exhibit101updated






                                                              Execution Version                                                  Published Deal CUSIP: 938836AE3                                      Published Revolving Facility CUSIP: 938836AF0                                                         AMENDED AND RESTATED CREDIT AGREEMENT                           DATED AS OF JULY 19, 2019                                     AMONG                      WASHINGTON GAS LIGHT COMPANY,                        THE LENDERS PARTIES HERETO,                 WELLS FARGO BANK, NATIONAL ASSOCIATION,                         AS ADMINISTRATIVE AGENT,                   BRANCH BANKING AND TRUST COMPANY,                            MUFG BANK, LTD. AND                                TD BANK, N.A.,                        AS CO-SYNDICATION AGENTS,                                      AND                        WELLS FARGO SECURITIES, LLC,                          BB&T CAPITAL MARKETS,                             MUFG BANK, LTD. AND                           TD SECURITIES (USA) LLC           AS JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS   12240383v6 24740.00125                 





 






                             TABLE OF CONTENTS                                                                                                                     Page     ARTICLE I       INTERPRETATION........................................................................................ 1         1.1   Definitions.............................................................................................................. 1        1.2    Accounting Terms ................................................................................................ 28        1.3   Other Interpretive Provisions ............................................................................... 28        1.4   Rates ..................................................................................................................... 29         1.5   Divisions .............................................................................................................. 29   ARTICLE II      CREDIT FACILITY ...................................................................................... 30        2.1   The Facility .......................................................................................................... 30        2.2   Loans .................................................................................................................... 31        2.3    Funding by Lenders; Disbursement to the Borrower ........................................... 34        2.4   Fees ...................................................................................................................... 35        2.5   Reductions in Aggregate Commitments; Increases in Aggregate              Commitments ....................................................................................................... 36        2.6   Extension Option ................................................................................................. 37        2.7    Repayments; Optional Principal Prepayments ..................................................... 38        2.8   Changes in Interest Rate, etc ................................................................................ 39        2.9    Rates Applicable After Default ............................................................................ 39        2.10  Method of Payment .............................................................................................. 39        2.11  Evidence of Indebtedness .................................................................................... 40        2.12  Telephonic Notices .............................................................................................. 41        2.13  Interest Payment Dates; Interest and Fee Basis ................................................... 41        2.14   Notification of Loans, Interest Rates, Prepayments and Commitment              Reductions............................................................................................................ 42        2.15  Lending Installations ............................................................................................ 42        2.16   Non-Receipt of Funds by the Administrative Agent ........................................... 42        2.17   Maximum Interest Rate........................................................................................ 43        2.18   Increased Costs; Change in Circumstances; Illegality ......................................... 43        2.19   Taxes .................................................................................................................... 46        2.20   Compensation ...................................................................................................... 50        2.21   Mitigation Obligations; Replacement of Lenders ................................................ 51        2.22   Defaulting Lenders ............................................................................................... 52   ARTICLE III     LETTERS OF CREDIT ................................................................................. 55        3.1   Issuance ................................................................................................................ 55        3.2   Notices ................................................................................................................. 56        3.3   Participations........................................................................................................ 57        3.4   Reimbursement .................................................................................................... 57        3.5    Payment by Revolving Loans .............................................................................. 58        3.6    Payment to Lenders .............................................................................................. 59        3.7   Obligations Absolute ........................................................................................... 59        3.8    Cash Collateral Account ...................................................................................... 61                                            -i-    12240383v6 24740.00125     





 






                             TABLE OF CONTENTS                                     (continued)                                                                           Page            3.9   The Issuing Bank ................................................................................................. 61         3.10  Effectiveness ........................................................................................................ 62         3.11  Reporting of Letter of Credit Information and L/C Commitment ....................... 62    ARTICLE IV     CONDITIONS PRECEDENT ....................................................................... 62         4.1   Conditions to Restatement Date ........................................................................... 62         4.2   Conditions to All Credit Extensions .................................................................... 64    ARTICLE V      REPRESENTATIONS AND WARRANTIES .............................................. 64         5.1   Corporate Existence ............................................................................................. 64         5.2   Financial Condition .............................................................................................. 64         5.3   Litigation .............................................................................................................. 65         5.4   No Breach ............................................................................................................ 65         5.5   Corporate Action .................................................................................................. 65         5.6   Regulatory Approval ............................................................................................ 65         5.7   Regulations U and X ............................................................................................ 66         5.8   Pension and Welfare Plans ................................................................................... 66         5.9   Accuracy of Information ...................................................................................... 66         5.10  Taxes .................................................................................................................... 67         5.11  Environmental Warranties ................................................................................... 67         5.12  Investment Company Act .................................................................................... 68         5.13  Subsidiaries .......................................................................................................... 68        5.14   Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions ................ 68        5.15  EEA Financial Institution .................................................................................... 69   ARTICLE VI      COVENANTS ............................................................................................... 69        6.1    Financial Statements ............................................................................................ 69        6.2    Litigation .............................................................................................................. 71        6.3    Corporate Existence, Compliance with Laws, Taxes, Examination of              Books, Insurance, etc ........................................................................................... 71        6.4   Use of Proceeds .................................................................................................... 72        6.5    Environmental Covenant ..................................................................................... 72        6.6   Financial Covenant .............................................................................................. 72        6.7   Local Regulatory Commission Approval ............................................................ 72        6.8   Beneficial Ownership Certification ..................................................................... 73        6.9    Compliance with Anti-Corruption Laws, Anti-Money Laundering Laws              and Sanctions ....................................................................................................... 73        6.10   Negative Pledge ................................................................................................... 73        6.11   Subsidiary Debt Limitation .................................................................................. 73        6.12  Change of Business .............................................................................................. 73        6.13  Fundamental Changes .......................................................................................... 73                                            -ii-    12240383v6  24740.00125     





 






                             TABLE OF CONTENTS                                     (continued)                                                                           Page      ARTICLE VII    EVENTS OF DEFAULT ............................................................................... 74    ARTICLE VIII   REMEDIES, WAIVERS AND AMENDMENTS ........................................ 76         8.1  Remedies Upon Event of Default ........................................................................ 76         8.2   Amendments ........................................................................................................ 77         8.3   Preservation of Rights .......................................................................................... 78    ARTICLE IX     GENERAL PROVISIONS ............................................................................ 78         9.1   Survival of Representations ................................................................................. 78         9.2   Governmental Regulation .................................................................................... 79         9.3   Headings .............................................................................................................. 79        9.4   Entire Agreement ................................................................................................. 79        9.5    Several Obligations; Benefits of this Agreement ................................................. 79        9.6    Expenses; Indemnification ................................................................................... 79        9.7    Numbers of Documents ....................................................................................... 80        9.8   Accounting ........................................................................................................... 80        9.9   Severability of Provisions .................................................................................... 81        9.10   Nonliability of Lenders; No Advisory or Fiduciary Responsibility .................... 81        9.11  Confidentiality ..................................................................................................... 82        9.12  Disclosure ............................................................................................................ 82        9.13  Rights Cumulative ............................................................................................... 82        9.14  Co-Syndication Agents ........................................................................................ 82        9.15   Acknowledgment and Consent to Bail-In of EEA Financial Institutions ............ 82        9.16  Certain ERISA Matters ........................................................................................ 83        9.17   Acknowledgment Regarding Any Supported QFCs ............................................ 84   ARTICLE X       THE ADMINISTRATIVE AGENT .............................................................. 85        10.1   Appointment and Authority ................................................................................. 85        10.2  Rights as a Lender ................................................................................................ 85        10.3  Exculpatory Provisions ........................................................................................ 86        10.4   Reliance by Administrative Agent ....................................................................... 87        10.5  Delegation of Duties ............................................................................................ 87        10.6   Resignation of Administrative Agent .................................................................. 87        10.7   Non-Reliance on Administrative Agent and Other Lenders ................................ 88        10.8  No Other Duties, etc ............................................................................................ 88        10.9   Administrative Agent May File Proofs of Claim ................................................. 88        10.10  Issuing Bank and Swingline Lender .................................................................... 89   ARTICLE XI     SETOFF; RATABLE PAYMENTS .............................................................. 89        11.1  Setoff .................................................................................................................... 89        11.2  Ratable Payments ................................................................................................. 90                                           -iii-     12240383v6 24740.00125     





 






                             TABLE OF CONTENTS                                     (continued)                                                                           Page     ARTICLE XII    BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS ....... 90         12.1  Successors and Assigns ........................................................................................ 90         12.2  Participations........................................................................................................ 91        12.3  Assignments ......................................................................................................... 92        12.4  Dissemination of Information .............................................................................. 94        12.5   Tax Treatment ...................................................................................................... 94   ARTICLE XIII    NOTICES ....................................................................................................... 94        13.1  Notices ................................................................................................................. 94        13.2  Change of Address ............................................................................................... 95   ARTICLE XIV    COUNTERPARTS; EFFECTIVENESS ....................................................... 95   ARTICLE XV      CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF                 JURY TRIAL ................................................................................................. 95        15.1   CHOICE OF LAW .............................................................................................. 95        15.2  Consent To Jurisdiction ....................................................................................... 95        15.3  WAIVER OF JURY TRIAL ................................................................................ 96        15.4  LIMITATION ON LIABILITY .......................................................................... 96        15.5  USA PATRIOT ACT NOTICE ........................................................................... 96   ARTICLE XVI     AMENDMENT AND RESTATEMENT ...................................................... 96   SCHEDULES   Schedule 1.1-A    Pricing Schedule  Schedule 1.1-B     Commitments and Notice Addresses  Schedule 5.3       Litigation  Schedule 5.6       Regulatory Approval  Schedule 5.8       Employee Benefit Plans  Schedule 5.11      Environmental Matters   EXHIBITS   EXHIBIT 2.2.2      Form of Borrowing Notice  EXHIBIT 2.2.3      Form of Swingline Borrowing Notice  EXHIBIT 2.2.7      Form of Conversion/Continuation Notice  EXHIBIT 2.5.2     Form of Commitment Increase Supplement  EXHIBIT 2.7        Form of Notice of Prepayment  EXHIBIT 2.11.4-A  Form of Revolving Note  EXHIBIT 2.11.4-B   Form of Swingline Note                                           -iv-    12240383v6 24740.00125     





 






                            TABLE OF CONTENTS                                    (continued)                                                                          Page    EXHIBIT 2.19-A    Form of Tax Compliance Certificate  EXHIBIT 2.19-B    Form of Tax Compliance Certificate  EXHIBIT 2.19-C    Form of Tax Compliance Certificate  EXHIBIT 2.19-D    Form of Tax Compliance Certificate  EXHIBIT 3.2       Letter of Credit Notice  EXHIBIT 4.2       Form of Compliance Certificate  EXHIBIT 12.3.1    Form of Assignment Agreement                                            -v-   12240383v6  24740.00125    





 






           AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 19, 2019 (the   “Agreement”), among WASHINGTON GAS LIGHT COMPANY, as Borrower, the financial   institutions from time to time parties hereto, as LENDERS and WELLS FARGO BANK,   NATIONAL ASSOCIATION, as Administrative Agent.                                     RECITALS         WHEREAS, the Borrower, the financial institutions designated as existing lenders on  Schedule 1.1-B hereto (the “Continuing Lenders”) and the Administrative Agent entered into   that certain Credit Agreement dated as of April 3, 2012 (as amended, restated, amended and   restated, extended, supplemented or otherwise modified prior to the date hereof, the “Existing   Credit Agreement”); and          WHEREAS, the Borrower, the Administrative Agent and the Lenders wish to amend and  restate the Existing Credit Agreement on the terms and conditions set forth below to, among  other things, extend the Facility Termination Date, increase and reallocate the Aggregate  Commitments and make the other changes to the Existing Credit Agreement evidenced hereby;   and          WHEREAS, the financial institutions identified as new lenders on Schedule 1.1-B wish   to become “Lenders” hereunder and accept and assume the obligations of “Lenders” hereunder   with the Commitments specified on Schedule 1.1-B.          NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein  contained, and for other good and valuable consideration, the receipt and sufficiency of which  are hereby acknowledged, the Borrower, the Lenders, and the Administrative Agent hereby agree  to amend and restate the Existing Credit Agreement as follows:                                     ARTICLE I                                                                         INTERPRETATION         1.1   Definitions.  As used in this Agreement:          “Acquired Indebtedness” means Indebtedness of a Person existing at the time such   Person is merged into, amalgamated or consolidated with the Borrower or a Subsidiary or such   Person or such Person’s property is otherwise acquired directly or indirectly by the Borrower or   a Subsidiary, to the extent that (i) such Indebtedness was not incurred in connection with, or in   contemplation of, such merger, consolidation, amalgamation or acquisition, and (ii) neither the   Borrower nor any Subsidiary thereof (other than such Person or any other Person that (x) such   Person merges into, amalgamates or consolidates with or (y) directly or indirectly acquires such   Person or the property of such Person) shall have any liability or other obligation with respect to   such Indebtedness.          “Additional Commitment Lender” is defined in Section 2.5.2.      12240383v6 24740.00125     





 






           “Administrative Agent” means Wells Fargo Bank, National Association, in its capacity as   administrative agent for the Lenders pursuant to Article X, and not in its individual capacity as a   Lender or any successor Administrative Agent appointed pursuant to Article X.          “Administrative Questionnaire” means an Administrative Questionnaire in a form   supplied by the Administrative Agent.          “Affiliate” of any Person means any other Person directly or indirectly controlling,   controlled by or under common control with such Person.  A Person shall be deemed to control   another Person if the controlling Person owns 10% or more of any class of voting securities (or   other ownership interests) of the controlled Person or possesses, directly or indirectly, the power   to direct or cause the direction of the management or policies of the controlled Person, whether   through ownership of stock, by contract or otherwise.          “Aggregate Commitments” means the aggregate of the Commitments of all the Lenders,   in the initial aggregate amount of $450,000,000, as increased or decreased from time to time   pursuant to the terms hereof.          “Agreement” means this Agreement, including all schedules, annexes and exhibits   hereto.          “AltaGas” means AltaGas Ltd., a Canadian corporation.          “Alternate Base Rate” means, for any day, a fluctuating rate per annum equal to the   highest of (i) the Prime Rate for such day, (ii) the Federal Funds Effective Rate for such day plus   0.50%, (iii) the LIBOR Rate plus 1.00% and (iv) 1.00%.          “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction   applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery   or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of   1977 and the rules and regulations thereunder and the U.K. Bribery Act 2010 and the rules and   regulations thereunder.          “Anti-Money Laundering Laws” means any and all laws, statutes, regulations or   obligatory government orders, decrees, ordinances or rules applicable to the Borrower, its   Subsidiaries related to terrorism financing or money laundering, including any applicable  provision of the PATRIOT Act and The Currency and Foreign Transactions Reporting Act (also   known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b)   and 1951-1959).           “Applicable Law” means, anything in Section 15.1 to the contrary notwithstanding, (i) all   applicable common law and principles of equity and (ii) all applicable provisions of all   (A) treaties, constitutions, statutes, rules, regulations, guidelines and orders of governmental   bodies, including the interpretation or administration thereof by any Governmental Authority   charged with the enforcement, interpretation or administration thereof, (B) Governmental   Approvals and (C) orders, decisions, judgments and decrees.      2      





 






         “Applicable Margin” means, with respect to Loans of any Type at any time, the  percentage rate per annum which is applicable at such time with respect to Loans of such Type  as set forth in the Pricing Schedule.         “Applicable Percentage” means, with respect to any Lender at any time, the percentage of  the Aggregate Commitments represented by such Lender’s Commitment at such time, subject to  adjustment as provided in Section 2.22.  If the commitment of each Lender to make Loans and  the obligation of the Issuing Banks to issue Letters of Credit have been terminated pursuant to  Section 8.1, or if the Aggregate Commitments have expired, then the Applicable Percentage of  each Lender shall be determined based on the Applicable Percentage of such Lender most  recently in effect, giving effect to any subsequent assignments.           “Arrangers” means Wells Fargo Securities, BB&TCM, MUFG and TD Securities, each  in its capacity as a joint lead arranger and bookrunner.         “Authorized Officer” means any of the Chief Executive Officer, Chief Financial Officer,  General Counsel, or the Treasurer of the Borrower, acting singly.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In Legislation” means, with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the  European Union, the implementing law for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule.         “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.).         “Base Rate Loan” means a Loan which, except as otherwise provided in Section 2.8,  bears interest at the Alternate Base Rate plus the Applicable Margin.         “BB&T” means Branch Banking and Trust Company, and its successors.         “BB&TCM” means BB&T Capital Markets, and its successors.         “Benchmark Replacement” means the sum of:  (a) the alternate benchmark rate (which  may include Term SOFR) that has been selected by the Administrative Agent and the Borrower  giving due consideration to (i) any selection or recommendation of a replacement 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 rate of interest as a replacement to the  LIBOR Rate or the LIBOR Market Index Rate for U.S. dollar-denominated syndicated credit  facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark  Replacement as so determined would be less than zero, the Benchmark Replacement will be  deemed to be zero for the purposes of this Agreement.         “Benchmark Replacement Adjustment” means, with respect to any replacement of the  LIBOR Rate or the LIBOR Market Index Rate with an Unadjusted Benchmark Replacement for  each applicable Interest Period, the spread adjustment, or method for calculating or determining    3     





 






     such spread adjustment, (which may be a positive or negative value or zero) that has been   selected by the Administrative Agent and the Borrower 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 the LIBOR Rate or the LIBOR Market Index  Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental  Body 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 the LIBOR Rate or the LIBOR Market Index Rate with the applicable Unadjusted  Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.         “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark   Replacement, any technical, administrative or operational changes (including changes to the   definition of “Alternate Base Rate,” the definition of “Interest Period,” timing and frequency of   determining rates and making payments of interest and other administrative matters) that the   Administrative Agent decides may be appropriate to reflect the adoption and implementation of   such Benchmark Replacement and to permit the administration thereof by the Administrative   Agent in a manner substantially consistent with market practice (or, if the Administrative Agent   decides that adoption of any portion of such market practice is not administratively feasible or if   the Administrative Agent determines that no market practice for the administration of the   Benchmark Replacement exists, in such other manner of administration as the Administrative   Agent decides is reasonably necessary in connection with the administration of this Agreement).          “Benchmark Replacement Date” means the earlier to occur of the following events with   respect to the LIBOR Rate or the LIBOR Market Index Rate:          (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 the LIBOR Rate               or the LIBOR Market Index Rate permanently or indefinitely ceases to provide               the LIBOR Rate or the LIBOR Market Index Rate; or          (2)   in the case of clause (3) of the definition of “Benchmark Transition Event,” the               date of the public statement or publication of information referenced therein.          “Benchmark Transition Event” means the occurrence of one or more of the following   events with respect to the LIBOR Rate or the LIBOR Market Index Rate:         (1)    a public statement or publication of information by or on behalf of the              administrator of the LIBOR Rate or the LIBOR Market Index Rate announcing               that such administrator has ceased or will cease to provide the LIBOR Rate or the               LIBOR Market Index Rate, permanently or indefinitely, provided that, at the time               of such statement or publication, there is no successor administrator that will               continue to provide the LIBOR Rate or the LIBOR Market Index Rate;          (2)   a public statement or publication of information by the regulatory supervisor for               the administrator of the LIBOR Rate or the LIBOR Market Index Rate, the U.S.               Federal Reserve System, an insolvency official with jurisdiction over the     4      





 






                 administrator for the LIBOR Rate or the LIBOR Market Index Rate, a resolution               authority with jurisdiction over the administrator for the LIBOR Rate or the               LIBOR Market Index Rate or a court or an entity with similar insolvency or               resolution authority over the administrator for the LIBOR Rate or the LIBOR               Market Index Rate, which states that the administrator of the LIBOR Rate or the               LIBOR Market Index Rate has ceased or will cease to provide the LIBOR Rate or               the LIBOR Market Index Rate permanently or indefinitely, provided that, at the               time of such statement or publication, there is no successor administrator that will               continue to provide the LIBOR Rate or the LIBOR Market Index Rate; or          (3)   a public statement or publication of information by the regulatory supervisor for               the administrator of the LIBOR Rate or the LIBOR Market Index Rate               announcing that the LIBOR Rate or the LIBOR Market Index Rate is no longer               representative.          “Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition   Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark   Transition Event is a public statement or publication of information of a prospective event, the  90th day prior to the expected date of such event as of such public statement or publication of  information (or if the expected date of such prospective event is fewer than 90 days after such  statement or publication, the date of such statement or publication) and (b) in the case of an Early  Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as  applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the  Required Lenders) and the Lenders.         “Benchmark Unavailability Period” means, if a Benchmark Transition Event and its   related Benchmark Replacement Date have occurred with respect to the LIBOR Rate or the   LIBOR Market Index Rate and solely to the extent that the LIBOR Rate or the LIBOR Market   Index Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the   time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark   Replacement has replaced the LIBOR Rate or the LIBOR Market Index Rate for all purposes   hereunder in accordance with Section 2.18.6 and (y) ending at the time that a Benchmark   Replacement has replaced the LIBOR Rate or the LIBOR Market Index Rate for all purposes   hereunder pursuant Section 2.18.6.           “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” means any of (a) an “employee benefit plan” (as defined in ERISA) that is   subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or   (c) any 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”.      5      





 






           “Borrower” means Washington Gas Light Company, a Virginia and District of Columbia   corporation.          “Borrowing Date” means a date on which a Loan is made.          “Borrowing Notice” is defined in Section 2.2.2.          “Business Day” means (i) any day other than a Saturday or Sunday, a legal holiday, or a   day on which commercial banks in Charlotte, North Carolina or New York, New York are   authorized or required by law to be closed and (ii) in respect of any LIBOR determination, any   such day that is also a day on which trading in Dollar deposits is conducted by banks in London,   England in the London interbank eurodollar market.          “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   GAAP.          “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 GAAP.          “Cash Collateral Account” has the meaning given to such term in Section 3.8.          “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative   Agent, for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, as   collateral for the Letter of Credit Exposure or obligations of Lenders to fund participations in   respect of Letter of Credit Exposure, cash or deposit account balances or, if the Administrative   Agent and the Issuing Banks shall agree in their sole discretion, other credit support, in each case   pursuant to documentation in form and substance satisfactory to the Administrative Agent and   the Issuing Banks.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall   include the proceeds of such cash collateral and other credit support.          “Cash Equivalents” means (i) short-term obligations of, or fully guaranteed by, the   United States of America, (ii) commercial paper rated A-1 or better by S&P or Fitch or P-1 or   better by Moody’s, (iii) demand deposit accounts maintained in the ordinary course of business,  and (iv) certificates of deposit issued by, and time deposits with, commercial banks (whether  domestic or foreign) having capital and surplus in excess of $100,000,000; provided in each case   that the same provides for payment of both principal and interest (and not principal alone or   interest alone) and is not subject to any contingency regarding the payment of principal or   interest.          “CERCLA” means the Comprehensive Environmental Response, Compensation and   Liability Act of 1980.          “CERCLIS” means the Comprehensive Environmental Response, Compensation, and   Liability Information System List.      6      





 






           “Change in Control” means (i) any circumstances in which a Person or combination of   Persons acting jointly or in concert (within the meaning of the Securities Act (Alberta), as   amended) acquires beneficial ownership of more than 50% of the capital stock of AltaGas   entitled to vote in the election of members of the board of directors (or equivalent governing   body) of AltaGas, (ii) a majority of the members of the board of directors (or other equivalent   governing body) of AltaGas shall not constitute Continuing Directors, (iii) AltaGas shall cease to   own, directly or indirectly, 100% of the capital stock of the Parent, or (iv) Parent shall cease to   own, directly or indirectly, 100% of the common stock of the Borrower and 99% of all issued   and outstanding stock of the Borrower.          “Change in Law” means the occurrence, after the date of this Agreement, of any of the   following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change   in any law, rule, regulation or treaty or in the administration, interpretation, implementation or   application thereof by any Governmental Authority or (iii) the making or issuance of any  request, rule, guideline or directive (whether or not having the force of law) by any  Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the   Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines   or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines   or directives promulgated by the Bank for International Settlements, the Basel Committee on   Banking Supervision (or any successor or similar authority) or the United States or foreign   regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a   “Change in Law”, regardless of the date enacted, adopted or issued.          “Code” means the Internal Revenue Code of 1986.          “Commitment” means, for each Lender, the obligation of such Lender to make Loans not   exceeding the amount set forth opposite such Lenders name on Schedule 1.1-B, as it may be   modified as a result of any assignment that has become effective pursuant to Section 12.3.2 or as   otherwise decreased or increased from time to time pursuant to the terms hereof.         “Commitment Increase” is defined in Section 2.5.2.          “Commitment Increase Supplement” is defined in Section 2.5.2.          “Compliance Certificate” is defined in Section 4.2.          “Connection Income Taxes” means Other Connection Taxes that are imposed on or   measured by net income (however denominated) or that are franchise Taxes or branch profits   Taxes.          “Consolidated Financial Indebtedness” means at any time the Financial Indebtedness of   the Borrower and its Subsidiaries calculated on a consolidated basis as of such time.          “Consolidated Net Worth” means at any time the sum of common shareholders’ equity of   the Borrower and preferred stock of the Borrower, as reported on the consolidated balance sheet  of the Borrower prepared as of such time.      7      





 






           “Consolidated Total Capitalization” means at any time the sum of Consolidated Financial   Indebtedness and Consolidated Net Worth, each calculated at such time.          “Contingent Obligation” of a Person means any agreement, Contract, undertaking or   arrangement by which such Person 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, or agrees to maintain the net worth or  working capital or other financial condition of any other Person, or otherwise assures any   creditor of such other Person against loss, including, without limitation, any comfort letter,   operating agreement, take or pay contract or the obligations of any such Person as general   partner of a partnership with respect to the liabilities of the partnership.          “Continuing Directors” shall mean the directors of AltaGas as of the Restatement Date   and each other director, if, in each case, such other director’s election or nomination to the board   of directors of AltaGas is recommended or approved by at least 51% of the then Continuing   Directors.          “Continuing Lenders” is defined in the Recitals.          “Contract” means (i) any agreement, including an indenture, lease or license, (ii) any   deed or other instrument of conveyance, (iii) any certificate of incorporation or charter and   (iv) any by-law.          “Controlled Group” means all members of a controlled group of corporations and all   members of a group of trades or businesses (whether or not incorporated) under common control,   which together with the Borrower are treated as a single employer under Section 414(b) or   414(c) of the Code or section 4001 of ERISA.          “Conversion/Continuation Notice” is defined in Section 2.2.7(i).          “Co-Syndication Agent” means each of BB&T, MUFG and TD, in its capacity as co-  syndication agent hereunder.          “Credit Exposure” means, with respect to any Lender at any time, the sum of (i) the   aggregate principal amount of all Loans made by such Lender that are outstanding at such time,   (ii) such Lender’s Swingline Exposure at such time and (iii) such Lender’s Letter of Credit   Exposure at such time.          “Defaulting Lender” means, subject to Section 2.22.2, any Lender that (i) has failed to (x)   fund all or any portion of its Loans within two (2) Business Days of the date such Loans were   required to be funded hereunder unless such Lender notifies the Administrative Agent and the   Borrower in writing that such failure is the result of such Lender’s determination that one or   more conditions precedent to funding (each of which conditions precedent, together with any   applicable default, shall be specifically identified in such writing) has not been satisfied, or (y)   pay to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender  any other amount required to be paid by it hereunder (including in respect of its participation in   Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (ii) has   notified the Borrower, the Administrative Agent or any Issuing Bank or Swingline Lender in     8      





 






     writing that it does not intend to comply with its funding obligations hereunder, or has made a   public statement to that effect (unless such writing or public statement relates to such Lender’s   obligation to fund a Loan hereunder and states that such position is based on such Lender’s   determination that a condition precedent to funding (which condition precedent, together with   any applicable default, shall be specifically identified in such writing or public statement) cannot   be satisfied), (iii) has failed, within three (3) Business Days after written request by the   Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the   Borrower that it will comply with its prospective funding obligations hereunder (provided that   such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon receipt of   such written confirmation by the Administrative Agent and the Borrower), (iv) has, or has a   direct or indirect parent company that has, (x) become the subject of a proceeding under the   Bankruptcy Code or under other applicable bankruptcy, insolvency or similar law now or   hereafter in effect, or (y) had appointed for it a receiver, custodian, conservator, trustee,   administrator, assignee for the benefit of creditors or similar Person charged with reorganization   or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or   any other state or federal regulatory authority acting in such a capacity, or (v) has become the   subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by   virtue of the ownership or acquisition of any equity interest in that Lender or any direct or   indirect parent company thereof by a Governmental Authority so long as such ownership interest   does not result in or provide such Lender with immunity from the jurisdiction of courts within   the United States or from the enforcement of judgments or writs of attachment on its assets or   permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm   any contracts or agreements made with such Lender.  Any determination by the Administrative   Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (v)   above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to   be a Defaulting Lender (subject to Section 2.22.2) upon delivery of written notice of such   determination by the Administrative Agent to the Borrower, the Issuing Bank, the Swingline   Lender and each Lender.          “Dispose” means the sale, transfer, license, lease or other disposition of any property by   any Person (including any sale and leaseback transaction and any issuance of capital stock or  other ownership interests by a Subsidiary of such Person).         “Dollars” and the sign “$” mean lawful money of the United States of America.          “Early Opt-in Election” means the occurrence of:          (1)   (i) a determination by the Administrative Agent or (ii) a notification by the               Required Lenders to the Administrative Agent (with a copy to the Borrower) that               the Required Lenders have determined that U.S. dollar-denominated syndicated               credit facilities being executed at such time, or that include language similar to               that contained in Section 2.18.6, are being executed or amended, as applicable, to               incorporate or adopt a new benchmark interest rate to replace the LIBOR Rate or               LIBOR Market Index Rate, and          (2)   (i) the election by the Administrative Agent or (ii) the election by the Required               Lenders to declare that an Early Opt-in Election has occurred and the provision,     9      





