Arrangers” means U.S. Bank National Association and CoBank, ACB, in their capacities  as joint lead arranger and joint bookrunner.  “Article” means an article of this Agreement unless another document is specifically  referenced.  “Assignee Group” means two or more assignees that are Affiliates of one another or two  or more Approved Funds managed by the same investment advisor.  “Assignment Agreement” means an Assignment Agreement in the form of Exhibit A.  “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest  





 






3  calculated with reference to such Benchmark, as applicable, that is or may be used for determining  the length of an Interest Period pursuant to this Agreement as of such date and not including, for  the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of  “Interest Period” pursuant to clause (v) of Section 3.3(c).  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law, regulation rule or requirement for such EEA Member Country from  time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the  United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time)  and any other law, regulation or rule applicable in the United Kingdom relating to the resolution  of unsound or failing banks, investment firms or other financial institutions or their affiliates (other  than through liquidation, administration or other insolvency proceedings).   “Benchmark” means, initially, LIBOR; provided that if a Benchmark Transition Event, a  Term SOFR Transition Event, or an Early Opt-in Election, as applicable, and its related  Benchmark Replacement Date have occurred with respect to LIBOR or the then-current  Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that  such Benchmark Replacement has become effective pursuant to Section 3.3(c).    “Benchmark Replacement” means, for any Available Tenor, the first alternative set forth  in the order below that can be determined by the Agent for the applicable Benchmark Replacement  Date:  (1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment ;  (2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;  (3) the sum of: (a) the alternate benchmark rate that has been selected by the Agent and the Borrower as the replacement for the then-current Benchmark for the  applicable Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a replacement benchmark rate or the mechanism for determining such  a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market  convention for determining a benchmark rate as a replacement for the then-current  Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and (b)  the related Benchmark Replacement Adjustment;  provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on  a screen or other information service that publishes such rate from time to time as selected by the  Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary  in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition  Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date  the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR  





 






   4    and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition  (subject to the first proviso above). If the Benchmark Replacement as determined pursuant to  clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be  deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the  then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest  Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:  (1) for purposes of clauses (1) and (2) of the definition of “Benchmark  Replacement,” the first alternative set forth in the order below that can be determined by  the Agent:  (a) the spread adjustment, or method for calculating or determining such spread  adjustment, (which may be a positive or negative value or zero) as of the  Reference Time such Benchmark Replacement is first set for such Interest  Period that has been selected or recommended by the Relevant  Governmental Body for the replacement of such Benchmark with the  applicable Unadjusted Benchmark Replacement for the applicable  Corresponding Tenor;  (b) the spread adjustment (which may be a positive or negative value or zero)  as of the Reference Time such Benchmark Replacement is first set for such  Interest Period that would apply to the fallback rate for a derivative  transaction referencing the ISDA Definitions to be effective upon an index  cessation event with respect to such Benchmark for the applicable  Corresponding Tenor; and  (2) for purposes of clause (3) of the definition of “Benchmark Replacement,”  the spread adjustment, or method for calculating or determining such spread adjustment,  (which may be a positive or negative value or zero) that has been selected by the Agent  and the Borrower for the applicable Corresponding Tenor giving due consideration to (i)  any selection or recommendation of a spread adjustment, or method for calculating or  determining such spread adjustment, for the replacement of such Benchmark with the  applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on  the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market  convention for determining a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of such Benchmark with the applicable  Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit  facilities;  provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time as  selected by the Agent in its reasonable discretion.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the  





 






   5    definition of “Eurodollar Rate”, the definition of “Business Day,” the definition of “Interest  Period,” timing and frequency of determining rates and making payments of interest, timing of  borrowing requests or prepayment, conversion or continuation notices, length of lookback periods,  the applicability of breakage provisions, and other technical, administrative or operational matters)  that the Agent decides may be appropriate to reflect the adoption and implementation of such  Benchmark Replacement and to permit the administration thereof by the Agent in a manner  substantially consistent with market practice (or, if the Agent decides that adoption of any portion  of such market practice is not administratively feasible or if the Agent determines that no market  practice for the administration of such Benchmark Replacement exists, in such other manner of  administration as the Agent decides is reasonably necessary in connection with the administration  of this Agreement and the other Loan Documents).  “Benchmark Replacement Date” means the earliest to occur of the following events with  respect to the then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition  Event,” the later of (a) the date of the public statement or publication of information  referenced therein and (b) the date on which the administrator of such Benchmark (or the  published component used in the calculation thereof) permanently or indefinitely ceases to  provide all Available Tenors of such Benchmark (or such component thereof);  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,”  the date of the public statement or publication of information referenced therein;   (3) in the case of a Term SOFR Transition Event, the date that is 30 days after  the date a Term SOFR Notice is provided to the Lenders and the Borrower so long as the  Agent has not received, by such time, written notice of objection to such Term SOFR  Notice from the Borrower; or  (4) in the case of an Early Opt-in Election, the sixth Business Day after the date  notice of such Early Opt-in Election is provided to the Lenders, so long as the Agent has  not received, by 5:00 p.m. (New York City time) on the fifth Business Day after the date  notice of such Early Opt-in Election is provided to the Lenders, written notice of objection  to such Early Opt-in Election from Lenders comprising the Required Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs  on the same day as, but earlier than, the Reference Time in respect of any determination, the  Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for  such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred  in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable  event or events set forth therein with respect to all then-current Available Tenors of such  Benchmark (or the published component used in the calculation thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following  events with respect to the then-current Benchmark:  (1) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation  





 






   6    thereof) announcing that such administrator has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof), permanently or  indefinitely, provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  (2) a public statement or publication of information by the regulatory  supervisor for the administrator of such Benchmark (or the published component used in  the calculation thereof), the Board of Governors of the Federal Reserve System, the Federal  Reserve Bank of New York, an insolvency official with jurisdiction over the administrator  for such Benchmark (or such component), a resolution authority with jurisdiction over the  administrator for such Benchmark (or such component) or a court or an entity with similar  insolvency or resolution authority over the administrator for such Benchmark (or such  component), which states that the administrator of such Benchmark (or such component)  has ceased or will cease to provide all Available Tenors of such Benchmark (or such  component thereof) permanently or indefinitely, provided that, at the time of such  statement or publication, there is no successor administrator that will continue to provide  any Available Tenor of such Benchmark (or such component thereof); or  (3) a public statement or publication of information by the regulatory  supervisor for the administrator of such Benchmark (or the published component used in  the calculation thereof) announcing that all Available Tenors of such Benchmark (or such  component thereof) are no longer representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred  with respect to any Benchmark if a public statement or publication of information set forth above  has occurred with respect to each then-current Available Tenor of such Benchmark (or the  published component used in the calculation thereof).  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that  a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at  such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes  hereunder and under any Loan Document in accordance with Section 3.3(c) and (y) ending at the  time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes  hereunder and under any Loan Document in accordance with Section 3.3(c).  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  as required by the Beneficial Ownership Regulation.   “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.   “Benefit Plan” of any Person, means, at any time, any employee benefit plan (including a  Multiemployer Benefit Plan), the funding requirements of which (under Section 302 of ERISA or  Section 412 of the Code) are, or at any time within six years immediately preceding the time in  question were, in whole or in part, the responsibility of such Person.  “Borrower” is defined in the preamble.  





 






   7    “Borrowing Notice” is defined in Section 2.2(b).  “Business Day” means (i) with respect to any borrowing, payment or rate selection of Term  Loans, a day that is also a London Banking Day and (ii) for all other purposes, a day (other than a  Saturday or Sunday) on which banks generally are open in California for the conduct of  substantially all of their commercial lending activities and interbank wire transfers can be made  on the Fedwire system.  “Capitalized Lease” of a Person means any lease of Property by such Person as lessee  which would be capitalized on a balance sheet of such Person prepared in accordance with  Agreement Accounting Principles.  “Capitalized Lease Obligations” of a Person means the amount of the obligations of such  Person under Capitalized Leases which would be shown as a liability on a balance sheet of such  Person prepared in accordance with Agreement Accounting Principles (including the proviso set  forth in the definition thereof).  “Change in Law” means the occurrence, after the Effective Date, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law,  rule, regulation or treaty or in the administration, interpretation, implementation or application  thereof by any Governmental Authority or (c) the making or issuance of any request, rule,  guideline or directive (whether or not having the force of law) by any Governmental Authority;  provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street  Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder  or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated  by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any  successor or similar authority) or the United States or foreign regulatory authorities, in each case  pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date  enacted, adopted or issued.  “Change Notice” is defined in Section 2.2(d).  “Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise  modified from time to time.  “Commitment” means, for each Lender, the Term Loan Commitment of such Lender.  “Consolidated Indebtedness” means at any time all Indebtedness of the Borrower and its  Subsidiaries calculated on a consolidated basis as of such time.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a  tenor (including overnight) or an interest payment period having approximately the same length  (disregarding business day adjustment) as such Available Tenor.   “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which  will include a lookback) being established by the Agent in accordance with the conventions for  this rate selected or recommended by the Relevant Governmental Body for determining “Daily  Simple SOFR” for syndicated business loans; provided, that if the Agent decides that any such  





 






   8    convention is not administratively feasible for the Agent, then the Agent may establish another  convention in its reasonable discretion.  “Debt” means any liability that constitutes “debt” or “Debt” under Section 101(11) of the  United States Bankruptcy Code or under the Uniform Fraudulent Conveyance Act, the Uniform  Fraudulent Transfer Act or any analogous applicable law, rule or regulation, Governmental  Approval, order, writ, injunction or decree of any court or Governmental Authority.  “Default” means an event described in Article VII.  “Defaulting Lender” means, subject to Section 2.14(b), any Lender that, as determined by  the Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect  of its Loans, within three Business Days of the date required to be funded by it hereunder, unless  such Lender notifies the Agent and the Borrower in writing that such failure is the result of such  Lender’s determination that one or more conditions precedent to funding (each of which conditions  precedent, together with any applicable default, shall be specifically identified in such writing) has  not been satisfied, (b) has notified the Borrower or the Agent that it does not intend to comply with  its funding obligations or has made a public statement to that effect with respect to its funding  obligations hereunder or under other agreements in which it commits to extend credit, (c) has  failed, within three Business Days after written request by the Agent, to confirm in writing to the  Agent that it will comply with its funding obligations (provided that such Lender shall cease to be  a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the  Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become  the subject of a proceeding under any bankruptcy or similar debtor relief law, (ii) had a receiver,  conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged  with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any  action in furtherance of, or indicated its consent to, approval of or acquiescence in any such  proceeding or appointment, or (iv) become subject to a Bail-In Action; provided that a Lender  shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity  interest in that Lender or any direct or indirect parent company thereof by a Governmental  Authority so long as such ownership interest does not result in or provide such Lender with  immunity from the jurisdiction of courts within the United States or from the enforcement of  judgments or writs of attachment on its assets or permit such Lender (or such Governmental  Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such  Lender.  “Disclosure Documents” means (i) the Borrower’s Annual Report on Form 10-K for the  year ended December 31, 2020; and (ii) the Borrower’s reports on Form 8-K since the date of the  Annual Report referred to in clause (i) and prior to the date hereof, in each case filed with the SEC.  “Dollar” and “$” mean lawful money of the United States.  “Early Opt-in Election” means, if the then-current Benchmark is LIBOR, the occurrence  of:  (1) a notification by the Agent to each of the other parties hereto that at least  five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time  





 






   9    contain (as a result of amendment or as originally executed) a SOFR-based rate (including  SOFR, a term SOFR or any other rate based upon SOFR) as the then-current benchmark  rate (and such syndicated credit facilities are identified in such notice and are publicly  available for review), and   (2) the joint election by the Agent and the Borrower to trigger a fallback from  LIBOR and the provision by the Agent of written notice of such election to the Lenders.  “EEA Financial Institution” means (a) any credit institution or investment firm established  in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,  (b) any entity established in an EEA Member Country which is a parent of an institution described  in clause (a) of this definition, or (c) any financial institution established in an EEA Member  Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and  is subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.   “Effective Date” is defined in Section 4.1.  “Environmental Laws” means any and all federal, state, local and foreign statutes, laws,  judicial decisions, regulations, ordinances, rules, judgments, orders, injunctions, permits, grants,  franchises, licenses, agreements and other governmental restrictions relating to (i) the protection  of the environment, (ii) the effect of the environment on human health, (iii) emissions, discharges  or releases of pollutants, contaminants, hazardous substances or wastes into surface water, ground  water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal,  transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean up  or other remediation thereof.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from  time to time, and any rule or regulation issued thereunder.  “ERISA Affiliate” means, with respect to any Person, any other Person, including a  Subsidiary or other Affiliate of such first Person, that is a member of any group of organizations  within the meaning of Code Sections 414(b), (c), (m) or (o) of which such first Person is a member.  “E-SIGN” means the Federal Electronic Signatures in Global and National Commerce Act,  as amended from time to time, and any successor statute, and any regulations promulgated  thereunder from time to time.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.   





 






   10    “Eurodollar Rate” means for the relevant Interest Period the sum of (a) the quotient of (i)  LIBOR for the relevant Interest Period, divided by (ii) one minus the Reserve Requirement  (expressed as a decimal) applicable to such Interest Period, plus (b) the Applicable Margin.  “Excluded Taxes” means, in the case of each Lender or applicable Lending Installation and  the Agent, (A) taxes imposed on its overall net income, and franchise taxes or gross revenue taxes  in the nature of net income taxes, including without limitation the Washington Business and  Occupation Tax, the Ohio Commercial Activity Tax and other similar taxes, by either (i) any  jurisdiction under the laws of which such Lender or the Agent is incorporated or organized or (ii)  the jurisdiction in which the Agent’s or such Lender’s principal executive office or such Lender’s  applicable Lending Installation is located; (B) any U.S. federal withholding taxes imposed under  FATCA; (iii) any branch profits taxes imposed by the United States or any similar tax imposed by  any other jurisdiction.  “Exhibit” refers to an exhibit to this Agreement, unless another document is specifically  referenced.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof, any  agreements entered into pursuant to Section 1471(b)(1) of the Code and any applicable  intergovernmental agreements.  “Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the  weighted average of the rates on overnight Federal funds transactions with members of the Federal  Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if  such day is not a Business Day, for the immediately preceding Business Day) by the Federal  Reserve Bank of New York, or, if such rate is not so published for any day which is a Business  Day, the average of the quotations at approximately 11:00 a.m. (New York time) on such day on  such transactions received by the Agent from three Federal funds brokers of recognized standing  selected by the Agent in its sole discretion.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of  the execution of this Agreement, the modification, amendment or renewal of this Agreement or  otherwise) with respect to the Eurodollar Rate.  “Fund” means any Person (other than a natural person) that is (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its activities.  “Governmental Approval” means any authorization, consent, approval, license or  exception of, registration or filing with, or report or notice to, any governmental unit.  “Governmental Authority” means the government of the United States or any other nation,  or of any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  





 






   11    government (including any supra-national bodies such as the European Union or the European  Central Bank).  “Granting Lender” is defined in Section 12.6.  “Guaranty” of a Person means any agreement, undertaking or arrangement (including,  without limitation, any comfort letter, operating agreement, take or pay contract, application for a  letter of credit or the obligations of any such Person as general partner of a partnership with respect  to the liabilities of the partnership) by which such Person (i) assumes, guarantees, endorses,  contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is  contingently liable upon, the obligation or liability of any other Person, (ii) agrees to maintain the  net worth or working capital or other financial condition of any other Person, or (iii) otherwise  assures any creditor of such other Person against loss.  “Indebtedness” of a Person means such Person’s (i) obligations for borrowed money, (ii)  obligations representing the deferred purchase price of Property or services (other than accounts  payable arising in the ordinary course of such Person’s business payable on terms customary in  the trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the  proceeds or production from Property now or hereafter owned or acquired by such Person, (iv)  obligations which are evidenced by notes, bankers’ acceptances, or other instruments, (v)  obligations of such Person to purchase accounts, securities or other Property arising out of or in  connection with the sale of the same or substantially similar accounts, securities or Property, (vi)  Capitalized Lease Obligations, (vii) any other obligation for borrowed money or other financial  accommodation which in accordance with Agreement Accounting Principles would be shown as  a liability on the consolidated balance sheet of such Person, (viii) net liabilities under interest rate  swap, exchange or cap agreements, obligations or other liabilities with respect to accounts or notes,  (ix) sale and leaseback transactions which do not create a liability on the consolidated balance  sheet of such Person, (x) other transactions which are the functional equivalent, or take the place,  of borrowing but which do not constitute a liability on the consolidated balance sheet of such  Person and (xi) Guaranties of Indebtedness; provided that there shall be excluded from this  definition (1) (except for the purposes of Section 7.5) Interest Deferral Obligations up to an amount  outstanding at any one time equal to 15% of the amount described in clause (a) of the definition  of “Total Capitalization,” excluding in the calculation thereof for the purposes of this proviso,  however, preferred and preference stock and (2) the agreements listed on Schedule 3 and similar  agreements entered into for the operation and maintenance of power plants or the purchase of  power or transmission services (provided, for the avoidance of doubt, that this Agreement shall  not be deemed to be such an agreement as a result of it being available to support collateral  requirements under the Borrower’s energy purchase and sale agreements).  “Interest Deferral Obligations” means obligations and guaranties related thereto, which  obligations and guaranties are junior and subordinated in all respects to all amounts owing under  the Loan Documents, that contain provisions allowing the obligor to extend the interest payment  period from time to time and defer any interest payments (however denominated) due during such  extended interest payment period.  “Interest Period” means for each Term Loan, a period of one, three or six months  commencing on a Business Day selected by the Borrower pursuant to this Agreement.  Such  





 






   12    Interest Period shall end on the day which corresponds numerically to such date one, three or six  months thereafter, provided that if there is no such numerically corresponding day in such next,  third or sixth succeeding month, such Interest Period shall end on the last Business Day of such  next, third or sixth succeeding month.  If an Interest Period would otherwise end on a day which  is not a Business Day, such Interest Period shall end on the next succeeding Business Day,  provided that if said next succeeding Business Day falls in a new calendar month, such Interest  Period shall end on the immediately preceding Business Day.  Notwithstanding any other provision  of this Agreement the Borrower may not select any Interest Period that would extend beyond the  Scheduled Termination Date.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International  Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented  from time to time, or any successor definitional booklet for interest rate derivatives published from  time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.  “Lender Funding Obligation” is defined in Section 12.6(a).  “Lenders” means the financial institutions from time to time parties hereto as lenders,  together with their respective successors and assigns.  “Lending Installation” means, with respect to a Lender or the Agent, the office, branch,  subsidiary or affiliate of such Lender or the Agent listed on Schedule 13.1 or otherwise selected  by such Lender or the Agent pursuant to Section 2.11.  “LIBOR” means, for the relevant Interest Period, the greater of (a) zero  and (b) the  applicable interest settlement rate for deposits in Dollars administered by ICE Benchmark  Administration (or any other Person that takes over the administration of such rate) appearing on  the applicable Reuters Screen (or on any successor or substitute page) as of 11:00 a.m. (London  time) two Business Days before the first day of such Interest Period, and having a maturity equal  to such Interest Period; provided that, if the applicable Reuters Screen (or any successor or  substitute page) is not available to the Agent for any reason, LIBOR for the relevant Interest Period  shall instead be the applicable interest settlement rate for deposits in Dollars administered by ICE  Benchmark Administration (or any other Person that takes over the administration of such rate) as  reported by any other generally recognized financial information service selected by the Agent as  of 11:00 a.m. (London time) two Business Days before the first day of such Interest Period, and  having a maturity equal to such Interest Period.  “Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,  deposit arrangement, encumbrance or preference, priority or other security agreement or  preferential arrangement of any kind or nature whatsoever (including, without limitation, the  interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention  agreement).  “Loan” means, with respect to a Lender, any Term Loan made by such Lender pursuant to  Article II.  “Loan Documents” means this Agreement and each Note.  