 






                 as applicable, by the Administrative Agent of written notice of such election to               the Borrower and the Lenders or by the Required Lenders of written notice of               such election to the Administrative Agent.          “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.          “Eligible Assignee” means any Lender, Affiliate of a Lender or other Person that meets   the requirements to be an assignee under Section 12.3.1.          “Employee Benefit Plans” is defined in Section 5.8.          “Environmental Laws” means any and all federal, state, local and foreign statutes,   Applicable Laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,   plans, injunctions, permits, concessions, 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 ambient air, surface water, ground water, land surface or   subsurface strata, 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,   and the rules and regulations promulgated thereunder.          “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published   by the Loan Market Association (or any successor person), as in effect from time to time.          “Event of Default” means an event described in Article VII.          “Excluded Taxes” means any of the following Taxes imposed on or with respect to a   Recipient or required to be withheld or deducted from a payment to a Recipient, (i) Taxes   imposed on or measured by net income (however denominated), franchise Taxes, and branch   profits Taxes, in each case, (x) imposed as a result of such Recipient being organized under the   laws of, or having its principal office or, in the case of any Lender, its Lending Installation  located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (y) that are  Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on                                          10      





 






     amounts payable to or for the account of such Lender with respect to an applicable interest in a   Loan or Commitment pursuant to a law in effect on the date on which (x) such Lender acquires   such interest in the Loan or Commitment (other than pursuant to an assignment request by the   Borrower under Section 2.21) or (y) such Lender changes its Lending Installation, except in each   case to the extent that, pursuant to Section 2.19, amounts with respect to such Taxes were   payable either to such Lender’s assignor immediately before such Lender became a party hereto   or to such Lender immediately before it changed its Lending Installation, (iii) Taxes attributable   to such Recipient’s failure to comply with Section 2.19.7 and (iv) any U.S. federal withholding   Taxes imposed under FATCA.          “Existing Credit Agreement” is defined in the Recitals.           “Exiting Lenders” is defined in ARTICLE XVI.          “Extension Option” means the option of the Borrower under Section 2.6 hereof to extend   the Facility Termination Date.          “Facility Fee” is defined in Section 2.4.2.          “Facility Fee Rate” means, at any time, the percentage rate per annum at which Facility   Fees are accruing on the Aggregate Commitments (without regard to usage) at such time as set   forth in the Pricing Schedule.          “Facility Termination Date” means July 19, 2024 (as such date may be further extended   from time to time pursuant to Section 2.6).          “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 fiscal or regulatory legislation, rules or practices adopted pursuant to any   intergovernmental agreement, treaty or convention among Governmental Authorities and   implementing such Sections of the Code.          “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 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 10:00 a.m. on such day on such transactions received by the  Administrative Agent from three Federal funds brokers of recognized standing selected by the  Administrative Agent in its sole discretion.         Notwithstanding the foregoing, in no event shall the Federal Funds Effective Rate be less   than 0%.          “Federal Reserve Bank of New York’s Website” means the website of the Federal   Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.                                          11      





 






           “Fee Letters” means, collectively, the Wells Fargo Fee Letter, the Passive Arrangers Fee   Letter and any letter between the Borrower and any Issuing Bank (other than Wells Fargo)   relating to certain fees payable to such Issuing Bank in its capacity as such.          “Financial Indebtedness” of a Person means such Person’s (i) obligations for borrowed   money which, in accordance with GAAP, would be shown as short-term debt on a consolidated  balance sheet of such Person, including obligations under notes, commercial paper, acceptances  and other short-term instruments, and (ii) obligations for borrowed money which, in accordance   with GAAP, would be shown as long-term debt (including current maturities) on a consolidated   balance sheet of such Person.          “Fitch” means Fitch Ratings, Ltd.          “Foreign Lender” means (i) if the Borrower is a U.S. Person, a Lender that is not a U.S.   Person, and (ii) if the Borrower is not a U.S. Person, a Lender that is resident or organized under   the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.          “Fronting Exposure” means, at any time there is a Defaulting Lender, (i) with respect to   any Issuing Bank, such Defaulting Lender’s Letter of Credit Exposure with respect to Letters of  Credit issued by such Issuing Bank other than such portion of such Defaulting Lender’s Letter of  Credit Exposure as to which such Defaulting Lender’s participation obligation has been  reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (ii)  with respect to any Swingline Lender, such Defaulting Lender’s Swingline Exposure with  respect to outstanding Swingline Loans made by the Swingline Lender other than Swingline  Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other   Lenders in accordance with the terms hereof.          “GAAP” means generally accepted accounting principles in the United States of   America, as set forth in the statements, opinions and pronouncements of the Accounting   Principles Board, the American Institute of Certified Public Accountants and the Financial   Accounting Standards Board, consistently applied and maintained, as in effect from time to time   (subject to the provisions of Section 1.2).          “Governmental Approval” means any authority, consent, approval, license (or the like) or   exemption (or the like) of any governmental unit.          “Governmental Authority” means the government of the United States of America 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 government (including any supranational bodies such as the European Union or the  European Central Bank).         “Hazardous Material” means: any “hazardous substance”, as defined by CERCLA; any   petroleum product; or any pollutant or contaminant or hazardous, dangerous or toxic chemical,   material or substance within the meaning of any other Environmental Law.                                           12      





 






           “Hedge Agreement” means any interest or foreign currency rate swap, cap, collar, option,   hedge, forward rate or other similar agreement or arrangement designed to protect against   fluctuations in interest rates, currency exchange rates or spot prices of new materials.         “Honor Date” is defined in Section 3.4.          “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 on, 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 bonds, debentures, notes, acceptances, or other instruments,   (v) obligations of such Person to purchase securities or other Property arising out of or in   connection with the sale of the same or substantially similar securities or Property, (vi)   Capitalized Lease Obligations, (vii) any other obligation for borrowed money or other financial   accommodation which in accordance with GAAP would be shown as a liability on the   consolidated balance sheet of such Person, (viii) Contingent Obligations in respect of any type of   obligation described in any of the other clauses of this definition, (ix) obligations in respect   letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties,   surety bonds and similar instruments, (x) for all purposes other than Section 6.6, net obligations   under any Hedge Agreements, (xi) obligations in respect of Sale and Leaseback Transactions and   (xii) Off-Balance Sheet Liabilities.  Permitted Commodity Hedging Obligations shall not   constitute Indebtedness for purposes of this Agreement.          “Indemnified Person” means any Person that is, or at any time was, the Administrative   Agent, a Co-Syndication Agent, a Lender or an Arranger or an Affiliate, director, officer,  employee or agent of any such Person.         “Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with   respect to any payment made by or on account of any obligation of the Borrower under any Loan   Document and (ii) to the extent not otherwise described in clause (i), Other Taxes.          “Indemnitee” is defined in Section 9.6.2.          “Interest Period” means, with respect to a LIBOR Rate Loan, the period commencing on   the date such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan   and ending on the date one, two, three or six months thereafter, as selected by the Borrower   pursuant to this Agreement; provided, that (i) any Interest Period pertaining to a LIBOR Rate   Loan that begins on the last Business Day of a calendar month (or on a day for which there is no   numerically corresponding day in the calendar month at the end of such Interest Period) shall end   on the last Business Day of the calendar month at the end of such Interest Period, (ii) any Interest   Period that would otherwise end on a day that is not a Business Day shall be extended to the next   succeeding Business Day unless such Business Day falls in another calendar month, in which   case such Interest Period shall end on the next preceding Business Day, (iii) no Interest Period   shall extend beyond the Facility Termination Date, and (iv) there shall be no more than ten (10)   Interest Periods in effect at any time.                                          13      





 






         “Issuing Bank” means each of Wells Fargo and BB&T, in their respective capacities as  issuers of Letters of Credit under this Agreement.        “LC Fee” is defined in Section 2.4.4.         “Lenders” means the lending institutions listed on the signature pages of this Agreement,  any Additional Commitment Lenders, and their respective successors and assigns.         “Lending Installation” means, with respect to a Lender or the Administrative Agent, the  office, branch, subsidiary or affiliate of such Lender or the Administrative Agent designated on  its Administrative Questionnaire or otherwise selected by such Lender or the Administrative  Agent pursuant to Section 2.15.           “Letter of Credit Exposure” means, with respect to any Lender at any time, such Lender’s  ratable share (based on the proportion that its Commitment bears to the Aggregate Commitments  at such time) of the sum of (i) the aggregate Stated Amount of all Letters of Credit outstanding at  such time and (ii) the aggregate amount of all Reimbursement Obligations outstanding at such  time.         “Letter of Credit Maturity Date” means the fifth Business Day prior to the Facility  Termination Date.         “Letter of Credit Notice” has the meaning given to such term in Section 3.2.         “Letter of Credit Subcommitment” means $45,000,000 or, if less, the Aggregate  Commitments at the time of determination, as such amount may be reduced at or prior to such  time pursuant to the terms hereof.         “Letters of Credit” is defined in Section 3.1.         “LIBOR Market Index Rate” means, subject to the implementation of a Benchmark  Replacement in accordance with Section 2.18.6, for any day, an interest rate per annum for one  month Dollar deposits as published by the ICE Benchmark Administration Limited, a United  Kingdom company (or a comparable or successor quoting service approved by the  Administrative Agent), at approximately 11:00 a.m. (London time) on such day, or if such day is  not a Business Day, then the immediately preceding Business Day.  If, for any reason, such rate  is not so published, then the LIBOR Market Index Rate shall be determined by the  Administrative Agent to be the arithmetic average of the rate per annum at which Dollar deposits  would be offered by first class banks in the London interbank market to the Administrative  Agent at approximately 11:00 a.m., London time, on such date of determination for delivery on  the date in question for a one month term.  Notwithstanding the foregoing, (i) in no event shall  the LIBOR Market Index Rate (including, without limitation, any Benchmark Replacement with  respect thereto) be less than 0% and (ii) unless otherwise specified in any amendment to this  Agreement entered into in accordance with Section Error! Reference source not found., in the  event that a Benchmark Replacement with respect to the LIBOR Market Index Rate is  implemented then all references herein to LIBOR Market Index Rate shall be deemed references  to such Benchmark Replacement.                                         14     





 






           “LIBOR Market Index Rate Loan” means a Loan that bears interest at the LIBOR Market   Index Rate plus the Applicable Margin.          “LIBOR Rate” means, subject to the implementation of a Benchmark Replacement in   accordance with Section 2.18.6:          (a)   with respect to each LIBOR Rate Loan comprising part of the same borrowing for   any Interest Period, an interest rate per annum obtained by dividing (i) (y) the rate per annum   published by the ICE Benchmark Administration Limited, a United Kingdom company (or a   comparable or successor quoting service approved by the Administrative Agent) at   approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the  applicable Interest Period for deposits denominated in Dollars for a period equal to the applicable  Interest Period or (z) if such rate is not available at such time for any reason, the rate per annum  determined by the Administrative Agent to be the arithmetic average of the rate per annum at  which deposits in Dollars would be offered by first-class banks in the London interbank market  to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business Days  prior to the first day of the applicable Interest Period for a period equal to such Interest Period,  by (ii) the amount equal to 1.00 minus the Reserve Requirement (expressed as a decimal) for  such Interest Period; and         (b)    for any interest calculation with respect to a Base Rate Loan on any date, the rate  per annum equal to (i) the rate per annum published by the ICE Benchmark Administration  Limited, a United Kingdom company (or a comparable or successor quoting service approved by  the Administrative Agent) at approximately 11:00 a.m. (London time) on such date of  determination for an Interest Period equal to one month (commencing on the date of  determination of such interest rate) or (ii) if such published rate is not available at such time for  any reason, the rate per annum determined by the Administrative Agent to be the arithmetic  average of the rate per annum at which deposits in Dollars would be offered by first-class banks  in the London interbank market to the Administrative Agent at approximately 11:00 a.m.   (London time) on such date of determination for a period equal to one month commencing on   such date of determination.          Each calculation by the Administrative Agent of the LIBOR Rate shall be conclusive and   binding for all purposes, absent manifest error.          Notwithstanding the foregoing, (i) in no event shall the LIBOR Rate (including, without   limitation, any Benchmark Replacement with respect thereto) be less than 0% and (ii) unless   otherwise specified in any amendment to this Agreement entered into in accordance with   Section Error! Reference source not found., in the event that a Benchmark Replacement with   respect to the LIBOR Rate is implemented then all references herein to LIBOR Rate shall be   deemed references to such Benchmark Replacement.          “LIBOR Rate Loan” means a Loan which bears interest at the LIBOR Rate plus the   Applicable Margin requested by the Borrower pursuant to Section 2.2.          “Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,   deposit arrangement, encumbrance or preference, priority or other security agreement or                                          15      





 






     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 Revolving Loan or Swingline Loan made by   such Lender pursuant to Article II (and, in the case of a loan made pursuant to Section 2.2.2, any   conversion or continuation thereof).          “Loan Document Related Claim” means any claim or dispute (whether arising under   Applicable Law, including any “environmental” or similar law, under Contract or otherwise and,  in the case of any proceeding relating to any such claim or dispute, whether civil, criminal,  administrative or otherwise) in any way arising out of, related to, or connected with, the Loan  Documents, the relationships established thereunder or any actions or conduct thereunder or with  respect thereto, whether such claim or dispute arises or is asserted before or after the Restatement   Date or before or after the Repayment Date.          “Loan Documents” means this Agreement and any Notes issued pursuant to Section 2.11,   the Fee Letters and all other agreements, instruments, documents and certificates now or   hereafter executed and delivered to the Administrative Agent or any Lender by or on behalf of  the Borrower with respect to this Agreement, in each case as amended, modified, supplemented  or restated from time to time.         “Material Adverse Effect” means any effect, resulting from any event or circumstance   whatsoever, which will, or is reasonably likely to, have a material adverse effect on the financial   condition, operations, assets, business, or properties of the Borrower and its Subsidiaries, taken   as a whole, on the ability of the Borrower to perform its obligations under this Agreement, or on   the validity or enforceability of this Agreement.          “Material Subsidiary” means at any time with respect to a Person, a Subsidiary, if any, of   such Person, the consolidated assets of which exceed at such time 15% of the consolidated assets   of such Person and its Subsidiaries, if any, determined on a consolidated basis.          “Maximum Permissible Rate” means, with respect to interest payable on any amount, the   rate of interest on such amount that, if exceeded, could, under Applicable Law, result in (i) civil  or criminal penalties being imposed on the payee or (ii) the payee’s being unable to enforce  payment of (or, if collected, to retain) all or any part of such amount or the interest payable  thereon.         “Moody’s” means Moody’s Investors Service, Inc.          “MUFG” means MUFG Bank, Ltd. and its successors.          “Non-Consenting Lender” means a Lender that does not approve any consent, waiver or   amendment to any Loan Document that (i) requires the approval of all Lenders (or all Lenders   directly affected thereby) under Section 8.2 and (ii) has been approved by the Required Lenders.          “Non-Recourse Assets” means the assets directly or indirectly created, developed,   constructed or acquired  with or in respect of which Non-Recourse Debt has been incurred or                                          16      





 






     assumed and any and all receivables, inventory, equipment, chattel paper, intangibles and other   rights, collateral or proceeds arising from or connected with the assets directly or indirectly   created, developed, constructed or acquired (and, for certainty, shall include the shares or other   ownership interests of a single purpose entity which holds only such assets and other rights and  collateral arising from or connected therewith) and to which recourse of the lender of such Non-   Recourse Debt (or any agent, trustee, receiver or other person acting on behalf of such lender in   respect of such Non-Recourse Debt) is limited in all circumstances (other than in respect of false  or misleading representations or warranties and customary indemnities provided with respect to  such financings in respect of which such lender may have recourse on an unsecured basis);  provided that upon all such Non-Recourse Debt being repaid in full, such assets shall then cease   to be Non-Recourse Assets.           “Non-Recourse Debt” means indebtedness, liabilities or other obligations and guarantees,   indemnities, endorsements (other than endorsements for collection in the ordinary course of   business) or other contingent obligations in respect of obligations for another Person and, in each   case incurred or assumed to finance or refinance:             (a) the creation, construction, development or acquisition directly or indirectly of assets   (and any increases in or extensions, renewals or refunding of any such indebtedness, liabilities   and obligations); or            (b) following the direct or indirect creation, construction, development or acquisition of   assets, an amount not to exceed the fair market value of such assets (and any extensions,   renewals or refunding of any such indebtedness, liabilities and obligations),            provided that (i) the recourse of the lender thereof (or any agent, trustee, receiver or other   Person acting on behalf of the lender in respect of such indebtedness, liabilities and obligations)   or any judgment in respect thereof is limited, in all circumstances (other than in respect of false   or misleading representations, warranties and customary indemnities provided with respect to   such financings, in respect of which such lender may have recourse on an unsecured basis) to the   assets directly or indirectly created, constructed, developed or acquired in respect of which such   indebtedness, liabilities and obligations have been incurred or assumed and to any receivables,   inventory, equipment, chattel paper, intangibles and other rights, collateral or proceeds arising   from or connected with such assets (and, for certainty, shall include the shares or other   ownership interests of a single purpose entity which holds only such assets and other rights and   collateral arising from or connected therewith) and to which such lender has recourse and (ii)   after giving effect to the incurrence of such Non-Recourse Debt, the Borrower is in pro forma   compliance with Section 6.6.           “Notes” means, collectively, all of the Revolving Notes and all of the Swingline Notes   that may be issued hereunder, and “Note” means any one of the Notes.          “Obligations” means all principal of and interest (including interest accruing after the   filing of a petition or commencement of a case by or with respect to the Borrower seeking relief   under any applicable federal and state laws pertaining to bankruptcy, reorganization,   arrangement, moratorium, readjustment of debts, dissolution, liquidation or other debtor relief,   specifically including, without limitation, the Bankruptcy Code and any fraudulent transfer and                                          17      





 






   fraudulent conveyance laws, whether or not the claim for such interest is allowed in such  proceeding) on the Loans and Reimbursement Obligations and all fees, expenses, indemnities  and other obligations owing, due or payable at any time by the Borrower or any Subsidiary of the  Borrower to the Administrative Agent, any Lender, the Swingline Lender, the Issuing Bank or  any other Person entitled thereto, under this Agreement or any of the Loan Documents, in each  case whether direct or indirect, joint or several, absolute or contingent, matured or unmatured,  liquidated or unliquidated, secured or unsecured, and whether existing by contract, operation of  law or otherwise.         “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control,  and any successor thereto.         “Off-Balance Sheet Liability” of a Person means (i) any repurchase obligation or liability  of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability  under any Sale and Leaseback Transaction which is not a Capitalized Lease, (iii) any liability  under any so-called “synthetic lease” transaction entered into by such Person, or (iv) any  obligation arising with respect to any other transaction which is the functional equivalent of, or  takes the place of, borrowing, but which does not constitute a liability on the balance sheets of  such Person, but excluding from this clause (iv) Operating Leases.         “Operating Lease” of a Person means any lease of Property (other than a Capitalized  Lease) by such Person as lessee which has an original term (including any required renewals and  any renewals effective at the option of the lessor) of one year or more.         “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a  result of a present or former connection between such Recipient and the jurisdiction imposing  such Tax (other than connections arising from such Recipient having executed, delivered,  become a party to, performed its obligations under, received payments under, received or  perfected a security interest under, engaged in any other transaction pursuant to or enforced any  Loan Document, or sold or assigned an interest in any Loan or Loan Document).        “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 2.21.1).         “Overdue Rate” means (i) in the case of overdue amounts of the principal of a LIBOR  Rate Loan, (A) until the last day of the applicable Interest Period during which such Loan  became due and payable, the rate otherwise applicable hereunder plus the Applicable Margin  plus 2%, and (B) thereafter, the Alternate Base Rate in effect from time to time plus the  Applicable Margin plus 2%, and (ii) in the case of all other overdue amounts, the Alternate Base  Rate in effect from time to time plus the Applicable Margin plus 2%.         “Parent” means WGL Holdings, Inc., a Virginia corporation.          “Participant Register” has the meaning given to such term in Section 12.2.1.                                        18     





 






           “Participants” is defined in Section 12.2.1.          “Passive Arrangers Fee Letter” means the letter to Borrower from BB&T, BB&TCM,   MUFG, TD and TD Securities dated as of June 19, 2019.          “Patriot Act” is defined in Section 15.5.          “Payment Date” means the last day of each March, June, September and December.          “PBGC” means the Pension Benefit Guaranty Corporation.          “Pension Plan” means a “pension plan”, as such term is defined in section 3(2) of ERISA,   which is subject to Title IV of ERISA, and to which the Borrower or any corporation, trade or   business that is, along with the Borrower, a member of a Controlled Group, may have liability,   including any liability by reason of having been a substantial employer within the meaning of   section 4063 of ERISA at any time during the preceding five years, or by reason of being   deemed to be a contributing sponsor under section 4069 of ERISA.          “Permitted Commodity Hedging Obligations” means obligations of the Borrower with   respect to commodity agreements or other similar agreements or arrangements entered into in the   ordinary course of business designed to protect against, or mitigate risks with respect to,   fluctuations of commodity prices to which the Borrower is exposed in the conduct of its business   so long as (a) the management of the Borrower has determined that entering into such   agreements or arrangements are bona fide hedging activities which comply with the Borrower’s   risk management policies and (b) such agreements or arrangements are not entered into for   speculative purposes.          “Permitted Indebtedness” means any of the following:          (a)   Indebtedness existing or arising under this Agreement and any other Loan   Document;          (b)   Indebtedness existing on the date hereof and any refinancings, modifications,  renewals, replacements and extensions of any such Indebtedness, provided that the principal  amount of such Indebtedness shall not be increased from that amount outstanding at the time of  such refinancing, modification, renewal, replacement or extension (except by an amount equal to  unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and  expenses incurred, in connection with such refinancing, modification, renewal, replacement or  extension and by an amount equal to any existing commitments unutilized thereunder);         (c)   Indebtedness among the Borrower and its Subsidiaries;         (d)   Acquired Indebtedness and any refinancings, modifications, renewals,   replacements and extensions of any such Indebtedness, provided that the principal amount of   such Indebtedness shall not be increased from that amount outstanding at the time of such   refinancing, modification, renewal, replacement or extension (except by an amount equal to   unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and                                          19      





 






     expenses incurred, in connection with such refinancing, modification, renewal, replacement or   extension and by an amount equal to any existing commitments unutilized thereunder);          (e)   Indebtedness pursuant to a Securitization Program;          (f)   Non-Recourse Debt;          (g)   Hedge Agreements, so long as (i) the management of the Subsidiary entering into   such Hedge Agreements has determined that entering into such Hedge Agreements is a bona fide   hedging activity which complies with such Subsidiary’s risk management policies and (ii) such   Hedge Agreements are not entered into for speculative purposes;         (h)   Indebtedness incurred to finance the direct or indirect acquisition (including by  way of lease), construction or improvement of any property, real or personal;         (i)   Contingent Obligations in respect of obligations of the Borrower or any of its  Subsidiaries for any other Indebtedness permitted under this Agreement or incurred in the  ordinary course of business;         (j)   Indebtedness resulting from a bank or other financial institution honoring a check,  draft or similar instrument in the ordinary course of business or arising under or in connection  with cash management services in the ordinary course of business; and         (k)   Indebtedness owed to any Person providing workers’ compensation, health,  disability or other employee benefits or property, casualty or liability insurance, pursuant to  reimbursement or indemnification obligations to such Person, in each case incurred in the  ordinary course of business.         “Permitted Liens” means any of the following:           (a) Liens, charges or encumbrances for taxes, assessments or governmental charges   which are not due or delinquent, or the validity of which the Borrower or any Subsidiary shall be   contesting in good faith; provided the Borrower or such Subsidiary shall have made adequate   provision therefor in accordance with GAAP;            (b) the Lien, charge or encumbrance of any judgment rendered, or claim filed, against the   Borrower or any Subsidiary which the Borrower or such Subsidiary shall be contesting in good   faith; provided the Borrower or such Subsidiary shall have made adequate provision therefor in   accordance with GAAP;            (c) Liens, charges or encumbrances imposed or permitted by law such as carriers' Liens,   builders’ Liens, materialmens’ Liens and other Liens, privileges or other charges of a similar   nature which relate to obligations not due or delinquent or if due or delinquent, any Lien,   privilege, charge or encumbrance which the Borrower or any Subsidiary shall be contesting in   good faith if there is a reasonable possibility of an adverse determination and which, if adversely   determined, could have a Material Adverse Effect;                                             20      





 






           (d) Liens, charges or encumbrances arising in the ordinary course of and incidental to   construction or current operations which have not been filed pursuant to law against the   Borrower or any Subsidiary or in respect of which no steps or proceedings to enforce such Lien   have been initiated or which relate to obligations which are not due or delinquent or if due or   delinquent, any Lien, charge or encumbrance which the Borrower or any Subsidiary shall be   contesting in good faith; provided the Borrower or such Subsidiary shall have made adequate   provision therefor in accordance with GAAP;            (e) Liens, charges or encumbrances incurred or created in the ordinary course of business   and in accordance with industry practice in respect of the joint development or operation of   assets which are, directly or indirectly, jointly owned or operated as security in favor of any other   Person conducting the development or operation of the property to which such Liens, charges or   encumbrances relate, for the Borrower’s or any Subsidiary’s portion of the costs and expenses of   such development or operation provided that (i) such costs or expenses are not due or delinquent   or, if due or delinquent, any Liens, charges or encumbrances which the Borrower or such   Subsidiary shall be contesting in good faith and (ii) the Borrower or such Subsidiary shall have   made adequate provision therefor in accordance with GAAP;            (f) easements, rights of way, servitudes, zoning, surface rights or other similar rights or   restrictions in respect of land held by the Borrower or any Subsidiary (including, without   limitation, rights of way and servitudes for railways, sewers, drains, pipelines, gas and water   mains, electric light and power and telephone or telegraph or cable television conduits, poles,   wires and cables) which, either alone or in the aggregate, do not have a Material Adverse Effect;            (g) any Lien or trust arising in connection with workers' compensation, unemployment   insurance, pension and employment laws or regulations;            (h) security given to a public utility or any Governmental Authority in the ordinary   course of the business of the Borrower or any Subsidiary in connection with operations of the   Borrower or such Subsidiary if such security does not, either alone or in the aggregate, have a   Material Adverse Effect;            (i) the right reserved to or vested in any Governmental Authority by the terms of any   lease, license, grant or permit or by any statutory or regulatory provision to terminate any such  lease, license, grant or permit or to require annual or other periodic payments as a condition of  the continuance thereof;          (j) any right of first refusal, option to purchase or pre-emptive right in favor of any  Person granted in the ordinary course of business with respect to the assets of the Borrower or  any Subsidiary (other than with respect to all or substantially all of the assets of the Borrower or  any Material Subsidiary of the Borrower);            (k) any Lien, charge or encumbrance the satisfaction of which has been provided for by  deposit with the Administrative Agent of cash or a surety bond or other security reasonably  satisfactory to the Administrative Agent in an amount sufficient to pay the liability in respect of  such Lien in full;                                          21      





 






              (l) Liens on cash or marketable securities granted in connection with Hedge Agreements  provided that at the time of granting such Lien the obligations secured by such Liens are not due  and delinquent;          (m) Liens on Non-Recourse Assets granted to secure Non-Recourse Debt;          (n) any Liens on any property, real or personal, directly or indirectly acquired (including  by way of lease), constructed or improved by the Borrower or any Subsidiary to secure the  unpaid portion of the purchase price (or the lease payments, as the case may be) of such property  or to secure Indebtedness solely for the purpose of financing the acquisition (including by way of  lease), construction or improvement of such property;          (o) any Lien granted in or any right of distress reserved in or exercisable under any lease  for rent and for compliance with the terms of such lease;          (p) any Lien in favor of the Borrower or any Subsidiary;                (q) any Lien on any property, real or personal, of a Person which Lien exists at the time  such Person is merged into, or amalgamated or consolidated with, the Borrower or a Subsidiary  or such property or Person is otherwise acquired directly or indirectly by the Borrower or a  Subsidiary, provided that (i) such Lien has not been created in contemplation of such merger,  consolidation, amalgamation or acquisition, (ii) such Lien will not encumber any assets of the  Borrower or any Subsidiary upon completion of such merger, consolidation, amalgamation or  acquisition (other than assets that were so encumbered immediately prior to such completion)  and (iii) such Lien will cease to be a Permitted Lien under this paragraph (q) upon completion of  any subsequent merger, consolidation or amalgamation involving such Person or its successor if  such completion would result in any assets of the Borrower or any Subsidiary becoming   encumbered by such Lien (other than assets that were so encumbered immediately prior to such   completion and/or assets that are permitted to be so encumbered under any or all of the other   paragraphs in the definition of Permitted Liens);            (r) any Lien in respect of any obligations or duties affecting the property of the Borrower   or a Subsidiary to any Governmental Authority with respect to any franchise, grant, license or   permit and any defects in title to structures or other facilities arising solely from the fact that   such structures or facilities are constructed or installed on lands held by the Borrower or a   Subsidiary under government permits, leases or other grants, which obligations, duties and   defects in the aggregate do not materially impair the use of such property, structures or facilities   for the purpose for which they are held by the Borrower or such Subsidiary;            (s) any Lien in respect of any deposits in connection with bids or tenders;                  (t) any Lien in respect of expropriation proceedings, surety or appeal bonds or costs of   litigation, where required by law;                                              22      