 






   13    “London Banking Day” means any day on which dealings in Dollar deposits are conducted  by and between banks in the London interbank eurodollar market.  “Margin Stock” means margin stock as defined in Regulation U.  “Material Adverse Effect” means a material adverse effect on (i) the business or financial  condition of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower to  perform its obligations under the Loan Documents, or (iii) the validity or enforceability of any of  the Loan Documents against the Borrower or the material rights or remedies of the Agent or the  Lenders thereunder, it being understood that if the Moody’s Rating and/or the S&P Rating is  downgraded to Baa3 or below or BBB- or below, respectively, such downgrade in and of itself  shall not constitute a Material Adverse Effect (but shall only constitute a Material Adverse Effect  if such downgrade results in a material adverse effect of the type described in clause (i) or (ii)  above).  “Material Indebtedness” is defined in Section 7.5.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Moody’s Rating” means at any time, the rating issued by Moody's Investors Service, Inc.  and then in effect with respect to the Borrower's senior unsecured long-term debt securities without  third-party credit enhancement.  “Mortgage” is defined in Section 6.10(v).  “Multiemployer Benefit Plan” means any Benefit Plan that is a multiemployer plan as  defined in Section 4001(a)(3) of ERISA.  “Note” is defined in Section 2.7.  “Obligations” means all unpaid principal of and accrued and unpaid interest with respect  to any Loan and all expenses, reimbursements, indemnities and other obligations of the Borrower  to the Lenders or to any Lender, the Agent or any indemnified party arising under the Loan  Documents.  “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.  “Other Agents” is defined in Section 10.14.  “Other Taxes” is defined in Section 3.5(ii).  “Outstanding Credit Exposure” means, as to any Lender at any time, the sum of the  aggregate principal amount of its Loans outstanding at such time.  “Participant Register” has the meaning specified in Section 12.2(c).  “Participants” is defined in Section 12.2(a).  “PATRIOT Act” means the USA Patriot Act of 2001, 31 U.S.C. Section 5318.  





 






   14    “Payment Date” means the last Business Day of each March, June, September and  December.  “PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.  “Person” means any natural person, corporation, firm, joint venture, partnership, limited  liability company, association, enterprise, trust or other entity or organization, or any government  or political subdivision or any agency, department or instrumentality thereof.  “Pro Rata Share” means, with respect to any Lender at any time, (a) the percentage of the  aggregate Commitments that is represented by such Lender’s Commitment and (b) with respect to  such Lender’s portion of  the outstanding Loans at any time, the percentage of the outstanding  principal amount of such Loans held by such Lender at such time.  The Pro Rata Share of a Lender  shall be subject to adjustment as provided in Section 2.14.  “Property” of a Person means any and all property, whether real, personal, tangible,  intangible, or mixed, of such Person, or other assets owned or leased by such Person.  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as amended from time to time.   “Purchaser” means any Person that meets the requirements to be an assignee under Sections  12.3(a)(iii) and (v) (subject to such consents, if any, as may be required under Section 12.3(a)(iii)).  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if  such Benchmark is LIBOR, 11:00 a.m. (London time) on the day that is two London Banking Days  preceding the date of such setting, and (2) if such Benchmark is not LIBOR, the time determined  by the Agent in its reasonable discretion.  “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve  System as from time to time in effect and any successor thereto or other regulation or official  interpretation of said Board of Governors relating to reserve requirements applicable to member  banks of the Federal Reserve System.  “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve  System as from time to time in effect and any successor or other regulation or official interpretation  of said Board of Governors relating to the extension of credit by banks for the purpose of  purchasing or carrying margin stock applicable to member banks of the Federal Reserve System.  “Relevant Governmental Body” means the Board of Governors of the Federal Reserve  System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened  by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New  York, or any successor thereto.  “Required Lenders” means Lenders in the aggregate having more than 50% of the sum of  (a) any unfunded Aggregate Commitment and (b) the Aggregate Outstanding Credit Exposure;  provided, however, that if any Lender shall be a Defaulting Lender at such time then there shall be  





 






   15    excluded from the determination of Required Lenders any unfunded Commitment and any  Outstanding Credit Exposure of such Lender at such time.  “Reserve Requirement” means, with respect to an Interest Period, the maximum aggregate  reserve requirement (including all basic, supplemental, marginal and other reserves) which is  imposed under Regulation D on Eurocurrency liabilities.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.   “S&P Rating” means, at any time, the rating issued by Standard & Poor's Financial  Services LLC, a subsidiary of The McGraw Hill Companies, Inc. and then in effect with respect  to the Borrower's senior unsecured long-term debt securities without third-party credit  enhancement.  “SEC” means the Securities and Exchange Commission.  “Sanctioned Country” means a country subject to a sanctions program identified on the list  maintained by OFAC and available at http://www.treasury.gov/resource- center/sanctions/Programs/Pages/Programs.aspx, or as otherwise published from time to time.  “Sanctioned Person” means (a) a Person named on the list of “Specially Designated  Nationals and Blocked Persons” maintained by OFAC available at  http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise  published from time to time, (b) a Person named on the lists maintained by the United Nations  Security Council available at http://www.un.org/sc/committees/list_compend.shtml, or as  otherwise published from time to time, (c) a Person named on the lists maintained by the European  Union available at http://eeas.europa.eu/cfsp/sanctions/consol-list_en.htm, or as otherwise  published from time to time, (d) a Person named on the lists maintained by Her Majesty’s Treasury  available at http://www.hm-treasury.gov.uk/fin_sanctions_index.htm, or as otherwise published  from time to time, or (e) (i) an agency of the government of a Sanctioned Country, (ii) an  organization controlled by a Sanctioned Country, or (iii) a person resident in a Sanctioned Country,  to the extent subject to a sanctions program administered by OFAC.  “Schedule” refers to a specific schedule to this Agreement, unless another document is  specifically referenced.  “Scheduled Termination Date” means March 30, 2022.  “Section” means a numbered section of this Agreement, unless another document is  specifically referenced.  “Significant Subsidiary” means a “significant subsidiary” (as defined in Regulation S-X of  the SEC as in effect on the date of this Agreement) of the Borrower.  “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured  overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR  Administrator’s Website at approximately 8:00 a.m. (New York City time), or in the case of an  





 






   16    update to such rate by the SOFR Administrator, at approximately 2:30 p.m. (New York City time)  on the immediately succeeding Business Day.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).  “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New  York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight  financing rate identified as such by the SOFR Administrator from time to time.  “SPV” is defined in Section 12.6.  “Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding  securities having ordinary voting power of which shall at the time be owned or controlled, directly  or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or  more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint  venture or similar business organization more than 50% of the ownership interests having ordinary  voting power of which shall at the time be so owned or controlled.  Unless otherwise expressly  provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.  “Substantial Portion” means, with respect to the Property of the Borrower and its  Subsidiaries, Property which (i) represents more than 25% of the consolidated assets of the  Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the  Borrower and its Subsidiaries as at the beginning of the twelve-month period ending with the  month in which such determination is made, or (ii) is responsible for more than 25% of the  consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries as  reflected in the financial statements referred to in clause (i) above.  “Tax-Free Debt” means Debt of the Borrower to a state, territory or possession of the  United States or any political subdivision thereof issued in a transaction in which such state,  territory, possession or political subdivision issued obligations the interest on which is excludable  from gross income pursuant to the provisions of Section 103 of the Code (or similar provisions),  as in effect at the time of issuance of such obligations, and debt to a bank issuing a letter of credit  with respect to the principal of or interest on such obligations.  “Taxes” means any and all present or future taxes, duties, levies, imposts, charges or  withholdings imposed by or payable to any governmental or regulatory authority or agency, and  any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.  “Term Loan” is defined in Section 2.1(a).  “Term Loan Commitment” means, as to each Term Loan Lender, its obligation to make a  portion of the Term Loan to the Borrower pursuant to Section 2.1(a), in the principal amount set  forth opposite such Term Loan Lender’s name on Schedule 2, as such amounts may be adjusted  from time to time in accordance with this Agreement.  The aggregate principal amount of the Term  Loan Commitments of all the Term Loan Lenders in effect on the Effective Date is TWO  HUNDRED MILLION DOLLARS ($200,000,000).  





 






   17    “Term Loan Lender” means each Lender holding a Term Loan Commitment.  “Term Loan Note” is defined in Section 2.7(ii).  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable  Reference Time, the forward-looking term rate based on SOFR that has been selected or  recommended by the Relevant Governmental Body.  “Term SOFR Notice” means a notification by the Agent to the Lenders and the Borrower  of the occurrence of a Term SOFR Transition Event.   “Term SOFR Transition Event” means the determination by the Agent at any time, in its  sole discretion, that (a) Term SOFR has been recommended for use by the Relevant Governmental  Body, (b) the administration of Term SOFR is administratively feasible for the Agent, and (c) a  Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred  resulting in a Benchmark Replacement in accordance with Section 3.3(c) that is not Term SOFR.  “Total Capitalization” means, at any time, the sum of the following for the Borrower and  its Subsidiaries, determined on a consolidated basis in accordance with Agreement Accounting  Principles (without duplication and excluding minority interests in Subsidiaries):  (c) the amount of capital stock, including preferred and preference stock (less  cost of treasury shares), plus any amounts deducted from stockholders’ equity as unearned  compensation on the Borrower’s balance sheet, plus (or minus in the case of a deficit)  capital surplus and earned surplus, but including current sinking fund obligations; plus  (d) the aggregate outstanding principal amount of Interest Deferral Obligations  excluded by the proviso in the definition of “Indebtedness”; plus  (e) the aggregate outstanding principal amount of all Consolidated  Indebtedness.  “Transferee” is defined in Section 12.4.  “UETA” means the Uniform Electronic Transactions Act as in effect in the State of New  York,  as amended from time to time, and any successor statute, and any regulations promulgated  thereunder from time to time.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended  from time to time) promulgated by the United Kingdom Financial Conduct Authority, which  includes certain credit institutions and investment firms, and certain affiliates of such credit  institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.   





 






   18    “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unmatured Default” means an event which but for the lapse of time or the giving of notice,  or both, would constitute a Default.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect  to the United Kingdom,  any powers of the applicable Resolution Authority  under the Bail-In  Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial  Institution  or any contract or instrument under which that liability arises, to convert all or part of  that liability into shares, securities or obligations of that person or any other person, to provide that  any such contract or instrument is to have effect as if a right had been exercised under it or to  suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  The foregoing definitions shall be equally applicable to both the singular and plural forms  of the defined terms.  ARTICLE II    THE CREDITS  2.1. The Term Loans.  (a) Description of Term Loans.  Subject to the terms and conditions herein set  forth and in reliance upon the representations and warranties herein set forth, each Term Loan  Lender severally agrees to make its portion of a term loan (the “Term Loan”) to the Borrower in  accordance with Section 2.2 in one advance on the Effective Date in a principal amount equal to  such Lender’s Term Loan Commitment.  Notwithstanding the foregoing, if the Term Loan  Commitments are not drawn by 3:00 p.m. (New York time) on the Effective Date, the undrawn  amount shall automatically be cancelled.  Amounts repaid on the Term Loan may not be  reborrowed.    (b) Repayment of Term Loans.  The Term Loans shall be due and paid in full,  together with accrued interest thereon, and any other amounts then due and owing, on the  Scheduled Termination Date (except as (x) accelerated sooner pursuant to Section 8.1 or (y)  otherwise provided in Section 3.3).  2.2. Procedure for Term Loans.  (a) Term Loans.  The Lenders shall make each Term Loan ratably according to  their Pro Rata Share.    (b) Method of Selecting Interest Periods for Term Loans.  The Borrower shall  give the Agent irrevocable notice in substantially the form of Exhibit E hereto (a “Borrowing  





 






   19    Notice”) no later than 11:30 a.m. (New York time) two (2) Business Days prior to the Effective  Date.  The Borrowing Notice shall provide the Lenders with customary funding indemnification  on terms consistent with Section 3.4 and shall otherwise specify:  (i) the aggregate amount of the Term Loans, and  (ii) the Interest Period applicable thereto.  (c) Method of Borrowing.  Not later than 1:00 p.m. (New York time) on the  Effective Date, each Lender shall make available its Loans in funds immediately available to the  Agent at its address specified pursuant to Article XIII.  The Agent will make the funds so received  from such Lenders available to the Borrower on the day received and in the form received, at the  Borrower’s account specified by the Borrower to the Agent.  (d) Change of Interest Periods.  The Eurodollar Rate for a Term Loan will  automatically be reset at the end of the applicable Interest Period for an identical Interest Period,  unless (i) such Term Loan is or was repaid in accordance with Section 2.3 or (ii) the Borrower  shall have given the Agent a Change Notice (as defined below) requesting that, at the end of such  Interest Period, a new Interest Period be applicable for such Term Loan.  The Borrower shall give  the Agent irrevocable notice in substantially the form of Exhibit F hereto (a “Change Notice”) of  the request for a new Interest Period of a Term Loan not later than 11:30 a.m. (New York time) at  least two (2) Business Days prior to the date of the requested change, specifying:  (i) the requested date, which shall be a Business Day, of such change,  and  (ii) the duration of the new Interest Period applicable thereto.  The purpose of this Section 2.2(d) is to allow the Borrower to change the Interest Period  on an outstanding Term Loan.  In no event shall these changes be construed as an advance of a  new Loan.  2.3. Optional Principal Payments.  The Borrower may from time to time prepay the  Loans, subject to the payment of any funding indemnification amounts required under Section 3.4,  but without penalty or premium, all outstanding Term Loans or, in a minimum aggregate amount  of $5,000,000 or any higher integral multiple of $1,000,000, any portion of the outstanding Term  Loans upon prior notice to the Agent not later than 1:00 p.m. (New York time) two (2) Business  Days prior to the date of payment (which shall be a Business Day).    2.4. Interest Rate, etc.  Each Term Loan shall bear interest on the outstanding principal  amount thereof at the Eurodollar Rate for the Interest Period specified by the Borrower in  accordance with Section 2.2(b) (or any automatic reset pursuant to Section 2.2(d)) from and  including the first day of the Interest Period applicable thereto to (but not including) (a) the last  day of such Interest Period, or (b) the date of prepayment with respect to any principal amount  prepaid pursuant to Section 2.3.  2.5. Interest; Rates Applicable After Default.  During the continuance of a Default or  Unmatured Default, the Required Lenders may, at their option, by notice to the Borrower (which  





 






   20    notice may be revoked at the option of the Required Lenders notwithstanding any provision of  Section 8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that  each Term Loan shall bear interest for the remainder of the applicable Interest Period at the rate  otherwise applicable to such Interest Period plus 2% per annum, provided that, during the  continuance of a Default under Section 7.6 or 7.7, the interest rate set forth in this Section 2.5 shall  be applicable to all Term Loans without any election or action on the part of the Agent or any  Lender.  2.6. Method of Payment.  Except as otherwise provided herein, all payments of the  Obligations shall be made, without setoff, deduction, or counterclaim, in immediately available  funds to the Agent at the Agent’s address specified pursuant to Article XIII, or at any other Lending  Installation of the Agent specified in writing by 1:00 p.m. (New York time) on the Business Day  prior to the date when due by the Agent to the Borrower.  Each payment delivered to the Agent for  the account of any Lender shall be delivered promptly by the Agent to such Lender in the same  type of funds that the Agent received at its address specified pursuant to Article XIII or at any  Lending Installation specified in a notice received by the Agent from such Lender.  2.7. Evidence of Indebtedness; Recordkeeping.  (i) Each Lender shall maintain in accordance with its usual practice an  account or accounts evidencing the indebtedness of the Borrower to such Lender  resulting from each Loan made by such Lender from time to time, including the  amounts of principal and interest payable and paid to such Lender from time to time  hereunder.  (ii) Upon the request of any Lender, the Loans made by such Lender  also may be evidenced by a promissory note in favor of such Lender, substantially  in the form of Exhibit D (collectively, the “Notes” and each a “Note”).  In such  event, the Borrower shall prepare, execute and deliver to such Lender a Note  payable to such Lender.  (iii) The Agent shall also maintain accounts in which it will record (a)  the amount of each Loan made hereunder and the Interest Period with respect  thereto, (b) the amount of any principal or interest due and payable or to become  due and payable from the Borrower to each Lender hereunder and (c) the amount  of any sum received by the Agent hereunder from the Borrower and each Lender’s  share thereof.  (iv) The entries set forth in the accounts maintained pursuant to  paragraphs (i) and (iii) above, in the absence of manifest error, shall be prima facie  evidence of the existence and amounts of the Obligations therein recorded and  outstanding hereunder; provided that the failure of the Agent or any Lender to  maintain such accounts or any error therein shall not in any manner affect the  obligation of the Borrower to repay the Obligations in accordance with their terms.  2.8. Telephonic Notices.  The Borrower hereby authorizes the Lenders and the Agent  to make the Terms Loans, change the Interest Period, and to transfer funds based on telephonic  





 






   21    notices made by any person or persons the Agent or any Lender in good faith believes to be acting  on behalf of the Borrower, it being understood that the foregoing authorization is specifically  intended to allow Borrowing Notices and Change Notices to be given telephonically.  The  Borrower agrees to deliver promptly to the Agent a written confirmation (signed by an authorized  representative of the Borrower) of each telephonic notice, if such confirmation is requested by the  Agent or any Lender.  If the written confirmation differs in any material respect from the action  taken by the Agent and the Lenders, the records of the Agent and the Lenders shall govern absent  manifest error.  2.9. Interest Payment Dates; Interest and Fee Basis.  Interest accrued on each Term  Loan shall be payable on the last day of its applicable Interest Period, on any date on which such  Term Loan is prepaid, whether by acceleration or otherwise, and at maturity.  Interest accrued on  each Term Loan having an Interest Period longer than three months shall also be payable on the  last day of each three month interval during such Interest Period.  All interest shall be calculated  for actual days elapsed on the basis of a 365-day year or, when appropriate, a 366-day year.  Interest  shall be payable for the day a Term Loan is made but not for the day of any payment on the amount  paid if payment is received prior to noon (New York time) at the place of payment.  If any payment  of principal of or interest on a Term Loan shall become due on a day which is not a Business Day,  such payment shall be made on the next succeeding Business Day and, in the case of a principal  payment, such extension of time shall be included in computing interest in connection with such  payment.  2.10. Notification of Loans, Interest Rates and Prepayments.  Promptly after receipt  thereof, the Agent will notify each Lender of the contents of each Borrowing Notice, Change  Notice and repayment notice received by it hereunder; provided, however, that the failure of the  Agent to provide such notice to the Lenders shall not affect the validity or binding nature of such  notice delivered to the Agent by the Borrower.  The Agent will notify each Lender of the interest  rate applicable to each Term Loan promptly upon determination of such interest rate.  2.11. Lending Installations.  Each Lender may book its Loans at any U.S. Lending  Installation selected by such Lender and may change its Lending Installation from time to time.   All terms of this Agreement shall apply to any such Lending Installation.  Each Lender may, by  written notice to the Agent and the Borrower in accordance with Article XIII, designate  replacement or additional U.S. Lending Installations through which Loans will be made by it and  for whose account Loan payments are to be made.  2.12. Non-Receipt of Funds by the Agent.  Unless the Borrower or a Lender, as the case  may be, notifies the Agent prior to the date on which it is scheduled to make payment to the Agent  of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment  of principal or interest to the Agent for the account of the Lenders, that it does not intend to make  such payment, the Agent may assume that such payment has been made.  The Agent may, but shall  not be obligated to, make the amount of such payment available to the intended recipient in reliance  upon such assumption.  If such Lender or the Borrower, as the case may be, has not in fact made  such payment to the Agent, the recipient of such payment shall, on demand by the Agent, repay to  the Agent the amount so made available together with interest thereon in respect of each day during  the period commencing on the date such amount was so made available by the Agent until the date  the Agent recovers such amount at a rate per annum equal to (x) in the case of payment by a  





 






   22    Lender, the Federal Funds Effective Rate for such day for the first three (3) days and, thereafter,  the interest rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the  interest rate applicable to the relevant Loan.  2.13. Replacement of Lender.  If (a) the Borrower is required pursuant to Section 3.1,  3.2 or 3.5 to make any additional payment to any Lender or if any Lender’s obligation to make  Term Loans is suspended pursuant to Section 3.3 or (b) any Lender becomes a Defaulting Lender  (any Lender so affected as described in subclauses (a) or (b) an “Affected Lender”), the Borrower  may (but only, in the case of clause (a), if such amounts continue to be charged or such suspension  is still effective) elect to replace such Affected Lender as a Lender party to this Agreement,  provided that no Default or Unmatured Default shall have occurred and be continuing at the time  of such replacement, and provided further that, concurrently with such replacement, (i) another  bank or other entity which is reasonably satisfactory to the Borrower and the Agent shall agree, as  of such date, to purchase for cash the Loans due to the Affected Lender pursuant to an Assignment  Agreement substantially in the form of Exhibit A and to become a Lender for all purposes under  this Agreement and to assume all obligations of the Affected Lender to be terminated as of such  date and to comply with the requirements of Section 12.3 applicable to assignments, and (ii) the  Borrower shall pay to such Affected Lender in same day funds on the day of such replacement (A)  all interest and other amounts then accrued but unpaid to such Affected Lender by the Borrower  hereunder to and including the date of termination, including, without limitation, any payments  due to such Affected Lender under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any, equal to  the payment which would have been due to such Lender on the day of such replacement under  Section 3.4 had the Loans of such Affected Lender been prepaid on such date rather than sold to  the replacement Lender.  2.14. Defaulting Lenders.  (a) Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by applicable law:  (i) Waivers and Amendments.  That Defaulting Lender’s right to  approve or disapprove any amendment, waiver or consent with respect to this  Agreement shall be restricted as set forth in Section 8.2.  (ii) Reallocation of Payments.  Any payment of principal, interest, or  other amounts received by the Agent for the account of that Defaulting Lender  (whether voluntary or mandatory, at maturity, pursuant to Section 8.1 or otherwise,  and including any amounts made available to the Agent by that Defaulting Lender  pursuant to Section 11.1), shall be applied at such time or times as may be  determined by the Agent as follows: first, to the payment of any amounts owing by  that Defaulting Lender to the Agent hereunder; second, as the Borrower may  request (so long as no Unmatured Default exists), to the funding of any Loan in  respect of which that Defaulting Lender has failed to fund its portion thereof as  required by this Agreement, as determined by the Agent; third, if so determined by  the Agent and the Borrower, to be held in a non-interest bearing deposit account  and released in order to satisfy obligations of that Defaulting Lender to fund Loans  





 






   23    under this Agreement; fourth, to the payment of any amounts owing to the Lenders  as a result of any judgment of a court of competent jurisdiction obtained by any  Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach  of its obligations under this Agreement; fifth, so long as no Unmatured Default  exists, to the payment of any amounts owing to the Borrower as a result of any  judgment of a court of competent jurisdiction obtained by the Borrower against that  Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations  under this Agreement; and sixth, to that Defaulting Lender or as otherwise directed  by a court of competent jurisdiction; provided that if (x) such payment is a payment  of the principal amount of any Loans in respect of which that Defaulting Lender  has not fully funded its appropriate share and (y) such Loans were made at a time  when the conditions set forth in Section 4.2 were satisfied or waived, such payment  shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata  basis prior to being applied to the payment of any Loans of that Defaulting Lender.   Any payments, prepayments or other amounts paid or payable to a Defaulting  Lender that are applied (or held) to pay amounts owed by a Defaulting Lender  pursuant to this Section 2.14(a)(ii) shall be deemed paid to and redirected by that  Defaulting Lender, and each Lender irrevocably consents hereto.  (b) Defaulting Lender Cure.  If the Borrower and the Agent agree in writing in  their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting  Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in  such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable,  purchase that portion of outstanding Loans of the other Lenders or take such other actions as the  Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the  Lenders in accordance with their Pro Rata Shares, whereupon that Lender will cease to be a  Defaulting Lender; provided that no adjustments will be made retroactively with respect to  payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and  provided, further, that except to the extent otherwise expressly agreed by the affected parties, no  change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any  claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  ARTICLE III    YIELD PROTECTION; TAXES  3.1. Yield Protection.  If, on or after the date of this Agreement, any Change in Law:  (i) subjects the Agent, any Lender or any applicable Lending  Installation to any Taxes, or changes the basis of taxation of payments (other than  in each case with respect to Excluded Taxes) to any Lender in respect of its Loans  or  (ii) imposes or increases or deems applicable any reserve, assessment,  insurance charge, special deposit or similar requirement against assets of, deposits  with or for the account of, or credit extended by, any Lender or any applicable  





 






   24    Lending Installation (other than reserves and assessments taken into account in  determining the interest rate applicable to Term Loans), or  (iii) imposes any other condition the result of which is to increase the  cost to any Lender or any applicable Lending Installation of making, funding or  maintaining its Term Loans or reduces any amount receivable by any Lender or any  applicable Lending Installation in connection with its Term Loans, or requires any  Lender or any applicable Lending Installation to make any payment calculated by  reference to the amount of Term Loans or interest received by it, by an amount  deemed material by such Lender,  and the result of any of the foregoing is to increase the cost to the Agent, such Lender or applicable  Lending Installation, as the case may be, of continuing the Interest Period then applicable to its  Loans through the end of such period or making or maintaining its Loans or Commitment or to  reduce the return received by such Lender or applicable Lending Installation in connection with  such Loans or Commitment, then, within fifteen (15) days of demand by such Lender, the  Borrower shall pay such Lender such additional amount or amounts as will compensate such  Lender for such increased cost or reduction in amount received.  3.2. Changes in Capital Adequacy Regulations.  If a Lender determines that the  amount of capital or liquidity required or expected to be maintained by such Lender, any Lending  Installation of such Lender or any corporation controlling such Lender is increased as a result of a  Change in Law, then, within fifteen (15) days of demand by such Lender, the Borrower shall pay  such Lender the amount necessary to compensate for any shortfall in the rate of return on the  portion of such increased capital or liquidity which such Lender determines is attributable to this  Agreement, its Outstanding Credit Exposure or its Commitment to make Loans (after taking into  account such Lender’s policies as to capital adequacy).  3.3. Availability of Loans.  (a) If (x) any Lender determines that maintenance of its Term Loans at a  suitable Lending Installation would violate any applicable law, rule, regulation, or directive,  whether or not having the force of law, or if (y) the Required Lenders determine that (i) deposits  of a type and maturity appropriate to match fund Term Loans are not available or (ii) the interest  rate applicable to Term Loans does not accurately reflect the cost of making or maintaining Term  Loans, then the Agent shall suspend the availability of Term Loans and require any affected Term  Loans to be repaid, subject to Sections 3.3(b) and 3.3(c) and the payment of any funding  indemnification amounts required by Section 3.4.  (b) Notwithstanding the foregoing, if the determination described in Section  3.3(a)(y) (the “Unavailability Determination”) has been made, the Agent and the Borrower shall  negotiate in good faith to determine an alternative interest rate for the Term Loans; provided, that  (i) until such agreement is reached, the availability of Term Loans shall be suspended as provided  in Section 3.3(a) and (ii) if the Agent and the Borrower have not agreed to an alternative interest  rate within three Business Days, the Borrower shall be required to repay the affected Term Loans  as set forth in Section 3.3(a).  The alternative interest rate agreed to pursuant to this Section 3.3(b)  shall apply retroactively to the affected Term Loans commencing on the day on which the  





 






   25    Unavailability Determination was made.  In the event an interest payment is required pursuant to  Section 2.9 after the Unavailability Determination has been made but prior to an alternative interest  rate being established, such interest payment shall be deferred until the earlier of (i) the date on  which an alternative interest rate is established for the Term Loans and (ii) the date on which the  Borrower is required to repay the affected Term Loans.  (c)   Benchmark Replacement.   (i) Benchmark Transition Event; Early Opt-in Election.  Notwithstanding anything to the contrary herein or in any other Loan Document, if  a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its  related Benchmark Replacement Date have occurred prior to the Reference Time  in respect of any setting of the then-current Benchmark, then (x) if a Benchmark  Replacement is determined in accordance with clause (1) or (2) of the definition of  “Benchmark Replacement” for such Benchmark Replacement Date, such  Benchmark Replacement will replace such Benchmark for all purposes hereunder  and under any Loan Document in respect of such Benchmark setting and  subsequent Benchmark settings without any amendment to, or further action or  consent of any other party to, this Agreement or any other Loan Document and (y)  if a Benchmark Replacement is determined in accordance with clause (3) of the  definition of “Benchmark Replacement” for such Benchmark Replacement Date,  such Benchmark Replacement will replace such Benchmark for all purposes  hereunder and under any Loan Document in respect of any Benchmark setting at or  after 5:00 p.m. (New York City time) on the fifth Business Day after the date notice  of such Benchmark Replacement is provided by the Agent to the Lenders without  any amendment to, or further action or consent of any other party to, this Agreement  or any other Loan Document so long as the Agent has not received, by such time,  written notice of objection to such Benchmark Replacement from Lenders  comprising the Required Lenders.  (ii) Term SOFR Transition Event.  Notwithstanding anything to the  contrary herein or in any other Loan Document and subject to the proviso below in  this paragraph, if a Term SOFR Transition Event and its related Benchmark  Replacement Date have occurred prior to the Reference Time in respect of any  setting of the then-current Benchmark, then the applicable Benchmark  Replacement will replace the then-current Benchmark for all purposes hereunder  or under any Loan Document in respect of such Benchmark setting and subsequent  Benchmark settings, without any amendment to, or further action or consent of any  other party to, this Agreement or any other Loan Document; provided that, this  clause (c)(ii) shall not be effective unless the Agent has delivered to the Lenders  and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Agent shall  not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event  and may do so in its sole discretion.  (iii) Benchmark Replacement Conforming Changes. In connection with  the implementation of a Benchmark Replacement, the Agent will have the right to  make Benchmark Replacement Conforming Changes from time to time and,  





 






   26    notwithstanding anything to the contrary herein or in any other Loan Document,  any amendments implementing such Benchmark Replacement Conforming  Changes will become effective without any further action or consent of any other  party to this Agreement or any other Loan Document.   (iv) Notices; Standards for Decisions and Determinations. The Agent  will promptly notify the Borrower and the Lenders of (A) any occurrence of a  Benchmark Transition Event or an Early Opt-in Election, as applicable, and its  related Benchmark Replacement Date, (B) the implementation of any Benchmark  Replacement, (C) the effectiveness of any Benchmark Replacement Conforming  Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant  to clause (v) below and (E) the commencement or conclusion of any Benchmark  Unavailability Period. Any determination, decision or election that may be made  by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this  Section 3.3(c), including any determination with respect to a tenor, rate or  adjustment or of the occurrence or non-occurrence of an event, circumstance or  date and any decision to take or refrain from taking any action or any selection, will  be conclusive and binding absent manifest error and may be made in its or their  sole discretion and without consent from any other party to this Agreement or any  other Loan Document, except, in each case, as expressly required pursuant to this  Section 3.3(c).   (v) Unavailability of Tenor of Benchmark. Notwithstanding anything to  the contrary herein or in any other Loan Document, at any time (including in  connection with the implementation of a Benchmark Replacement), (i) if the then- current Benchmark is a term rate (including Term SOFR or LIBOR) and either (A)  any tenor for such Benchmark is not displayed on a screen or other information  service that publishes such rate from time to time as selected by the Agent in its  reasonable discretion or (B) the regulatory supervisor for the administrator of such  Benchmark has provided a public statement or publication of information  announcing that any tenor for such Benchmark is or will be no longer  representative, then the Agent may modify the definition of “Interest Period” for  any Benchmark settings at or after such time to remove such unavailable or non- representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above  either (A) is subsequently displayed on a screen or information service for a  Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer,  subject to an announcement that it is or will no longer be representative for a  Benchmark (including a Benchmark Replacement), then the Agent may modify the  definition of “Interest Period” for all Benchmark settings at or after such time to  reinstate such previously removed tenor.  (vi) Benchmark Unavailability Period.  Upon notice to the Borrower by  the Agent in accordance with Article XIII of the commencement of a Benchmark  Unavailability Period and until a Benchmark Replacement is determined in  accordance with this Section 3.3(c), the Borrower will be deemed to have requested  to convert the Term Loans to accrue interest at a rate of interest per annum equal to  the highest of (x) zero, (y) the prime rate of interest announced from time to time  





 






   27    by U.S. Bank or its parent (which is not necessarily the lowest rate charged to any  customer), changing when and as such prime rate changes, for such day and (z) the  sum of the Federal Funds Effective Rate for such day plus 0.50% per annum (it  being understood that any change in rate under clause (y) or (z) above shall be  effective from the effective date of such change).  (vii) LIBOR Notification. The interest rate on Loans bearing interest at  the Eurodollar Rate is determined by reference to LIBOR, which is derived from  the London interbank offered rate. This Section 3.3(c) provides a mechanism for  (a) determining an alternative rate of interest if the London interbank offered rate  is no longer available or in the other circumstances set forth in this Section 3.3(c),  and (b) modifying this Agreement to give effect to such alternative rate of interest.  The Agent does not warrant or accept any responsibility for, and shall not have any  liability with respect to, the administration, submission or any other matter related  to the London interbank offered rate or other rates in the definition of LIBOR or  with respect to any alternative or successor rate thereto, or replacement rate thereof,  including without limitation, whether any such alternative, successor or  replacement reference rate, as it may or may not be adjusted pursuant to this Section  3.3(c), will have the same value as, or be economically equivalent to, LIBOR.      3.4. Funding Indemnification.  If:  (i) any payment of a Term Loan occurs on a date that is not the last day of the  applicable Interest Period, whether because of acceleration, prepayment or otherwise;  (ii) a Term Loan is not made on the date specified by the Borrower for any  reason other than default by the Lenders;  (iii) a Term Loan is converted other than on the last day of the Interest Period  applicable thereto;   (iv) the Borrower fails to borrow, convert, continue or prepay a Term Loan on  the date specified in any notice delivered pursuant hereto; or   (v) a Term Loan is assigned other than on the last day of the Interest Period  applicable thereto as a result of a request by the Borrower pursuant to Section 2.13,   the Borrower shall indemnify each Lender for such Lender’s costs, expenses and Interest  Differential (as determined by such Lender) incurred as a result of such prepayment. The term  “Interest Differential” means the greater of zero and the financial loss incurred by the Lender  resulting from prepayment, calculated as the difference between the amount of interest such  Lender would have earned (from like investments as of the first day of the Interest Period) had  prepayment not occurred and the interest such Lender will actually earn (from like investments as  of the date of prepayment) as a result of the redeployment of funds from the prepayment. Because  of the short-term duration of any Interest Period, the Borrower agrees that the Interest Differential  shall not be discounted to its present value.  