 






           (u) Liens created by any Securitization Program (not to exceed $100,000,000 in the   aggregate);            (v) any extension, renewal or replacement of any Lien permitted under any of the other  paragraphs of this definition of Permitted Liens, provided that any such extension, renewal or  replacement Lien will not secure repayment of an amount in excess of any principal amount of  Indebtedness outstanding with respect thereto immediately prior to such extension, renewal or  replacement and that such extension, renewal or replacement is limited to all or a part of the  property which was subject to the Lien so extended, renewed or replaced;                (w) Liens securing any of the Senior Notes, provided, that the Borrower has caused the  Obligations to be secured equally and ratably by such Liens and has caused the creditors in  respect of such Liens to have entered into an intercreditor agreement in form, scope and  substance reasonably satisfactory to the Administrative Agent; and          (x) Liens not permitted by any of the foregoing paragraphs of this definition of Permitted  Liens; provided that Liens shall not be permitted under this paragraph if the effect thereof would  be to cause the total amount of Indebtedness secured by Liens permitted under this paragraph to  exceed $100,000,000; and provided, further, that any Liens securing the Senior Notes shall be  incurred solely pursuant to clause (w) and not pursuant to this clause (x); and provided, further,  that nothing in this definition shall in and of itself cause the Obligations to be subordinated in  priority to any Permitted Lien.          “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.          “Pricing Schedule” means Schedule 1.1-A attached hereto.          “Prime Rate” means a rate per annum equal to the prime rate of interest announced from   time to time by Wells Fargo, (which is not necessarily the lowest rate charged to any customer),   changing when and as said prime rate changes.          “Prior Termination Date” is defined in Section 2.6.3.          “Property” of a Person means any and all property, whether real, personal, tangible,   intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.          “PTE” means a prohibited transaction class exemption issued by the U.S. Department of   Labor, as any such exemption may be amended from time to time.           “Purchasers” is defined in Section 12.3.1.          “Recipient” means (i) the Administrative Agent, (ii) any Lender and (iii) the Issuing   Bank, as applicable.          “Refunded Swingline Loans” is defined in Section 2.2.4.                                          23      





 






           “Register” is defined in Section 12.3.4.          “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve   System.          “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve   System.          “Regulation X” means Regulation X of the Board of Governors of the Federal Reserve   System.          “Reimbursement Obligation” is defined in Section 3.4.          “Related Parties” means, with respect to any Person, such Person’s Affiliates and the   partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and   representatives of such Person and of such Person’s Affiliates.          “Release” means “release”, as such term is defined in CERCLA.          “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal   Reserve Bank of New York, or a committee officially endorsed or convened by the Federal   Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.          “Repayment Date” means the later of (a) the date of the termination of the Commitments   (whether as a result of the occurrence of the Facility Termination Date, reduction to zero   pursuant to Section 2.5.1 or termination pursuant to Article VIII), and (b) the date of the payment   in full of all principal of and interest on the Loans and all other amounts payable or accrued   hereunder.          “Required Lenders” means Lenders having in the aggregate more than 50.0% of the   outstanding Aggregate Commitments or, if the Aggregate Commitments have been terminated,   Lenders holding in the aggregate more than 50.0% of the aggregate Credit Exposure; provided   that the Commitment of, and the portion of outstanding Loans and Letters of Credit held or   deemed held by, any Defaulting Lender shall be excluded for purposes or making a   determination of Required Lenders.          “Reserve Requirement” means, with respect to any Interest Period, the reserve percentage   (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) in   effect from time to time during such Interest Period, as provided by the Federal Reserve Board,   applied for determining the maximum reserve requirements (including, without limitation, basic,  supplemental, marginal and emergency reserves) applicable to Wells Fargo under Regulation D  with respect to “Eurocurrency liabilities” within the meaning of Regulation D, or under any  similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding.   The LIBOR Rate shall be adjusted automatically on and as of the effective date of any change in  the Reserve Requirement.         “Resignation Effective Date” is defined in Section 10.6.1.                                            24      





 






           “Restatement Date” means the first date all the conditions precedent set forth in Sections   4.1 and 4.2 shall have been satisfied or waived in accordance with the terms of this Agreement,   which is July 19, 2019.          “Revolving Loan” is defined in Section 2.1.3.          “Revolving Note” means a promissory note issued at the request of a Lender pursuant to   Section 2.11.4, substantially in the form of Exhibit 2.11.4-A.          “S&P” means Standard & Poor’s Financial Services LLC, a part of McGraw Hill   Financial, and any successor thereto.          “Sale and Leaseback Transaction” means any sale or other transfer of Property by any   Person with the intent to lease such Property as lessee.         “Sanctioned Country” means a country or territory which is at any time the subject or   target of any Sanctions.          “Sanctioned Person” means (i) any Person listed in any Sanctions-related list of   designated Persons maintained by OFAC (including, without limitation, OFAC’s Specially   Designated Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the   U.S. Department of State, the United Nations Security Council, the European Union, Her   Majesty’s Treasury, or other relevant sanctions authority, (ii) any Person operating, organized or  resident in a Sanctioned Country or (iii) any Person owned or controlled by any such Person or  Persons described in clauses (i) and (ii), including a Person that is deemed by OFAC to be a  Sanctions target based on the ownership of such legal entity by Sanctioned Peron(s).         “Sanctions” means any and all economic or financial sanctions, sectoral sanctions,   secondary sanctions, trade embargoes and anti-terrorism laws, including but not limited to those   imposed, administered or enforced from time to time by the U.S. government (including those   administered by OFAC or the U.S. Department of State), the United Nations Security Council,   the European Union, Her Majesty’s Treasury, or other relevant sanctions authority with  jurisdiction over any Lender, the Borrower or any of its Subsidiaries or Affiliates.         “SEC” means the Securities and Exchange Commission.          “SEC Disclosure Documents” means all reports on Forms 10K, 10Q, and 8K filed by the   Borrower with the SEC.          “Securitization Program” means a securitization sale or program entered into by the   Borrower or a Subsidiary which meets all of the following criteria:            (a) the assets to be securitized in such transaction are current assets;                  (b) the transfer of such current assets is structured as a non-recourse sale (subject to   certain customary exceptions);            (c) any Lien created by such transaction is limited to such current assets; and                                          25      





 






                    (d) such program is entered into on customary terms which are consistent with programs   entered into by Persons of comparable size and financial standing to the Borrower and its   Subsidiaries.                  “Senior Notes” means (i) all senior notes issued under the Parent’s Indenture dated as of   August 28, 2014, (ii) all senior notes issued under the Parent’s Indenture dated as of November   29, 2017, (iii) all senior notes issued under the Borrower’s Indenture dated as of September 1,  1991, (iv) all senior notes issued under the Borrower’s Note Purchase Agreement dated as of  November 2, 2009, (v) all senior notes issued under the Borrower’s Note Purchase Agreement  dated as of December 15, 2014, (vi) all first mortgage bonds issued under the Borrower’s  Mortgage dated January 1, 1933 and (vii) any senior notes or bonds issued by the Borrower  pursuant to a private placement or public offering, in each case as may be amended, modified or  supplemented from time to time.                “SOFR” with respect to any day means the secured overnight financing rate published for   such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a   successor administrator) on the Federal Reserve Bank of New York’s Website.                   “Stated Amount” means, with respect to any Letter of Credit at any time, the aggregate   amount available to be drawn thereunder at such time (regardless of whether any conditions for   drawing could then be met).          “Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding   securities having the 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   the 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.          “Swingline Commitment” means $45,000,000 or, if less, the amount by which the   Commitment of the Swingline Lender, as such amount may be reduced at or prior to such time   pursuant to the terms hereof, exceeds the aggregate Credit Exposure of the Swingline Lender at   the time of determination.          “Swingline Exposure” means, with respect to any Lender at any time, its maximum   aggregate liability to make Refunded Swingline Loans pursuant to Section 2.2.4 or to purchase   participations pursuant to Section 2.2.5 in Swingline Loans that are outstanding at such time.          “Swingline Lender” means Wells Fargo in its capacity as maker of Swingline Loans, and   its successors in such capacity.          “Swingline Note” means a promissory note issued at the request of a Lender pursuant to   Section 2.11.4, substantially in the form of Exhibit 2.11.4-B.                                          26      





 






         “Swingline Termination Date” means the date that is five (5) Business Days prior to the  Repayment Date.          “Taxes” means all present or future taxes, levies, imposts, duties, deductions,  withholdings (including backup withholding), assessments, fees or other charges imposed by any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.         “TD” means The TD Bank, N.A., and its successors.         “TD Securities” means TD Securities (USA) LLC and its successors.         “Term SOFR” means the forward-looking term rate based on SOFR that has been  selected or recommended by the Relevant Governmental Body.         “Transferee” is defined in Section 12.4.         “Type” means, with respect to any Revolving Loan, its nature as a Base Rate Loan or a  LIBOR Rate Loan.         “Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding  the Benchmark Replacement Adjustment.         “Unmatured Default” means an event that, but for the lapse of time or the giving of  notice, or both, would constitute an Event of Default.         “Unreimbursed Amount” is defined in Section 3.5.1.          “Unutilized Swingline Commitment” means, with respect to the Swingline Lender at any  time, the Swingline Commitment at such time less the aggregate principal amount of all  Swingline Loans that are outstanding at such time.         “U.S. Borrower” means any Borrower that is a U.S. Person.         “U.S. Person” means any Person that is a “United States Person” as defined in Section  7701(a)(30) of the Code.         “U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section  2.19.7(ii)(b)(3).         “Welfare Plan” means a “welfare plan”, as such term is defined in section 3(1) of ERISA.         “Wells Fargo” means Wells Fargo Bank, National Association, and its successors.         “Wells Fargo Fee Letter” means the separate fee letter agreement dated June 19, 2019  among the Borrower, Wells Fargo and Wells Fargo Securities.        “Wells Fargo Securities” means Wells Fargo Securities, LLC, and its successors.         “Withholding Agent” means the Borrower and the Administrative Agent.                                         27     





 






           “Write-Down and Conversion Powers” means, with respect to any EEA Resolution   Authority, the write-down and conversion powers of such EEA Resolution Authority from time  to time under the Bail-In Legislation for the applicable EEA Member Country, which write- down and conversion powers are described in the EU Bail-In Legislation Schedule.         1.2   Accounting Terms.  Unless otherwise specified herein, all accounting terms used   herein shall be interpreted, all accounting determinations hereunder shall be made, and all   financial statements required to be delivered hereunder shall be prepared in accordance with,   GAAP applied on a basis consistent with the most recent audited consolidated financial   statements of the Borrower delivered to the Lenders prior to the closing of this Agreement;  provided that if the Borrower notifies the Administrative Agent that it wishes to amend any   financial covenant in Section 6.6 to eliminate the effect of any change in GAAP on the operation   of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders   wish to amend Section 6.6 for such purpose), then the Borrower’s compliance with such  covenant shall be determined on the basis of GAAP as in effect immediately before the relevant  change in GAAP became effective, until either such notice is withdrawn or such covenant is  amended in a manner satisfactory to the Borrower and the Required Lenders.  Notwithstanding  anything herein to the contrary, for purposes of determining compliance with any provision  (including the computation of any financial covenant) contained herein, (a) Indebtedness of the  Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal  amount thereof, and the effects of FASB ASC 825 (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect) on financial  liabilities shall be disregarded, and (b) any lease that was or would have been classified as an  Operating Lease pursuant to GAAP as of April 3, 2012 will be classified as an Operating Lease,  regardless of any change in GAAP after April 3, 2012 that would reclassify such lease as a  Capitalized Lease, and the effects of FASB ASC 842 (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect) on any such  Operating Leases shall be disregarded.         1.3   Other Interpretive Provisions.          (i)   Except as otherwise specified herein, all references herein (A) to any Person shall  be deemed to include such Person’s successors and assigns and (B) to any Applicable Law  defined or referred to herein shall be deemed references to such Applicable Law or any successor  Applicable Law as the same may have been or may be amended or supplemented from time to  time.         (ii)  When used in this Agreement, the words “herein”, “hereof” and “hereunder” and  words of similar import shall refer to this Agreement as a whole and not to any provision of this  Agreement, and the words “Article”, “Section”, “Schedule” and “Exhibit” shall refer to Articles  and Sections of, and Schedules and Exhibits to, this Agreement unless otherwise specified.         (iii) Whenever the context so requires, the neuter gender includes the masculine or  feminine, the masculine gender includes the feminine, and the singular number includes the  plural, and vice versa.                                           28      





 






           (iv)  Any item or list of items set forth following the word “including”, “include” or   “includes” is set forth only for the purpose of indicating that, regardless of whatever other items   are in the category in which such item or items are “included”, such item or items are in such  category, and shall not be construed as indicating that the items in the category in which such   item or items are “included” are limited to such items or to items similar to such items.  The   word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless   the context requires otherwise (a) any definition of or reference to any agreement, instrument or   other document herein shall be construed as referring to such agreement, instrument or other   document as from time to time amended, supplemented or otherwise modified (subject to any   restrictions on such amendments, supplements or modifications set forth herein), (b) the words   “asset” and “property” shall be construed to have the same meaning and effect and to refer to any   and all tangible and intangible assets and properties, including cash, securities, accounts and   contract rights.            (v)   Each authorization in favor of the Administrative Agent, the Lenders or any other   Person granted by or pursuant to this Agreement shall be deemed to be irrevocable and coupled   with an interest.          (vi)  All references herein to the Lenders or any of them shall be deemed to include the   Issuing Bank and the Swingline Lender unless specifically provided otherwise or unless the   context otherwise requires.          (vii) Except as otherwise specified herein, all references to the time of day shall be   deemed to be to New York City time as then in effect.          1.4   Rates.  The Administrative Agent does not warrant or accept responsibility for,   and shall not have any liability with respect to, the administration, submission or any other   matter related to the rates in the definitions of “LIBOR Rate” or “LIBOR Market Index Rate.”           1.5   Divisions.  For all purposes under the Loan Documents, in connection with any   division or plan of division under Delaware law (or any comparable event under a different  jurisdiction’s laws): (i) if any asset, right, obligation or liability of any Person becomes the asset,  right, obligation or liability of a different Person, then it shall be deemed to have been transferred  from the original Person to the subsequent Person, and (ii) if any new Person comes into  existence, such new Person shall be deemed to have been organized on the first date of its  existence by the holders of its ownership interests at such time.                                      ARTICLE II                                                                          CREDIT FACILITY          2.1   The Facility.                2.1.1 Availability of Facility.  Subject to the terms of this Agreement, the   facility is available from the date hereof to the Facility Termination Date, and the Borrower may   borrow, repay and reborrow at any time prior to the Facility Termination Date.  Unless sooner   terminated pursuant to the terms hereof, the Commitments to lend hereunder shall expire on the   Facility Termination Date.                                         29      





 






                 2.1.2 Repayment of Facility.  Subject to the terms of this Agreement, any   outstanding Loans and all other unpaid Obligations shall be paid in full by the Borrower on the   Facility Termination Date; provided that if any authorization of any state official or state   regulatory authority required under any Applicable Law, for any borrowing of Loans by the   Borrower, expires without being extended at any time prior to the Facility Termination Date (and   such authorization is required to be in effect at such time in order for the Borrower to continue to   have such Loans and other unpaid Obligations outstanding under Applicable Law), then upon the   expiration of such authorization, all outstanding Loans and all other unpaid Obligations shall be   immediately paid in full by the Borrower.                2.1.3 Revolving Facility.  Each Lender severally agrees, subject to and on the   terms and conditions of this Agreement, to make loans (each, a “Revolving Loan,” and   collectively, the “Revolving Loans”) to the Borrower, from time to time on any Business Day   during the period from and including the Restatement Date to but not including the Facility   Termination Date, in an aggregate principal amount at any time outstanding not exceeding its   Commitment; provided that no borrowing of Revolving Loans shall be made if, immediately   after giving effect thereto (and to any concurrent repayment of Swingline Loans with proceeds of   Revolving Loans made pursuant to such borrowing), (i) the amount of all outstanding Credit   Exposure of any Lender exceed such Lender’s Commitment or (ii) the aggregate principal   amount of all outstanding Credit Exposure exceed the Aggregate Commitments.  Subject to and  on the terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow  Revolving Loans.               2.1.4 Swingline Facility.  The Swingline Lender agrees, subject to and on the   terms and conditions of this Agreement, to make loans (each, a “Swingline Loan,” and   collectively, the “Swingline Loans”) to the Borrower, from time to time on any Business Day   during the period from the Restatement Date to but not including the Swingline Termination   Date (or, if earlier, the Facility Termination Date), in an aggregate principal amount at any time   outstanding not exceeding the Swingline Commitment.  No borrowing of Swingline Loans shall   be made if, immediately after giving effect thereto (i) the amount of all outstanding Credit   Exposure of any Lender exceed such Lender’s Commitment or (ii) the aggregate principal   amount of all outstanding Credit Exposure exceeds the Aggregate Commitments, and provided   further that the Swingline Lender shall not make any Swingline Loan if any Lender is at that   time a Defaulting Lender, unless the Swingline Lender has entered into arrangements   satisfactory to the Swingline Lender (in its sole discretion) with the Borrower or such Lender to  eliminate the Swingline Lender’s actual or potential Fronting Exposure (after giving effect to  Section 2.22.1(iv)) with respect to the Defaulting Lender arising from either the Swingline Loan   then proposed to be made or that the Swingline Loan and all other Swingline Loans as to which   the Swingline Lender has actual or potential Fronting Exposure, as it may elect in its sole   discretion.  Subject to and on the terms and conditions of this Agreement, the Borrower may   borrow, repay (including by means of a borrowing of Revolving Loans pursuant to Section 2.2.3)   and reborrow Swingline Loans.  All Swingline Loans shall bear interest at the LIBOR Market   Index Rate plus the Applicable Margin.                                           30      





 






           2.2   Loans.                2.2.1 Types of Loans.  The Revolving Loans may be made as, and from time to   time continued as or converted to, Base Rate Loans or LIBOR Rate Loans (each a “Type” of   Loan), or a combination thereof, selected by the Borrower in accordance with Section 2.2.2.  The   Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times   and may not be converted into or continued as LIBOR Rate Loans or Base Rate Loans under   Section 2.2.7.                2.2.2 Borrowing of Revolving Loans.  In order to request Revolving Loans   (other than (i) borrowings of Swingline Loans, which shall be made pursuant to Section 2.2.3,   (ii) borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made   pursuant to Section 2.2.4, (iii) borrowings for the purpose of paying unpaid Reimbursement   Obligations, which shall be made pursuant to Section 3.4, and (iv) borrowings involving   continuations or conversions of outstanding Loans, which shall be made pursuant to Section   2.2.7), the Borrower shall give the Administrative Agent irrevocable written notice (a   “Borrowing Notice”), not later than 11:00 a.m. on the requested Borrowing Date of each Base   Rate Loan and at least three (3) Business Days before the requested Borrowing Date for each   LIBOR Rate Loan.  A Borrowing Notice shall be in the form of Exhibit 2.2.2 hereto and shall   specify:          (i)   the requested Borrowing Date, which shall be a Business Day, of such Loan,          (ii)  the aggregate amount of such Loan,          (iii) the Type of Loan selected, and          (iv)  in the case of each LIBOR Rate Loan, the Interest Period applicable thereto  (which may not end after the Facility Termination Date).   Each LIBOR Rate Loan shall be in the minimum amount of $5,000,000 (and any whole multiple  of $1,000,000 in excess thereof), and each Base Rate Loan shall be in the minimum amount of  $1,000,000 (and any whole multiple of $1,000,000 in excess thereof); provided, however, any   Base Rate Loan may be in the amount of the unused Aggregate Commitments.  If the Borrower   shall have failed to designate the Type of Loans selected, the Borrower shall be deemed to have   requested Base Rate Loans.  If the Borrower shall have failed to select the duration of the Interest   Period to be applicable to any LIBOR Rate Loans requested, then the Borrower shall be deemed   to have selected an Interest Period with a duration of one month.     Upon receipt of any such notice, the Administrative Agent shall promptly notify each Lender of   the contents thereof and of the amount and Type of each Loan to be made by such Lender on the   requested date specified therein.  To the extent such Lenders have made such amounts available   to the Administrative Agent as provided in Section 2.3, the Administrative Agent will make the   aggregate of such amounts available to the Borrower in like funds as received by the   Administrative Agent.                2.2.3 Borrowing of Swingline Loans.  In order to request Swingline Loans, the   Borrower shall give the Administrative Agent (and the Swingline Lender, if the Swingline                                          31      





 






     Lender is not also the Administrative Agent) irrevocable written notice ( a “Swingline   Borrowing Notice”) not later than 11:00 a.m. on the date of requested Borrowing Date.  A   Borrowing Notice shall be in the form of Exhibit 2.2.3 hereto and shall specify:          (i)   the requested Borrowing Date, which shall be a Business Day, of such Loan, and          (ii)  the aggregate amount of such Loan.    Each Swingline Loan (x) shall be in the minimum amount of $100,000 (and a whole multiple of   $100,000 if in excess thereof (or if less, in the amount of the Unutilized Swingline   Commitment)) and (y) shall be due and payable on the earlier of (A) the Swingline Termination   Date and (B) within ten (10) Business Days of such Loan being made.  To the extent the   Swingline Lender has made such amount available to the Administrative Agent as provided in   Section 2.3, the Administrative Agent will make such amount available to the Borrower.    Immediately upon the making of a Swingline Loan, each Lender shall be deemed to, and hereby   irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk  participation in such Swingline Loan in an amount equal to the product of such Lender’s  Applicable Percentage times the amount of such Swingline Loan.               2.2.4 Refunded Swingline Loans.  With respect to any outstanding Swingline   Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred   and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by   the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying   such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is   not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the   Borrower), not later than 11:00 a.m. on the proposed Borrowing Date therefor, a notice (which  shall be deemed to be a Borrowing Notice given by the Borrower) requesting the Lenders to  make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing  Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded   Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender   requests to be repaid.  To the extent the Lenders have made such amounts available to the   Administrative Agent as provided in Section 2.3, the Administrative Agent will make the   aggregate of such amounts available to the Swingline Lender in like funds as received by the   Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline   Loans.  Notwithstanding any provision of this Agreement to the contrary, on the relevant   Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share   thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the   Revolving Loans made as provided above (including a Revolving Loan deemed to have been   made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid   shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans.    If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall   be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy,   insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be   shared ratably among all the Lenders in the manner contemplated by Section 2.3.                2.2.5 Lender Participation in Swingline Loans.  If, as a result of any bankruptcy,   insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made                                          32      





 






     pursuant to Section 2.2.4 in an amount sufficient to repay any amounts owed to the Swingline   Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise   precluded for any reason from giving a notice on behalf of the Borrower as provided for   hereinabove, each Lender, upon one (1) Business Day’s prior notice from the Swingline Lender,   shall fund its risk participation in such outstanding Swingline Loans by making available to the   Administrative Agent an amount equal to its Applicable Percentage of the unpaid amount thereof   together with accrued interest thereon.  To the extent the Lenders have made such amounts   available to the Administrative Agent as provided in Section 2.3, the Administrative Agent will   make the aggregate of such amounts available to the Swingline Lender in like funds as received  by the Administrative Agent.  In the event any such Lender fails to make available to the  Administrative Agent the amount of such Lender’s participation as provided in this Section   2.2.5, the Swingline Lender shall be entitled to recover such amount on demand from such   Lender, together with interest thereon for each day from the date such amount is required to be   made available for the account of the Swingline Lender until the date such amount is made   available to the Swingline Lender at the Federal Funds Effective Rate for the first three (3)   Business Days and thereafter at the Alternative Base Rate.  Promptly following its receipt of any   payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender   will pay to each Lender that has acquired a participation therein such Lender’s Applicable   Percentage of such payment.                2.2.6 Notwithstanding any provision of this Agreement to the contrary, the   obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the   purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2.4 and each such   Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to   Section 2.2.5 shall be absolute and unconditional and shall not be affected by any circumstance   or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment,   defense or other right that such Lender may have against the Swingline Lender, the   Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the   occurrence or continuance of any Unmatured Default or Event of Default, (iii) the failure of the   amount of such borrowing of Revolving Loans to meet the minimum borrowing amount   specified in Section 2.2.2, or (iv) the failure of any conditions set forth in Section 4.2 or   elsewhere herein to be satisfied.                2.2.7 Conversion and Continuation of Outstanding Loans.          (i)   Each Base Rate Loan shall continue as a Base Rate Loan unless and until such   Base Rate Loan is either converted into a LIBOR Rate Loan in accordance with this Section   2.2.7 or repaid in accordance with Section 2.5.  Each LIBOR Rate Loan shall continue as a   LIBOR Rate Loan until the end of the then-applicable Interest Period therefor, at which time   such LIBOR Rate Loan shall be automatically converted into a Base Rate Loan unless the   Borrower shall have given the Administrative Agent a Conversion/Continuation Notice in the   manner set forth below requesting that, at the end of such Interest Period, such LIBOR Rate   Loan continue as a LIBOR Rate Loan for the same or another Interest Period.  The Borrower   may elect from time to time to convert all or any part of a Base Rate Loan into a LIBOR Rate   Loan.  The Borrower shall give the Administrative Agent irrevocable notice in the form of   Exhibit 2.2.7 (a “Conversion/Continuation Notice”) of each conversion of a Base Rate Loan into                                          33      





 






     a LIBOR Rate Loan, or continuation of a LIBOR Rate Loan, not later than 11:00 a.m. at least   three (3) Business Days prior to the date of the requested conversion or continuation, specifying:               (a)   the requested date, which shall be a Business Day, of such conversion or        continuation,               (b)   the aggregate amount and Type of the Loan which is to be converted or        continued, and               (c)   the amount of such Loan(s) which is to be converted or continued as a        LIBOR Rate Loan and the duration of the Interest Period applicable thereto.   Each conversion of a LIBOR Rate Loan into a Base Rate Loan shall involve a minimum amount  of $3,000,000 (and a whole multiple of $1,000,000, if in excess thereof).  Each conversion of a  Base Rate Loan into a LIBOR Rate Loan shall involve a minimum amount of $5,000,000 (and a  whole multiple of $1,000,000 if in excess thereof).  No partial conversion of LIBOR Rate Loans  made pursuant to a single Borrowing Notice shall reduce the outstanding principal amount of  such LIBOR Rate Loans to less than $5,000,000 (or to any greater amount not a whole multiple  of $1,000,000 in excess thereof).  Except as otherwise provided in Section 2.18.7, LIBOR Rate   Loans may be converted into Base Rate Loans only on the last day of the Interest Period   Applicable thereto (and in any event, if a LIBOR Rate Loan is converted into a Base Rate Loan   on any day other than the last day of the Interest Period applicable thereto, the Borrower will   pay, upon such conversion, all amounts required under Section 2.18.1 to be paid as a   consequence thereof).    Upon receipt of any such notice, the Administrative Agent shall promptly notify each Lender of   (x) the contents thereof, (y) the amount and Type and, in the case of LIBOR Rate Loans, the last   day of the applicable Interest Period of each Loan to be converted or continued by such Lender   and (z) the amount and Type or Types of Loans into which such Loans are to be converted or as   which such Loans are to be continued.          (ii)  Notwithstanding anything to the contrary contained in this Section 2.2.7, during   an Event of Default, the Administrative Agent may notify the Borrower that Loans may only be   converted into or continued as Loans of certain specified Types.          2.3   Funding by Lenders; Disbursement to the Borrower.                2.3.1 Funding by Lenders.  Not later than 1:00 p.m. on each requested   Borrowing Date, each Lender shall, if it has received the notice contemplated by Sections 2.2.2,   2.2.3, 2.2.4 or 2.2.5 on or prior to 12:00 noon on such date, in the case of Base Rate Loans, or on   or prior to its close of business on the third Business Day before such date, in the case of LIBOR   Rate Loans, make available to the Administrative Agent, in Dollars in funds immediately   available to the Administrative Agent at its address specified pursuant to Article XIII, the   amount of Loans to be made by such Lender on such date.                2.3.2 Disbursement to the Borrower.  Upon satisfaction of the applicable   conditions set forth in Section 4.2 (and, if such Borrowing is on the Restatement Date, Section   4.1), Loans shall be disbursed by the Administrative Agent not later than 3:30 p.m. on the date                                          34      