 






   28    The Borrower hereby acknowledges that the Borrower shall be required to pay Interest  Differential with respect to any portion of the principal balance accelerated or paid before the end  of the Interest Period for such Term Loan, whether voluntarily, involuntarily, or otherwise,  including without limitation any principal payment required upon maturity when the Borrower has  elected an Interest Period that extends beyond the scheduled maturity date of such Term Loan and  any principal payment required following default, demand for payment, acceleration, collection  proceedings, foreclosure, sale or other disposition of collateral, bankruptcy or other insolvency  proceedings, eminent domain, condemnation, application of insurance proceeds, or otherwise.  Such Interest Differential shall at all times be an Obligation as well as an undertaking by the  Borrower to the Lenders whether arising out of a voluntary or mandatory prepayment.  3.5. Taxes.  (i) All payments by the Borrower to or for the account of any Lender  or the Agent hereunder shall be made free and clear of and without deduction for  any and all Taxes, except to the extent such Lender is entitled to an exemption from  or reduction of withholding tax with respect to payments under this Agreement but  fails to properly and timely complete and execute documentation as provided in  Section 3.5(iv) or Section 3.5(vi), as the case may be.  Subject to each Lender’s and  the Agent’s compliance with Section 3.5(iv) and Section 3.5(vi), if the Borrower or  the Agent shall be required by law to deduct any Taxes from or in respect of any  sum payable hereunder to any Lender or the Agent, (a) the sum payable shall be  increased as necessary so that after making all required deductions (including  deductions applicable to additional sums payable under this Section 3.5) such  Lender or the Agent (as the case may be) receives an amount equal to the sum it  would have received had no such deductions been made, (b) the Borrower or the  Agent, as applicable, shall make such deductions, (c) the Borrower or the Agent, as  applicable, shall pay the full amount deducted to the relevant authority in  accordance with applicable law and (d) the Borrower shall furnish to the Agent the  original copy of a receipt evidencing payment thereof within thirty (30) days after  such payment is made.  (ii) In addition, the Borrower hereby agrees to pay any present or future  stamp or documentary taxes and any other excise (but excluding Excluded Taxes)  or property taxes, charges or similar levies which arise from any payment made  hereunder or from the execution or delivery of, or otherwise with respect to, this  Agreement (“Other Taxes”).  (iii) Except as otherwise provided herein, the Borrower hereby agrees to  indemnify the Agent and each Lender for the full amount of Taxes or Other Taxes  (including, without limitation, any Taxes or Other Taxes imposed on amounts  payable under this Section 3.5) paid by the Agent or such Lender and any liability  (including penalties, interest and expenses) arising therefrom or with respect  thereto; provided that the Borrower shall not be required to indemnify the Agent or  any Lender for interest, penalties or associated expenses described in the foregoing  if such liability is found in a final non-appealable judgment by a court of competent  jurisdiction to have resulted from the gross negligence or willful misconduct of the  





 






   29    party seeking indemnification.  Payments due under this indemnification shall be  made within thirty (30) days of the date the Agent or such Lender makes demand  therefor pursuant to Section 3.6.  (iv) Each Lender that is not incorporated under the laws of the United  States of America or a state thereof (each a “Non-U.S. Lender”) agrees that it will,  not less than ten (10) Business Days after the date of this Agreement (or, if later,  ten (10) Business Days after such Lender shall become a Lender pursuant to Section  12.3), deliver to each of the Borrower and the Agent two duly completed copies of  United States Internal Revenue Service Form W-8BEN, W-8BEN-E, W-8ECI or  W-8IMY and related documentation, certifying in either case that such Lender (or  beneficial owners, as applicable) is entitled to receive payments under this  Agreement without deduction or withholding of any United States federal income  taxes and is entitled to an exemption from United States backup withholding tax.   Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and  the Agent (x) renewals or additional copies of such form (or any successor form)  on or before the date that such form expires or becomes obsolete, and (y) after the  occurrence of any event requiring a change in the most recent forms so delivered  by it, such additional forms or amendments thereto as may be reasonably requested  by the Borrower or the Agent.  All forms or amendments described in the preceding  sentence shall certify that such Lender is entitled to receive payments under this  Agreement without deduction or withholding of any United States federal income  taxes, unless an event (including without limitation any change in treaty, law or  regulation) has occurred prior to the date on which any such delivery would  otherwise be required which renders all such forms inapplicable or which would  prevent such Lender from duly completing and delivering any such form or  amendment with respect to it and such Lender advises the Borrower and the Agent  that it is not capable of receiving payments without any deduction or withholding  of United States federal income tax.  (v) For any period during which a Non-U.S. Lender has failed to  provide the Borrower with an appropriate form pursuant to clause (iv), above  (unless such failure is due to a change in treaty, law or regulation, or any change in  the interpretation or administration thereof by any Governmental Authority,  occurring subsequent to the date on which a form originally was required to be  provided), such Non-U.S. Lender shall not be entitled to indemnification under this  Section 3.5 with respect to Taxes imposed by the United States; provided that,  should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced  rate of withholding tax become subject to Taxes because of its failure to deliver a  form required under clause (iv), above, the Borrower shall take such steps as such  Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to  recover such Taxes.  (vi) Any Lender that is entitled to an exemption from or reduction of  withholding tax, including backup withholding, with respect to payments under this  Agreement pursuant to the law of any relevant jurisdiction or any treaty shall  deliver to the Borrower (with a copy to the Agent), at the time or times prescribed  





 






   30    by applicable law, such properly completed and executed documentation prescribed  by applicable law as will permit such payments to be made without withholding or  at a reduced rate.  In the event such Lender has failed timely to provide the  Borrower (with a copy to the Agent) with such properly completed and executed  documentation, such Lender shall not be entitled to indemnification under this  Section 3.5 with respect to Taxes withheld to the extent such Taxes would have  been reduced or exempt from withholding had such properly completed and  executed documentation been timely provided to the Borrower (with a copy to the  Agent).  (vii) If the U.S. Internal Revenue Service or any other Governmental  Authority of the United States or any other country or any political subdivision  thereof asserts a claim that the Agent did not properly withhold tax from amounts  paid to or for the account of any Lender (because the appropriate form was not  delivered or properly completed, because such Lender failed to notify the Agent of  a change in circumstances which rendered its exemption from withholding  ineffective, or for any other reason), such Lender shall indemnify the Agent fully  for all amounts paid, directly or indirectly, by the Agent as tax, withholding  therefor, or otherwise, including penalties and interest, and including taxes imposed  by any jurisdiction on amounts payable to the Agent under this subsection, together  with all costs and expenses related thereto (including attorneys fees and time  charges of attorneys for the Agent, which attorneys may be employees of the  Agent); provided that no Lender shall be required to indemnify the Agent for any  of the foregoing to the extent the failure of the Agent to withhold tax from amounts  paid to or for the account of any Lender is found in a final non-appealable judgment  by a court of competent jurisdiction to have resulted from the gross negligence or  willful misconduct of the Agent.  In addition, each Lender shall severally indemnify  the Agent for any taxes attributable to such Lender’s failure to comply with the  provisions of Section 12.2(c) relating to the maintenance of a Participant Register  that are payable or paid by the Agent in connection with any Loan Document, and  any reasonable expenses arising therefrom or with respect thereto, whether or not  such taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  The obligations of the Lenders under this Section 3.5(vii)  shall survive the payment of the Obligations and termination of this Agreement.  (viii) If a payment made to a Lender under any Loan Document would be  subject to U.S. federal withholding tax imposed by FATCA if such Lender were to  fail to comply with the applicable reporting requirements of FATCA (including  those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such  Lender shall deliver to the Borrower and the Agent at the time or times prescribed  by law and at such time or times reasonably requested by the Borrower or the Agent  such documentation prescribed by applicable law (including as prescribed by  Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by the Borrower or the Agent as may be necessary for the  Borrower and the Agent to comply with their obligations under FATCA and to  determine that such Lender has complied with such Lender’s obligations under  FATCA or to determine the amount to deduct and withhold from such payment.   





 






   31    Solely for purposes of this paragraph (viii), “FATCA” shall include any  amendments made to FATCA after the date of this Agreement.    3.6. Lender Statements; Survival of Indemnity.  To the extent reasonably possible,  each Lender shall designate an alternate Lending Installation with respect to its Term Loans to  reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the  unavailability of Term Loans under Section 3.3, so long as such designation is not, in the judgment  of such Lender, disadvantageous to such Lender.  Each Lender shall notify the Borrower of any  amounts due under Section 3.1, 3.2, 3.4 or 3.5 as soon as reasonably practicable and, thereafter,  deliver a written statement of such Lender to the Borrower (with a copy to the Agent) as to the  amount due, if any, under such Section(s).  Such written statement shall set forth in reasonable  detail the calculations upon which such Lender determined such amount and shall be final,  conclusive and binding on the Borrower in the absence of manifest error.  Determination of  amounts payable under such Sections in connection with a Term Loan shall be calculated as though  each Lender funded its Term Loan through the purchase of a deposit of the type and maturity  corresponding to the deposit used as a reference in determining the Eurodollar Rate applicable to  such Term Loan, whether in fact that is the case or not.  Unless otherwise provided herein, the  amount specified in the written statement of any Lender shall be payable on demand after receipt  by the Borrower of such written statement.  The obligations of the Borrower under Sections 3.1,  3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement.  ARTICLE IV    CONDITIONS PRECEDENT  4.1. Effectiveness.  This Agreement shall become effective on the date (the “Effective  Date”) on or before March 31, 2021, that all of the following conditions have been satisfied:   (a) the Borrower shall have paid, to the extent invoiced, all legal fees of counsel  to the Agent required to be reimbursed or paid by the Borrower pursuant to Section 9.6(i);   (b) the Agent shall have received each of the following:  (i) Copies of the articles or certificate of incorporation of the Borrower,  together with all amendments, and a certificate of existence, certified by the  appropriate governmental officer in its jurisdiction of incorporation.  (ii) Copies, certified by the Secretary or Assistant Secretary (or such  other officer deemed acceptable by the Agent) of the Borrower, of its bylaws and  of its Board of Directors’ resolutions authorizing the execution of the Loan  Documents by the Borrower.  (iii) An incumbency certificate, executed by the Secretary or Assistant  Secretary (or such other officer deemed acceptable by the Agent) of the Borrower,  which shall identify by name and title and bear the signatures of the officers of the  Borrower authorized to sign the Loan Documents, upon which certificate the Agent  and the Lenders shall be entitled to rely until informed of any change in writing by  the Borrower.  





 






   32    (iv) A certificate, signed by the chief financial officer or the controller  of the Borrower, stating, as of the Effective Date, that (A) no Default or Unmatured  Default has occurred and is continuing, (B) the Borrower is in compliance with  Section 6.11 and setting forth in reasonable detail the calculation of the ratio set  forth therein, determined as of December 31, 2020, and (C) the representations and  warranties contained in Article V are true and correct.  (v) A written opinion of counsel to the Borrower, substantially in the  form of Exhibit B.  (vi) Evidence, in form and substance satisfactory to the Agent, that the  Borrower has obtained all governmental approvals, if any, necessary for it to enter  into the Loan Documents, and a certification by the Borrower that any such  evidence is a true and correct copy of any such approvals.  (vii) A Note (or Notes, as applicable) executed by the Borrower in favor  of each Lender that has requested a Note pursuant to Section 2.7.  (viii) Such other documents as any Lender or its counsel may have  reasonably requested;  (c) upon the reasonable request of any Lender made at least 10 days before the  Effective Date, the Borrower shall have provided to such Lender the documentation and other  information so requested in connection with applicable “know your customer” and anti-money- laundering Laws, including the PATRIOT Act, in each case at least five days before the Effective  Date; and  (d) at least five days before the Effective Date, if the Borrower qualifies as a  “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have  delivered to each Lender requesting the same a Beneficial Ownership Certification in relation to  the Borrower.  Without limiting the generality of the provisions of Section 10.4, for purposes of determining  compliance with the conditions specified in this Section 4.1, each Lender that has signed this  Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with,  each document or other matter required thereunder to be consented to or approved by or acceptable  or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to  the proposed Effective Date specifying its objection thereto.  4.2. Each Loan.  The Lenders shall not be required to make any Loan unless on the  Effective Date:  (i) No Default or Unmatured Default exists or will result after giving  effect to such Loan.  (ii) The representations and warranties contained in Article V (other  than Section 5.10) are true and correct in all material respects (or, with respect to  any representation or warranty qualified by materiality or Material Adverse Effect,  





 






   33    in all respects) as of the date of such Loan except to the extent any such  representation or warranty is stated to relate solely to an earlier date, in which case  such representation or warranty shall have been true and correct in all material  respects (or, with respect to any representation or warranty qualified by materiality  or Material Adverse Effect, in all respects) on and as of such earlier date.  Each request for a Loan shall constitute a representation and warranty by the Borrower that  the conditions contained in Sections 4.2(i) and (ii) have been satisfied.  ARTICLE V    REPRESENTATIONS AND WARRANTIES  The Borrower represents and warrants to the Lenders as follows:  5.1. Corporate Existence.  Each of the Borrower and its Significant Subsidiaries: (a)  is a corporation duly organized, validly existing and in good standing under the laws of the  jurisdiction of its incorporation; (b) has all requisite corporate power, and has all material  governmental licenses, authorizations, consents and approvals necessary to own its Property and  carry on its business as now being conducted; and (c) is qualified to do business in all jurisdictions  in which the nature of the business conducted by it makes such qualification necessary and where  failure so to qualify would have a Material Adverse Effect.  5.2. Litigation and Contingent Obligations.  To the Borrower’s knowledge, there are  not, in any court or before any arbitrator of any kind or before or by any governmental body, any  actions, suits or proceedings pending or threatened in writing (a) against or affecting (except as  disclosed in the Disclosure Documents or on Schedule 5.2) the Borrower or any Significant  Subsidiary or any of their respective businesses or properties except actions, suits or proceedings  that could reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect or  seeks to prevent, enjoin or delay the making of any Loan or (b) affecting in an adverse manner the  binding nature, validity or enforceability of any Loan Document as an obligation of the Borrower.  5.3. No Breach.  None of the execution and delivery of this Agreement, any other Loan  Document, the consummation of the transactions herein or therein contemplated or compliance  with the terms and provisions hereof or thereof will (a) contravene the terms of the Articles of  Incorporation or Bylaws of the Borrower, (b) conflict with or result in a breach of, or require any  consent under, any applicable law, rule or regulation, or any order, writ, injunction or decree of  any Governmental Authority, or any agreement or instrument to which the Borrower or any of its  Significant Subsidiaries is a party or by which it is bound or to which it is subject, or (c) constitute  a default under any agreement or instrument to which the Borrower or any of its Significant  Subsidiaries is a party or by which it is bound or to which it is subject, or result in the creation or  imposition of any Lien upon any of the revenues or assets of the Borrower or any of its Significant  Subsidiaries pursuant to the terms of any such agreement or instrument.  5.4. Corporate Action.  The Borrower has all necessary corporate power and authority  to execute, deliver and perform its obligations under this Agreement and the other Loan  Documents; the execution, delivery and performance by the Borrower of this Agreement and the  





 