 






     specified therefor by credit to an account of the Borrower at the Administrative Agent at its   address specified pursuant to Article XIII or in such other manner as may have been specified to   and as shall be reasonably acceptable to the Administrative Agent, in each case in Dollars in   funds immediately available to the Borrower, as the case may be.         2.4   Fees.  The Borrower agrees to pay:                2.4.1 Arranger Fees.  (i) To Wells Fargo Securities, for its own account, on the   Restatement Date, the fees required under the Wells Fargo Fee Letter and (ii)  to BB&TCM,   MUFG and TD Securities, for their respective accounts, on the Restatement Date, the fees  required under the Passive Arrangers Fee Letter;               2.4.2 Facility Fee.  To the Administrative Agent for the account of each Lender   a facility fee at a per annum rate equal to the Facility Fee Rate on the average daily amount of   such Lender’s Commitment (whether used or unused) from the date hereof to and including the   Repayment Date (the “Facility Fee”), payable on the last day of each calendar quarter hereafter   and on the Repayment Date;                2.4.3 Letter of Credit Fees.  To the Administrative Agent, for the account of   each Lender, a letter of credit fee for each calendar quarter (or portion thereof) in respect of all   Letters of Credit outstanding during such quarter, at a rate per annum equal to the Applicable   Margin then in effect during such quarter for LIBOR Rate Loans on such Lender’s pro rata share  of the daily average aggregate Stated Amount of such Letters of Credit, payable in arrears on (i)   the last Business Day of each calendar quarter, beginning with the first such day to occur after   the Restatement Date, and (ii) on the later of the Facility Termination Date and the date of   termination of the last outstanding Letter of Credit; provided, however, that any letter of credit   fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of   Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the   Issuing Bank pursuant to Section 3.1.1 shall be payable, to the maximum extent permitted by   Applicable Law, to the other Lenders in accordance with the upward adjustments in their   respective pro rata shares allocable to such Letter of Credit pursuant to Section 2.22.1(iv), with   the balance of such fee, if any, payable to the Issuing Bank for its own account;               2.4.4 Letter of Credit Facing Fee. To each Issuing Bank, for its own account, a   facing fee for each calendar quarter (or portion thereof) on the daily average aggregate Stated   Amount of all Letters of Credit issued by such Issuing Bank outstanding during such quarter, at a   per annum rate separately agreed to between each Issuing Bank and the Borrower (each an “LC   Fee”), payable in arrears (i) on the last Business Day of each calendar quarter, beginning with the   first such day to occur after the Restatement Date, and (ii) on the later of the Facility Termination   Date and the date of termination of the last outstanding Letter of Credit;               2.4.5 Letter of Credit Customary Fees.  To each Issuing Bank, for its own   account, such commissions, transfer fees and other fees and charges incurred in connection with   the issuance and administration of each Letter of Credit issued by it as are customarily charged   from time to time by such Issuing Bank for the performance of such services in connection with   similar letters of credit, or as may be otherwise agreed to by such Issuing Bank, but without   duplication of amounts payable under Section 2.4.2; and                                          35      





 






                 2.4.6 Administrative Fee.  To the Administrative Agent, for its own account, the   annual administrative fee described in the Wells Fargo Fee Letter, on the terms, in the amount   and at the times set forth therein.    None of the fees payable under this Section 2.4 shall be refundable in whole or in part.          2.5   Reductions in Aggregate Commitments; Increases in Aggregate Commitments.                2.5.1 Reductions.  The Borrower may permanently reduce the Aggregate   Commitments, in whole or in part, ratably among the Lenders in an amount equal to $5,000,000   ($500,000 in the case of the Unutilized Swingline Commitment) or a whole multiple of   $1,000,000 in excess thereof (or $100,000 in the case of the Unutilized Swingline Commitment)   upon at least three (3) Business Days’ written notice to the Administrative Agent (and in the case  of a termination or reduction of the Unutilized Swingline Commitment, the Swingline Lender),  which notice shall specify the amount of any such reduction; provided, however, that the amount   of the Aggregate Commitments may not be reduced below the aggregate outstanding Credit   Exposure.  Upon receipt of any such notice, the Administrative Agent (or Swingline Lender)   shall promptly notify each Lender of the contents thereof and the amount to which such Lender’s   Commitment is to be reduced.  All accrued Facility Fees shall be payable on the effective date of   any termination of the obligations of the Lenders to make Loans hereunder.  The amount of any   termination or reduction made under this Section 2.5.1 may not thereafter be reinstated.                2.5.2 Increases.  At any time following the Restatement Date and prior to the   Facility Termination Date, the Aggregate Commitments may, at the option of the Borrower, be   increased by a total amount not in excess of $100,000,000, either by one or more then-existing   Lenders increasing their Commitments or by new Lenders establishing such additional   Commitments (each such increase by either means, a “Commitment Increase”, and each such   Lender increasing its Commitment or new Lender, an “Additional Commitment Lender”);   provided that (i) each new Lender shall be reasonably acceptable to the Administrative Agent,   (ii) no Unmatured Default or Event of Default shall exist immediately prior to or after the   effective date of such Commitment Increase, (iii) all representations and warranties made by the  Borrower in this Agreement as of the date of such Commitment Increase are true and correct in  all material respects, (iv) each such Commitment Increase shall be in an aggregate amount not   less than $10,000,000 or a whole multiple of $5,000,000 in excess thereof, or, if less, the   maximum remaining amount that the Aggregate Commitments may be increased pursuant to this   Section 2.5.2, (v) no such Commitment Increase shall be permitted without all required   Governmental Approvals and (vi) no such Commitment Increase shall become effective unless   and until the Borrower, the Administrative Agent and the Additional Commitment Lenders shall   have executed and delivered an agreement substantially in the form of Exhibit 2.5.2 (a   “Commitment Increase Supplement”).  On the effective date of such Commitment Increase, each   Additional Commitment Lender shall purchase, by assignment, from each other existing Lender   the portion of such other Lender’s Credit Exposure outstanding at such time such that, after   giving effect to such assignments, the respective aggregate amount of Credit Exposure of each   Lender shall be equal to such Lender’s Applicable Percentage (as adjusted pursuant hereto) of   the aggregate Credit Exposure outstanding.  The purchase price for the Loans so assigned shall   be the principal amount of the Loans so assigned plus the amount of accrued and unpaid interest   thereon on the date of assignment.  Upon payment of such purchase price, each Lender shall be                                          36      





 






     automatically deemed to have sold and made such an assignment to such Additional   Commitment Lender and shall, to the extent of the interest assigned, be released from its   obligations under this Agreement, and such Additional Commitment Lender shall be   automatically deemed to have purchased and assumed such an assignment from each other   Lender and, if not already a Lender hereunder, shall be a party hereto and, to the extent of the   interest assigned, have the rights and obligations of a Lender under this Agreement.            2.6   Extension Option.  After the first anniversary of the Restatement Date, and then   no earlier than sixty (60) days and no later than thirty (30) days prior to each anniversary of the   Restatement Date, but on no more than two occasions, the Borrower may, by written notice to   the Administrative Agent, request that the Lenders extend the Facility Termination Date for an   additional year.  Any election by a Lender to extend the term of its Commitment pursuant to such   a request shall be at such Lender’s sole discretion and subject to such credit evaluation as such   Lender may determine.                2.6.1 No extension pursuant to this Section 2.6 shall become effective unless   agreed to in writing not later than fifteen (15) days prior to the relevant anniversary of the   Restatement Date by Lenders then holding more than 50% of the Commitments.                2.6.2 In the event that Lenders then holding more than 50% of the   Commitments but less than 100% of the Commitments shall agree to an extension requested   pursuant to this Section 2.6, the Borrower shall be entitled to propose a new Lender or Lenders   (which shall be reasonably acceptable to the Administrative Agent, the Swingline Lender and the   Issuing Banks), or an increase in the Commitment or Commitments of a then-existing Lender or  Lenders, whose new or increased Commitments (in an aggregate amount not in excess of the  Commitments of the Lenders who did not agree to extend) shall be in effect during the extension   period so agreed.                2.6.3 Unless a Lender which does not agree to extend its Commitment shall be   replaced pursuant to Section 2.6.4, the Commitment of such Lender shall continue in full force   and effect until the Facility Termination Date to which it has agreed (each a “Prior Termination   Date”).                2.6.4 In the event that an existing Lender shall not agree to extend its   Commitment pursuant to a request by the Borrower, the Borrower shall be entitled to replace   such Lender with another Lender or and/or an Eligible Assignee that shall assume the then   Commitment of such existing Lender and shall agree to the extension requested.  Any Eligible   Assignee (if not already a Lender hereunder) shall become a party to this agreement as a Lender   pursuant to a joinder agreement in form and substance reasonably satisfactory to the   Administrative Agent and the Borrower.  In the event of such a replacement, such existing   Lender shall assign to such replacement Lender the outstanding Loans of such existing Lender   for a purchase price equal to the principal amount of the Loans so assigned, plus the amount of   accrued and unpaid interest thereon to the date of such assignment, and such replacement Lender   shall acquire (and fund as appropriate) its full pro rata share of all Loans and participations in   Letters of Credit and Swingline Loans in accordance with its Applicable Percentage.                                             37      





 






               2.6.5 An extension of the Facility Termination Date pursuant to this Section 2.6  shall only become effective upon the receipt by the Administrative Agent of a certificate (the  statements contained in which shall be true) of a duly authorized officer of the Borrower stating  that both before and after giving effect to such extension of the Facility Termination Date (i) no  Unmatured Default or Event of Default has occurred and is continuing and (ii) all representations  and warranties made by the Borrower under this Agreement are true and correct in all material  respects on and as of the date such extension is made.               2.6.6 Effective on and after the Prior Termination Date, (i) each of the Lenders  who does not agree to extend its Commitment shall be automatically released from their  respective participations and Reimbursement Obligations under Section 3.4 with respect to any  outstanding Letters of Credit and (ii) the participations and Reimbursement Obligations of each  Lender (other than the Lenders who do not agree to extend their Commitments) shall be  automatically adjusted to equal such Lender’s revised Applicable Percentage of such outstanding  Letters of Credit.         2.7   Repayments; Optional Principal Prepayments.               (a)   Each Loan shall mature and become due and payable, and shall be repaid        by the Borrower, in full on the day one year after the date such Loan was made, unless        the Borrower’s Board of Directors, by a written resolution, has authorized such Loan to        be outstanding for a term in excess of one year, in which case such Loan shall mature and        become due and payable, and shall be repaid by the Borrower, in full on the date fixed by        such written resolution, but in no event later than on the Facility Termination Date.                (b)   The Borrower may from time to time pay, without penalty or premium, all        outstanding Loans, or any portion of the outstanding Loans, on any Business Day upon        notice to the Administrative Agent one (1) Business Day prior to each intended        prepayment of Alternative Base Rate Loans and three (3) Business Days prior to each        intended prepayment of LIBOR Rate Loans; provided that (i) each partial payment of        LIBOR Rate Loans shall be in the minimum amount of $5,000,000 (and a whole multiple        of $1,000,000 if in excess thereof), and each partial payment of Base Rate Loans shall be        in the minimum amount of $3,000,000 (and a whole multiple of $1,000,000 if in excess        thereof) ($100,000 and $100,000, respectively, in the case of Swingline Loans), (ii) no        partial payment of LIBOR Rate Loans made pursuant to a single borrowing shall reduce        the aggregate outstanding principal amount of the remaining LIBOR Rate Loans under        such borrowing to less than $5,000,000 (and a whole multiple of $1,000,000 if in excess        thereof), and (iii) unless made together with all amounts required under Section 2.18.1 to        be paid as a consequence of such prepayment, a prepayment of a LIBOR Rate Loan may        be made only on the last day of the Interest Period applicable thereto.  Each such notice        of prepayment shall be in the form of Exhibit 2.7 and shall specify (i) the date such        prepayment is to be made and (ii) the amount and Type of the Loans to be prepaid and, in        the case of LIBOR Rate Loans, the last day of the applicable Interest Period of the        LIBOR Rate Loans to be prepaid.  Upon receipt of any such notice, the Administrative        Agent shall promptly notify each Lender of the contents thereof and the amount and Type        of the Loans to be prepaid and, in the case of LIBOR Rate Loans, the last day of the        applicable Interest Period of each LIBOR Rate Loan of such Lender to be prepaid.                                          38     





 






           Amounts to be prepaid shall irrevocably be due and payable on the date specified in the         applicable notice of prepayment, together with interest thereon as provided in         Section 2.13.          2.8   Changes in Interest Rate, etc.  Each Base Rate Loan shall bear interest on the   outstanding principal amount thereof, for each day from and including the date such Loan is   made or is converted from a LIBOR Rate Loan into a Base Rate Loan pursuant to Section 2.2.7   to but excluding the date it becomes due or is converted into a LIBOR Rate Loan pursuant to   Section 2.2.7 hereof, at a rate per annum equal to the Base Rate plus the Applicable Margin for   such day.  Each LIBOR Rate Loan shall bear interest on the outstanding principal amount thereof   from and including the first day of the Interest Period applicable thereto to (but not including) the  last day of such Interest Period at the applicable LIBOR Rate plus the Applicable Margin.  No   Interest Period may end after the Facility Termination Date.          2.9   Rates Applicable After Default.  During the continuance of an Unmatured Default   the Required Lenders may, at their option, by notice to the Borrower (which 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 no Loan   may be made as, converted into, or continued as a LIBOR Rate Loan.  During the continuance of   an Event of Default the Required Lenders may, at their option, by notice to the Borrower (which   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 Loan and all other amounts payable under the Loan Documents shall bear interest at the   Overdue Rate; provided that, during the continuance of an Event of Default under Sections 7.1,   7.7 or 7.8, any amount payable under the Loan Documents not paid when due (whether at   maturity, by reason of notice of prepayment or otherwise) shall bear interest at a rate per annum   equal to the Overdue Rate without any election or action on the part of the Administrative Agent   or any Lender.          2.10  Method of Payment.                  2.10.1 Payments by Borrower.  All payments of the Obligations hereunder and   under the other Loan Documents shall be made, observed or performed, without setoff,   deduction, or counterclaim (whether sounding in tort, contract or otherwise) or Tax.  All amounts   payable for the account of the Administrative Agent shall be paid in immediately available funds   to the Administrative Agent at the Administrative Agent’s address specified pursuant to   Article XIII, or at any other Lending Installation of the Administrative Agent specified in writing   by the Administrative Agent to the Borrower, by noon on the date when due and shall be applied   ratably by the Administrative Agent among the Lenders.  All amounts payable for the account of  any Lender under the Loan Documents shall, in the case of payments on account of principal of  or interest on the Loans or fees, be made to the Administrative Agent at the Administrative  Agent’s address specified pursuant to Article XIII and, in the case of all other payments, be made   directly to such Lender at its address specified pursuant to Article XIII or at such other address   as such Lender may designate by notice to the Borrower.                 2.10.2 Payments to Lenders.  Each payment delivered to the Administrative   Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to                                          39      





 






     such Lender in the same type of funds that the Administrative Agent received at its address   specified pursuant to Article XIII or at any Lending Installation specified in a notice received by   the Administrative Agent from such Lender.  Notwithstanding the foregoing or any contrary  provision hereof, if any Lender shall fail to make any payment required to be made by it   hereunder to the Administrative Agent, any Issuing Bank or the Swingline Lender, then the   Administrative Agent may, in its discretion, apply any amounts thereafter received by the   Administrative Agent for the account of such Lender to satisfy such Lender’s obligations to the   Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be, until all   such unsatisfied obligations are fully paid.  If the Administrative Agent shall not have made a   required distribution to the appropriate Lenders as required hereinabove after receiving a   payment for the account of such Lenders, the Administrative Agent will pay to each such   Lender, on demand, its ratable share of such payment with interest thereon at the Federal Funds   Effective Rate for each day from the date such amount was required to be disbursed by the   Administrative Agent until the date repaid to such Lender.  The Administrative Agent will   distribute to each Issuing Bank like amounts relating to payments made to the Administrative   Agent for the account of such Issuing Bank in the same manner, and subject to the same terms   and conditions, as set forth hereinabove with respect to distributions of amounts to the Lenders.                2.10.3 Authorization to Charge the Borrower’s Accounts.  The Borrower hereby   authorizes the Administrative Agent and each Lender, if and to the extent any amount payable by   the Borrower under the Loan Documents (whether payable to such Person or to any other Person   that is the Administrative Agent or a Lender) is not otherwise paid when due, to charge such   amount against any or all of the accounts of the Borrower with such Person or any of its   Affiliates (whether maintained at a branch or office located within or without the United States),   with the Borrower remaining liable for any deficiency.  Any Lender charging an amount against   an account of the Borrower shall comply with Section 11.2 and provide notice thereof to the   Borrower, within a reasonable time thereafter, which notice shall include a description in   reasonable detail of such action.          2.11  Evidence of Indebtedness.                2.11.1 Lenders’ Evidence of Indebtedness.  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.               2.11.2 Administrative Agent’s Evidence of Indebtedness.  The Administrative   Agent shall also maintain the Register of accounts pursuant to Section 12.3.4 in which it will   record (a) the amount of each Loan made hereunder, the Type thereof 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 Administrative Agent hereunder from the Borrower and each Lender’s share   thereof.                2.11.3 Effect of Entries.  The entries maintained in the accounts and records   maintained pursuant to Sections 2.11.1 and 2.11.2 above shall be prima facie evidence of the                                          40      





 






     existence and amounts of the Obligations therein recorded; provided, however, that the failure of   the Administrative Agent or any Lender to maintain such accounts and records or any error   therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in   accordance with their terms.                2.11.4 Notes Upon Request.  Any Lender may request that its Loans be   evidenced by Notes.  In such event, the Borrower shall prepare, execute and deliver to such   Lender (a) in the case of Revolving Loans, a Revolving Note in the form of Exhibit 2.11.4-A,   payable to the order of such Lender and (b) in the case of Swingline Loans, a Swingline Note in   the form of Exhibit 2.11.4-B.  Thereafter, the Loans represented by such Note and interest   thereon shall at all times (including after any assignment pursuant to Section 12.3) be evidenced   by a Note payable to the order of the payee named therein or any assignee pursuant to Section   12.3, except to the extent that any such Lender or assignee subsequently returns any such Note   for cancellation and requests that such Loans once again be evidenced as described in paragraphs   2.11.1 and 2.11.1 above.          2.12  Telephonic Notices.  The Borrower hereby authorizes the Lenders and the   Administrative Agent to extend, convert, or continue Loans; to effect selections of Types of  Loans; and to transfer funds based on telephonic notices made by any Person or Persons the  Administrative 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, Swingline Borrowing Notices, and Conversion/Continuation Notices to be  given telephonically.  The Borrower agrees to deliver promptly to the Administrative Agent a  written confirmation, if such confirmation is requested by the Administrative Agent or any   Lender, of each telephonic notice signed by an Authorized Officer.  If the written confirmation   differs in any material respect from the action taken by the Administrative Agent and the   Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest  error.         2.13  Interest Payment Dates; Interest and Fee Basis.  Interest accrued on each Base   Rate Loan and each LIBOR Market Index Rate Loan shall be payable on each Payment Date,   commencing with the first such date to occur after the Restatement Date, on any date on which   the Base Rate Loan or LIBOR Market Index Rate Loan is prepaid, whether due to acceleration or   otherwise, and at maturity.  Interest accrued on that portion of the outstanding principal amount   of any Base Rate Loan converted into a LIBOR Rate Loan on a day other than a Payment Date   shall be payable on the date of conversion.  Interest accrued on each LIBOR Rate Loan shall be   payable on the last day of its applicable Interest Period, on any date on which the Loan is   prepaid, whether by acceleration or otherwise, and at maturity.  Interest accrued on each LIBOR   Rate 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.  Interest, Facility Fees and LC Fees   shall be calculated for actual days elapsed on the basis of a 360 day year, except that interest   calculated based on the Prime Rate shall be calculated for actual days elapsed on the basis of a   365, or when appropriate 366, day year.  Interest shall be payable for the day a Loan is made but   not for the day of any payment on the amount paid if payment is received prior to noon (local   time) at the place of payment.  Whenever any payment to the Administrative Agent or any   Lender under the Loan Documents would otherwise be due on a day that is not a Business Day,   such payment shall instead be due on the next succeeding Business Day; provided, however, that                                          41      





 






     if such next succeeding Business Day falls in a new calendar month, such payment shall instead   be due on the immediately preceding Business Day.  If the date any payment under the Loan   Documents is due is extended (whether by operation of any Loan Document, Applicable Law or   otherwise), such payment shall bear interest for such extended time at the rate of interest   applicable hereunder.  Interest at the Overdue Rate shall be payable on demand.          2.14  Notification of Loans, Interest Rates, Prepayments and Commitment Reductions.    Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents   of each Aggregate Commitments reduction notice, Borrowing Notice, Swingline Notice,   Conversion/Continuation Notice, Letter of Credit Notice, Commitment Increase Supplement and  repayment notice received by it hereunder.  The Administrative Agent will notify each Lender of  the LIBOR Rate or Alternate Base Rate applicable to each Loan promptly upon determination of  such interest rate and will give each Lender prompt notice of each change in the Alternate Base  Rate.  The Administrative Agent will notify each Lender of any request by the Borrower  pursuant to Section 2.6 to extend the Facility Termination Date.          2.15  Lending Installations.  Each Lender may book its Loans at any 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 and any Notes issued   hereunder shall be deemed held by each Lender for the benefit of any such Lending Installation.    Each Lender may, by written notice to the Administrative Agent and the Borrower in accordance   with Article XIII, designate replacement or additional Lending Installations through which Loans   will be made by it and for whose account Loan payments are to be made.  A Lender may   designate a separate Lending Installation for the purpose of making or maintaining different   Types of Loans, and with respect to LIBOR Rate Loans such office may be a domestic or foreign  branch or Affiliate of such Lender.         2.16  Non-Receipt of Funds by the Administrative Agent.  Unless the Borrower or a   Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is   scheduled to make payment to the Administrative 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, interest or fees to   the Administrative Agent for the account of the Lenders, that it does not intend to make such   payment, the Administrative Agent may assume that such payment has been made.  The  Administrative Agent may, but shall not be obligated to, make the amount of such payment  available to the intended Recipient or Recipients 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  Administrative Agent, the Recipient of such payment shall, on demand by the Administrative  Agent, repay to the Administrative 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 Administrative Agent until the date the Administrative Agent recovers  such amount at a rate per annum equal to the Federal Funds Effective Rate for such day for the  first three (3) days and, thereafter, at the Alternate Base Rate plus 2%.         2.17  Maximum Interest Rate.  Nothing contained in the Loan Documents shall require   the Borrower at any time to pay interest at a rate exceeding the Maximum Permissible Rate.  If   interest payable by the Borrower on any date would exceed the maximum amount permitted by   the Maximum Permissible Rate, such interest payment shall automatically be reduced to such                                          42      





 






   maximum permitted amount, and interest for any subsequent period, to the extent less than the  maximum amount permitted for such period by the Maximum Permissible Rate, shall be  increased by the unpaid amount of such reduction.  Any interest actually received for any period  in excess of such maximum amount permitted for such period shall be deemed to have been  applied as a prepayment of the Loans.         2.18  Increased Costs; Change in Circumstances; Illegality.                2.18.1 Increased Costs Generally.  If any Change in Law shall:         (i)   impose, modify or deem applicable any reserve, special deposit, compulsory loan,  insurance charge or similar requirement against assets of, deposits with or for the account of, or  credit extended or participated in by, any Lender (except the Reserve Requirement reflected in  the LIBOR Rate) or any Issuing Bank;         (ii)  subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes  described in clauses (ii) through (iv) of the definition of Excluded Taxes and (C) Connection  Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or  its deposits, reserves, other liabilities or capital attributable thereto; or         (iii) impose on any Lender or any Issuing Bank or the London interbank market any  other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Rate  Loans or LIBOR Market Index Rate Loans made by such Lender or any Letter of Credit or  participation therein;   and the result of any of the foregoing shall be to increase the cost to such Lender, such Issuing  Bank or such other Recipient of making, converting to, continuing or maintaining any LIBOR  Rate Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such  Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any  Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit),  or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or  other Recipient hereunder (whether of principal, interest or any other amount), then, upon  request of such Lender, such Issuing Bank or other Recipient, the Borrower will pay to such  Lender, such Issuing Bank or other Recipient, as the case may be, such additional amount or  amounts as will compensate such Lender, such Issuing Bank or other Recipient, as the case may  be, for such additional costs incurred or reduction suffered.               2.18.2 Capital Requirements.  If any Lender or any Issuing Bank determines that  any Change in Law affecting such Lender or such Issuing Bank or any Lending Installation of  such Lender or such Lender’s or such Issuing Bank’s holding company, if any, regarding capital  or liquidity requirements has or would have the effect of reducing the rate of return on such  Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s  holding company, if any, as a consequence of this Agreement, the Commitments of such Lender  or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such  Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such  Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could  have achieved but for such Change in Law (taking into consideration such Lender’s or such                                         43     





 






     Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding  company with respect to capital adequacy), then from time to time the Borrower will pay to such   Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will   compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding   company for any such reduction suffered.                2.18.3 Certificates for Reimbursement.  A certificate of a Lender or an Issuing   Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing   Bank or its holding company, as the case may be, as specified in Sections 2.18.1 or 2.18.2 and   delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay   such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such   certificate within ten (10) days after receipt thereof.                2.18.4 Delay in Requests.  Failure or delay on the part of any Lender or any   Issuing Bank to demand compensation pursuant to the foregoing provisions of this Section shall   not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such  compensation; provided that the Borrower shall not be required to compensate a Lender or an   Issuing Bank pursuant to the foregoing provisions of this Section 2.18 for any increased costs   incurred or reductions suffered more than nine months prior to the date that such Lender or such   Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such   increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim   compensation therefor (except that, if the Change in Law giving rise to such increased costs or   reductions is retroactive, then the nine-month period referred to above shall be extended to   include the period of retroactive effect thereof).                2.18.5 LIBOR Unavailable.  Unless and until a Benchmark Replacement is   implemented in accordance with Section 2.18.6, if, (i) on or prior to the first day of any Interest   Period, the Administrative Agent shall have determined that adequate and reasonable means do   not exist for ascertaining the applicable LIBOR Rate for such Interest Period, (ii) at any time, the   Administrative Agent shall have determined that adequate and reasonable means do not exist for   ascertaining the applicable LIBOR Market Index Rate, (iii) on or prior to the first day of any   Interest Period, the Administrative Agent shall have received written notice from the Required   Lenders of their determination that the rate of interest referred to in the definition of “LIBOR   Rate” upon the basis of which the LIBOR Rate for LIBOR Rate Loans for such Interest Period is   to be determined or will not adequately and fairly reflect the cost to such Lenders of making or   maintaining LIBOR Rate Loans during such Interest Period, or (iv) at any time, the   Administrative Agent shall have received written notice from the Required Lenders of their   determination that the rate of interest referred to in the definition of “LIBOR Market Index Rate”   will not adequately and fairly reflect the cost of such Lenders of making LIBOR Market Index  Rate Loans, the Administrative Agent will forthwith so notify the Borrower and the Lenders.   Upon such notice, (a) all then-outstanding LIBOR Rate Loans shall automatically, on the  expiration date of the respective Interest Periods applicable thereto (unless then repaid in full), be  converted into Base Rate Loans, (b) all then-outstanding LIBOR Market Index Rate Loans, shall  automatically, on the day of such notice, be converted into Base Rate Loans, (c) the obligation of  the Lenders to make, to convert Base Rate Loans into, or to continue, LIBOR Rate Loans shall  be suspended (including pursuant to the borrowing to which such Interest Period applies), and  (d) any Borrowing Notice, Swingline Borrowing Notice or Conversion/Continuation Notice                                          44      





 






     given at any time thereafter with respect to LIBOR Rate Loans shall be deemed to be a request   for Base Rate Loans, in each case until the Administrative Agent or the Required Lenders, as the  case may be, shall have determined that the circumstances giving rise to such suspension no  longer exist (and the Required Lenders, if making such determination, shall have so notified the  Administrative Agent), and the Administrative Agent shall have so notified the Borrower and the  Lenders.               2.18.6 Effect of Benchmark Transition Event.          (i)   Benchmark Replacement.  Notwithstanding anything to the contrary herein or in   any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early   Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this   Agreement to replace the LIBOR Rate and/or the LIBOR Market Index Rate with a Benchmark   Replacement.  Any such proposed amendment agreed to by the Administrative Agent and  Borrower with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on  the fifth Business Day after the Administrative Agent has posted such proposed amendment to  all Lenders and the Borrower so long as the Administrative Agent has not received, by such time,  written notice of objection to such amendment from Lenders comprising the Required Lenders.   Any such amendment with respect to an Early Opt-in Election will become effective on the date  that Lenders comprising the Required Lenders have delivered to the Administrative Agent  written notice that such Required Lenders accept such amendment.  No replacement of the  LIBOR Rate or the LIBOR Market Index Rate with a Benchmark Replacement pursuant to this  Section Error! Reference source not found. will occur prior to the applicable Benchmark   Transition Start Date.          (ii)  Benchmark Replacement Conforming Changes.  In connection with the   implementation of a Benchmark Replacement, the Administrative Agent will have the right to   make Benchmark Replacement Conforming Changes from time to time and, notwithstanding   anything to the contrary herein or in any other 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.          (iii) Notices; Standards for Decisions and Determinations.  The Administrative Agent   will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark   Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark   Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any   Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming   Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period.    Any determination, decision or election that may be made by the Administrative Agent or   Lenders pursuant to this Section Error! Reference source not found., 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, 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 hereto, except, in each case, as expressly required   pursuant to this Section Error! Reference source not found..                                           45      





 






         (iv)  Benchmark Unavailability Period.  Upon the Borrower’s receipt of notice of the  commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for  a LIBOR Rate Loan or for a conversion to or continuation of LIBOR Rate Loans to be made,  converted or continued during any Benchmark Unavailability Period and, failing that, the  Borrower will be deemed to have converted any such request into a request for a Borrowing of or  conversion to Base Rate Loans.  During any Benchmark Unavailability Period, the component of  the Alternate Base Rate based upon the LIBOR Rate will not be used in any determination of the  Alternate Base Rate.  During any Benchmark Unavailability Period, all then-outstanding LIBOR  Market Index Rate Loans, shall automatically, on the day of such notice, be converted into Base  Rate Loans and any Swingline Loans shall be made as Base Rate Loans.               2.18.7 Illegality.  Notwithstanding any other provision in this Agreement, if, at  any time after the date hereof and from time to time, any Lender shall have determined in good  faith that the introduction of or any change in any Applicable Law, rule or regulation or in the  interpretation or administration thereof by any Governmental Authority charged with the  interpretation or administration thereof, or compliance with any guideline or request from any  such Governmental Authority (whether or not having the force of law), has or would have the  effect of making it unlawful for such Lender to make or to continue to make or maintain LIBOR  Rate Loans or LIBOR Market Index Rate Loans, such Lender will forthwith so notify the  Administrative Agent and the Borrower.  Upon such notice, (i) each of such Lender’s then- outstanding LIBOR Rate Loans and LIBOR Market Index Rate Loans shall automatically,  immediately in the case of LIBOR Market Index Rate Loans and on the expiration date of the  applicable Interest Period in the case of any LIBOR Rate Loan (or, to the extent any such LIBOR  Rate Loan may not lawfully be maintained as a LIBOR Rate Loan until such expiration date,  upon such notice) and to the extent not sooner prepaid, be converted into a Base Rate Loan, (ii)  the obligation of such Lender to make, to convert Base Rate Loans into, or to continue, LIBOR  Rate Loans shall be suspended (including pursuant to any borrowing for which the  Administrative Agent has received a Borrowing Notice but for which the Borrowing Date has  not arrived), and (iii) any Borrowing Notice or Conversion/Continuation Notice given at any  time thereafter with respect to LIBOR Rate Loans (or Swingline Borrowing Notice given with  respect to any Swingline Loans) shall, as to such Lender, be deemed to be a request for a Base  Rate Loan, in each case until such Lender shall have determined that the circumstances giving  rise to such suspension no longer exist and shall have so notified the Administrative Agent, and  the Administrative Agent shall have so notified the Borrower.         2.19  Taxes.                2.19.1 Issuing Bank; FATCA.  For purposes of this Section 2.19, the term  “Lender” includes any Issuing Bank and the term “Applicable Law” includes FATCA.               2.19.2 Payments Free of Taxes.  Any and all payments by or on account of any  obligation of the Borrower under any Loan Document shall be made without deduction or  withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as  determined in the good faith discretion of an applicable Withholding Agent) requires the  deduction or withholding of any Tax from any such payment by a Withholding Agent, then the  applicable Withholding Agent shall be entitled to make such deduction or withholding and shall  timely pay the full amount deducted or withheld to the relevant Governmental Authority in                                         46     





 






   accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable  by the Borrower shall be increased as necessary so that after such deduction or withholding has  been made (including such deductions and withholdings applicable to additional sums payable  under this Section) the applicable Recipient receives an amount equal to the sum it would have  received had no such deduction or withholding been made.               2.19.3 Payments of Other Taxes by the Borrower.  The Borrower shall timely pay  to the relevant Governmental Authority in accordance with Applicable Law, or at the option of  the Administrative Agent timely reimburse it for the payment of, any Other Taxes.               2.19.4 Indemnification by the Borrower.  The Borrower shall indemnify each  Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified  Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable  under this Section 2.19) payable or paid by such Recipient or required to be withheld or deducted  from a payment to such Recipient and any reasonable expenses arising therefrom or with respect  thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by  the relevant Governmental Authority.  A certificate as to the amount of such payment or liability  delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the  Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent  manifest error.               2.19.5 Indemnification by the Lenders.  Each Lender shall severally indemnify  the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified  Taxes attributable to such Lender (but only to the extent that the Borrower has not already  indemnified the Administrative Agent for such Indemnified Taxes and without limiting the  obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to  comply with the provisions of Section 12.2 relating to the maintenance of a Participant Register  and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid  by the Administrative 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.  A certificate as to the  amount of such payment or liability delivered to any Lender by the Administrative Agent shall  be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to  set off and apply any and all amounts at any time owing to such Lender under any Loan  Document or otherwise payable by the Administrative Agent to the Lender from any other  source against any amount due to the Administrative Agent under this Section 2.19.5.               2.19.6 Evidence of Payments.  As soon as practicable after any payment of Taxes  by the Borrower to a Governmental Authority pursuant to this Section 2.19, the Borrower shall  deliver to the Administrative Agent the original or a certified copy of a receipt issued by such  Governmental Authority evidencing such payment, a copy of the return reporting such payment  or other evidence of such payment reasonably satisfactory to the Administrative Agent.              2.19.7 Status of Lenders.         (i)   Any Lender that is entitled to an exemption from or reduction of withholding Tax  with respect to payments made under any Loan Document shall deliver to the Borrower and the                                         47     





 






   Administrative Agent, at the time or times reasonably requested by the Borrower or the  Administrative Agent, such properly completed and executed documentation reasonably  requested by the Borrower or the Administrative Agent as will permit such payments to be made  without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably  requested by the Borrower or the Administrative Agent, shall deliver such other documentation  prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative  Agent as will enable the Borrower or the Administrative Agent to determine whether or not such  Lender is subject to backup withholding or information reporting requirements.  Notwithstanding  anything to the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in clauses (ii)(a),  (ii)(b) and (ii)(d) below) shall not be required if in the Lender’s reasonable judgment such  completion, execution or submission would subject such Lender to any material unreimbursed  cost or expense or would materially prejudice the legal or commercial position of such Lender.         (ii)  Without limiting the generality of the foregoing, in the event that the Borrower is  a U.S. Borrower,               (a)   any Lender that is a U.S. Person shall deliver to the Borrower and the        Administrative Agent on or prior to the date on which such Lender becomes a Lender        under this Agreement (and from time to time thereafter upon the reasonable request of the        Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that        such Lender is exempt from U.S. federal backup withholding tax;               (b)   any Foreign Lender shall, to the extent it is legally entitled to do so,        deliver to the Borrower and the Administrative Agent (in such number of copies as shall        be requested by the recipient) on or prior to the date on which such Foreign Lender        becomes a Lender under this Agreement (and from time to time thereafter upon the        reasonable request of the Borrower or the Administrative Agent), whichever of the        following is applicable:                           (1)   in the case of a Foreign Lender claiming the benefits of an              income tax treaty to which the United States is a party (x) with respect to              payments of interest under any Loan Document, executed copies of IRS Form W-             8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of,              U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty              and (y) with respect to any other applicable payments under any Loan Document,              IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or              reduction of, U.S. federal withholding Tax pursuant to the “business profits” or              “other income” article of such tax treaty;                           (2)   executed copies of IRS Form W-8ECI;                           (3)   in the case of a Foreign Lender claiming the benefits of the              exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate              substantially in the form of Exhibit 2.19-A to the effect that such Foreign Lender              is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10              percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B)                                         48     





 






                       of the Code, or a “controlled foreign corporation” described in Section         881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed         copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or                      (4)   to the extent a Foreign Lender is not the beneficial owner,         executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS         Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate         substantially in the form of Exhibit 2.19-B or Exhibit 2.19-C, IRS Form W-9,         and/or other certification documents from each beneficial owner, as applicable;         provided that if the Foreign Lender is a partnership and one or more direct or         indirect partners of such Foreign Lender are claiming the portfolio interest         exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate         substantially in the form of Exhibit 2.19-D on behalf of each such direct and         indirect partner;          (c)   any Foreign Lender shall, to the extent it is legally entitled to do so,  deliver to the Borrower and the Administrative Agent (in such number of copies as shall  be requested by the recipient) on or prior to the date on which such Foreign Lender  becomes a Lender under this Agreement (and from time to time thereafter upon the  reasonable request of the Borrower or the Administrative Agent), executed copies of any  other form prescribed by Applicable Law as a basis for claiming exemption from or a   reduction in U.S. federal withholding Tax, duly completed, together with such   supplementary documentation as may be prescribed by Applicable Law to permit the   Borrower or the Administrative Agent to determine the withholding or deduction   required to be made; and          (d)   if a payment made to a Lender under any Loan Document would be  subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail   to comply with the applicable reporting requirements of FATCA (including those   contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall   deliver to the Borrower and the Administrative Agent at the time or times prescribed by   law and at such time or times reasonably requested by the Borrower or the Administrative   Agent such documentation prescribed by Applicable Law (including as prescribed by   Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably   requested by the Borrower or the Administrative Agent as may be necessary for the  Borrower and the Administrative Agent to comply with their obligations under FATCA  and to determine that such Lender has complied with such Lender’s obligations under  FATCA or to determine the amount to deduct and withhold from such payment.  Solely  for purposes of this clause (d), “FATCA” shall include any amendments made to FATCA  after the date of this Agreement.   Each Lender agrees that if any form or certification it previously delivered expires or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or   promptly notify the Borrower and the Administrative Agent in writing of its legal  inability to do so.                                     49                  





 






                 2.19.8 Treatment of Certain Refunds.  If any party determines, in its sole   discretion exercised in good faith, that it has received a refund of any Taxes as to which it has   been indemnified pursuant to this Section 2.19 (including by the payment of additional amounts   pursuant to this Section 2.19), it shall pay to the indemnifying party an amount equal to such   refund (but only to the extent of indemnity payments made under this Section with respect to the  Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such  indemnified party and without interest (other than any interest paid by the relevant Governmental  Authority with respect to such refund).  Such indemnifying party, upon the request of such  indemnified party, shall repay to such indemnified party the amount paid over pursuant to this  Section 2.19.8 (plus any penalties, interest or other charges imposed by the relevant   Governmental Authority) in the event that such indemnified party is required to repay such   refund to such Governmental Authority.  Notwithstanding anything to the contrary in this   Section 2.19.8, in no event will the indemnified party be required to pay any amount to an   indemnifying party pursuant to this Section 2.19.8 the payment of which would place the   indemnified party in a less favorable net after-Tax position than the indemnified party would   have been in if the indemnification payments or additional amounts giving rise to such refund   had never been paid.  This paragraph shall not be construed to require any indemnified party to   make available its Tax returns (or any other information relating to its Taxes that it deems   confidential) to the indemnifying party or any other Person.                2.19.9 Survival.  Each party’s obligations under this Section 2.19 shall survive   the resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all obligations under any Loan Document.         2.20  Compensation.  The Borrower will compensate each Lender upon demand for all   losses, expenses and liabilities (including, without limitation, any loss, expense or liability   incurred by reason of the liquidation or reemployment of deposits or other funds required by   such Lender to fund or maintain LIBOR Rate Loans) that such Lender may incur or sustain (i) if   for any reason (other than a default by such Lender) a borrowing or continuation of, or   conversion into, a LIBOR Rate Loan does not occur on a date specified therefor in a Borrowing   Notice or Conversion/Continuation Notice, (ii) if any repayment, prepayment or conversion of   any LIBOR Rate Loan occurs on a date other than the last day of an Interest Period applicable   thereto (including as a consequence of any assignment made pursuant to Section 2.21.1 or any   acceleration of the maturity of the Loans pursuant to Article VIII), (iii) if any prepayment of any   LIBOR Rate Loan is not made on any date specified in a notice of prepayment given by the   Borrower or (iv) as a consequence of any other failure by the Borrower to make any payments   with respect to any LIBOR Rate Loan when due hereunder.  Calculation of all amounts payable  to a Lender under this Section 2.20 shall be made as though such Lender had actually funded its   relevant LIBOR Rate Loan through the purchase of a eurodollar deposit bearing interest at the   LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan, having a maturity   comparable to the relevant Interest Period; provided, however, that each Lender may fund its   LIBOR Rate Loans in any manner it sees fit and the foregoing assumption shall be utilized only   for the calculation of amounts payable under this Section 2.20.  A certificate (which shall be in   reasonable detail) showing the bases for the determinations set forth in this Section 2.20 by any   Lender as to any additional amounts payable pursuant to this Section 2.20 shall be submitted by   such Lender to the Borrower either directly or through the Administrative Agent.                                           50      





 






     Determinations set forth in any such certificate made in good faith for purposes of this Section   2.20 of any such losses, expenses or liabilities shall be conclusive absent manifest error.          2.21  Mitigation Obligations; Replacement of Lenders.                 2.21.1 If any Lender requests compensation under Section 2.18, or requires the   Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any   Governmental Authority for the account of any Lender pursuant to Section 2.19, then such   Lender shall (at the request of the Borrower) use reasonable efforts to designate a different   Lending Installation for funding or booking its Loans hereunder or to assign its rights and   obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such   Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant   to Sections 2.18 or 2.19, as the case may be, in the future, and (ii) would not subject such Lender   to any unreimbursed cost or expense and would not otherwise be disadvantageous to such   Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any   Lender in connection with any such designation or assignment.                2.21.2 If any Lender requests compensation under Section 2.18, or if the   Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any   Governmental Authority for the account of any Lender pursuant Section 2.19 and, in each case,   such Lender has declined or is unable to designate a different Lending Installation in accordance   with Section 2.21.1, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then   the Borrower may, at its sole expense and effort, upon notice to such Lender and the   Administrative Agent, require such Lender to assign and delegate, without recourse (in   accordance with and subject to the restrictions contained in, and consents required by, Section   12.3), all of its interests, rights (other than its existing rights to payments pursuant to Section   2.18 or 2.19) and obligations under this Agreement and the related Loan Documents to an   Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a  Lender accepts such assignment); provided that:           (i)   the Borrower shall have paid to the Administrative Agent the assignment fee (if   any) specified in Section 12.3.2;          (ii)  such Lender shall have received payment of an amount equal to the outstanding   principal of its Loans and any funded participations in Letters of Credit not refinanced through   the Borrowing of Revolving Loans, accrued interest thereon, accrued fees and all other amounts   payable to it hereunder and under the other Loan Documents (including any amounts under   Section 2.20) from the assignee (to the extent of such outstanding principal and accrued interest   and fees) or the Borrower (in the case of all other amounts);          (iii) in the case of any such assignment resulting from a request for compensation   under Section 2.18 or payments required to be made pursuant to Section 2.19, such assignment   will result in a reduction in such compensation or payments thereafter;           (iv)  such assignment does not conflict with Applicable Law; and                                           51      





 






         (v)   in the case of any assignment resulting from a Lender becoming a Non-  Consenting Lender, the applicable assignee shall have consented to the applicable amendment,  waiver or consent.         A Lender shall not be required to make any such assignment or delegation if, prior  thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the  Borrower to require such assignment and delegation cease to apply.         2.22  Defaulting Lenders.                 2.22.1 Defaulting Lender Adjustments.  Notwithstanding anything to the contrary  contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as  such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:         (i)   Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted  as set forth in the definition of “Required Lenders” and in Section 8.2.         (ii)  Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other  amounts received by the Administrative Agent for the account of such Defaulting Lender  (whether voluntary or mandatory, at maturity, pursuant to or Article VII otherwise) or received  by the Administrative Agent from a Defaulting Lender pursuant to Article XI shall be applied at  such time or times as may be determined by the Administrative Agent as follows:               (a)   first, to the payment of any amounts owing by such Defaulting Lender to        the Administrative Agent hereunder;               (b)   second, to the payment on a pro rata basis of any amounts owing by such        Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder;               (c)   third, if so determined by the Administrative Agent or requested by any        Issuing Bank or the Swingline Lender, to be held as Cash Collateral for future funding       obligations of such Defaulting Lender in respect of any participation in any Letter of       Credit or Swingline Loan;              (d)   fourth, as the Borrower may request (so long as no Unmatured Default or        Event of Default exists), to the funding of any Loan in respect of which such Defaulting        Lender has failed to fund its portion thereof as required by this Agreement, as determined        by the Administrative Agent;               (e)   fifth, if so determined by the Administrative Agent and the Borrower, to        be held in a non-interest bearing deposit account and released in order to satisfy       obligations of such Defaulting Lender to fund Loans under this Agreement;              (f)   sixth, to the payment of any amounts owing to the Lenders, the Issuing        Banks or the Swingline Lender as a result of any judgment of a court of competent        jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against                                         52     





 






           such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations         under this Agreement;                (g)   seventh, so long as no Unmatured Default or Event of Default exists, to         the payment of any amounts owing to the Borrower as a result of any judgment of a court         of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a         result of such Defaulting Lender’s breach of its obligations under this Agreement; and                (h)   eighth, to such Defaulting Lender or as otherwise directed by a court of         competent jurisdiction;          provided that if (x) such payment is a payment of the principal amount of any Loans or   any Letter of Credit Exposure in respect of which such Defaulting Lender has not fully funded its  appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a  time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be   applied solely to pay the Loans of, and obligations in respect of Letters of Credit owed to, all   non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of,   or obligations in respect of Letters of Credit owed to, such 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 or to post Cash Collateral pursuant to this Section   2.22.1(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender   irrevocably consents hereto.          (iii) Any Defaulting Lender shall be entitled to receive any Facility Fee for any period   during which such Lender is a Defaulting Lender only to the extent allocable to the sum of (1)   the outstanding amount of the Revolving Loans funded by it and (2) its Letter of Credit Exposure   and Swingline Exposure for which it has provided Cash Collateral pursuant to Section 2.22.3   (and the Borrower shall (A) be required to pay the applicable Issuing Bank and the Swingline   Lender the amount of such fee allocable to its Fronting Exposure arising from such Defaulting   Lender and (B) not be required to pay the remaining amount of such fee that otherwise would  have been required to have been paid to such Defaulting Lender).          (iv)  All or any part of such Defaulting Lender’s Letter of Credit Exposure and   Swingline Exposure shall automatically (effective on the day such Lender becomes a Defaulting  Lender) be reallocated among the non-Defaulting Lenders in accordance with their respective  Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but  only to the extent that such reallocation does not cause the Credit Exposure of any non-  Defaulting Lender to exceed such non-Defaulting Lender’s Commitment.          (v)   If the reallocation described in Section 2.22.1(iv) cannot, or can only partially, be   effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or  under law, within one (1) Business Day following notice by the Administrative Agent, (x) first,   prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and   (y) second, Cash Collateralize each Issuing Banks’ Fronting Exposure in accordance with the   procedures set forth in Section 2.22.3.                                           53      





 






                 2.22.2 If the Borrower, the Administrative Agent, the Issuing Banks and the   Swingline Lender agree in writing in their sole discretion that a Defaulting Lender should no   longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties   hereto, whereupon as of the effective date specified in such notice and subject to any conditions   set forth therein (which may include arrangements with respect to any Cash Collateral), such   Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other   Lenders or take such other actions as the Administrative Agent may determine to be necessary to   cause the Revolving Loans and funded and unfunded participations in Letters of Credit and   Swingline Loans to be held by the Lenders in accordance with their respective Applicable   Percentages (without giving effect to Section 2.22.1(iv)), whereupon such Lender will cease to   be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to  fees accrued or payments made by or on behalf of the Borrower while such Lender was a  Defaulting Lender; 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 such Lender’s having been a  Defaulting Lender.               2.22.3 At any time that there shall exist a Defaulting Lender, within one (1)  Business Day upon the request of the Administrative Agent, any Issuing Bank or the Swingline  Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount  sufficient to cover all Fronting Exposure (after giving effect to Section 2.22.1(iv) and any Cash   Collateral provided by the Defaulting Lender).          (i)   All Cash Collateral (other than credit support not constituting funds subject to   deposit) shall be maintained in blocked, non-interest bearing deposit accounts with the   Administrative Agent.  The Borrower, and to the extent provided by any Lender, such Lender,   hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the   Administrative Agent, the Issuing Bank and the Lenders (including the Swingline Lender), and   agrees to maintain, a first-priority security interest in all such cash, deposit accounts and all   balances therein, and all other property so provided as collateral pursuant hereto, and in all   proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may   be applied pursuant to Section 2.22.3(ii).  If at any time the Administrative Agent determines that   Cash Collateral is subject to any right or claim of any Person other than the Administrative   Agent as herein provided, or that the total amount of such Cash Collateral is less than the   applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant   Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to   the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such   deficiency.          (ii)  Notwithstanding anything to the contrary contained in this Agreement, Cash   Collateral provided under this Section 2.22 in respect of Letters of Credit shall be held and   applied to the satisfaction of the specific Letter of Credit Exposure, obligations to fund   participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any   interest accrued on such obligation) and other obligations for which the Cash Collateral was so   provided, prior to any other application of such Cash Collateral as may be provided for herein.                                           54      





 






           (iii) Cash Collateral (or the appropriate portion thereof) provided to reduce any   Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral   pursuant to this Section following (A) the elimination of the applicable Fronting Exposure   (including by the termination of Defaulting Lender status of the applicable Lender), or (B) the   determination by the Administrative Agent and each Issuing Bank that there exists excess Cash   Collateral; provided that, subject to this Section 2.22 the Person providing Cash Collateral and   each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated   Fronting Exposure or other obligations and provided further that to the extent that such Cash   Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the   security interest granted pursuant to the Loan Documents.                2.22.4 So long as any Lender is a Defaulting Lender, (i) the Swingline Lender   shall not be required to fund any Swingline Loans unless it is satisfied that it will have no   Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuing Bank shall be   required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will   have no Fronting Exposure after giving effect thereto.                                     ARTICLE III                                                                         LETTERS OF CREDIT          3.1   Issuance.  Subject to and upon the terms and conditions herein set forth, so long   as no Unmatured Default or Event of Default has occurred and is continuing, each Issuing Bank   will, at any time and from time to time on and after the Restatement Date and prior to the earlier   of (i) the Letter of Credit Maturity Date and (ii) the Repayment Date, and upon request by the   Borrower in accordance with the provisions of Section 3.1, issue for the account of the Borrower   one or more irrevocable standby letters of credit denominated in Dollars and in a form   customarily used or otherwise approved by such Issuing Bank (together with all amendments,   modifications and supplements thereto, substitutions therefor and renewals and restatements   thereof, collectively, the “Letters of Credit”).  The Stated Amount of each Letter of Credit shall   not be less than such amount as may be acceptable to the applicable Issuing Bank.    Notwithstanding the foregoing:                3.1.1 No Letter of Credit shall be issued if, after giving effect to such issuance,  (i) the Stated Amount when added to the aggregate Letter of Credit Exposure of the Lenders at  such time, would exceed the Letter of Credit Subcommitment, (ii) the Stated Amount when   added to the aggregate outstanding Credit Exposure, would exceed the Aggregate Commitments   at such time, and (iii) any Lender is at that time a Defaulting Lender, unless the applicable   Issuing Bank has entered into an arrangement, including the delivery of Cash Collateral,   satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Lender to   eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving effect to   Section 2.22.1(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit   then proposed to be issued or that Letter of Credit and all other Letter of Credit Exposure as to   which such Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole   discretion;                                           55      





 






                 3.1.2 No Letter of Credit shall be issued that by its terms expires later than the  Letter of Credit Maturity Date or, in any event, more than one year after its date of issuance;  provided, however, that a Letter of Credit may, if requested by the Borrower, provide by its   terms, and on terms acceptable to the applicable Issuing Bank, for renewal for successive periods   of one year or less (but not beyond the Letter of Credit Maturity Date), unless and until the   applicable Issuing Bank shall have delivered a notice of nonrenewal to the beneficiary of such   Letter of Credit;                 3.1.3 No Issuing Bank shall be under any obligation to issue any Letter of   Credit if, at the time of such proposed issuance, (i) any order, judgment or decree of any   Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuing   Bank from issuing such Letter of Credit, or any Applicable Law or any request or directive   (whether or not having the force of law) from any Governmental Authority with jurisdiction over   such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of   letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing   Bank with respect to such Letter of Credit any restriction or reserve or capital requirement (for   which such Issuing Bank is not otherwise compensated) not in effect on the Restatement Date, or   any unreimbursed loss, cost or expense that was not applicable, in effect or known to such   Issuing Bank as of the Restatement Date and that the Issuing Bank in good faith deems material   to it, (ii) such Issuing Bank shall have actual knowledge, or shall have received notice from any   Lender, prior to the issuance of such Letter of Credit that one or more of the conditions specified   in Section 4.1 (if applicable) or Section 4.2 are not then satisfied (or have not been waived in   writing as required herein) or that the issuance of such Letter of Credit would violate the   provisions of Section 3.1.1, or (iii) the issuance of such Letter of Credit would violate one or   more written policies of such Issuing Bank applicable to letters of credit generally; and                3.1.4 Unless otherwise expressly agreed by the applicable Issuing Bank and the  Borrower when a Letter of Credit is issued and subject to applicable laws, performance under  Letters of Credit by the applicable Issuing Bank, its correspondents, and the beneficiaries thereof   will be governed by the rules of the “International Standby Practices 1998” (or such later   revision as may be published by the Institute of International Banking Law & Practice on any   date any Letter of Credit may be issued) and to the extent not inconsistent therewith, the   governing law of this Agreement.          3.2   Notices.  Whenever the Borrower desires the issuance of a Letter of Credit, the   Borrower will give the applicable Issuing Bank written notice with a copy to the Administrative   Agent not later than 11:00 a.m. three (3) Business Days (or such shorter period as is acceptable   to the Issuing Bank in any given case) prior to the requested date of issuance thereof.  Each such   notice (each, a “Letter of Credit Notice”) shall be irrevocable, shall be given in the form of   Exhibit 3.2 and shall specify (i) the requested date of issuance, which shall be a Business Day,   (ii) the requested Stated Amount and expiry date of the Letter of Credit, and (iii) the name and   address of the requested beneficiary or beneficiaries of the Letter of Credit.  The Borrower will   also complete any application procedures and documents reasonably required by the applicable   Issuing Bank in connection with the issuance of any Letter of Credit.  Upon its issuance of any   Letter of Credit, the applicable Issuing Bank will promptly notify the Administrative Agent of   such issuance, and the Administrative Agent will give prompt notice thereof to each Lender.                                           56      





 






     The renewal or extension of any outstanding Letter of Credit shall, for purposes of this Article   III, be treated in all respects as the issuance of a new Letter of Credit.          3.3   Participations.  Immediately upon the issuance of any Letter of Credit, the Issuing   Bank shall be deemed to have sold and transferred to each Lender, and each Lender shall be   deemed irrevocably and unconditionally to have purchased and received from the Issuing Bank,   without recourse or warranty, an undivided interest and participation, of its Applicable   Percentage of such Letter of Credit, each drawing made thereunder and the obligations of the  Borrower under this Agreement with respect thereto and any Collateral or other security therefor  or guaranty pertaining thereto; provided, however, that the LC Fee shall be payable directly to   the Issuing Bank as provided therein, and the other Lenders shall have no right to receive any   portion thereof.  In consideration and in furtherance of the foregoing, each Lender hereby   absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the   Issuing Bank, such Lender’s Applicable Percentage of each Reimbursement Obligation not   reimbursed by the Borrower on the date due as provided in Section 3.4 or through the Borrowing   of Revolving Loans as provided in Section 3.5 (because the conditions set forth in Section 4.2   cannot be satisfied, or for any other reason), or of any reimbursement payment required to be   refunded to the Borrower for any reason.  Upon any change in the Commitments of any of the   Lenders pursuant to Section 2.5.2 or Section 12.3, with respect to all outstanding Letters of   Credit and Reimbursement Obligations there shall be an automatic adjustment to the   participations pursuant to this Section 3.3 to reflect the new Applicable Percentages of the   assigning Lender and the assignee.  Each Lender’s obligation to make payment to the Issuing   Banks pursuant to this Section 3.3 shall be absolute and unconditional and shall not be affected   by any circumstance whatsoever, including the termination of the Commitments or the existence   of any Unmatured Default or Event of Default, and each such payment shall be made without   any offset, abatement, reduction or withholding whatsoever.          3.4   Reimbursement.  The Borrower hereby agrees to reimburse the applicable Issuing   Bank by making payment to the Administrative Agent, for the account of such Issuing Bank, in   immediately available funds, for any payment made by such Issuing Bank under any Letter of   Credit issued by it (each such amount so paid until reimbursed, together with interest thereon   payable as provided hereinbelow, a “Reimbursement Obligation”) immediately upon, and in any   event on the same Business Day as, the making of such payment by such Issuing Bank (the   “Honor Date”), provided that any such Reimbursement Obligation shall be deemed timely   satisfied (but nevertheless subject to the payment of interest thereon as provided herein below) if   satisfied pursuant to a borrowing of Revolving Loans made on the date of such payment by the   Issuing Bank, as set forth more completely in Section 3.5), together with interest on the amount   so paid by such Issuing Bank, to the extent not reimbursed prior to 2:00 p.m. on the Honor Date,   for the period from the Honor Date to the date the Reimbursement Obligation created thereby is   satisfied, at the Alternate Base Rate plus the Applicable Margin plus 2% per annum as in effect   from time to time during such period, such interest also to be payable on demand.  Each Issuing   Bank will provide the Administrative Agent and the Borrower with prompt notice of any   payment or disbursement made or to be made under any Letter of Credit issued by it, although   the failure to give, or any delay in giving, any such notice shall not release, diminish or otherwise   affect the Borrower’s obligations under this Section 3.4 or any other provision of this   Agreement.  The Administrative Agent will promptly pay to the applicable Issuing Bank any   such amounts received by it under this Section 3.4.                                          57      