   34    other Loan Documents have been duly authorized by all necessary corporate action on its part; and  this Agreement has been duly and validly executed and delivered by the Borrower and constitutes  its legal, valid and binding obligation, enforceable against the Borrower in accordance with its  terms, except as may be limited by applicable bankruptcy laws or similar laws or equitable  principles of general applicability affecting creditors’ rights.  5.5. Approvals.  The Borrower has obtained all Governmental Approvals from, and has  made or will timely make all filings and registrations with any federal, state or local governmental  or regulatory authority or agency that has authority over the Borrower or any of its Significant  Subsidiaries, that are necessary for the execution, delivery or performance by the Borrower of this  Agreement and each other Loan Document or for the validity or enforceability hereof or thereof,  and such Governmental Approvals, filings and registrations are and shall continue to be in full  force and effect (it being understood that the Borrower may be required to make customary filings  with the SEC and other governmental or regulatory authorities or agencies disclosing the existence  and/or material terms of this Agreement, but failure to make any such filing shall not affect the  validity or enforceability hereof or of any other Loan Document).  5.6. Use of Loans.  Neither the Borrower nor any of its Significant Subsidiaries is  engaged principally, or as one of its important activities, in the business of extending credit for the  purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, as defined  in Regulation U, and no part of the proceeds of any Loan hereunder will be used to buy or carry  any Margin Stock.  No part of the proceeds of any Loan hereunder will be used to acquire stock  of any corporation the board of directors of which has publicly stated its opposition to such  acquisition or fails to endorse such acquisition.  5.7. ERISA.  Except as disclosed in the Disclosure Documents, the Borrower and its  Significant Subsidiaries and, to the knowledge of the Borrower, the other ERISA Affiliates have  fulfilled their respective obligations under the minimum funding standards of ERISA and the Code  with respect to each Benefit Plan of the Borrower or any ERISA Affiliate; the Benefit Plans of  the  Borrower and its Significant Subsidiaries and, to the knowledge of the Borrower, of the other  ERISA Affiliates are in compliance in all material respects with the presently applicable provisions  of ERISA and the Code or any non-compliance is not reasonably expected to result in a Material  Adverse Effect; and the Borrower and its Significant Subsidiaries and, to the knowledge of the  Borrower, the other ERISA Affiliates have not incurred any liability to the PBGC (other than  liability for premium payments which are paid when due) or to such Benefit Plan which,  individually or in the aggregate, exceeds $10,000,000.  Without limiting the generality of the  foregoing, except as disclosed in the Disclosure Documents, the Borrower has not received notice  with respect to any of the foregoing events with respect to any ERISA Affiliate or such Benefit  Plan.  5.8. Taxes.  United States Federal income tax returns of the Borrower and its Significant  Subsidiaries have been examined and closed through the period ended December 31, 2010.  The  Borrower and its Significant Subsidiaries have filed all United States Federal and state income tax  returns which are required to be filed by them and have paid all taxes due pursuant to such returns  or pursuant to any assessment received by the Borrower or any of its Significant Subsidiaries,  except such taxes, if any, as are being contested in good faith and by proper proceedings or the  non-payment of which, individually or in the aggregate, would not reasonably be expected to have  





 






   35    a Material Adverse Effect.  The charges, accruals and reserves on the books of the Borrower and  its Significant Subsidiaries in respect of taxes and other governmental charges are, in the opinion  of the Borrower, adequate.  5.9. Subsidiaries.  Schedule 5.9 contains an accurate list of all Subsidiaries of the  Borrower as of the date of this Agreement, setting forth their respective jurisdictions of  organization, the percentage of their respective capital stock or other ownership interests owned  by the Borrower or other Subsidiaries and identifying which Subsidiaries are Significant  Subsidiaries.  All of the issued and outstanding shares of capital stock or other ownership interests  of such Subsidiaries have been (to the extent such concepts are relevant with respect to such  ownership interests) duly authorized and issued and are fully paid and nonassessable.  5.10. No Material Adverse Change.  Except as disclosed in the Disclosure Documents,  since December 31, 2020, there has been no change in the business or financial condition of the  Borrower and its Significant Subsidiaries from that reflected in the Borrower’s Annual Report on  Form 10-K for the year ended December 31, 2020 which would reasonably be expected to have a  Material Adverse Effect.  5.11. Financial Statements.  The Borrower has furnished the Disclosure Documents to  the Lenders prior to the date hereof.  The financial statements contained in the Disclosure  Documents and all financial statements furnished pursuant to Section 6.9(i) or (ii) fairly present in  all material respects, in accordance with Agreement Accounting Principles, the consolidated  financial position of the Borrower and its Subsidiaries as at their respective dates and the  consolidated results of operations, retained earnings and, as applicable, changes in financial  position or cash flows of the Borrower and its Subsidiaries for the respective periods to which such  statements relate.  5.12. No Material Misstatements.  None of the following contained, contains or will  contain as of the date thereof any material misstatement of fact or omitted, omits or will omit as  of the date thereof to state any material fact necessary to make the statements therein, in the light  of the circumstances under which they were, are or will be made, not misleading:  (i) the Disclosure Documents (excluding any exhibits referred to in any  such Disclosure Documents); or  (ii) any report delivered to the Agent or any Lender pursuant to Section  6.9(i) or (ii) (excluding exhibits referred to in any such report).  To the best knowledge of the Borrower, no other written information delivered to the Agent or any  Lender pursuant to Section 6.9 contained, contains or will contain as of the date thereof any  material misstatement of fact. As of the Effective Date, the information included in any Beneficial  Ownership Certification is true and correct in all respects.  5.13. Properties.  As of the date of this Agreement, the Borrower has good right or title  to all of its Properties to the extent reflected in the Disclosure Documents, except for minor  restrictions, reservations and defects which do not in any substantial way interfere with the  Borrower’s ability to conduct its business as now conducted and except for such assets as have  been disposed of since December 31, 2020 in transactions of the types described in Sections  





 






   36    6.13(a), (b) and (c), and all such Properties are free and clear of any Liens, except as permitted by  Section 6.10.  5.14. Environmental Matters.  Except as described in the Disclosure Documents, to the  best of Borrower’s knowledge, no event has occurred and no condition exists related to  Environmental Laws which would reasonably be expected to have a Material Adverse Effect.   Except as otherwise described in the Disclosure Documents, neither the Borrower nor any  Subsidiary has received any notice from a federal or state governmental agency to the effect that  its operations are not in material compliance with any of the requirements of applicable  Environmental Laws or are the subject of any federal or state investigation evaluating whether any  remedial action is needed to respond to a release of any toxic or hazardous waste or substance into  the environment, which noncompliance or remedial action would reasonably be expected to have  a Material Adverse Effect.  5.15. Investment Company Act.  Neither the Borrower nor any Subsidiary is an  “investment company” or a company “controlled” by an “investment company”, within the  meaning of the Investment Company Act of 1940, as amended.  5.16. Anti-Terrorism; Anti-Money Laundering.  Except as set forth on Schedule 5.16,  neither the Borrower nor any of its Subsidiaries or, to their knowledge, any of their respective  directors, officers, employees and agents (i) is an “enemy” or an “ally of the enemy” within the  meaning of Section 2 of the Trading with the Enemy Act of the United States (50 U.S.C. App. §§  1 et seq.), (ii) is in violation of (A) the Trading with the Enemy Act, (B) any of the foreign assets  control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) or  any enabling legislation or executive order relating thereto or (C) the PATRIOT Act (collectively,  the “Anti-Terrorism Laws”) or (iii) is a Sanctioned Person.  No part of the proceeds of any Loan  hereunder will be unlawfully used directly or indirectly to fund any operations in, finance any  investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country,  or in any other manner that will result in any violation by any Person (including any Lender, any  Arranger or the Agent) of any Anti-Terrorism Laws.  ARTICLE VI    COVENANTS  So long as any Lender has any Commitment hereunder or any Obligations are outstanding,  the Borrower shall, unless the Required Lenders otherwise consent in writing:  6.1. Preservation of Existence and Business.  Preserve and maintain, and cause each  Significant Subsidiary to preserve and maintain, its corporate existence and all of its material  rights, privileges, licenses and franchises, except as permitted by Section 6.12, and carry on and  conduct its business in substantially the same manner and in substantially the same fields of  enterprise as it is presently conducted.  6.2. Preservation of Property.  Maintain, and cause each Significant Subsidiary to  maintain, all of its Property used or useful in its business in good working order and condition,  ordinary wear and tear excepted (it being understood that this covenant relates only to the good  





 






   37    working order and condition of such Property and shall not be construed as a covenant of the  Borrower not to dispose of any such Property by sale, lease, transfer or otherwise or to discontinue  operation thereof if the Borrower reasonably determines that such discontinuation is necessary).  6.3. Payment of Taxes.  Pay, and cause each Significant Subsidiary to pay, promptly  when due all taxes, assessments and governmental charges or levies imposed upon it or upon its  income or profits, or upon any of its Property, before the same shall become in default; provided  that neither the Borrower nor any Significant Subsidiary shall be required to pay any such tax,  assessment, charge or levy (i) in an amount in excess of the amount shown on any related tax return  (the Borrower having a reasonable basis for the position reflected therein) or (ii) that is being  contested in good faith by appropriate proceedings and with respect to which the Borrower has set  aside on its books, in accordance with Agreement Accounting Principles, adequate reserves, or  (iii) so long as such tax, assessment, charge or levy, if sustained, would not have a Material  Adverse Effect.  6.4. Compliance with Applicable Laws and Contracts.  Comply, and cause each  Significant Subsidiary to comply, with the requirements of all applicable laws, rules or regulations,  Governmental Approvals, and orders, writs, injunctions or decrees of any court or Governmental  Authority, including, without limitation, Environmental Laws, if failure to comply with such  requirements would have a Material Adverse Effect or an adverse effect on the binding nature,  validity or enforceability of any Loan Document as an obligation of the Borrower.  6.5. Preservation of Loan Document Enforceability.  Take all reasonable actions  (including obtaining and maintaining in full force and effect consents and Governmental  Approvals), and cause each Significant Subsidiary to take all reasonable actions, that are required  so that its obligations under the Loan Documents will at all times be legal, valid and binding and  enforceable  against it in accordance with their respective terms.  6.6. Insurance.  Maintain, and cause each Significant Subsidiary to maintain, with  responsible insurance companies, or through the Borrower’s program of self-insurance, insurance  coverage against at least such risks and in at least such amounts as is customarily maintained by  similar businesses, or as may be required by any applicable law, rule or regulation, any  Governmental Approval, or any order, writ, injunction or decree of any court or Governmental  Authority.  6.7. Use of Proceeds.  Use, directly or indirectly, the proceeds of the Loans to finance  capital expenditures and for general corporate purposes of the Borrower (in compliance with all  applicable legal and regulatory requirements), including, without limitation, to refinance existing  Indebtedness of the Borrower.  6.8. Visits, Inspections and Discussions.  Permit, and cause each Significant  Subsidiary to permit, representatives of the Agent or of any Lender with a Commitment or  outstanding Loans of at least $5,000,000 (provided, however, that Lenders with a Commitment or  Loans of less than $5,000,000 shall be permitted to exercise rights under this Section 6.8 if such  right is exercised jointly with the Agent or a Lender with a Commitment or Loans of at least  $5,000,000), and subject in all cases to such Lender being bound by the confidentiality provisions  





 






   38    of Section 9.11, during normal business hours and upon reasonable prior written notice to the  Borrower:  (i) if no Default or Unmatured Default shall exist and be continuing, to  visit the principal office of the Borrower, to discuss its business and affairs with its  officers and independent certified accountants (provided that the Borrower shall be  permitted to attend any such discussions with such accountants), and to visit its  material Property, all to the extent reasonably requested by the Agent or such  Lender; provided that such visits and discussions shall in no event occur more  frequently than once during any calendar year; provided, further that the Borrower  reserves the right to restrict access to any of its generating facilities in accordance  with reasonably adopted procedures relating to safety and security, and to the extent  reasonably requested to maintain normal operations of the Borrower; and provided,  further, that, Sections 9.6 and 10.8 hereof notwithstanding, the costs and expenses  incurred by any Lender or the Agent or their agents or representatives in connection  with any such visits or discussions shall be solely for the account of such Lender or  the Agent, as applicable; and  (ii) if a Default or Unmatured Default shall exist and be continuing, to  visit and inspect its Property, to examine, copy and make extracts from its books  and records, and to discuss its business and affairs with its officers and independent  certified accountants, all to the extent reasonably requested by such Lender or the  Agent, as often as may be reasonably requested; provided that the Borrower  reserves the right to restrict access to any of its generating facilities in accordance  with reasonably adopted procedures relating to safety and security, and to the extent  reasonably requested to maintain normal operations of the Borrower.  6.9. Information to Be Furnished.  Furnish to the Agent and each Lender:  (i) Form 10-Q; Quarterly Financial Statements.  Promptly after filing  and in any event within sixty (60) days after the close of each of the first three  quarterly accounting periods in each fiscal year of the Borrower, a copy of the  Quarterly Report on Form 10-Q (or any successor form) for the Borrower for such  quarter.  (ii) Form 10-K; Year-End Financial Statements; Accountants’  Certificates.  Promptly after filing and in any event within ninety (90) days after  the end of each fiscal year of the Borrower, the Annual Report on Form 10-K (or  any successor form) for the Borrower for such year.  (iii) Compliance Certificate as to Calculations.  At the time that financial  statements are furnished pursuant to Section 6.9(i) or (ii), a compliance certificate  of the Chief Financial Officer, the Treasurer, an Assistant Treasurer or any other  financial officer of the Borrower substantially in the form of Exhibit C.  (iv) Requested Information.  From time to time, such other information  regarding the business, affairs, insurance or financial condition of the Borrower or  





 






   39    any of its Subsidiaries (including, without limitation, any Benefit Plan and any  reports of other information required to be filed under ERISA) as any Lender or the  Agent may reasonably request, including information and documentation  reasonably requested by the Agent or any Lender for purposes of compliance with  applicable “know your customer” requirements under the PATRIOT Act or other  applicable anti-money laundering Laws.  (v) Beneficial Ownership. At or promptly after any time at which the  Borrower or any Subsidiary becomes subject to the Beneficial Ownership  Regulation if not subject thereto as of the Effective Date, a completed Beneficial  Ownership Certification in form and substance acceptable to the Agent.  (vi) Notice of Defaults, Material Adverse Changes and Other Matters.   Promptly upon (and in any event within three (3) Business Days after) becoming  aware thereof, notice of:  (a) any Default or Unmatured Default,   (b) any circumstance that has resulted in a Material Adverse  Effect or an adverse effect on the binding nature, validity or enforceability  of any Loan Document as an obligation of the Borrower,   (c) any change in the information provided in any Beneficial  Ownership Certification that would result in a change to the list of beneficial  owners identified in parts (c) or (d) of such certification; and  (d) the entry into any Additional Credit Facility (including  notice of any Alternative Margin thereunder).  The Borrower may furnish information, documents and other materials that it is obligated  to furnish to the Agent and the Lenders pursuant to the Loan Documents, including all items  described above in this Section 6.9 and all other notices, requests, financial statements, financial  and other reports, certificates and other information materials, but excluding any communication  that (i) relates to a request for a new Loan or a change of an Interest Period of an existing Loan,  (ii) relates to the payment of any amount due under this Agreement prior to the scheduled date  therefor, (iii) provides notice of any Default or Unmatured Default or (iv) is required to be  delivered to satisfy any condition precedent to the effectiveness of this Agreement or any Loan  hereunder (any non-excluded communication described above, a “Communication”),  electronically (including by posting such documents, or providing a link thereto, on the Borrower’s  Internet website).  Notwithstanding the foregoing, the Borrower agrees that, to the extent requested  by the Agent or any Lender, it will continue to provide “hard copies” of Communications to the  Agent or such Lender.  The Borrower further agrees that the Agent may make Communications available to the  Lenders by posting such Communications on DebtX or a substantially similar secure electronic  delivery system (the “Platform”).  





 






   40    THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.  THE AGENT  DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY  COMMUNICATION OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY  DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATION.  NO  WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY  WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER  CODE DEFECTS, IS MADE BY THE AGENT IN CONNECTION WITH ANY  COMMUNICATION OR THE PLATFORM.  IN NO EVENT SHALL THE AGENT HAVE  ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON FOR  DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE)  ARISING OUT OF THE BORROWER’S OR THE AGENT’S TRANSMISSION OF  COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT SUCH  DAMAGES ARE FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF  COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS  NEGLIGENCE OR WILLFUL MISCONDUCT.  WITHOUT LIMITING THE FOREGOING,  UNDER NO CIRCUMSTANCES SHALL THE AGENT BE LIABLE FOR ANY INDIRECT,  SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE  OF THE PLATFORM OR THE BORROWER’S OR THE AGENT’S TRANSMISSION OF  COMMUNICATIONS THROUGH THE INTERNET.  Each Lender agrees that notice to it (as provided in the next sentence) specifying that a  Communication has been posted to the Platform shall constitute effective delivery of such  Communication to such Lender for purposes of the Loan Documents.  Each Lender agrees (i) to  notify the Agent from time to time of the e-mail address to which the foregoing notice may be sent  and (ii) that such notice may be sent to such e-mail address.  For the avoidance of doubt, the failure  of the Agent to provide notice to the Lenders as explicitly required by this Agreement shall not  affect the validity or binding nature of a related notice delivered to the Agent by the Borrower;  provided, that the Borrower shall remain obligated to provide notice directly to the Agent and/or  Lenders when and as required by this Agreement.  6.10. Liens.  Not, and not permit any Significant Subsidiary to, suffer to exist any Lien  upon any of its property, assets or revenues, whether now owned or hereafter acquired, except this  Section 6.10 shall not apply to:  (i) Liens for taxes, assessments or charges imposed on the Borrower or  any Subsidiary or any of their property by any Governmental Authority not yet due  or which are being contested in good faith by appropriate proceedings if adequate  reserves with respect thereto are maintained on the books of the Borrower or any  of its Subsidiaries, as the case may be, in accordance with Agreement Accounting  Principles;  (ii) (A) Liens imposed by law, such as carriers’, warehousemen’s,  mechanics’, materialmen’s, repairmen’s or other like Liens incurred in the ordinary  course of business and (1) securing obligations that are not yet due, or (2) for which  Borrower has set aside adequate reserves on its books, or (3) that are being  contested in good faith by appropriate proceedings; or (B) Liens arising out of  





 