 






           3.5   Payment by Revolving Loans.                  3.5.1 In the event that any Issuing Bank makes any payment under any Letter of  Credit and the Borrower shall not have timely satisfied in full its Reimbursement Obligation to   such Issuing Bank pursuant to Section 3.4, the Borrower shall be deemed to have requested a   Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the   Reimbursement Obligation (the “Unreimbursed Amount”), without regard to the minimum and   multiples for the principal amount of Base Rate Loans, but subject to the amount of the   unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.2   (other than the delivery of a Notice of Borrowing).  Any notice given by the applicable Issuing   Bank or the Administrative Agent pursuant to this Section 3.5.1 may be given by telephone if   immediately confirmed in writing; provided that the lack of such an immediate confirmation   shall not affect the conclusiveness or binding effect of such notice.                3.5.2 Each Lender shall upon any notice pursuant to Section 3.5.1 make funds   available (and the Administrative Agent may apply Cash Collateral provided for this purpose)   for the account of the applicable Issuing Bank in an amount equal to its Applicable Percentage of   the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice  by the Administrative Agent, whereupon, subject to the provisions of Section 3.5.3, each Lender   that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in   such amount.  The Administrative Agent shall remit the funds so received to the applicable   Issuing Bank.                3.5.3 With respect to any Unreimbursed Amount that is not fully refinanced by   a borrowing of Base Rate Loans because the conditions set forth in Section 4.2 cannot be   satisfied or for any other reason, each Lender shall fund its risk participation in such Letter of  Credit in the amount of its Applicable Percentage of the Unreimbursed Amount that is not so  refinanced, which funded risk participation shall be due and payable on demand (together with  interest) and shall bear interest at the Overdue Rate.                 3.5.4 Until each Lender funds its Base Rate Loan or risk participation pursuant  to this Section 3.5 to reimburse the applicable Issuing Bank for any amount drawn under any   Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall  be solely for the account of the applicable Issuing Bank.               3.5.5 Each Lender’s obligation to make Base Rate Loans or to fund its risk  participation to reimburse the applicable Issuing Bank for amounts drawn under Letters of  Credit, as contemplated by this Section 3.5, shall be absolute and unconditional and shall not be   affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or   other right which such Lender may have against such Issuing Bank, the Borrower or any other   Person for any reason whatsoever; (B) the occurrence or continuance of an Unmatured Default or   Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any   of the foregoing; provided, however, that each Lender’s obligation to make Base Rate Loans   pursuant to this Section 3.5 is subject to the conditions set forth in Section 4.2 (other than   delivery by the Borrower of a Notice of Borrowing).  No such making of a Base Rate Loan or  funding of risk participation shall relieve or otherwise impair the obligation of the Borrower to                                          58      





 






     reimburse the applicable Issuing Bank for the amount of any payment made by such Issuing  Bank under any Letter of Credit, together with interest as provided herein.               3.5.6 If any Lender fails to make available to the Administrative Agent for the  account of the applicable Issuing Bank any amount required to be paid by such Lender pursuant  to the foregoing provisions of this Section 3.5 by the time specified in Section 3.5.2, then,   without limiting the other provisions of this Agreement, the applicable Issuing Bank shall be   entitled to recover from such Lender (acting through the Administrative Agent), on demand,   such amount with interest thereon for the period from the date such payment is required to the   date on which such payment is immediately available to such Issuing Bank at a rate per annum   equal to the greater of the Federal Funds Rate and a rate determined by such Issuing Bank in  accordance with banking industry rules on interbank compensation, plus any administrative,  processing or similar fees customarily charged by such Issuing Bank in connection with the  foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so  paid shall constitute such Lender’s Base Rate Loan included in the relevant borrowing or funded  risk participation, as the case may be.  A certificate of the applicable Issuing Bank submitted to  any Lender (through the Administrative Agent) with respect to any amounts owing under this  Section 3.5.6 shall be conclusive absent manifest error.          3.6   Payment to Lenders.  Whenever any Issuing Bank receives a payment in respect   of a Reimbursement Obligation as to which the Administrative Agent has received, for the   account of such Issuing Bank, any payments from the Lenders pursuant to Section 3.5, such   Issuing Bank will promptly pay to the Administrative Agent, and the Administrative Agent will   promptly pay to each Lender that has paid its ratable share thereof, in immediately available   funds, an amount equal to such Lender’s ratable share (based on the proportionate amount   funded by such Lender to the aggregate amount funded by all Lenders) of such Reimbursement   Obligation.          3.7   Obligations Absolute.  The Reimbursement Obligations of the Borrower shall be   irrevocable, shall remain in effect until the Issuing Banks shall have no further obligations to   make any payments or disbursements under any circumstances with respect to any Letter of   Credit, and shall be absolute and unconditional, shall not be subject to counterclaim, setoff or  other defense or any other qualification or exception whatsoever and shall be made in accordance  with the terms and conditions of this Agreement under all circumstances, including, without  limitation, any of the following circumstances:               3.7.1 Any lack of validity or enforceability of this Agreement, any of the other  Loan Documents or any documents or instruments relating to any Letter of Credit;               3.7.2 Any change in the time, manner or place of payment of, or in any other  term of, all or any of the Obligations in respect of any Letter of Credit or any other amendment,  modification or waiver of or any consent to departure from any Letter of Credit or any  documents or instruments relating thereto, in each case whether or not the Borrower has notice or  knowledge thereof;               3.7.3 The existence of any claim, setoff, defense or other right that the Borrower  may have at any time against a beneficiary named in a Letter of Credit, any transferee of any                                          59      





 






     Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative   Agent, any Issuing Bank, any Lender or other Person, whether in connection with this   Agreement, any Letter of Credit, the transactions contemplated hereby or any unrelated   transactions (including any underlying transaction between the Borrower and the beneficiary   named in any such Letter of Credit);                3.7.4 Any draft, certificate or any other document presented under the Letter of   Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement  therein being untrue or inaccurate in any respect (provided that such draft, certificate or other  document appears on its face to comply with the terms of such Letter of Credit), any errors,  omissions, interruptions or delays in transmission or delivery of any messages, by mail, facsimile  or otherwise, or any errors in translation or in interpretation of technical terms;               3.7.5 Any defense based upon the failure of any drawing under a Letter of  Credit to conform to the terms of the Letter of Credit (provided that any draft, certificate or other  document presented pursuant to such Letter of Credit appears on its face to comply with the  terms thereof), any nonapplication or misapplication by the beneficiary or any transferee of the  proceeds of such drawing or any other act or omission of such beneficiary or transferee in  connection with such Letter of Credit;               3.7.6 The exchange, release, surrender or impairment of any collateral or other  security for the Obligations;               3.7.7 The occurrence of any Unmatured Default or Event of Default; or               3.7.8 Any other circumstance or event whatsoever, including, without  limitation, any other circumstance that might otherwise constitute a defense available to, or a  discharge of, the Borrower or a guarantor.   Any action taken or omitted to be taken by any Issuing Bank under or in connection with any  Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct,  shall be binding upon the Borrower and each Lender and shall not create or result in any liability  of such Issuing Bank to the Borrower or any Lender.  It is expressly understood and agreed that,  for purposes of determining whether a wrongful payment under a Letter of Credit resulted from  any Issuing Bank’s gross negligence or willful misconduct, (i) such Issuing Bank’s acceptance of  documents that appear on their face to comply with the terms of such Letter of Credit, without  responsibility for further investigation, regardless of any notice or information to the contrary,  (ii) such Issuing Bank’s exclusive reliance on the documents presented to it under such Letter of  Credit as to any and all matters set forth therein, including the amount of any draft presented  under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals   the amount of such draft and whether or not any document presented pursuant to such Letter of   Credit proves to be insufficient in any respect (so long as such document appears on its face to   comply with the terms of such Letter of Credit), and whether or not any other statement or any   other document presented pursuant to such Letter of Credit proves to be forged or invalid or any   statement therein proves to be inaccurate or untrue in any respect whatsoever, and (iii) any   noncompliance in any immaterial respect of the documents presented under such Letter of Credit                                          60      





 






     with the terms thereof shall, in each case, be deemed not to constitute gross negligence or willful   misconduct of such Issuing Bank.          3.8   Cash Collateral Account.  At any time and from time to time (i) after the   occurrence and during the continuance of an Event of Default, the Administrative Agent may,   and at the direction or with the consent of the Required Lenders shall, require the Borrower to   deliver to the Administrative Agent such additional amount of cash as is equal to 102% of the   aggregate Stated Amount of all Letters of Credit at any time outstanding (whether or not any   beneficiary under any Letter of Credit shall have drawn or be entitled at such time to draw   thereunder) and (ii) in the event of a prepayment under Section 2.5.1, the Administrative Agent   will retain such amount as may then be required to be retained, such amounts in each case under  clauses (i) and (ii) above to be held by the Administrative Agent in a cash collateral account (the  “Cash Collateral Account”).  The Borrower hereby grants to the Administrative Agent, for the   benefit of the Issuing Bank and the Lenders, a Lien upon and security interest in the Cash   Collateral Account and all amounts held therein from time to time as security for Letter of Credit   Exposure, and for application to the Borrower’s Reimbursement Obligations as and when the   same shall arise.  The Administrative Agent shall have exclusive dominion and control,  including the exclusive right of withdrawal, over such account.  Other than any interest on the  investment of such amounts in Cash Equivalents, which investments shall be made at the  direction of the Borrower (unless an Unmatured Default or Event of Default shall have occurred  and be continuing, in which case the determination as to investments shall be made at the option  and in the discretion of the Administrative Agent), amounts in the Cash Collateral Account shall  not bear interest.  Interest and profits, if any, on such investments shall accumulate in such  account.  In the event of a drawing, and subsequent payment by any Issuing Bank, under any  Letter of Credit at any time during which any amounts are held in the Cash Collateral Account,   the Administrative Agent will deliver to such Issuing Bank an amount equal to the   Reimbursement Obligation created as a result of such payment (or, if the amounts so held are   less than such Reimbursement Obligation, all of such amounts) to reimburse such Issuing Bank   therefor.  Any amounts remaining in the Cash Collateral Account (including interest) after the   expiration of all Letters of Credit and reimbursement in full of the Issuing Banks for all of its   obligations thereunder shall be held by the Administrative Agent, for the benefit of the Borrower,   to be applied against the Obligations in such order and manner as the Administrative Agent may   direct.            3.9   The Issuing Bank.  The Issuing Banks shall act on behalf of the Lenders with   respect to any Letters of Credit issued by it and the documents associated therewith, and the   Issuing Banks shall have all of the rights, benefits and immunities (a) provided to the   Administrative Agent in Article X with respect to any acts taken or omissions suffered by it in   connection with Letters of Credit issued by it or proposed to be issued by it and any documents   pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in   Article X included the Issuing Banks with respect to such acts or omissions, and (b) as   additionally provided herein with respect to the Issuing Banks.          3.10  Effectiveness.  Notwithstanding any termination of the Commitments or   repayment of the Loans, or both, the obligations of the Borrower under this Article III shall   remain in full force and effect until the Issuing Banks and the Lenders shall have no further                                          61      





 






     obligations to make any payments or disbursements under any circumstances with respect to any   Letter of Credit.          3.11  Reporting of Letter of Credit Information and L/C Commitment.  At any time that   there is an Issuing Bank that is not also the financial institution acting as Administrative Agent,   then (a) on the last Business Day of each calendar month, (b) on each date that a Letter of Credit  is amended, terminated or otherwise expires, (c) on each date that a Letter of Credit is issued or  the expiry date of a Letter of Credit is extended, and (d) upon the request of the Administrative  Agent, each Issuing Bank (or, in the case of clauses (b), (c) or (d) of this Section, the applicable  Issuing Bank) shall deliver to the Administrative Agent a report setting forth in form and detail  reasonably satisfactory to the Administrative Agent information (including, without limitation,  any reimbursement, Cash Collateral, or termination in respect of Letters of Credit issued by such  Issuing Bank) with respect to each Letter of Credit issued by such Issuing Bank hereunder.  No  failure on the part of any Issuing Bank to provide such information pursuant to this Section 3.11   shall limit the obligations of the Borrower or any Lender hereunder with respect to its   reimbursement and participation obligations hereunder                                     ARTICLE IV                                                                       CONDITIONS PRECEDENT          4.1   Conditions to Restatement Date.  The amendment and restatement of the Existing   Credit Agreement and the obligation of each Lender to make Loans and the obligation of the   Issuing Banks to issue Letters of Credit hereunder, is subject to the satisfaction of the following   conditions precedent as of the Restatement Date:                (a)   The Administrative Agent shall have received the following, each dated as         of the Restatement Date (unless otherwise specified) and in such number of copies as the         Administrative Agent shall have requested:                            (1)   Fully executed counterparts of this Agreement from the               Borrower, each Lender, the Issuing Banks, the Swingline Lender and the               Administrative Agent.                            (2)   Copies of the articles or certificate of incorporation of the               Borrower, together with all amendments thereto, and a certificate of good               standing, each certified by the appropriate governmental officer or the secretary of               the Borrower in its jurisdictions of incorporation.                            (3)   Copies, certified by the Corporate Secretary of the               Borrower, of its by-laws and of its Board of Directors’ resolutions and of               resolutions or actions of any other body authorizing (i) the execution of the Loan               Documents to which the Borrower is a party and (ii) borrowings hereunder by the               Borrower in an aggregate amount up to $450,000,000.                            (4)   An incumbency certificate, executed by the Corporate               Secretary of the Borrower, which shall identify by name and title and bear the               signatures of the Authorized Officers and any other officers of the Borrower                                         62      





 






               authorized to sign the Loan Documents, upon which certificate the Administrative             Agent and the Lenders shall be entitled to rely until informed of any change in             writing by the Borrower.                          (5)   A certificate, signed by the Chief Financial Officer of the             Borrower, stating that the conditions specified in Section 4.2(a) and (b) have been              satisfied.                           (6)   Opinions of counsel to the Borrower addressed to the              Administrative Agent and the Lenders with respect to the Borrower, the Loan              Documents and such other matters as the Administrative Agent shall request              (which such opinions shall expressly permit reliance by permitted successors and             assigns of the Administrative Agent and the Lenders).                          (7)   Any Notes requested by a Lender pursuant to Section 2.11              payable to the order of each such requesting Lender.                           (8)   Evidence reasonably satisfactory to the Administrative              Agent of any required Governmental Approvals or consents regarding this              Agreement.               (b)   The Borrower shall have provided to the Administrative Agent and the        Lenders the documentation and other information requested by the Administrative Agent        and the Lenders in order to comply with requirements of any Anti-Money Laundering        Laws, including, without limitation, the PATRIOT Act and any applicable “know your        customer” rules and regulations.               (c)   At least five (5) days prior to the Restatement Date, the Borrower, if it        qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, shall        have delivered to the Administrative Agent, and any Lender requesting the same, a        Beneficial Ownership Certification in relation to the Borrower.               (d)   The Borrower shall have paid (i) all accrued and unpaid fees and interest,        if any, under the Existing Credit Agreement as of the Restatement Date, (ii) to the        Arrangers, the fees required under the Fee Letters to be paid to them on the Restatement        Date, (iii) to the Administrative Agent, the initial payment of the annual administrative        fee described in the Wells Fargo Fee Letter, and (iv) all other fees and reasonable        expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder        or under any other Loan Document to be paid on or prior to the Restatement Date        (including reasonable fees and expenses of counsel) in connection with this Agreement        and the other Loan Documents.         Without limiting the generality of the provisions of the last paragraph of Section 10.3, 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 Administrative                                         63     





 






     Agent shall have received notice from such Lender prior to the proposed Restatement Date  specifying its objection thereto.          4.2   Conditions to All Credit Extensions.  The Lenders shall not be required to make   any Loan, including any initial Loan, and no Issuing Bank shall be required to issue any Letter of  Credit, unless on the applicable Borrowing Date or date of issuance, as applicable:               (a)   There exists no Event of Default or Unmatured Default.               (b)   The representations and warranties contained in Article V (other than,         after the Restatement Date, the representations and warranties set forth in Sections 5.2(b),         5.3, 5.9(ii), 5.11(a), 5.11(b), 5.11(c), 5.11(f), 5.11(g), 5.11(h) and 5.11(i)) are true and         correct as of such date 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 on and as of such earlier date.          Each request for an extension of credit shall constitute a representation and warranty by   the Borrower that the conditions contained in Sections 4.2(a) and (b) have been satisfied.  Any   Lender may require a duly completed compliance certificate in substantially the form of   Exhibit 4.2 (a “Compliance Certificate”) as a condition to making a Loan.                                     ARTICLE V                                                                REPRESENTATIONS AND WARRANTIES          The Borrower represents and warrants to the Lenders that:          5.1   Corporate Existence.  Each of the Borrower and its Material Subsidiaries: (a) is a   corporation duly organized and validly existing 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 assets and carry on its business as   now being or as proposed to be 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 during the term of this  Agreement.         5.2   Financial Condition.                (a)   The consolidated balance sheet and statement of consolidated        capitalization of the Borrower and its consolidated Subsidiaries, if any, as at December         31, 2018 and the related consolidated statements of income, cash flows, common         stockholders’ equity and income taxes of the Borrower and its consolidated Subsidiaries,         if any, for the fiscal period ended on December 31, 2018, with the opinion thereon of        Ernst & Young LLP, and the unaudited consolidated balance sheet of the Borrower and        its consolidated Subsidiaries, if any, as of March 31, 2019 and the related consolidated        statements of income and cash flows of the Borrower and its consolidated Subsidiaries, if        any, for the applicable three-month period ended on such date, heretofore furnished to        each of the Lenders are complete and correct and fairly present the consolidated financial                                          64      





 






           condition of the Borrower and its consolidated Subsidiaries, if any, as at said date and the         results of their operations for the fiscal period and the applicable three-month period         ended on said dates (subject, in the case of financial statements as at March 31, 2019 to         normal year-end audit adjustments), all in accordance with GAAP and practices applied         on a consistent basis.  Neither the Borrower nor any of its Material Subsidiaries had on         said dates any material contingent liabilities, liabilities for taxes, unusual forward or long-        term commitments or unrealized or anticipated losses from any unfavorable         commitments, except as referred to or reflected or provided for in said balance sheets as         at said dates.                (b)   Since December 31, 2018, there has been no material adverse change in         the consolidated financial condition or operations, or the business taken as a whole, of the         Borrower and its consolidated Subsidiaries, taken as a whole, if any, from that set forth in         said financial statements as at said date.          5.3   Litigation.  Other than as set out in Schedule 5.3 hereto, there are no legal or   arbitral proceedings or any proceedings by or before any Governmental Authority, now pending   or (to the knowledge of the Borrower) threatened against the Borrower or any of its Material   Subsidiaries as to which there is a reasonable possibility of an adverse determination and which,   if adversely determined, could have a Material Adverse Effect during the term of this   Agreement.          5.4   No Breach.  None of the execution and delivery of this Agreement and the Notes,   the consummation of the transactions herein contemplated and compliance with the terms and   provisions hereof will conflict with or result in a breach of, or require any consent under, the   charter or by-laws of the Borrower, or conflict with or result in a breach of any material  Applicable Law or regulation, or any material order, writ, injunction or decree of any court or  governmental authority or agency, or any material agreement or instrument to which the   Borrower or its Material Subsidiaries is a party or by which it is bound or to which it is subject or   which is applicable to it, or constitute a default under any such agreement or instrument, or result   in the creation or imposition of any Lien upon any of the revenues or assets of the Borrower or   any of its Material Subsidiaries pursuant to the terms of any such agreement or instrument.          5.5   Corporate Action.  The Borrower has all necessary corporate power and authority   to execute, deliver and perform its obligations under this Agreement and the Notes and to   consummate the transactions herein contemplated, and the execution, delivery and performance   of this Agreement and the Notes, and the consummation of the transactions herein contemplated,   by the Borrower 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,   and each of the Notes when executed and delivered for value will constitute, its legal, valid and   binding obligation, enforceable in accordance with its terms.          5.6   Regulatory Approval.  No material consent, approval, authorization or other   action by, notice to, or registration or filing with, any Governmental Authority or other Person is   or will be required as a condition to or otherwise in connection with the due execution, delivery  and performance by the Borrower of this Agreement or any of the other Loan Documents to   which it is or will be a party or the legality, validity or enforceability hereof or thereof, other than                                          65      





 






     consents, authorizations and filings that have been (or on or prior to the Restatement Date will   have been) made or obtained and that are (or on the Restatement Date will be) in full force and   effect, which consents, authorizations and filings are listed on Schedule 5.6.          5.7   Regulations U and X.  The Borrower is not engaged in the business of extending   credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Loans will   be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U   or X, or any official rulings on or interpretations of such regulations.  Terms for which meanings  are provided in Regulation U or Regulation X or any regulations substituted therefor, as from   time to time in effect, are used in this Section 5.7 with such meanings.          5.8   Pension and Welfare Plans.  The Borrower is in compliance with the applicable   provisions of ERISA, except where failure to so comply would not be reasonably likely to have a   Material Adverse Effect during the term of this Agreement.  During the twelve-consecutive- month period prior to the date of the execution and delivery of this Agreement and prior to the  date of any borrowing hereunder, no steps have been taken to terminate or completely or  partially withdraw from any Pension Plan, and no contribution failure has occurred with respect   to any Pension Plan sufficient to give rise to a Lien under section 303(k) of ERISA.  No   condition exists or event or transaction has occurred with respect to any Pension Plan which  might result in the incurrence by the Borrower or any member of the Controlled Group of any   material liability, fine or penalty or which could reasonably be expected to have a Material   Adverse Effect during the term of this Agreement.  Except as disclosed in Schedule 5.8   (“Employee Benefit Plans”), neither the Borrower nor any member of the Controlled Group has   any contingent liability with respect to any post-retirement benefit under a Welfare Plan, other   than liability for continuation coverage described in Part 6 of Title I of ERISA.         5.9   Accuracy of Information.            (i)   All information (other than the projections financial estimates, forecasts, forward   looking statements and information of a general economic and general industry nature)   concerning the Borrower and its Subsidiaries and the transactions contemplated hereby taken as   a whole, and as modified or supplemented by other information so provided (the “Information”)   that has been or will be made available to the Administrative Agent or any Lender by the  Borrower or any of its authorized representatives is, or will be when furnished, complete and  correct in all material respects and does not, or will not when furnished, contain any untrue  statement of a material fact or omit to state a material fact necessary in order to make the  statements contained therein not materially misleading in light of the circumstances under which  such statements are made.  Any projections that have been or will be made available to  Administrative Agent or any Lender by the Borrower or any of its authorized representatives  have been or will be prepared in good faith based upon reasonable assumptions by the Borrower  (it being understood that projections are not to be viewed as facts and that actual results during  the period or periods covered by any such projections may differ materially from the projected  results).         (ii)  As of the Restatement Date, to the knowledge of the Borrower, the information  included in the Beneficial Ownership Certification is true and correct in all respects.                                          66      





 






           5.10  Taxes.  The Borrower and its Subsidiaries have filed all United States Federal   income tax returns and all other material 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 Subsidiaries, except for any such tax, the payment of which is being   contested in good faith by proper proceedings and against which adequate reserves are being   maintained or to the extent such failure is not reasonably likely to have a Material Adverse Effect  during the term of this Agreement.         5.11  Environmental Warranties.  Except as previously disclosed in the SEC Disclosure   Documents or on Schedule 5.11:                (a)   all facilities and property (including underlying groundwater) owned,        operated or leased by the Borrower or any of its Subsidiaries are in material compliance        with all Environmental Laws, except for such instances of noncompliance as are not        reasonably likely, singly or in the aggregate, to have a Material Adverse Effect during the        term of this Agreement;               (b)   there have been no past, and there are no pending or threatened:                           (1)   claims, complaints, notices or requests for information              received by the Borrower or any of its Subsidiaries with respect to any alleged              violation of any Environmental Law or,                           (2)   complaints, notices or inquiries to the Borrower or any of              its Subsidiaries regarding potential liability under any Environmental Law;         except as are not reasonably likely, singly or in the aggregate, to have a Material Adverse  Effect during the term of this Agreement;               (c)   to the Borrower’s knowledge, there have been no Releases of Hazardous         Materials at, on or under any property now or previously owned, operated or leased by        the Borrower or any of its Subsidiaries that, singly or in the aggregate, are reasonably         likely to have a Material Adverse Effect during the term of this Agreement;                (d)   the Borrower and its Subsidiaries have been issued and are in material        compliance with all permits, certificates, approvals, licenses and other authorizations        relating to environmental matters and necessary for their businesses, except as are not        reasonably likely, singly or in the aggregate, to have a Material Adverse Effect during the        term of this Agreement;               (e)   no property now or previously owned, operated or leased by the Borrower        or any of its Subsidiaries is listed or, to the Borrower’s knowledge, proposed for listing        (with respect to owned property only) on the National Priorities List pursuant to        CERCLA or on any similar state list of sites requiring investigation or cleanup that,        singly or in the aggregate, are reasonably likely to have a Material Adverse Effect during        the term of this Agreement;                                           67      





 






               (f)   to the Borrower’s knowledge, there are no underground storage tanks,        active or abandoned, including petroleum storage tanks, on or under any property now or        previously owned, operated or leased by the Borrower or any of its Subsidiaries that,       singly or in aggregate, are reasonably likely to have a Material Adverse Effect during the       term of this Agreement;              (g)   to the Borrower’s knowledge, neither Borrower nor any of its Subsidiaries       has directly transported or directly arranged for the transportation of any Hazardous        Material to any location which is listed or proposed for listing on the National Priorities       List pursuant to CERCLA, on the CERCLIS or on any similar state list or which is the       subject of Federal, state or local enforcement actions or other investigations which may       lead to material claims against the Borrower or such Subsidiary for any remedial work,       damage to natural resources or personal injury, including claims under CERCLA that,       singly or in the aggregate, are reasonably likely to have a Material Adverse Effect during       the term of this Agreement;              (h)   there are no polychlorinated biphenyls or friable asbestos present at any       property now or previously owned, operated or leased by the Borrower or any of its       Subsidiaries that, singly or in the aggregate, are reasonably likely to have a Material       Adverse Effect during the term of this Agreement; and              (i)   no conditions exist at, on or under any property now or previously owned       or leased by the Borrower or any of its Subsidiaries which, with the passage of time, or       the giving of notice or both, would give rise to liability under any Environmental Law,       which would have a Material Adverse Effect during the term of this Agreement.        5.12  Investment Company Act.  Neither the Borrower nor any of its Subsidiaries is an  “investment company” or a company “controlled” by an “investment company” within the  meaning of the Investment Company Act of 1940, as amended.         5.13  Subsidiaries.  As of the Restatement Date, the Borrower has no Subsidiaries.         5.14  Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions.                (a)   None of (i) the Borrower, any Subsidiary, or, to the knowledge of the       Borrower or such Subsidiary, any of their respective directors, officers, employees or        Affiliates, or (ii) to the knowledge of the Borrower, any agent or representative of the        Borrower or any Subsidiary that will act in any capacity in connection with or benefit        from the Agreement or the credit facilities established thereby, (A) is a Sanctioned Person        or currently the subject or target of any Sanctions, (B) is controlled by or is acting on        behalf of a Sanctioned Person, (C) is located, organized or resident in a Sanctioned        Country, (D) is under administrative, civil or criminal investigation for an alleged        violation of, or received notice from or made a voluntary disclosure to any governmental        entity regarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering        Laws or Sanctions by a governmental authority that enforces Sanctions or any Anti-       Corruption Laws or Anti-Money Laundering Laws, or (E) derives revenues from       investments in, or transactions with, Sanctioned Persons.                                          68     





 






               (b)   Each of the Borrower and its Subsidiaries has implemented and maintains        in effect policies and procedures designed to ensure compliance by the Borrower and its        Subsidiaries and their respective directors, officers, employees and agents with all Anti-       Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions.              (c)   Each of the Borrower and its Subsidiaries, and to the knowledge of       Borrower, each director, officer, employee, agent and Affiliate of Borrower and each       such Subsidiary, is in compliance with all Anti-Corruption Laws, Anti-Money       Laundering Laws and applicable Sanctions in all material respects.              (d)   No proceeds of any extension of credit have been used by the Borrower or       any of its Subsidiaries or, to the knowledge of the Borrower or such Subsidiary, any of its       or their respective directors, officers, employees and agents in violation of Section 6.4.         5.15  EEA Financial Institution.  The Borrower is not an EEA Financial Institution.                                     ARTICLE VI                                                                           COVENANTS         During the term of this Agreement, unless the Required Lenders shall otherwise consent  in writing:         6.1   Financial Statements.  The Borrower shall deliver to the Administrative Agent  (and, in the case of clause (g) below, to each of the Lenders):               (a)   as soon as available and in any event within fifty (50) days after the end of        each of the first three fiscal quarterly periods of each fiscal year of the Borrower, a        consolidated statement of income of the Borrower and its consolidated Subsidiaries for        such period and for the period from the beginning of the respective fiscal year to the end        of such period, and a consolidated statement of cash flows for the period from the        beginning of the respective fiscal year to the end of such period, and the related        consolidated balance sheet as at the end of such period, all in reasonable detail and        prepared in accordance with GAAP (subject to the absence of notes required by GAAP        and subject to normal year-end adjustments) applied on a basis consistent with that of the        preceding quarter or containing disclosure of the effect on the financial condition or        results of operations of any change in the application of accounting principles and        practices during such quarter, accompanied by a certificate of a senior financial officer of        the Borrower, which certificate shall state that said financial statements fairly present the        consolidated financial condition and results of operations of the Borrower and its        consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end        of, and for, such period (subject to normal year-end audit adjustments);               (b)   as soon as available and in any event within ninety-five (95) days after the        end of each fiscal year of the Borrower, consolidated statements of income, common        stockholders’ equity, cash flows, and income taxes of the Borrower and its consolidated        Subsidiaries for such year and the related consolidated balance sheet and statement of        capitalization at the end of such year, setting forth in each case in comparative form the                                        69     





 






         corresponding figures for the preceding fiscal year, all in reasonable detail and prepared        in accordance with GAAP (subject to the absence of notes required by GAAP and subject        to normal year-end adjustments) applied on a basis consistent with that of the preceding        quarter or containing disclosure of the effect on the financial condition or results of       operations of any change in the application of accounting principles and practices during       such quarter, and accompanied by an opinion thereon of independent certified public       accountants of recognized national standing, which opinion shall state, without material       qualification, that said financial statements fairly present the consolidated financial       position and results of operations and cash flows of the Borrower and its consolidated       Subsidiaries as at the end of, and for, such fiscal year;              (c)   promptly upon their becoming available, notification of the filing of all        registration statements, regular periodic reports, if any, and SEC Disclosure Documents       which the Borrower shall have filed with the Securities and Exchange Commission (or       any governmental agency substituted therefor) or any national securities exchange;              (d)   promptly upon the mailing thereof to the shareholders of the Borrower       generally, copies, if not publicly available, or notification of mailing, of all financial       statements, reports and proxy statements so mailed;              (e)   promptly after the Borrower knows or has reason to know that any Event       of Default or Unmatured Default has occurred, a notice of such Event of Default or       Unmatured Default, describing the same in reasonable detail, and indicating what action       is being undertaken with respect to such Event of Default or Unmatured Default;              (f)   immediately upon becoming aware of the institution of any steps by the        Borrower or any other Person to terminate any Pension Plan or the complete or partial        withdrawal from any Pension Plan by the Borrower or any member of its Controlled        Group, or the failure to make a required contribution to any Pension Plan if such failure is        sufficient to give rise to a Lien under section 303(k) of ERISA, or the taking of any        action with respect to a Pension Plan which could result in the requirement that the        Borrower furnish a bond or other security to the PBGC or such Pension Plan, or the        occurrence of any event with respect to any Pension Plan which could result in the        incurrence by the Borrower of any material liability, fine or penalty, or any material        increase in the contingent liability of the Borrower with respect to any post-retirement        Welfare Plan benefit, notice thereof and copies of all documentation relating thereto; and               (g)   from time to time (i) such other information regarding the business, affairs        or financial condition of the Borrower or any of its Subsidiaries or (ii) information and        documentation reasonably requested by the Administrative 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, in each case as the        Administrative Agent or any Lender may reasonably request.   The Borrower will furnish to the Administrative Agent, at the time it furnishes each set of  financial statements pursuant to clause (a) or (b) above, a Compliance Certificate, executed by an  Authorized Officer of the Borrower.                                         70     





 






     Information required to be delivered pursuant to clause (a), (b), (c) or (d) above shall be deemed   to have been delivered on the date on which (i) such information is actually delivered to the   Administrative Agent for distribution to the Lenders or (ii) such information (x) has been posted   by the Borrower on the Borrower’s website at www.wglholdings.com, or at www.sec.gov or   www.ferc.gov and (y) the Borrower provides notice to the Administrative Agent that such   information is available and specifies one or more of the above websites on which such   information is located.  At the request of the Administrative Agent, the Borrower will provide,   by electronic mail, electronic versions of all documents containing such information.          6.2   Litigation.  The Borrower shall promptly give to the Administrative Agent, for   distribution to each Lender, notice of all legal or arbitral proceedings, and of all proceedings   before any governmental or regulatory authority or agency, affecting the Borrower or its Material   Subsidiaries, except proceedings as to which there is no reasonable possibility of an adverse   determination or which, if adversely determined, would not have a Material Adverse Effect   during the term of this Agreement.          6.3   Corporate Existence, Compliance with Laws, Taxes, Examination of Books,   Insurance, etc.  The Borrower shall, and shall cause each of its Material Subsidiaries to: except in   a transaction permitted by Section 6.13, preserve and maintain its corporate existence and all of   its material rights, privileges and franchises if failure to maintain such existence, rights,   privileges or franchises would materially and adversely affect the financial condition or   operations of, or the business taken as a whole, of the Borrower and its Subsidiaries; comply   with the requirements of all Applicable Laws, rules, regulations and orders of governmental or   regulatory authorities (except Anti-Corruption Laws, Anti-Money Laundering Laws and   Sanctions), except if failure to comply with such requirements would not materially and   adversely affect the financial condition or operations of, or the business taken as a whole, of the   Borrower and its Subsidiaries; comply in all material respects with the requirements of all Anti- Corruption Laws, Anti-Money Laundering Laws and Sanctions; provide such information and  take such actions as are reasonably requested by the Administrative Agent or any Lender in order  to assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot  Act; pay and discharge all taxes, assessments and governmental charges or levies imposed on it  or on its income or profits or on any of its property prior to the date on which penalties attach  thereto, except for any such tax, assessment, charge or levy the payment of which is being  contested in good faith and by proper proceedings and against which adequate reserves are being  maintained, except proceedings as to which there is no reasonable possibility of an adverse  determination or which, if adversely determined, would not have a Material Adverse Effect;  maintain all of its properties used or useful in its business in good working order and condition,  ordinary wear and tear excepted and except to the extent that failure to do so could not  reasonably be expected to result in a Material Adverse Effect; permit representatives of any  Lender or the Administrative Agent, during normal business hours and with reasonable notice,  up to once per calendar year (unless an Event of Default shall have occurred and is continuing),  to examine, copy and make extracts from its books and records, to inspect its properties, and to  discuss its business and affairs with its officers, all to the extent reasonably requested by the  Administrative Agent or such Lender through the Administrative Agent (as the case may be);  and keep insured by financially sound and reputable insurers all property of a character usually  insured by corporations engaged in the same or similar business similarly situated against loss or                                          71      





 






     damage of the kinds and in the amounts customarily insured against by such corporations and   carry such other insurance as is usually carried by such corporations.         6.4   Use of Proceeds.  The Borrower shall use the proceeds of the Loans and Letters of   Credit hereunder for its general corporate purposes (in compliance with all applicable legal and   regulatory requirements) and as support for its obligations in respect of commercial paper.  The   Borrower shall not request any borrowing of Loans or the issuance of any Letter of Credit, and   the Borrower shall not use, and the Borrower shall cause its Subsidiaries and its or their  respective directors, officers and employees not to use, the proceeds of any Loans or Letter of   Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or   giving of money, or anything else of value, to any Person in violation of any Anti- Corruption   Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or   transaction of or with any Sanctioned Person, or in any Sanctioned Country or (iii) in any   manner that would result in the violation of any Sanctions applicable to any party hereto.         6.5   Environmental Covenant.  The Borrower will, and will cause each of its   Subsidiaries to:                (a)   use and operate all of its facilities and properties in compliance with all         Environmental Laws except for such noncompliance which, singly or in the aggregate,         will not have a Material Adverse Effect during the term of this Agreement, keep all         necessary permits, approvals, certificates, licenses and other authorizations relating to        environmental matters in effect and remain in compliance therewith, except where the        failure to keep such permits, approvals, certificates, licenses or other authorizations, or        any noncompliance with the provisions thereof, will not have a Material Adverse Effect        during the term of this Agreement, and handle all Hazardous Materials in compliance        with all applicable Environmental Laws, except for any noncompliance that will not have        a Material Adverse Effect during the term of this Agreement;               (b)   immediately notify the Administrative Agent and provide copies upon        receipt of all written inquiries from any Governmental Authority, claims, complaints or        notices relating to the condition of its facilities and properties or compliance with        Environmental Laws which will have a Material Adverse Effect during the term of this        Agreement; and               (c)   provide such information and certifications which the Administrative        Agent may reasonably request from time to time to evidence compliance with this        Section 6.5.          6.6   Financial Covenant.  The Borrower will not permit the ratio of (i) its Consolidated   Financial Indebtedness to (ii) its Consolidated Total Capitalization to exceed 0.65 to 1.0 at any   time.           6.7   Local Regulatory Commission Approval.  The Borrower shall promptly notify the   Administrative Agent in the event that the borrowing of any Loan by the Borrower will require   the approval of the Public Service Commission of the District of Columbia, the Public Service   Commission of Maryland, or the State Corporation Commission of Virginia.  The Borrower will                                          72      





 






   obtain any such required approval prior to the time such approval is required.  Promptly upon  receipt of any such approval, the Borrower will furnish a copy thereof to the Administrative  Agent.         6.8   Beneficial Ownership Certification.  The Borrower shall (a) promptly give to the  Administrative Agent and each Lender notice of any change in the information provided in the  Beneficial Ownership Certificate that would result in a change to the list of beneficial owners  identified therein and (b) promptly upon the reasonable request of the Administrative Agent or  any Lender, provide the Administrative Agent or such Lender, as the case may be, any  information or documentation requested by it for purposes of complying with the Beneficial  Ownership Regulation.         6.9   Compliance with Anti-Corruption Laws, Anti-Money Laundering Laws and  Sanctions.  The Borrower will maintain in effect and enforce policies and procedures designed to  ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers,  employees and agents with all Anti-Corruption Laws, Anti-Money Laundering Laws and  applicable Sanctions.         6.10  Negative Pledge.  Except for Permitted Liens, the Borrower shall not, nor shall it  permit any Material Subsidiary to, create, incur, assume or suffer to exist any Lien upon or with  respect to any of its undertaking, business, revenues or income, properties, rights or assets,  whether now owned or hereafter acquired, unless it causes the Obligations to be secured equally  and ratably with such Lien and causes the creditors in respect of such Lien to have entered into  an intercreditor agreement in form, scope and substance reasonably satisfactory to the  Administrative Agent.         6.11  Subsidiary Debt Limitation.  The Borrower shall not permit any Material  Subsidiary to create, incur, assume, permit to exist or otherwise become liable for an amount of  Indebtedness (but excluding Permitted Indebtedness) which, in the aggregate, exceeds  $200,000,000.         6.12  Change of Business.  The Borrower shall not, nor shall it permit any Material  Subsidiary to, change in any material respect the nature of the business or operations of the  Borrower and the Material Subsidiaries taken as a whole from activities relating to the energy  sector.         6.13  Fundamental Changes.  The Borrower shall not, nor shall it permit any of its  Material Subsidiaries to, merge, dissolve, liquidate, consolidate with or into another Person, or  Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its  assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so  long as no Unmatured Default or Event of Default exists or would result therefrom:         (i)   any Material Subsidiary of the Borrower may merge or consolidate with, or  Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to, the  Borrower or to another Subsidiary of the Borrower (provided, that in the case of any such  transaction involving the Borrower, the Borrower shall be the surviving entity or transferee);                                          73     





 






           (ii)  any Material Subsidiary of the Borrower may merge or consolidate with any other   Person, provided that the surviving entity is a Material Subsidiary of the Borrower; and          (iii) the Borrower may merge or consolidate with any other Person, provided that the   Borrower is the surviving entity.                                    ARTICLE VII                                                                         EVENTS OF DEFAULT          The occurrence of any one or more of the following events shall constitute an Event of   Default:          7.1   The Borrower fails to pay (i) when and as required to be paid herein, any amount   of principal of any Loan or any Reimbursement Obligation, or (ii) within three (3) Business Days   after the same becomes due, any interest on any Loan or any fee due hereunder, or (iii) within   five (5) Business Days after the same becomes due, any other amount payable hereunder or   under any other Loan Document.          7.2  The Borrower or any of its Material Subsidiaries (i) shall default in the payment   when due of any principal of or interest on any of its other Indebtedness having an aggregate   principal amount of at least $25,000,000, (ii) shall default under any Hedge Agreement covering   a notional amount of Indebtedness of at least $25,000,000, (iii) or fails to observe or perform any   other agreement or condition relating to any note, agreement, indenture or other document   evidencing or relating to any such Indebtedness; or any other event occurs, the effect of which is   to cause, or (with the giving of any notice or the lapse of time or both) to permit the holder or   holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,   such Indebtedness to become due prior to its stated maturity.          7.3   Any representation, warranty or certification made or deemed made herein by the   Borrower, or any certificate furnished to any Lender or the Administrative Agent pursuant to the   provisions hereof, shall prove to have been false or misleading as of the time made, deemed   made, or furnished in any material respect.          7.4   The Borrower shall default in the performance of its obligations under   Section 6.1(e), 6.6, 6.10, 6.11, 6.12 and 6.13 hereof.          7.5   The Borrower shall default in the performance of any of its other obligations in   this Agreement and such default shall continue unremedied for a period of thirty (30) days after   the earlier of (i) the date on which a senior officer of the Borrower becomes aware of such   default, or (ii) the date on which notice thereof is given to the Borrower by the Administrative   Agent or any Lender (through the Administrative Agent).          7.6  The Borrower or any of its Material Subsidiaries shall admit in writing its  inability to, or be generally unable to, pay its debts as such debts become due.         7.7   The Borrower or any of its Material Subsidiaries shall (i) apply for or consent to  the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of                                          74      





 






     itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit   of its creditors, (iii) commence a voluntary case under the Bankruptcy Code (as now or hereafter   in effect), (iv) file a petition seeking to take advantage of any other law relating to bankruptcy,   insolvency, reorganization, winding-up, or composition or readjustment of debts, (v) fail to   controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed   against it in an involuntary case under the Bankruptcy Code, or (vi) take any corporate action for  the purpose of effecting any of the foregoing.         7.8    A proceeding or case shall be commenced, without the application or consent of  the Borrower or any of its Material Subsidiaries, in any court of competent jurisdiction, seeking  (i) its liquidation, reorganization, dissolution or winding-up, or the composition or readjustment  of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of the  Borrower or such Material Subsidiary or of all or any substantial part of its assets, or (iii) similar  relief in respect of the Borrower or such Material Subsidiary under any law relating to   bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, and   such proceeding or case shall continue undismissed, or an order, judgment or decree approving  or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period  of sixty (60) days; or an order for relief against the Borrower or such Material Subsidiary shall  be entered in an involuntary case under the Bankruptcy Code.         7.9    A final judgment or judgments for the payment of money in excess of  $50,000,000 in the aggregate that is not covered by insurance, performance bonds or the like  shall be rendered by a court or courts against the Borrower or any of its Subsidiaries, and the  same shall not be discharged (or provision shall not be made for such discharge), or a stay of   execution thereof shall not be procured, within ninety (90) days from the date of entry thereof   and the Borrower or the relevant Subsidiary shall not, within said period of ninety (90) days, or   such longer period during which execution of the same shall have been stayed, appeal therefrom   and cause the execution thereof to be stayed during such appeal.          7.10  Any of the following events shall occur with respect to any Pension Plan:          (i)   the institution of any steps by the Borrower, any member of its Controlled Group   or any other Person to terminate a Pension Plan if, as a result of such termination, the Borrower   or any such member could be required to make a contribution to such Pension Plan, or could   reasonably expect to incur a liability or obligation to such Pension Plan, in excess of   $50,000,000; or          (ii)  the complete or partial withdrawal from any Pension Plan by the Borrower or any   member of its Controlled Group if, as a result of such withdrawal, the Borrower or any such   member could incur any liability by such Pension Plan in excess of $50,000,000; or          (iii) a contribution failure occurs with respect to any Pension Plan sufficient to give   rise to a Lien under section 303(k) of ERISA.          7.11  Any license, consent, authorization or approval, filing or registration now or   hereafter necessary to enable the Borrower to comply with its obligations hereunder or under the                                           75      





 






     Notes shall be revoked, withdrawn, withheld or not effected or shall cease to be in full force and  effect.         7.12  The occurrence of any Change in Control.                                    ARTICLE VIII                                                              REMEDIES, WAIVERS AND AMENDMENTS         8.1   Remedies Upon Event of Default.  If any Event of Default occurs and is   continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the   Required Lenders, take any or all of the following actions:                8.1.1 declare the commitment of each Lender to make Loans and any obligation   of the Issuing Banks to issue Letters of Credit to be terminated, whereupon such commitments   and obligation shall be terminated;                 8.1.2 declare the unpaid principal amount of all outstanding Loans, all interest   accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any   other Loan Document to be immediately due and payable, without presentment, demand, protest   or other notice of any kind, all of which are hereby expressly waived by the Borrower;                 8.1.3 require that the Borrower Cash Collateralize the aggregate Stated Amount   of outstanding Letters of Credit (in an amount equal to 102% of the aggregate Stated Amount   thereof); and                8.1.4 exercise on behalf of itself, the Lenders and the Issuing Banks all rights   and remedies available to it, the Lenders and the Issuing Banks under the Loan Documents;          provided, however, that upon the occurrence of any Event of Default described in Section   7.6, 7.7 or 7.8 with respect to the Borrower, the obligation of each Lender to make Loans and   any obligation of any Issuing Bank to issue Letters of Credit shall automatically terminate, the   unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid   shall automatically become due and payable, and the obligation of the Borrower to Cash   Collateralize the aggregate Stated Amount of Letters of Credit as aforesaid shall automatically   become effective, in each case without further act of the Administrative Agent or any Lender.          If, within thirty (30) days after acceleration of the maturity of the Obligations or   termination of the obligations of the Lenders to make Loans hereunder as a result of any Event of   Default (other than any Event of Default as described in Section 7.6, 7.7 or 7.8) and before any   judgment or decree for the payment of the Obligations due shall have been obtained or entered,   the Required Lenders (in their sole discretion) shall so direct, the Administrative Agent shall, by   notice to the Borrower, rescind and annul such acceleration and/or termination.          8.2   Amendments.  Subject to the provisions of this Article VIII, the Required Lenders   (or the Administrative 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                                          76      





 






     the Borrower hereunder or waiving any Event of Default hereunder; provided, however, that no   such supplemental agreement shall, without the consent of each Lender affected thereby:          (i)   Extend the final maturity of any Loan or forgive all or any portion of the principal   amount thereof, or reduce the rate or extend the time of payment of interest or fees thereon   (subject to clause (iii) of the third to last paragraph of this Section 8.2);          (ii)  Increase any Commitment of any such Lender over the amount thereof in effect or   extend the maturity thereof (it being understood that a waiver of any condition precedent set   forth in Section 4.2 or of any Unmatured Default or Event of Default or mandatory reduction in   the Commitments, if agreed to by the Required Lenders or all Lenders (as may be required  hereunder with respect to such waiver), shall not constitute such an increase);         (iii) Reduce the percentage specified in the definition of Required Lenders;         (iv)  Extend the Facility Termination Date (except as set forth in Section 2.6), reduce   the amount or extend the payment date for, the mandatory payments required under Section   2.1.2, increase the amount of the Commitment of such Lender hereunder (without the consent of   such Lender), or permit the Borrower to assign its rights under this Agreement;          (v)   Alter any provision in this Agreement providing for the pro rata treatment of the   Lenders;          (vi)  Amend this Section 8.2 or any provision of this Agreement requiring the consent   or other action of all of the Lenders; or           (vii) Unless agreed to in writing by the Issuing Banks, the Swingline Lender or the   Administrative Agent in addition to the Lenders required as provided hereinabove to take such   action, affect the respective rights or obligations of the Issuing Bank, the Swingline Lender or   the Administrative Agent, as applicable, hereunder or under any of the other Loan Documents.    Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as   set forth above, each Lender is entitled to vote as such Lender sees fit on any bankruptcy   reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of   Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth   herein.    Notwithstanding anything to the contrary herein, (i) 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,  (ii) if the Administrative Agent and the Borrower shall have jointly identified (each in its sole  discretion) an obvious error or omission of a technical or immaterial nature, in each case, in any  provision of the Loan Documents, then the Administrative Agent and the Borrower shall be                                          77      





 






     permitted to amend such provision and such amendment shall become effective without any   further action or consent of any other party to any Loan Document if the same is not objected to   in writing by the Required Lenders within five (5) Business Days following the posting of such   amendment to the Lenders and (iii) the Administrative Agent and the Borrower may, without the  consent of any Lender, enter into amendments or modifications to this Agreement or any of the  other Loan Documents or enter into additional Loan Documents as the Administrative Agent  reasonably deems appropriate in order to implement any Benchmark Replacement or otherwise  effectuate the terms of Section 2.18.6 in accordance with the terms of Section 2.18.6.    No amendment of any provision of this Agreement relating to the Administrative Agent shall be   effective without the written consent of the Administrative Agent.  The Administrative Agent   may waive payment of the fee required under Section 12.3.2 without obtaining the consent of   any other party to this Agreement.    Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably   authorizes the Administrative Agent on its behalf, and without further consent of any Lender (but   with the consent of the Borrower and the Administrative Agent), to amend and restate this   Agreement if, upon giving effect to such amendment and restatement, such Lender shall no   longer be a party to this Agreement (as so amended and restated), the Commitments of such   Lender shall have terminated, such Lender shall have no other commitment or other obligation   hereunder and shall have been paid in full all principal, interest and other amounts owing to it or   accrued for its account under this Agreement.          8.3   Preservation of Rights.  No delay or omission of the Lenders or the   Administrative Agent to exercise any right under the Loan Documents shall impair such right or  be construed to be a waiver of any Event of Default or an acquiescence therein, and the making  of a Loan notwithstanding the existence of an Event of 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 Administrative 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 during the period that the Loans herein contemplated   are outstanding.          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 Law.                                          78      





 






           9.3   Headings.  Headings to Articles, Sections and subsections of, and Annexes,   Schedules and Exhibits to, 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 Administrative Agent and the Lenders and supersede all   prior agreements and understandings among the Borrower, the Administrative 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 Administrative 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, however, that the parties hereto expressly agree that   the Arrangers shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 9.11 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.                  9.6.1 Expenses.  The Borrower shall pay:           (i)   the Administrative Agent and the Arrangers for any reasonable costs, internal   charges and out-of-pocket expenses (including attorneys’ fees and time charges of attorneys for   the Administrative Agent, which attorneys may be employees of the Administrative Agent) paid   or incurred by the Administrative Agent or the Arrangers, and their respective Affiliates, in   connection with the preparation, negotiation, execution, delivery, syndication, review,   amendment, modification, and administration of the Loan Documents;          (ii)  the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders for   any reasonable costs, internal charges and out-of-pocket expenses (including attorneys’ fees and   time charges of attorneys for the Administrative Agent, the Arrangers, the Issuing Banks and the   Lenders, which attorneys may be employees of the Administrative Agent, the Arrangers, the   Issuing Banks or the Lenders) paid or incurred by the Administrative Agent, the Arrangers, the   Issuing Banks or any Lender in connection with the collection and enforcement of its rights (A)  in connection with this Agreement and the other Loan Documents, including its rights under this   Section 9.6, or (B) in connection with the Loans made or Letters of Credit issued hereunder,   including all such out-of-pocket expenses incurred during any workout, restructuring or   negotiations in respect of such Loans or Letters of Credit;          (iii) the Issuing Banks in connection with the issuance of any Letter of Credit or   demand for payment thereunder; and          (iv)  any civil penalty or fine assessed by OFAC against, and all reasonable costs and   expenses (including counsel fees and disbursements) incurred in connection with defense thereof                                          79      





 






     by, the Administrative Agent, any Issuing Bank or any Lender as a result of conduct of the   Borrower that violates a sanction enforced by OFAC.                  9.6.2 Indemnification by the Borrower.  The Borrower shall indemnify the   Administrative Agent (and any sub-agent thereof), each Lender, each Issuing Bank and each   Related Party of any of the foregoing persons (each such person being called an “Indemnitee”)   against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities,   penalties and related expenses (including the fees, charges and disbursements of any counsel for   any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any Person   (including the Borrower and any of its Subsidiaries) other than such Indemnitee and its Related   Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this   Agreement, any other Loan Document or any agreement or instrument contemplated hereby or   thereby, the performance by the parties hereto of their respective obligations hereunder or   thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any   Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any   refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the   documents presented in connection with such demand do not strictly comply with the terms of   such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Material on or   from any property owned or operated by the Borrower of any of its Subsidiaries, or any   environmental claim related in any way to the Borrower or its Subsidiaries, or (iv) any actual or   prospective claim, litigation, investigation or proceeding relating to any of the foregoing,   whether based on contract, tort or any other theory, whether brought by a third party or by the  Borrower or its Subsidiaries, and regardless of whether any Indemnitee is a party thereto;  provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such  losses, claims, damages, liabilities or related expenses (x) are determined by a court of   competent jurisdiction by final and nonappealable judgment to have resulted from the gross   negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the   Borrower or any of its Subsidiaries against an Indemnitee for breach in bad faith of such   Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such   Subsidiary has obtained a final and nonappealable judgment in its favor on such claim as   determined by a court of competent jurisdiction.  This Section 9.6.2 shall not apply with respect   to Taxes other than any Taxes that represent losses, claims, damages or related liabilities or  expenses arising from any non-Tax claim.                9.6.3 Payments on Demand.  All amounts due under this Section 9.6 shall be   payable by the Borrower upon demand therefor.          9.7   Numbers of Documents.  All statements, notices, closing documents, and requests   hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the   Administrative 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 GAAP, except that any calculation or determination which is to be made on a   consolidated basis shall be made for the Borrower and all its Subsidiaries, including those   Subsidiaries, if any, which are unconsolidated on the Borrower’s audited financial statements.                                          80      





 






           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.  To the extent   permitted by Applicable Law, the Borrower hereby waives any provision of Applicable Law that   renders any provision of the Loan Documents prohibited or unenforceable in any respect.          9.10  Nonliability of Lenders; No Advisory or Fiduciary Responsibility.                  9.10.1 The Borrower agrees that neither the Administrative Agent, the Arrangers  nor any Lender shall have liability to the Borrower (whether sounding in tort, contract or  otherwise) 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, unless it is  determined in a final non-appealable judgment by a court of competent jurisdiction that such  losses resulted from the gross negligence or willful misconduct of the party from which recovery   is sought.  Neither the Administrative Agent, the Arrangers nor any Lender shall have any   liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, any  special, indirect, punitive or consequential damages suffered by the Borrower in connection with,   arising out of, or in any way related to the Loan Documents or the transactions contemplated   thereby.                9.10.2 In connection with all aspects of each transaction contemplated hereby,  the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i)  the facilities provided for hereunder and any related arranging or other services in connection  therewith (including in connection with any amendment, waiver or other modification hereof or  of any other Loan Document) are an arm’s-length commercial transaction between the Borrower  and its Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders,   on the other hand, and the Borrower is capable of evaluating and understanding and understands   and accepts the terms, risks and conditions of the transactions contemplated hereby and by the   other Loan Documents (including any amendment, waiver or other modification hereof or   thereof), (ii) in connection with the process leading to such transaction, each of the   Administrative Agent, the Arrangers and the Lenders is and has been acting solely as a principal   and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates,   stockholders, creditors or employees or any other Person, (iii) none of the Administrative Agent,   the Arrangers or the Lenders has assumed or will assume an advisory, agency or fiduciary   responsibility in favor of the Borrower with respect to any of the transactions contemplated   hereby or the process leading thereto, including with respect to any amendment, waiver or other   modification hereof or of any other Loan Document (irrespective of whether any Arranger or   Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters)   and none of the Administrative Agent, the Arrangers or the Lenders has any obligation to the   Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby   except those obligations expressly set forth herein and in the other Loan Documents, (iv) the  Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of   transactions that involve interests that differ from, and may conflict with, those of the Borrower   and its Affiliates, and none of the Administrative Agent, the Arrangers or the Lenders has any                                          81      