   41    judgments or awards which secure payment of legal obligations that would not  constitute a Default under Section 7.9;  (iii) pledges or deposits in connection with worker’s compensation,  unemployment insurance and other social security laws, or to secure the  performance of bids, tenders contracts (other than for borrowed money), leases,  statutory obligations, surety or appeal bonds, or indemnity, performance or other  similar bonds, in the ordinary course of business;  (iv) easements, rights-of-way, restrictions and other similar  encumbrances incurred in the ordinary course of business and encumbrances  consisting of zoning restrictions, easements, licenses, restrictions on the use of  property or minor imperfections in title thereto which, in the aggregate, are not  material in amount, and which do not in any case materially detract from the value  of the property subject thereto or interfere with the ordinary conduct of the business  of the Borrower or any of its Subsidiaries;  (v) the Lien of the Indenture of Mortgage and Deed of Trust dated  July 1, 1945, as supplemented and in effect from time to time, from the Borrower  to Wells Fargo Bank, National Association (the “Mortgage”);  (vi) Permitted Encumbrances (as defined in Section 1.11 of the  Mortgage);  (vii) Liens securing the payment of Tax-Free Debt, provided that each  such Lien shall extend only to the property, and proceeds thereof, being financed  by the Tax-Free Debt secured thereby;  (viii) Liens on or over the whole or any part of the assets of the Borrower  as security for any indebtedness owing by the Borrower to any Subsidiary whose  primary function is that of acting as a financing Subsidiary of the Borrower and  consisting of one or more loans made to the Borrower by such Subsidiary and  repayable on the same date as a loan or other indebtedness incurred by such  Subsidiary; provided that the aggregate principal amount of the indebtedness  secured by all such Liens shall not exceed the aggregate principal amount of all  such indebtedness incurred by such Subsidiary; and provided further that the  aggregate principal amount of the indebtedness secured by all such Liens shall not  exceed $100,000,000;  (ix) Liens over all or any part of the assets of the Borrower or any  Subsidiary constituting a specific construction project or generating plant as  security for any indebtedness incurred for the purpose of financing all or such part,  as the case may be, of such construction project or generating plant, and Liens and  charges arising from or relating to such construction project or generating plant;  (x) the right reserved to, or vested in, any municipality or public  authority by the terms of any right, power, franchise, grant, license or permit, or by  





 






   42    any provision of law, to purchase or recapture or designate a purchaser of any  property;  (xi) Liens on property or assets of any Subsidiary in favor of the  Borrower;  (xii) Liens with respect to which cash in the amount of such Liens has  been deposited with the Agent or any Lender;  (xiii) Liens on or over specific assets hereafter acquired which are created  or assumed contemporaneously with, or within 120 days after, such acquisition, for  the sole purpose of financing or refinancing the acquisition of such assets (including  without limitation Liens to secure obligations to make deferred payments, earn-out  payments or royalty payments where such obligations are incurred in connection  with the acquisition of such assets);  (xiv) Liens on conservation investment assets as security for obligations  incurred in financing or refinancing bondable conservation investments in  accordance with Oregon Revised Statutes Section 757.400-450;  (xv) Liens on cash collateral deposited by the Borrower with  counterparties in the ordinary course of the Borrower’s purchase and sale of electric  energy, coal, oil and natural gas;   (xvi) Liens relating to a conservation easement on approximately 61 acres  of the real property owned by the Borrower known as the Harborton property and  located on the west bank of the Lower Willamette River, in connection with the  natural resource damage assessment restoration project known as the Harborton  Natural Resource Damage Assessment Restoration Project; and  (xvii) Liens, in addition to those listed in clauses (i) through (xvi) above,  incurred in the ordinary course of the Borrower’s business on collateral with a  market value that in the aggregate does not exceed $50,000,000.  6.11. Indebtedness to Capitalization Ratio.  Not permit the aggregate outstanding  principal amount of all Consolidated Indebtedness to exceed 65% of Total Capitalization as of the  end of any fiscal quarter.  6.12. Merger or Consolidation.  Not merge with or into or consolidate with or into any  other corporation or entity, unless (i) immediately after giving effect thereto, no event shall occur  and be continuing that would constitute a Default or Unmatured Default, (ii) the surviving or  resulting person, as the case may be, if not the Borrower, assumes by operation of law or agrees in  writing to pay and perform all of the obligations of the Borrower hereunder, (iii) the surviving or  resulting person, as the case may be, qualifies or is qualified to do business in the State of Oregon,  and (iv) the consolidated net worth (as determined in accordance with Agreement Accounting  Principles) of the surviving or resulting Person, as the case may be, would be at least equal to the  consolidated net worth of the Borrower immediately prior to such merger or consolidation.  





 






   43    6.13. Disposition of Assets.  Not sell, lease, assign, transfer or otherwise dispose of any  Property or any interest therein, except that this Section 6.13 shall not apply to (a) any disposition  of any Property or any interest therein in the ordinary course of business, (b) any disposition of  obsolete or retired Property not used or useful in its business, (c) any disposition of any Property  or any interest therein (i) for cash or cash equivalent or (ii) in exchange for utility plant, equipment  or other utility assets, other than notes or other obligations, in each case equal to the fair market  value (as determined in good faith by the Board of Directors of the Borrower) of such Property or  interest therein, and provided that such disposition does not constitute a disposition of all or  substantially all of the Property of the Borrower and (d) any disposition of any Property or any  interest therein in exchange for notes or other obligations substantially equal to the fair market  value (as determined in good faith by the Board of Directors of the Borrower) of such asset or  interest therein, provided that the aggregate amount of notes or other obligations received after the  date hereof from any one obligor in one transaction or a series of transactions shall not exceed  15% of the net asset value of the Borrower.  ARTICLE VII    DEFAULTS  The occurrence of any one or more of the following events shall constitute a Default:  7.1. Any representation or warranty made or deemed made by the Borrower or any of  its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Loan,  or any certificate or information delivered in connection with this Agreement or any other Loan  Document shall be materially false on the date as of which made.  7.2. Nonpayment of principal of any Loan when due, or nonpayment of interest upon  any Loan or other Obligation under any of the Loan Documents within five (5) days after the same  becomes due.  7.3. The breach by the Borrower of any of the terms or provisions of Sections 6.1 (with  respect to the Borrower), 6.7, 6.9(vi)(a), 6.10, 6.11, 6.12, or 6.13.  7.4. The breach by the Borrower (other than a breach which constitutes a Default under  another Section of this Article VII) of any of the terms or provisions of this Agreement which is  not remedied within thirty (30) days after written notice from the Agent or any Lender.  7.5. (a) To the extent not waived, or if applicable, cured, (i) the failure of the Borrower  or any Subsidiary to pay when due any Indebtedness aggregating in excess of $10,000,000  (“Material Indebtedness”); (ii) the default by the Borrower or any Significant Subsidiary in the  performance (beyond the applicable grace period with respect thereto, if any) of any term,  provision or condition contained in any agreement under which any such Material Indebtedness  was created or is governed, or any other event shall occur or condition exist, the effect of which  default or event is to cause, or to permit the holder or holders of such Material Indebtedness to  cause, such Material Indebtedness to become due prior to its stated maturity; or (iii) any Material  Indebtedness of the Borrower or any Significant Subsidiary shall be declared to be due and payable  or required to be prepaid or repurchased (other than by a regularly scheduled payment) prior to the  





 






   44    stated maturity thereof; or (b) the Borrower or any of its Significant Subsidiaries shall not pay, or  shall admit in writing its inability to pay, its debts generally as they become due.  7.6. The Borrower or any Significant Subsidiary shall (i) have an order for relief entered  with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an  assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the  appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any  Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under  the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or  insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment  or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization  or relief of debtors or fail to file an answer or other pleading denying the material allegations of  any such proceeding filed against it, (v) take any corporate or partnership action to authorize or  effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good faith  any appointment or proceeding described in Section 7.7.  7.7. Without the application, approval or consent of the Borrower or the applicable  Significant Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be  appointed for the Borrower or such Significant Subsidiary or any Substantial Portion of its  Property, or a proceeding described in Section 7.6(iv) shall be instituted against the Borrower or  such Significant Subsidiary and such appointment continues undischarged or such proceeding  continues undismissed or unstayed for a period of thirty (30) consecutive days.  7.8. Any court, government or governmental agency shall condemn, seize or otherwise  appropriate, or take custody or control of, all or any portion of Property of the Borrower and its  Significant Subsidiaries which, when taken together with all other Property of the Borrower and  its Significant Subsidiaries so condemned, seized, appropriated, or taken custody or control of,  during the twelve-month period ending with the month in which any such action occurs, constitutes  a Substantial Portion.  7.9. The Borrower or any Significant Subsidiary shall fail within sixty (60) days to pay,  bond or otherwise discharge in accordance with its terms one or more (i) judgments or orders for  the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than  Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the  aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s),  in any such case, is/are not stayed on appeal or otherwise being appropriately contested in good  faith.  7.10. Except as disclosed in the Disclosure Documents, the Borrower or any ERISA  Affiliate incurs any liability to the PBGC (other than liability for premium payments which are  paid when due) or a Benefit Plan pursuant to Title IV of ERISA or the Borrower or any ERISA  Affiliate incurs any withdrawal liability pursuant to Title IV of ERISA with respect to a Benefit  Plan or Multiemployer Benefit Plan (determined as of the date of notice of such withdrawal  liability) in excess of $10,000,000.   





 






   45    ARTICLE VIII    ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES  8.1. Acceleration.  If any Default described in Section 7.6 or 7.7 occurs with respect to  the Borrower, the Commitments of each Lender hereunder shall automatically terminate and the  Obligations shall immediately become due and payable, in each case without further act of the  Agent or any Lender and without any election or action on the part of the Agent or any Lender.  If  any other Default occurs, the Required Lenders (or the Agent with the consent of the Required  Lenders) may (i) terminate or suspend the Aggregate Commitments or (ii) declare the Obligations  to be due and payable, or both of the foregoing, whereupon such Aggregate Commitments shall  be immediately terminated or suspended and/or the Obligations shall become immediately due and  payable, without presentment, demand, protest or notice of any kind, all of which the Borrower  hereby expressly waives.  8.2. Amendments.  Subject to the provisions of this Article VIII, the Required Lenders  (or the Agent with the consent in writing of the Required Lenders) and the Borrower may enter  into agreements supplemental hereto for the purpose of adding or modifying any provisions to the  Loan Documents or changing in any manner the rights of the Lenders or the Borrower hereunder  or waiving any Default hereunder or other provisions hereof; provided that no such supplemental  agreement shall, without the consent of all of the Lenders affected thereby:  (i) Extend the final maturity of any Loan to a date after the Scheduled  Termination Date, or forgive all or any portion of the principal amount thereof, or  reduce the rate or extend the time of payment of interest thereon.  (ii) Reduce the percentage specified in the definition of Required  Lenders.  (iii) Increase the amount of the Commitment of any Lender hereunder or  permit the Borrower to assign its rights under this Agreement.  (iv) Amend this Section 8.2.  (v) Amend Section 11.2.  No amendment of any provision of this Agreement relating to the Agent shall be effective without  the written consent of the Agent.  The Agent may waive payment of any fee required under Section  12.3(a)(iv) without obtaining the consent of any other party to this Agreement.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to  approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver  or consent which by its terms requires the consent of all Lenders or each affected Lender may be  effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)  the Commitment of any Defaulting Lender may not be increased or extended without the consent  of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders  or each affected Lender that by its terms affects any Defaulting Lender more adversely than other  affected Lenders shall require the consent of such Defaulting Lender.  





 






   46    8.3. Preservation of Rights.  No delay or omission of the Lenders or the Agent to  exercise any right under the Loan Documents shall impair such right or be construed to be a waiver  of any Default or an acquiescence therein, and the making of a Loan notwithstanding the existence  of a Default or the inability of the Borrower to satisfy the conditions precedent to such Loan shall  not constitute any waiver or acquiescence.  Any single or partial exercise of any such right shall  not preclude other or further exercise thereof or the exercise of any other right, and no waiver,  amendment or other variation of the terms, conditions or provisions of the Loan Documents  whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 8.2,  and then only to the extent in such writing specifically set forth.  All remedies contained in the  Loan Documents or by law afforded shall be cumulative and all shall be available to the Agent and  the Lenders until the Obligations have been paid in full.  ARTICLE IX    GENERAL PROVISIONS  9.1. Survival of Representations.  All representations and warranties of the Borrower  contained in this Agreement shall survive the making of the Loans herein contemplated.  9.2. Governmental Regulation.  Anything contained in this Agreement to the contrary  notwithstanding, no Lender shall be obligated to extend credit to the Borrower in violation of any  limitation or prohibition provided by any applicable statute or regulation.  9.3. Headings.  Section headings in the Loan Documents are for convenience of  reference only, and shall not govern the interpretation of any of the provisions of the Loan  Documents.  9.4. Entire Agreement.  The Loan Documents embody the entire agreement and  understanding among the Borrower, the Agent and the Lenders and supersede all prior agreements  and understandings among the Borrower, the Agent and the Lenders relating to the subject matter  thereof.  9.5. Several Obligations; Benefits of this Agreement.  The respective obligations of  the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any  other (except to the extent to which the Agent is authorized to act as such).  The failure of any  Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of  its obligations hereunder.  This Agreement shall not be construed so as to confer any right or  benefit upon any Person other than the parties to this Agreement and their respective successors  and assigns; provided that the parties hereto expressly agree that each Arranger shall enjoy the  benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth therein  and shall have the right to enforce such provisions on its own behalf and in its own name to the  same extent as if it were a party to this Agreement.   9.6. Expenses; Indemnification.  (i) The Borrower shall reimburse the Agent for the reasonable costs and  out of pocket expenses of a single external counsel paid or incurred by the Agent  in connection with the preparation, negotiation, execution, delivery, review,  





 






   47    amendment, modification and administration of the Loan Documents.  The  Borrower also agrees to reimburse the Agent, the Arrangers and the Lenders for all  reasonable costs, internal charges and out of pocket expenses (including the  attorneys’ fees of external counsel) paid or incurred by the Agent, any Arranger or  any Lender in connection with the collection and enforcement of the Loan  Documents.  (ii) The Borrower hereby further agrees to indemnify the Agent,  each  Arranger, each Lender, their respective affiliates, and each of their directors,  officers, advisors, trustees and employees against all losses, claims, damages,  penalties, judgments, liabilities and reasonable expenses (including, without  limitation, all reasonable expenses of litigation or preparation therefor whether or  not the Agent, any Arranger, any Lender or any affiliate is a party thereto and  whether or not such investigation, litigation or proceeding is brought by the  Borrower, the Borrower’s equity holders or creditors or any other party) which any  of them may pay or incur arising out of or relating to this Agreement, the other  Loan Documents, the transactions contemplated hereby or the application of the  proceeds of any Loan hereunder except to the extent that they are determined in a  final non-appealable judgment by a court of competent jurisdiction to have resulted  from the gross negligence or willful misconduct of the party seeking  indemnification.  The obligations of the Borrower under this Section 9.6 shall  survive the termination of this Agreement.  9.7. Numbers of Documents.  All statements, notices, closing documents, and requests  hereunder shall be furnished to the Agent with sufficient counterparts so that the Agent may furnish  one to each of the Lenders.  9.8. Accounting.  Except as provided to the contrary herein, all accounting terms used  herein shall be interpreted and all accounting determinations hereunder shall be made in  accordance with Agreement Accounting Principles.  If at any time any change in the Agreement  Accounting Principles would affect the computation of the financial ratio or requirement set forth  in any Loan 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 the Agreement  Accounting Principles (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 the  Agreement Accounting Principles 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 the Agreement  Accounting Principles.  9.9. Severability of Provisions.  Any provision in any Loan Document that is held to  be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be  inoperative, unenforceable, or invalid without affecting the remaining provisions in that  jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction,  and to this end the provisions of all Loan Documents are declared to be severable.  Without limiting  





 






   48    the foregoing provisions of this Section 9.9, if and to the extent that the enforceability of any  provisions in this Agreement relating to Defaulting Lenders shall be limited by bankruptcy or other  similar debtor relief laws, as determined in good faith by the Agent, then such provisions shall be  deemed to be in effect only to the extent not so limited.  9.10. Nonliability of Lenders.  The relationship between the Borrower on the one hand  and the Lenders, the Arrangers, the Agent on the other hand shall be solely that of borrower and  lender.  None of the Agent, any Arranger or any Lender shall have any fiduciary responsibilities  to the Borrower.  None of the Agent, any Arranger or any Lender undertakes any responsibility to  the Borrower to review or inform the Borrower of any matter in connection with any phase of the  Borrower’s business or operations.  The Borrower agrees that none of the Agent, any Arranger or  any Lender shall have liability to the Borrower for losses suffered by the Borrower in connection  with, arising out of, or in any way related to, the transactions contemplated and the relationship  established by the Loan Documents, or any act, omission or event occurring in connection  therewith, except to the extent determined in a final non-appealable judgment by a court of  competent jurisdiction.  Neither the Agent, the Arranger or any Lender nor the Borrower shall have  any liability with respect to, and the Borrower (with respect to the Agent, the Arranger and each  Lender) and the Agent, each Arranger and each Lender (with respect to the Borrower) hereby  waives, releases and agrees not to sue for any special, indirect or consequential damages suffered  by any such party in connection with, arising out of, or in any way related to the Loan Documents  or the transactions contemplated thereby; provided, that this sentence shall in no way diminish the  Borrower’s indemnification obligations under Section 9.6.  9.11. Confidentiality.  The Agent, each Arranger and each Lender agrees to hold any  confidential information which it may receive from the Borrower pursuant to this Agreement in  confidence, except for disclosure (i) to its Affiliates and to other Lenders and their respective  Affiliates, (ii) to legal counsel, accountants, and other professional advisors to such Lender or to a  Transferee, (iii) to regulatory officials, (iv) to any Person as requested pursuant to or as required  by law, regulation, or legal process, (v) to any Person in connection with any legal proceeding to  which such Agent, Arranger or Lender is a party, (vi) to such Lender’s direct or indirect contractual  counterparties in swap agreements or to legal counsel, accountants and other professional advisors  to such counterparties, (vii) permitted by Section 12.4, (viii)  to rating agencies if required by such  agencies in connection with a rating relating to the Term Loans hereunder, and (ix) to the extent  required in connection with the exercise of any remedy or any enforcement of this Agreement by  such Lender or the Agent; provided that, in the case of clauses (i), (ii), (vi) and (vii), the recipient  of such information shall be advised that the information is confidential and shall agree to be bound  by the confidentiality obligations of this Section 9.11; and provided further, that in the case of  clauses (i) and (ii), the recipient needs to know such information in connection with such Lender’s,  such Arranger’s, the Agent’s, or applicable Transferee’s, as applicable, exercise of rights and  performance of obligations under this Agreement.  Any Person required to maintain the confidentiality of confidential information as provided  in this Section shall be considered to have complied with its obligation to do so if such Person has  exercised the same degree of care to maintain the confidentiality of such confidential information  as such Person would accord to its own confidential information.  





 






   49    Each of the Agent and the Lenders acknowledges that (a) the confidential information may  include material non-public information concerning the Borrower or a Subsidiary, as the case may  be, (b) it has developed compliance procedures regarding the use of material non-public  information and (c) it will handle such material non-public information in accordance with  applicable law, including United States federal and state securities laws.  9.12. Nonreliance.  Each Lender hereby represents that it is not relying on or looking to  any Margin Stock for the repayment of any Loan provided for herein.  9.13. No Advisory or Fiduciary Relationship.  In connection with all aspects of each  transaction contemplated hereby (including in connection with any amendment, waiver or other  modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and  acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding  this Agreement provided by the Agent and the Arrangers are arm’s-length commercial transactions  between the Borrower and its Affiliates, on the one hand, and the Agent, the Arrangers and the  Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory  and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of  evaluating, and understands and accepts, the terms, risks and conditions of the transactions  contemplated hereby and by the other Loan Documents; (ii) (A) the Agent, each Arranger and each  Lender each is and has been acting solely as a principal and, except as expressly agreed in writing  by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary  for the Borrower or any of its Affiliates, or any other Person and (B) neither the Agent, any  Arranger nor any Lender has any obligation to the Borrower or any of its Affiliates with respect to  the transactions contemplated hereby except those obligations expressly set forth herein and in the  other Loan Documents; and (iii) the Agent, the Arrangers, the Lenders and their respective  Affiliates may be engaged in a broad range of transactions that involve interests that differ from  those of the Borrower and its Affiliates, and neither the Agent, any Arranger nor any Lender has  any obligation to disclose any of such interests to the Borrower or its Affiliates.  To the fullest  extent permitted by law, the Borrower hereby waives and releases any claims that it may have  against the Agent, any Arranger and any Lender with respect to any breach or alleged breach of  agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.  9.14. USA PATRIOT ACT NOTIFICATION.  The following notification is provided  to the Borrower pursuant to Section 326 of the PATRIOT Act:  IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW  ACCOUNT.  To help the government fight the funding of terrorism and money laundering  activities, Federal law requires all financial institutions to obtain, verify, and record  information that identifies each person or entity that opens an account, including any  deposit account, treasury management account, loan, other extension of credit, or other  financial services product.  What this means for the Borrower: When the Borrower opens  an account, if the Borrower is an individual, the Agent and the Lenders will ask for the  Borrower’s name, residential address, tax identification number, date of birth, and other  information that will allow the Agent and the Lenders to identify the Borrower, and, if the  Borrower is not an individual, the Agent and the Lenders will ask for the Borrower’s name,  tax identification number, business address, and other information that will allow the Agent  and the Lenders to identify the Borrower.  The Agent and the Lenders may also ask, if the  





 






   50    Borrower is an individual, to see the Borrower’s driver’s license or other identifying  documents, and, if the Borrower is not an individual, to see the Borrower’s legal  organizational documents or other identifying documents.  9.15. Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any Affected Financial Institution arising under any Loan Document, to the extent such  liability is unsecured, may be subject to the Write Down and Conversion Powers of the applicable  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the  applicable Resolution Authority to any such liabilities arising hereunder which may be payable to  it by any party hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if  applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected  Financial Institution, its parent  undertaking, or a bridge institution that may be issued to it or otherwise conferred  on it, and that such shares or other instruments of ownership will be accepted by it  in lieu of any rights with respect to any such liability under this Agreement or any  other Loan Document; or  (iii) the variation of the terms of such liability in connection with the  exercise of the Write-Down and Conversion Powers of the applicable Resolution  Authority.  ARTICLE X    THE AGENT  10.1. Appointment; Nature of Relationship.  U.S. Bank National Association, is  hereby appointed by each of the Lenders as its contractual representative (herein referred to as the  “Agent”) hereunder and under each other Loan Document, and each of the Lenders irrevocably  authorizes the Agent to act as the contractual representative of such Lender with the rights and  duties expressly set forth herein and in the other Loan Documents.  The Agent agrees to act as  such contractual representative upon the express conditions contained in this Article X.   Notwithstanding the use of the defined term “Agent,” it is expressly understood and agreed that  the Agent shall not have any fiduciary responsibilities to any Lender by reason of this Agreement  or any other Loan Document and that the Agent is merely acting as the contractual representative  of the Lenders with only those duties as are expressly set forth in this Agreement and the other  Loan Documents.  In its capacity as the Lenders’ contractual representative, the Agent (i) does not  hereby assume any fiduciary duties to any of the Lenders, (ii) is a “representative” of the Lenders  within the meaning of Section 9 102(a)(72) of the Uniform Commercial Code and (iii) is acting as  





 






   51    an independent contractor, the rights and duties of which are limited to those expressly set forth in  this Agreement and the other Loan Documents.  Each of the Lenders hereby agrees to assert no  claim against the Agent on any agency theory or any other theory of liability for breach of fiduciary  duty, all of which claims each Lender hereby waives.  10.2. Powers.  The Agent shall have and may exercise such powers under the Loan  Documents as are specifically delegated to the Agent by the terms of each thereof, together with  such powers as are reasonably incidental thereto.  The Agent shall have no implied duties to the  Lenders, or any obligation to the Lenders to take any action thereunder except any action  specifically provided by the Loan Documents to be taken by the Agent.  10.3. General Immunity.  Neither the Agent nor any of its directors, officers, agents or  employees, in each case acting in its capacity as Agent and not as Lender, shall be liable to the  Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them  hereunder or under any other Loan Document or in connection herewith or therewith except for its  or their breach of the Agent’s obligations hereunder or thereunder or to the extent such action or  inaction is determined in a final non-appealable judgment by a court of competent jurisdiction to  have arisen from the gross negligence or willful misconduct of such Person.  10.4. Responsibility for Loans, Recitals, etc.  Neither the Agent nor any of its directors,  officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into,  or verify (a) any statement, warranty or representation made in connection with any Loan  Document or any borrowing hereunder; (b) the performance or observance of any of the covenants  or agreements of any obligor under any Loan Document, including, without limitation, any  agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of any  condition specified in Article IV, except receipt of items required to be delivered solely to the  Agent; (d) the existence or possible existence of any Default or Unmatured Default; or (e) the  validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any  other instrument or writing furnished in connection therewith.  The Agent shall have no duty to  disclose to the Lenders information that is not required to be furnished by the Borrower to the  Agent at such time, but is voluntarily furnished by the Borrower to the Agent (either in its capacity  as Agent or in its individual capacity).  10.5. Action on Instructions of Lenders.  The Agent shall in all cases be fully protected  in acting, or in refraining from acting, hereunder and under any other Loan Document in  accordance with written instructions signed by the Required Lenders (or, when expressly required  hereunder, all of the Lenders), and such instructions and any action taken or failure to act pursuant  thereto shall be binding on all of the Lenders.  The Lenders hereby acknowledge that the Agent  shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the  provisions of this Agreement or any other Loan Document unless it shall be requested in writing  to do so by the Required Lenders.  The Agent shall be fully justified in failing or refusing to take  any action hereunder and under any other Loan Document unless it shall first be indemnified to its  satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur  by reason of taking or continuing to take any such action.  10.6. Employment of Agents and Counsel.  The Agent may execute any of its duties as  Agent hereunder and under any other Loan Document by or through employees, agents, and  





 






   52    attorneys in fact and shall not be answerable to the Lenders, except as to money or securities  received by it or its authorized agents, for the default or misconduct of any such agents or attorneys  in fact selected by it with reasonable care.  The Agent shall be entitled to advice of counsel  concerning the contractual arrangement between the Agent and the Lenders and all matters  pertaining to the Agent’s duties hereunder and under any other Loan Document.  10.7. Reliance on Documents; Counsel.  The Agent shall be entitled to rely upon any  notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it  to be genuine and correct and to have been signed or sent by the proper person or persons, and, in  respect to legal matters, upon the opinion of counsel selected by the Agent, which counsel may be  employees of the Agent.  10.8. Agent’s Reimbursement and Indemnification.  To the extent that the Borrower  has not otherwise indemnified the Agent pursuant to Section 9.6(ii), each Lender severally agrees  to reimburse and indemnify the Agent ratably in proportion to the sum of their respective unfunded  Commitments plus Outstanding Credit Exposure (i) for any amounts not reimbursed by the  Borrower for which the Agent is entitled to reimbursement by the Borrower under the Loan  Documents, (ii) for any other expenses incurred by the Agent on behalf of the Lenders, in  connection with the preparation, execution, delivery, administration and enforcement of the Loan  Documents (including, without limitation, for any expenses incurred by the Agent in connection  with any dispute between the Agent and any Lender or between two or more of the Lenders) and  (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,  expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred  by or asserted against the Agent in any way relating to or arising out of the Loan Documents or  any other document delivered in connection therewith or the transactions contemplated thereby  (including, without limitation, for any such amounts incurred by or asserted against the Agent in  connection with any dispute between the Agent and any Lender or between two or more of the  Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other  documents, provided that (i) no Lender shall be liable for any of the foregoing to the extent any of  the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to  have resulted from the gross negligence or willful misconduct of the Agent and (ii) any  indemnification required pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this  Section 10.8, be paid by the relevant Lender in accordance with the provisions thereof.  The  obligations of the Lenders under this Section 10.8 shall survive payment of the Obligations and  termination of this Agreement.  10.9. Notice of Default.  The Agent shall not be deemed to have knowledge or notice of  the occurrence of any Default or Unmatured Default hereunder unless the Agent has received  written notice from a Lender or the Borrower referring to this Agreement describing such Default  or Unmatured Default and stating that such notice is a “notice of default”.  In the event that the  Agent receives such a notice, the Agent shall give prompt notice thereof to the Lenders and, in the  case of a “notice of default” received from a Lender, to the Borrower.  10.10. Rights as a Lender.  Notwithstanding anything to the contrary in this Article X, in  the event the Agent is a Lender, the Agent shall have the same rights, powers, and obligations  hereunder and under any other Loan Document with respect to its Commitment and its Loans as  any Lender and may exercise such rights and powers, and shall comply with such obligations, as  





 






   53    though it were not the Agent, and the term “Lender” or “Lenders” shall, at any time when the  Agent is a Lender, unless the context otherwise indicates, include the Agent in its individual  capacity.  The Agent and its Affiliates may accept deposits from, lend money to, and generally  engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by  this Agreement or any other Loan Document, with the Borrower or any of its Subsidiaries in which  the Borrower or such Subsidiary is not restricted hereby from engaging with any other Person.   The Agent in its individual capacity is not obligated to remain a Lender.  10.11. Lender Credit Decision.  Each Lender acknowledges that it has, independently  and without reliance upon the Agent, any Arranger or any other Lender and based on the financial  statements prepared by the Borrower and such other documents and information as it has deemed  appropriate, made its own credit analysis and decision to enter into this Agreement and the other  Loan Documents.  Each Lender also acknowledges that it will, independently and without reliance  upon the Agent, any Arranger or any other Lender and based on such documents and information  as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not  taking action under this Agreement and the other Loan Documents.  10.12. Successor Agent.  The Agent may resign at any time by giving written notice  thereof to the Lenders and the Borrower, such resignation to be effective upon the appointment of  a successor Agent or, if no successor Agent has been appointed, forty five (45) days after the  retiring Agent gives notice of its intention to resign.  The Agent may be removed at any time with  or without cause by written notice received by the Agent from the Required Lenders, such removal  to be effective on the date specified by the Required Lenders.  Upon any such resignation or  removal, the Required Lenders shall have the right to appoint with the Borrower’s written consent,  not to be unreasonably withheld or delayed, on behalf of the Borrower and the Lenders, a successor  Agent.  If no successor Agent shall have been so appointed by the Required Lenders within thirty  (30) days after the resigning Agent’s giving notice of its intention to resign, then the resigning  Agent may appoint with the Borrower’s written consent, not to be unreasonably withheld or  delayed, on behalf of the Borrower and the Lenders, a successor Agent.  Notwithstanding the  previous sentence, the Agent may at any time without the consent of any Lender and with the  consent of the Borrower, not to be unreasonably withheld or delayed, appoint any of its Affiliates  which is a commercial bank as a successor Agent hereunder.  If the Agent has resigned or been  removed and no successor Agent has been appointed, the Lenders may perform all the duties of  the Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the  applicable Lender and for all other purposes shall deal directly with the Lenders.  No successor  Agent shall be deemed to be appointed hereunder until such successor Agent has accepted the  appointment.  Any such successor Agent shall be a commercial bank having capital and retained  earnings of at least $100,000,000.  Upon the acceptance of any appointment as Agent hereunder  by a successor Agent, such successor Agent shall thereupon succeed to and become vested with  all the rights, powers, privileges and duties of the resigning or removed Agent.  Upon the  effectiveness of the resignation or removal of the Agent, the resigning or removed Agent shall be  discharged from its duties and obligations hereunder and under the Loan Documents.  After the  effectiveness of the resignation or removal of an Agent, the provisions of this Article X shall  continue in effect for the benefit of such Agent in respect of any actions taken or omitted to be  taken by it while it was acting as the Agent hereunder and under the other Loan Documents.    





 






   54    10.13. Delegation to Affiliates.  The Borrower and the Lenders agree that the Agent may  delegate any of its duties under this Agreement to any of its Affiliates.  Any such Affiliate (and  such Affiliate’s directors, officers, agents and employees) which performs duties in connection  with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other  protective provisions to which the Agent is entitled under Article IX and Article X.  10.14. Other Agents.  The Lenders identified on the signature pages of this Agreement or  otherwise herein, or in any amendment hereof or other document related hereto, as being the or a  “Syndication Agent” (collectively, the “Other Agents”), shall have no rights, powers, obligations,  liabilities, responsibilities or duties under this Agreement other than those applicable to all Lenders  as such.  Without limiting the foregoing, the Other Agents and the Arrangers shall not have or be  deemed to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has  not relied, and will not rely, on the Other Agents or the Arrangers in deciding to enter into this  Agreement or in taking or refraining from taking any action hereunder or pursuant hereto.  10.15. Certain ERISA Matters.   Each Lender (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Agent and not, for the  avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and  will be true:   (A) such Lender is not using “plan assets” (within the meaning of Section 3(42)  of ERISA or otherwise) of one or more (1) “employee benefit plan” (as defined in ERISA)  that is subject to Title I of ERISA, (2) “plan” as defined in and subject to Section 4975 of  the Code or (3) Person whose assets include (for purposes of ERISA Section 3(42) or  otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any  such “employee benefit plan” or “plan” with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Commitments or this  Agreement;   (B) the transaction exemption set forth in one or more PTEs, such as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95-60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90-1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91-38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE 96- 23 (a class exemption for certain transactions determined by in-house asset managers), is  applicable with respect to such Lender’s entrance into, participation in, administration of  and performance of the Loans, the Commitments and this Agreement;   (C) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Commitments  and this Agreement, (C) the entrance into, participation in, administration of and  





 






   55    performance of the Loans, the Commitments and this Agreement satisfies the requirements  of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of  such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with  respect to such Lender’s entrance into, participation in, administration of and performance  of the Loans, the Commitments and this Agreement; or   (D) such other representation, warranty and covenant as may be agreed in  writing between the Agent, in its sole discretion, and such Lender.  In addition, unless either (i) clause (A) above is true with respect to a Lender or (ii) a  Lender has provided another representation, warranty and covenant in accordance with clause (D)  above, such Lender further (x) represents and warrants, as of the date such Person became a Lender  party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the  date such Person ceases being a Lender party hereto, for the benefit of, the Agent and not, for the  avoidance of doubt, to or for the benefit of the Borrower, that the Agent is not a fiduciary with  respect to the assets of such Lender involved in such Lender’s entrance into, participation in,  administration of and performance of the Loans, the Commitments and this Agreement (including  in connection with the reservation or exercise of any rights by the Agent under this Agreement,  any Loan Document or any documents related hereto or thereto).  ARTICLE XI    SETOFF; RATABLE PAYMENTS  11.1. Setoff.  In addition to, and without limitation of, any rights of the Lenders under  applicable law, if a Default occurs, any and all deposits (including all account balances, whether  provisional or final and whether or not collected or available) and any other Indebtedness at any  time owing by any Lender or any Affiliate of any Lender to or for the credit or account of the  Borrower may be offset and applied toward the payment of the Obligations owing to such Lender,  whether or not the Obligations, or any part thereof, shall then be due, provided each Lender agrees,  solely for the benefit of the other Lenders and not for the benefit of the Borrower, that it shall not  exercise any right provided for in this Section 11.1 without the prior consent of the Required  Lenders; provided, further, that in the event that any Defaulting Lender shall exercise any such  right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further  application in accordance with the provisions of Section 2.14 and, pending such payment, shall be  segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit  of the Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Agent  a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to  which it exercised such right of setoff.  11.2. Ratable Payments.  If any Lender, whether by setoff or otherwise, has payment  made to it upon its Outstanding Credit Exposure (other than payments received pursuant to Section  3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any other Lender, such Lender  agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit  Exposure held by the other Lenders so that after such purchase each Lender will hold its Pro Rata  Share of the Aggregate Outstanding Credit Exposure.  If any Lender, whether in connection with  setoff or amounts which might be subject to setoff or otherwise, receives collateral or other  





 






   56    protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees,  promptly upon demand, to take such action necessary such that all Lenders share in the benefits of  such collateral ratably in proportion to their respective Pro Rata Shares.  In case any such payment  is disturbed by legal process, or otherwise, appropriate further adjustments shall be made.  ARTICLE XII    BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS  12.1. Successors and Assigns.  The terms and provisions of the Loan Documents shall  be binding upon and inure to the benefit of the Borrower and the Lenders and their respective  successors and assigns, except that (i) the Borrower shall not have the right to assign its rights or  obligations under the Loan Documents and (ii) any assignment by any Lender must be made in  compliance with Section 12.3.  The parties to this Agreement acknowledge that clause (ii) of this  Section 12.1 relates only to absolute assignments and does not prohibit assignments creating  security interests, including, without limitation, any pledge or assignment by any Lender of all or  any portion of its rights under this Agreement to a Federal Reserve Bank; provided that no such  pledge or assignment creating a security interest shall release the transferor Lender from its  obligations hereunder unless and until the parties thereto have complied with the provisions of  Section 12.3.  The Agent may treat the Person which made any Loan or which holds any Note as  the owner thereof for all purposes hereof unless and until such Person complies with Section 12.3;  provided that the Agent may in its discretion (but shall not be required to) follow instructions from  the Person which made any Loan to direct payments relating to such Loan to another Person.  Any  assignee of the rights to any Loan agrees by acceptance of such assignment to be bound by all the  terms and provisions of the Loan Documents.  Any request, authority or consent of any Person,  who at the time of making such request or giving such authority or consent is the owner of the  rights to any Loan, shall be conclusive and binding on any subsequent holder or assignee of the  rights to such Loan.  12.2. Participations.  (a) Permitted Participants; Effect.  Any Lender may, in the ordinary course of  its business and in accordance with applicable law, at any time sell to one or more banks or other  entities (“Participants”) participating interests in any Outstanding Credit Exposure of such Lender,  any Commitment of such Lender or any other interest of such Lender under the Loan Documents.   In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s  obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely  responsible to the other parties hereto for the performance of such obligations, such Lender shall  remain the owner of its Outstanding Credit Exposure for all purposes under the Loan Documents,  all amounts payable by the Borrower under this Agreement shall be determined as if such Lender  had not sold such participating interests, and the Borrower and the Agent shall continue to deal  solely and directly with such Lender in connection with such Lender’s rights and obligations under  the Loan Documents.  (b) Voting Rights.  Each Lender shall retain the sole right to approve, without  the consent of any Participant, any amendment, modification or waiver of any provision of the  Loan Documents other than any amendment, modification or waiver with respect to any Loan or  





 






   57    Commitment in which such Participant has an interest which forgives principal or interest or  reduces the interest rate payable with respect to any such Loan or Commitment, extends the  Scheduled Termination Date, postpones any date fixed for any regularly scheduled payment of  principal of, or interest on, any such Loan or Commitment.  (c) Participant Register.  Each Lender that sells a participation shall, acting  solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it  enters the name and address of each Participant and the principal amounts (and stated interest) of  each Participant’s interest in the Loans or other obligations under the Loan Documents (the  “Participant Register”); provided that no Lender shall have any obligation to disclose all or any  portion of the Participant Register (including the identity of any Participant or any information  relating to a Participant’s interest in any commitments, loans or its other obligations under any  Loan Document) to any Person except to the extent that such disclosure is necessary to establish  that such commitment, loan  or other obligation is in registered form under Section 5f.103-1(c) of  the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive  absent manifest error, and such Lender shall treat each Person whose name is recorded in the  Participant Register as the owner of such participation for all purposes of this Agreement  notwithstanding any notice to the contrary.  For the avoidance of doubt, the Agent (in its capacity  as Agent) shall have no responsibility for maintaining a Participant Register.  12.3. Assignments.  (a) Assignments by Lenders.  Any Lender may at any time assign to one or  more assignees all or a portion of its rights and obligations under this Agreement and the other  Loan Documents (including all or a portion of its Commitment and the Loans at the time owing to  it); provided that any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount  of the assigning Lender’s Commitment and the related Loans at the time owing to  it or in the case of an assignment to a Lender, an Affiliate of a Lender or an  Approved Fund, no minimum amount need be assigned; and  (B) in any case not described in subsection (a)(i)(A) of this  Section, the aggregate amount of the Commitment (which for this purpose includes  Loans outstanding thereunder) or, if the Commitment is not then in effect, the  principal outstanding balance of the Loans of the assigning Lender subject to each  such assignment, determined as of the date the Assignment Agreement with respect  to such assignment is delivered to the Agent or, if “Trade Date” is specified in the  Assignment Agreement, as of the Trade Date, shall not be less than $5,000,000  unless each of the Agent and, so long as no Default has occurred and is continuing,  the Borrower otherwise consents (each such consent not to be unreasonably  withheld or delayed); provided, however, that concurrent assignments to members  of an Assignee Group and concurrent assignments from members of an Assignee  Group to a single assignee (or to an assignee and members of its Assignee Group)  





 






58  will be treated as a single assignment for purposes of determining whether such  minimum amount has been met.  (ii) Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s Loans and  Commitments, and rights and obligations with respect thereto, assigned.  (iii) Required Consents.  No consent shall be required for any assignment except to the extent required by subsection (a)(i)(B) of this Section and,  in addition:  (A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) a Default has  occurred and is continuing at the time of such assignment or (2) such assignment is  to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the  Borrower shall be deemed to have consented to any such assignment unless it shall  object thereto by written notice to the Agent within five (5) Business Days after  having received notice thereof; and  (B) the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of  any Commitment if such assignment is to a Person that is not a Lender with a Loan,  an Affiliate of such Lender or an Approved Fund with respect to such Lender.  (iv) Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Agent an Assignment Agreement, together with a  processing and recordation fee in the amount of $3,500; provided, however, that  the Agent may, in its sole discretion, elect to waive such processing and recordation  fee in the case of any assignment.  The assignee, if it shall not be a Lender, shall  deliver to the Agent an administrative questionnaire in a form acceptable to the  Agent.  (v) No Assignment to Certain Persons.  No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B)  any Defaulting Lender or any of its Subsidiaries, or any Person who, upon  becoming a Lender hereunder, would constitute any of the foregoing Persons  described in this clause (B), or (C) a natural person.  (vi) Certain Additional Payments.  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment  shall be effective unless and until, in addition to the other conditions thereto set  forth herein, the parties to the assignment shall make such additional payments to  the Agent in an aggregate amount sufficient, upon distribution thereof as  appropriate (which may be outright payment, purchases by the assignee of  participations or subparticipations, or other compensating actions, including  funding, with the consent of the Borrower and the Agent, the applicable pro rata  share of Loans previously requested but not funded by the Defaulting Lender, to  





 






59  each of which the applicable assignee and assignor hereby irrevocably consent), to  (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by the Agent pursuant to subsection (b) of this  Section, from and after the effective date specified in each Assignment Agreement, the assignee  thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such  Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the  assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment  Agreement, be released from its obligations under this Agreement (and, in the case of an  Assignment Agreement covering all of the assigning Lender’s rights and obligations under this  Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the  benefits of Article III and Section 9.6 with respect to facts and circumstances occurring prior to  the effective date of such assignment).  Upon request, the Borrower (at its expense) shall execute  and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or  obligations under this Agreement that does not comply with this subsection shall be treated for  purposes of this Agreement as a sale by such Lender of a participation in such rights and  obligations in accordance with Section 12.2 (other than a purported assignment to a natural Person  or the Borrower or any of the Borrower’s Subsidiaries or Affiliates, which shall be null and void).  (b) Register.  The Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Agent’s office a  copy of each Assignment Agreement delivered to it and a register for the recordation of the names  and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing  to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the  Register shall be conclusive, and the Borrower, the Agent and the Lenders may treat each Person  whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all  purposes of this Agreement, notwithstanding notice to the contrary.  In addition, the Agent shall  maintain on the Register information regarding the designation, and revocation of designation, of  any Lender as a Defaulting Lender.  The Register shall be available for inspection by the Borrower  and any Lender at any reasonable time and from time to time upon reasonable prior notice.  12.4. Dissemination of Information.  The Borrower authorizes each Lender to disclose  to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents  by operation of law (each a “Transferee”) and any prospective Transferee any and all information  in such Lender’s possession concerning the creditworthiness of the Borrower and its Subsidiaries,  including without limitation any information contained in any Annual Report on Form 10-K or  any Quarterly Report on Form 10-Q; provided that each Transferee and prospective Transferee  agrees to be bound by Section 9.11 of this Agreement.  





 






60  12.5. Tax Treatment.  If any interest in any Loan Document is transferred to any  Transferee which is organized under the laws of any jurisdiction other than the United States or  any State thereof, the transferor Lender shall cause such Transferee, concurrently with the  effectiveness of such transfer, to comply with the provisions of Section 3.5(iv) and Section 3.5(vi),  as applicable.  12.6. Designation of SPVs.  (a) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”, identified as such  in writing from time to time by such Granting Lender to the Agent and the Borrower) the option  to fund all or any part of any Term Loan or fee or expense reimbursement or other obligation (each,  a “Lender Funding Obligation”) that such Granting Lender would otherwise be obligated to fund  pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any  SPV to fund any Lender Funding Obligation, (ii) if an SPV elects not to exercise such option or  otherwise fails to fund all or any part of any such Lender Funding Obligation, the Granting Lender  shall be obligated to fund such Lender Funding Obligation pursuant to the terms hereof, (iii) no  SPV shall exercise any voting rights pursuant to Section 8.2 (such voting rights to be exercised  instead by such Granting Lender) and (iv) with respect to notices, payments and other matters  hereunder, the Borrower, the Agent and the Lenders shall not be obligated to deal with an SPV,  but may limit their communications and other dealings relevant to such SPV to the applicable  Granting Lender.  The funding of any Lender Funding Obligation by an SPV hereunder shall utilize  the Commitment of the Granting Lender to the same extent that, and as if, such Lender Funding  Obligation were funded by such Granting Lender.  (b) As to any Lender Funding Obligations or portion thereof made by it, each SPV shall have all the rights that its applicable Granting Lender making such Lender Funding  Obligations or portion thereof would have had under this Agreement; provided that each SPV shall  have granted to its Granting Lender an irrevocable power of attorney to deliver and receive all  communications and notices under this Agreement (and any related documents) and to exercise on  such SPV’s behalf, all of such SPV’s voting rights under this Agreement.  No additional Note shall  be required to evidence the Lender Funding Obligations or portion thereof made by an SPV; and  the related Granting Lender shall be deemed to hold its Note as agent for such SPV to the extent  of the Lender Funding Obligations or portion thereof funded by such SPV.  In addition, any  payments for the account of any SPV shall be paid to its Granting Lender as agent for such SPV.  (c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable for so  long as, and to the extent, the Granting Lender provides such indemnity or makes such payment.  In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive  the termination of this Agreement) that, prior to the date that is one year and one day after the  payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it  will not institute against, or join any other person in instituting against, such SPV any bankruptcy,  reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United  States or any State thereof.  





 






   61    (d) In addition, notwithstanding anything to the contrary contained in this  Agreement, any SPV may (i) at any time and without paying any processing fee therefor, assign  or participate all or a portion of its interest in any Lender Funding Obligations to the Granting  Lender or to any financial institutions providing liquidity and/or credit support to or for the account  of such SPV to support the funding or maintenance of Lender Funding Obligations and (ii) disclose  on a confidential basis any non-public information relating to its Lender Funding Obligations to  any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or  liquidity enhancements to such SPV.  This Section 12.6 may not be amended without the written  consent of any Granting Lender affected thereby.  ARTICLE XIII    NOTICES  13.1. Notices.  (a) Except as otherwise permitted by Section 2.8 with respect to borrowing  notices, all notices, requests and other communications to any party hereunder shall be in writing  (including electronic transmission, facsimile transmission or similar writing) and shall be given to  such party at its address or facsimile number set forth on Schedule 13.1 or at such other address or  facsimile number as such party may hereafter specify for the purpose by notice to the Agent and  the Borrower in accordance with the provisions of this Section 13.1.  Each such notice, request or  other communication shall be effective (i) if given by facsimile transmission, when transmitted to  the facsimile number specified in this Section and confirmation of receipt is received, (ii) if given  by mail, 72 hours after such communication is deposited in the mails with first class postage  prepaid, addressed as aforesaid, (iii) if given by any other means, when delivered at the address  specified in this Section or (iv) if given by electronic transmission, as provided in Section 13.1(b);  provided that notices to the Agent under Article II shall not be effective until received.  (b) Notices and other communications to the Lenders hereunder may be  delivered or furnished by electronic communication (including e-mail and internet or intranet  websites) pursuant to procedures approved by the Agent or as otherwise determined by the Agent,  provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such  Lender has notified the Agent that it is incapable of receiving notices under such Article by  electronic communication.  The Agent or the Borrower may, in its respective discretion, agree to  accept notices and other communications to it hereunder by electronic communications pursuant  to procedures approved by it or as it otherwise determines, provided that such determination or  approval may be limited to particular notices or communications.  Unless the Agent otherwise  prescribes, (i) notices and other communications sent to an e-mail address shall be deemed  received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by  the “return receipt requested” function, as available, return e-mail or other written  acknowledgement), provided that if such notice or other communication is not given during the  normal business hours of the recipient, such notice or communication shall be deemed to have  been given at the opening of business on the next Business Day for the recipient, and (ii) notices  or communications posted to an internet or intranet website shall be deemed received upon the  deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause  





 






62  (i) of notification that such notice or communication is available and identifying the website address therefor. 13.2. Change of Address.  The Borrower, the Agent and any Lender may each change  the address for service of notice upon it by a notice in writing to the other parties hereto.  ARTICLE XIV  COUNTERPARTS  This Agreement may be executed in any number of counterparts, all of which taken  together shall constitute one agreement, and any of the parties hereto may execute this Agreement  by signing any such counterpart.    The words “execution,” “signed,” “signature,” and words of like import in any Loan  Document shall be deemed to include electronic signatures or the keeping of records in electronic  form, each of which shall be of the same legal effect, validity or enforceability as a manually  executed signature or the use of a paper-based recordkeeping system, as the case may be, to the  extent and as provided for in any applicable law, including E-SIGN, the New York State Electronic  Signatures and Records Act, or any other similar state laws based on UETA.  Without notice to or consent of the Borrower, the Agent and each Lender may create  electronic images of any Loan Documents and destroy paper originals of any such imaged  documents. Such images have the same legal force and effect as the paper originals and are  enforceable against the Borrower and any other parties thereto. The Agent and each Lender may  convert any Loan Document into a “transferrable record” as such term is defined under, and to the  extent permitted by, UETA, with the image of such instrument in the Agent’s or such Lender’s  possession constituting an “authoritative copy” under UETA. If the Agent agrees, in its sole  discretion, to accept delivery by telecopy or PDF of an executed counterpart of a signature page  of any Loan Document or other document required to be delivered under the Loan Documents,  such delivery will be valid and effective as delivery of an original manually executed counterpart  of such document for all purposes. If the Agent agrees, in its sole discretion, to accept any  electronic signatures of any Loan Document or other document required to be delivered under the  Loan Documents, the words “execution,” “signed,” and “signature,” and words of like import, in  or referring to any document so signed will deemed to include electronic signatures and/or the  keeping of records in electronic form, which will be of the same legal effect, validity and  enforceability as a manually executed signature and/or the use of a paper-based recordkeeping  system, to the extent and as provided for in any applicable law, including UETA, E-SIGN, or any  other state laws based on, or similar in effect to, such acts. The Agent and each Lender may rely  on any such electronic signatures without further inquiry.  ARTICLE XV  CHOICE OF LAW; CONSENT TO JURISDICTION  15.1. CHOICE OF LAW.  THE LOAN DOCUMENTS (OTHER THAN THOSE  CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE  





 






63  CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW  YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.  15.2. CONSENT TO JURISDICTION.  THE BORROWER HEREBY  IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED  STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK  IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN  DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL  CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND  DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION  IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION  OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN  INCONVENIENT FORUM.  NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE  AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN  THE COURTS OF ANY OTHER JURISDICTION.  ANY JUDICIAL PROCEEDING BY THE  BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE  AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN  ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN  DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]  





 






Signature Page to  Portland General 2021 Term Loan  IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed this  Agreement as of the date first above written.  PORTLAND GENERAL ELECTRIC COMPANY  By   ______________________________________  Name:  James Ajello  Title:    Senior Vice President, Finance,               Chieff Financial Officer and Treasurer /s/ James Ajello 





 






U.S. BANK NATIONAL ASSOCIATION,  as Agent and as a Lender By   ______________________________________  Name:  John M. Eyerman  Title:    Senior Vice President  /s/ John M. Eyerman Signature Page to  Portland General 2021 Term Loan  





 






COBANK, ACB, as Lender  By   ______________________________________  Name:  Kelly Cholas  Title:    Assistant Corporate Secretary  /s/ Kelly Cholas Signature Page to  Portland General 2021 Term Loan