 






     obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary   relationship and (v) the Administrative Agent, the Arrangers and the Lenders have not provided   and will not provide any legal, accounting, regulatory or tax advice with respect to any of the   transactions contemplated hereby (including any amendment, waiver or other modification   hereof or of any other Loan Document) and the Borrower has consulted its own legal,  accounting, regulatory and tax advisors to the extent it has deemed appropriate.               9.10.3 The Borrower acknowledges and agrees that each Lender, the Arrangers  and any Affiliate thereof may lend money to, invest in, and generally engage in any kind of   business with, any of the Borrower, any Affiliate thereof or any other person or entity that may   do business with or own securities of any of the foregoing, all as if such Lender, Arranger or   Affiliate thereof were not a Lender or Arranger or an Affiliate thereof (or an agent or any other   person with any similar role under this Agreement) and without any duty to account therefor to   any other Lender, the Arrangers, the Borrower or any Affiliate of the foregoing.          9.11  Confidentiality.  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 Applicable Law, (v) to any   Person in connection with any legal proceeding to which such 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, and (vii) permitted by   Section 12.4.          9.12  Disclosure.  The Borrower and each Lender hereby acknowledge and agree that   the Administrative Agent and/or its Affiliates from time to time may hold investments in, make   other loans to or have other relationships with the Borrower and its Affiliates.          9.13  Rights Cumulative.  Each of the rights and remedies of the Administrative Agent   and the Lenders under the Loan Documents shall be in addition to all of their other rights and   remedies under the Loan Documents and Applicable Law, and nothing in the Loan Documents   shall be construed as limiting any such rights or remedies.          9.14  Co-Syndication Agents.  The Co-Syndication Agents shall have no liability or   obligation whatsoever to the Borrower, the Administrative Agent or any Lender at any time   under this Agreement, other than its obligations as a Lender hereunder.          9.15  Acknowledgment and Consent to Bail-In of EEA Financial Institutions.    Notwithstanding anything to the contrary in any Loan Document or in any other agreement,   arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any EEA Financial Institution arising under any Loan Document, to the extent such  liability is unsecured, may be subject to the write-down and conversion powers of an EEA   Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:                                           82      





 






         (a)   the application of any Write-Down and Conversion Powers by an EEA Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto  that is an EEA Financial Institution; and         (b)   the effects of any Bail-in Action on any such liability, including, if applicable:              (1)    a reduction in full or in part or cancellation of any such liability;               (2)   a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge  institution that may be issued to it or otherwise conferred on it, and that such shares or other  instruments of ownership will be accepted by it in lieu of any rights with respect to any such  liability under this Agreement or any other Loan Document; or               (3)   the variation of the terms of such liability in connection with the exercise  of the write-down and conversion powers of any EEA Resolution Authority.         9.16  Certain ERISA Matters.         (i)   Each Lender (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party  hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the  Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or  any of its Subsidiaries, 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 Benefit Plans with respect to such Lender’s        entrance into, participation in, administration of and performance of the Loans, the        Letters of Credit, 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 Letters of Credit, the Commitments and this        Agreement,               (c)   (1) such Lender is an investment fund managed by a “Qualified        Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (2) 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 Letters of        Credit, the Commitments and this Agreement, (3) the entrance into, participation in,        administration of and performance of the Loans, the Letters of Credit, the Commitments        and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of                                         83     





 






           PTE 84-14 and (4) 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 Letters of Credit, the         Commitments and this Agreement, or                (d)   such other representation, warranty and covenant as may be agreed in         writing between the Administrative Agent, in its sole discretion, and such Lender.          (ii)  In addition, unless either (1) sub-clause (a) in the immediately preceding clause   (i) is true with respect to a Lender or (2) a Lender has provided another representation, warranty   and covenant in accordance with sub-clause (d) in the immediately preceding clause (i), such   Lender further (x) represents and warrants, as of the date such Person became a Lender party   hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date   such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and   not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries,   that the Administrative 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 Letters of Credit, the Commitments and this Agreement (including in connection   with the reservation or exercise of any rights by the Administrative Agent under this Agreement,   any Loan Document or any documents related hereto or thereto).          9.17  Acknowledgment Regarding Any Supported QFCs.  To the extent that the Loan   Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any  other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such   QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the   resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit   Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act   (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”)   in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable   notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be   governed by the laws of the State of New York and/or of the United States or any other state of   the United States):           (i)   In the event a Covered Entity that is party to a Supported QFC (each, a “Covered   Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of   such Supported QFC and the benefit of such QFC Credit Support (and any interest and   obligation in or under such Supported QFC and such QFC Credit Support, and any rights in  property securing such Supported QFC or such QFC Credit Support) from such Covered Party  will be effective to the same extent as the transfer would be effective under the U.S. Special  Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,  obligation and rights in property) were governed by the laws of the United States or a state of the  United States.  In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes  subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan  Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that  may be exercised against such Covered Party are permitted to be exercised to no greater extent  than such Default Rights could be exercised under the U.S. Special Resolution Regime if the  Supported QFC and the Loan Documents were governed by the laws of the United States or a                                          84      





 






     state of the United States.  Without limitation of the foregoing, it is understood and agreed that   rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the   rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.          (ii)  As used in this Section 9.17, the following terms have the following meanings:           “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and         interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.         “Covered Entity” means any of the following:                (i)   a “covered entity” as that term is defined in, and interpreted in accordance                     with, 12 C.F.R. § 252.82(b);                (ii)  a “covered bank” as that term is defined in, and interpreted in accordance                     with, 12 C.F.R. § 47.3(b); or                (iii)  a “covered FSI” as that term is defined in, and interpreted in accordance                     with, 12 C.F.R. § 382.2(b).          “Default Right” has the meaning assigned to that term in, and shall be interpreted in         accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.          “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall         be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).                                     ARTICLE X                                                                    THE ADMINISTRATIVE AGENT          10.1  Appointment and Authority.  Each of the Lenders (for purposes of this Article X,   references to the Lenders shall also mean the Issuing Bank and the Swingline Lender) hereby  irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent hereunder and   under the other Loan Documents and authorizes the Administrative Agent to take such actions on   its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms   hereof or thereof, together with such actions and powers as are reasonably incidental thereto.    Except as set forth in Section 10.6, the provisions of this Article X are solely for the benefit of   the Administrative Agent and the Lenders, and neither the Borrower nor of its Subsidiaries shall   have rights as a third-party beneficiary of any of such provisions.  It is understood and agreed   that the use of the term “agent” (or any other similar term) herein or in any other Loan Document   with reference to the Administrative Agent is not intended to connote any fiduciary or other   implied (or express) obligations under agency doctrine of any Applicable Law.  Instead, such   term is used as a matter of market custom, and is intended to create or reflect only an   administrative relationship between contracting parties.          10.2  Rights as a Lender.  The Person serving as the Administrative Agent hereunder   shall have the same rights and powers in its capacity as a Lender as any other Lender and may   exercise the same as though it were not the Administrative Agent, and the term “Lender” or                                          85      





 






     “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,   include the Person serving as the Administrative Agent hereunder in its individual capacity.    Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as   the financial advisor or in any other advisory capacity for and generally engage in any kind of   business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were   not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.         10.3  Exculpatory Provisions.                10.3.1 The Administrative Agent shall not have any duties or obligations except   those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall   be administrative in nature.  Without limiting the generality of the foregoing, the Administrative   Agent:          (i)   shall not be subject to any fiduciary or other implied duties, regardless of whether   an Unmatured Default or Event of Default has occurred and is continuing;          (ii)  shall not have any duty to take any discretionary action or exercise any   discretionary powers, except discretionary rights and powers expressly contemplated hereby or   by the other Loan Documents that the Administrative Agent is required to exercise as directed in   writing by the Required Lenders (or such other number or percentage of the Lenders as shall be   expressly provided for herein or in the other Loan Documents); provided that the Administrative   Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,   may expose the Administrative Agent to liability or that is contrary to any Loan Document or   Applicable Law, including, for the avoidance of doubt, any action that may be in violation of the   automatic stay under the Bankruptcy Code or under other applicable bankruptcy, insolvency or   similar law now or hereafter in effect or that may effect a forfeiture, modification or termination  of property of a Defaulting Lender in violation of the Bankruptcy Code or any other applicable   bankruptcy insolvency or similar law now or hereafter in effect; and         (iii) shall not, except as expressly set forth herein and in the other Loan Documents,  have any duty to disclose, and shall not be liable for the failure to disclose, any information  relating to the Borrower or any of its Affiliates that is communicated to or obtained by the  Person serving as the Administrative Agent or any of its Affiliates in any capacity.               10.3.2 The Administrative Agent shall not be liable for any action taken or not  taken by it (i) with the consent or at the request of the Required Lenders (or such other number   or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe   in good faith shall be necessary, under the circumstances as provided in Sections 8.2 and 8.1), or   (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of   competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be   deemed not to have knowledge of any Unmatured Default or Event of Default unless and until   notice describing such Unmatured Default or Event of Default is given to the Administrative   Agent in writing by the Borrower or a Lender.                10.3.3 The Administrative Agent shall not be responsible for or have any duty to   ascertain or inquire into (i) any statement, warranty or representation made in or in connection                                          86      





 






     with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or   other document delivered hereunder or thereunder or in connection herewith or therewith,   (iii) the performance or observance of any of the covenants, agreements or other terms or   conditions set forth herein or therein or the occurrence of any Unmatured Default or Event of   Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any   other Loan Document or any other agreement, instrument or document or (v) the satisfaction of   any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items   expressly required to be delivered to the Administrative Agent.          10.4  Reliance by Administrative Agent.  The Administrative Agent shall be entitled to   rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,   consent, statement, instrument, document or other writing (including any electronic message,   internet or intranet website posting or other distribution) believed by it to be genuine and to have   been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent   also may rely upon any statement made to it orally or by telephone and believed by it to have   been made by the proper Person, and shall not incur any liability for relying thereon.  In   determining compliance with any condition hereunder to the making of a Loan, or the issuance,   extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the   satisfaction of a Lender or the Issuing Bank, the Administrative Agent may presume that such   condition is satisfactory to such Lender or the Issuing Bank unless the Administrative Agent   shall have received notice to the contrary from such Lender or the Issuing Bank prior to the   making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit.    The Administrative Agent may consult with legal counsel (who may be counsel for the   Borrower), independent accountants and other experts selected by it, and shall not be liable for  any action taken or not taken by it in accordance with the advice of any such counsel,  accountants or experts.         10.5  Delegation of Duties.  The Administrative Agent may perform any and all of its   duties and exercise its rights and powers hereunder or under any other Loan Document by or   through any one or more sub-agents appointed by the Administrative Agent.  The Administrative   Agent and any such sub-agent may perform any and all of its duties and exercise its rights and   powers by or through their respective Related Parties.  The exculpatory provisions of this Article   shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any   such sub-agent, and shall apply to their respective activities in connection with the syndication of   the credit facilities provided for herein as well as activities as Administrative Agent.  The   Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent   except to the extent that a court of competent jurisdiction determines in a final and   nonappealable judgment that the Administrative Agent acted with gross negligence or willful   misconduct in the selection of such sub-agent.          10.6  Resignation of Administrative Agent.                10.6.1 Resignation Effective Date.  The Administrative Agent may at any time   give notice of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice   of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to   appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of   any such bank with an office in the United States.  If no such successor shall have been so                                          87      





 






     appointed by the Required Lenders and shall have accepted such appointment within thirty (30)   days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as   shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring   Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a  successor Administrative Agent meeting the qualifications set forth above.  Regardless of  whether a successor has been appointed or has accepted such appointment, such resignation shall  become effective in accordance with such notice on the Resignation Effective Date.               10.6.2 Discharge of Duties After Resignation.  With effect from the Resignation   Effective Date, (i) the retiring Administrative Agent shall be discharged from its duties and   obligations hereunder and under the other Loan Documents (except that in the case of any   collateral security held by the Administrative Agent on behalf of the Lenders under any of the   Loan Documents, the retiring Administrative Agent shall continue to hold such collateral   security until such time as a successor Administrative Agent is appointed) and (ii) except for any   indemnity payments owed to the retiring Administrative Agent, all payments, communications   and determinations provided to be made by, to or through the Administrative Agent shall instead   be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a   successor Administrative Agent as provided for in Section 10.6.1.  Upon the acceptance of a   successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and  become vested with all of the rights, powers, privileges and duties of the retiring Administrative  Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent),   and the retiring Administrative Agent shall be discharged from all of its duties and obligations   hereunder or under the other Loan Documents.  The fees payable by the Borrower to a successor   Administrative Agent shall be the same as those payable to its predecessor unless otherwise   agreed between the Borrower and such successor.  After the retiring Administrative Agent’s   resignation hereunder and under the other Loan Documents, the provisions of this Article X and   Section 9.6 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-  agents and their respective Related Parties in respect of any actions taken or omitted to be taken   by any of them while the retiring Administrative Agent was acting as Administrative Agent.          10.7  Non-Reliance on Administrative Agent and Other Lenders.  Each Lender   acknowledges that it has, independently and without reliance upon the Administrative Agent or   any other Lender or any of their Related Parties and based on such documents and information as  it has deemed appropriate, made its own credit analysis and decision to enter into this  Agreement.  Each Lender also acknowledges that it will, independently and without reliance  upon the Administrative Agent or any other Lender or any of their Related Parties and based on  such documents and information as it shall from time to time deem appropriate, continue to make  its own decisions in taking or not taking action under or based upon this Agreement, any other  Loan Document or any related agreement or any document furnished hereunder or thereunder.         10.8  No Other Duties, etc.  Anything herein to the contrary notwithstanding, none of   the Arrangers, Co-Syndication Agents or other agents listed on the cover page hereof shall have  any powers, duties or responsibilities under this Agreement or any of the other Loan Documents,   except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.          10.9  Administrative Agent May File Proofs of Claim.  In case of the pendency of any   proceeding under the Bankruptcy Code or under other applicable bankruptcy, insolvency or                                          88      





 






     similar law now or hereafter in effect or any other judicial proceeding relative to the Borrower or   any of its Subsidiaries, the Administrative Agent (irrespective of whether the principal of any   Loan or Reimbursement Obligation shall then be due and payable as herein expressed or by   declaration or otherwise and irrespective of whether the Administrative Agent shall have made   any demand on the Borrower) shall be entitled and empowered (but not obligated) by   intervention in such proceeding or otherwise (i) to file and prove a claim for the whole amount of   the principal and interest owing and unpaid in respect of the Loans, Reimbursement Obligations   and all other Obligations that are owing and unpaid and to file such other documents as may be   necessary or advisable in order to have the claims of the Lenders and the Administrative Agent   (including any claim for the reasonable compensation, expenses, disbursements and advances of   the Lenders and the Administrative Agent and their respective agents, sub-agents and counsel   and all other amounts due the Lenders and the Administrative Agent under Sections 2.4 and 9.6)   allowed in such judicial proceeding and (ii) to collect and receive any monies or other property   payable or deliverable on any such claims and to distribute the same.  Any custodian, receiver,   assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding   is hereby authorized by each Lender to make such payments to the Administrative Agent and, in   the event that the Administrative Agent shall consent to the making of such payments to the   Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation,   expenses, disbursements and advances of the Administrative Agent and its agents, sub-agents   and counsel, and any other amounts due the Administrative Agent under Section 2.4 or 9.6.          10.10 Issuing Bank and Swingline Lender.  The provisions of this Article X (other than   Section 10.2) shall apply to the Issuing Bank and the Swingline Lender mutatis mutandis to the   same extent as such provisions apply to the Administrative Agent.                                     ARTICLE XI                                                                    SETOFF; RATABLE PAYMENTS          11.1  Setoff.  In addition to, and without limitation of, any rights of the Lenders under   Applicable Law, if the Borrower becomes insolvent, however evidenced, or any Event of Default   occurs and is continuing, each Lender, the Issuing Banks and each of their respective Affiliates is   hereby authorized at any time and from time to time, to the fullest extent permitted by   Applicable Law, to set off and apply any and all deposits (general or special, time or demand,   provisional or final, in whatever currency) at any time held, and other obligations (in whatever   currency) at any time owing, by such Lender, such Issuing Bank or any such Affiliate, to or for   the credit or the account of the Borrower against any and all of the obligations of the Borrower   now or hereafter existing under this Agreement or any other Loan Document to such Lender or   such Issuing Bank or their respective Affiliates, irrespective of whether or not such Lender, such   Issuing Bank or such Affiliate shall have made any demand under this Agreement or any other   Loan Document and although such obligations of the Borrower may be contingent or unmatured   or are owed to a branch, office or Affiliate of such Lender or such Issuing Bank different from  the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided   that in the event that any Defaulting Lender shall exercise any such right of setoff, (i) all amounts   so set off shall be paid over immediately to the Administrative Agent for further application in   accordance with the provisions of Section 2.18 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                                          89      





 






     Administrative Agent, the Issuing Banks and the Lenders (including the Swingline Lender), and   (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement   describing in reasonable detail the obligations owing to such Defaulting Lender as to which it  exercised such right of setoff.  The rights of each Lender, each Issuing Bank and their respective  Affiliates under this Section 11.1 are in addition to other rights and remedies (including other   rights of setoff) that such Lender, such Issuing Bank or their respective Affiliates may have.    Each Lender and each Issuing Bank agrees to notify the Borrower and the Administrative Agent   promptly after any such setoff and application; provided that the failure to give such notice shall   not affect the validity of such setoff and application.          11.2  Ratable Payments.  If any Lender, whether by setoff or otherwise, has payment   made to it upon Obligations owing to it in a greater proportion than that received by any other   Lender, such Lender agrees, promptly upon demand, to (i) notify the Administrative Agent of   such fact and (ii) purchase participations (for cash at face value) in the Obligations held by the   other Lenders so that after such acquisition each Lender will hold its ratable proportion of the   then-outstanding Obligations; provided that (i) if any such participations are purchased and all or   any portion of the payment giving rise thereto is recovered, such participations shall be rescinded   and the purchase price restored to the extent of such recovery, without interest, and (ii) the  provisions of this Section 11.2 shall not be construed to apply to (x) any payment made by the   Borrower pursuant to and in accordance with the express terms of this Agreement (including the   application of funds arising from the existence of a Defaulting Lender) or (y) any payment   obtained by a Lender as consideration for the assignment of or sale of a participation in any of its   Loans or participations in Reimbursement Obligations or Swingline Loans to any assignee or   Participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of   this Section 11.2 shall apply).  The Borrower consents to the foregoing and agrees, to the extent   it may effectively do so under Applicable Law, that any Lender acquiring a participation   pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and   counterclaim with respect to such participation as fully as if such Lender were a direct creditor of  the Borrower in the amount of such participation.  If under the Bankruptcy Code or under other  applicable bankruptcy, insolvency or similar law now or hereafter in effect, any Lender receives  a secured claim in lieu of a setoff to which this Section 11.2 applies, such Lender shall, to the   extent practicable, exercise its rights in respect of such secured claim in a manner consistent with   the rights of the Lenders entitled under this Section 11.2 to share in the benefits of any recovery   on such secured claim.  If any Lender, whether in connection with setoff or amounts which might   be subject to setoff or otherwise, receives collateral or other protection for its Obligations or   other 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 or other   protection ratably in proportion to their Loans.  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                                          90      





 






     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 and any Note to a Federal Reserve Bank;   provided, however, 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 Administrative 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, however, that the   Administrative Agent may in its discretion (but shall not be required to) follow instructions from   the Person which made any Loan or which holds any Note to direct payments relating to such   Loan or Note to another Person.  Any assignee of the rights to any Loan or any Note 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 (whether or not   a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent   holder or assignee of the rights to such Loan.          12.2  Participations.                12.2.1 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 Loan owing to such Lender, any Note   held by 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 Loans and the holder of any Note issued to  it in evidence thereof 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 Administrative Agent shall continue to deal   solely and directly with such Lender in connection with such Lender’s rights and obligations  under the Loan Documents.  Any agreement or instrument pursuant to which a Lender sells such  a participation shall provide that such Lender shall retain the sole right to enforce this Agreement  and to approve any amendment, modification or waiver of any provision of this Agreement;  provided that such agreement or instrument may provide that such Lender will not, without the   consent of the Participant, agree to any amendment, waiver or other modification described in  Section 8.2 that affects such Participant.  The Borrower agrees that each Participant shall be   entitled to the benefits of Sections 2.18.1, 2.18.2, 2.19, and 2.20 to the same extent as if it were a   Lender and had acquired its interest by assignment pursuant to Section 12.3; provided that such   Participant (A) agrees to be subject to the provisions of Section 2.21 as if it were an assignee   under Section 12.3 and (B) shall not be entitled to receive any greater payment under Section   2.18 or 2.19, with respect to any participation, than its participating Lender would have been   entitled to receive, except to the extent such entitlement to receive a greater payment results from   a Change in Law that occurs after the Participant acquired the applicable participation.  Each   Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable                                          91      





 






     efforts to cooperate with the Borrower to effectuate the provisions of Section 2.21 with respect to   any Participant.  To the extent permitted by law, each Participant also shall be entitled to the   benefits of Section 11.1 as though it were a Lender; provided that such Participant agrees to be   subject to Section 11.2 as though it were a Lender.  Each Lender that sells a participation shall,   acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on  which it enters the name and address of each Participant and the principal amounts (and stated  interest) of each Participant’s interest in the Loans or other Obligations under the Loan   Documents (the “Participant Register”); provided that no Lender shall have any obligation to   disclose all or any portion of the Participant Register (including the identity of any Participant or  any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit  or its other obligations under any Loan Document) to any Person except to the extent that such  disclosure is necessary to establish such Commitment, Loan, Letter of Credit or other obligation  is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The  entries in the Participant Register shall be conclusive absent manifest error, and such Lender  shall treat each Person whose name is recorded in the Participant Register as the owner of such  participation for all purposes of this Agreement.  For the avoidance of doubt, the Administrative  Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a  Participant Register.               12.2.2 Certain Pledges.  Any Lender may at any time pledge or assign a security   interest in all or any portion of its rights under this Agreement (including under its Notes, if any)   to secure obligations of such Lender, including any pledge or assignment to secure obligations to  a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender   from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender   as a party hereto.          12.3  Assignments.                12.3.1 Permitted Assignments.  Any Lender may, in the ordinary course of its   business and in accordance with Applicable Law, at any time assign to one or more banks or   other entities (“Purchasers”) all or any part of its rights and obligations under the Loan   Documents.  Such assignment shall be pursuant to an agreement substantially in the form of   Exhibit 12.3.1.  The consent of the Borrower and the Administrative Agent shall be required   prior to an assignment becoming effective with respect to a Purchaser which is not a Lender or   an Affiliate thereof; provided, however, that if an Event of Default has occurred and is   continuing, the consent of the Borrower shall not be required; provided further that the Borrower   shall be deemed to have consented to any such assignment unless it shall object thereto by   written notice to the Administrative Agent within five (5) Business Days after having received   notice thereof.  Such consent shall not be unreasonably withheld or delayed.  Each such   assignment with respect to a Purchaser which is not a Lender or an Affiliate thereof shall (unless   each of the Borrower and the Administrative Agent otherwise consents) be in an amount not less   than the lesser of (i) $5,000,000 or (ii) the remaining amount of the assigning Lender’s   Commitment (calculated as of the date of such assignment) or outstanding Loans (if the   applicable Commitment has been terminated).  The consent of the Issuing Banks (such consent   not to be unreasonably withheld or delayed) shall be required for any assignment that increases   the obligation of the assignee to participate in exposure under one or more Letters of Credit   (whether or not then outstanding).  The consent of the Swingline Lender (such consent not to be                                          92      





 






     unreasonably withheld or delayed) shall be required for any assignment hereunder.  No such   assignment shall be made to (A) a natural person, (B) the Borrower or any of its respective  Affiliates or Subsidiaries or (C) to any Defaulting Lender or any of its Subsidiaries, or any  Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons  described in this clause.               12.3.2 Effect; Effective Date.  Upon (i) delivery to the Administrative Agent of   an assignment, together with any consents required by Section 12.3.1, and (ii) payment of a   $3,500 fee to the Administrative Agent for processing such assignment (unless such fee is   waived by the Administrative Agent), such assignment shall become effective on the effective   date specified in such assignment.  On and after the effective date of such assignment, such   Purchaser shall for all purposes be a Lender party to this Agreement and any other Loan   Document executed by or on behalf of the Lenders and shall have all the rights and obligations   of a Lender under the Loan Documents, to the same extent as if it were an original party hereto,   and no further consent or action by the Borrower, the Lenders or the Administrative Agent shall   be required to release the transferor Lender with respect to the percentage of the Aggregate   Commitments assigned to such Purchaser but such transferor Lender shall continue to be entitled   to the benefits of Sections 2.18.1, 2.18.2, 2.19, and 2.20 with respect to facts and circumstances   occurring prior to the effective date of such assignment; provided that, except to the extent   otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will  constitute a waiver or release of any claim of any party hereunder arising from such Lender’s  having been a Defaulting Lender.  Upon the consummation of any assignment to a Purchaser  pursuant to this Section 12.3.2, the transferor Lender, the Administrative Agent and the   Borrower shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced by   Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement Notes   are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are   issued to such Purchaser, in each case in principal amounts reflecting their respective   Commitments, as adjusted pursuant to such assignment.  Any assignment or transfer by a Lender   of rights or obligations under this Agreement that does not comply with this paragraph 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 12.2.2.                12.3.3 Assignments by a Defaulting Lender.  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 Administrative Agent in an   aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright   payment, purchases by the assignee of participations or subparticipations, or other compensating   actions, including funding, with the consent of the Borrower and the Administrative Agent, the   Applicable Percentage of Loans previously requested but not funded by the Defaulting Lender,   to each of which the applicable assignee and assignor hereby irrevocably consent), to (i) pay and   satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative   Agent or any Lender hereunder (and interest accrued thereon), and (ii) acquire (and fund as   appropriate) its full share of all Loans and participations in Letters of Credit and Swingline   Loans in accordance with its Applicable Percentage.  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                                          93      





 






     the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this   Agreement until such compliance occurs.                12.3.4 Register.  The Administrative Agent, acting solely for this purpose as a   non-fiduciary agent of the Borrower, shall maintain at its address for notices referred to in   Schedule 1.1-B 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 (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof   from time to time (the “Register”).  The entries in the Register shall be conclusive absent   manifest error, and the Borrower, the Administrative Agent and the Lenders shall 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.  In addition, the Administrative Agent shall   maintain on the Register information regarding the designation, or revocation of designation, of  any Lender as a Defaulting Lender.  The Register shall be available for inspection by each of the  Borrower and the Issuing Bank, 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; provided that each Transferee and prospective Transferee agrees to be bound by   Section 9.11 of this Agreement.          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 2.19.                                    ARTICLE XIII                                                                               NOTICES          13.1  Notices.  Except as otherwise permitted by Section 2.12 with respect to   Borrowing Notices, Swingline Borrowing Notices and Continuation/Conversion 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: (i) in the case of the Borrower or the Administrative Agent, at its address or facsimile   number set forth on the signature pages hereof, (ii) in the case of any Lender, at its address or   facsimile number set forth on its Administrative Questionnaire or (iii) in the case of any party, at   such other address or facsimile number as such party may hereafter specify for the purpose by   notice to the Administrative Agent and the Borrower in accordance with the provisions of this   Section 13.1.  Each such notice, request or other communication shall be effective (x) if given by   facsimile transmission, when transmitted to the facsimile number specified in this Section and   confirmation of receipt is received, (y) if given by mail, 72 hours after such communication is   deposited in the mail with first-class postage prepaid, addressed as aforesaid, or (z) if given by   any other means, when delivered (or, in the case of electronic transmission, received) at the                                          94      





 






     address specified in this Section; provided that notices to the Administrative Agent under   Article II shall not be effective until received.          13.2  Change of Address.  The Borrower, the Administrative 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; EFFECTIVENESS         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.  This Agreement shall become effective when (a) it  has been executed by the Borrower, the Administrative Agent and the Lenders and each party  has notified the Administrative Agent by facsimile transmission or telephone that it has taken  such action and (b) the Borrower has paid all outstanding fees and other amounts payable by the  Borrower in connection with the termination of the Existing Credit Agreement.  Delivery of an  executed counterpart of a signature page of this Agreement by facsimile or in electronic format  (e.g., “pdf” or “tif” file format) shall be effective as delivery of a manually executed counterpart  of this Agreement.                                    ARTICLE XV                                               CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL         15.1  CHOICE OF LAW.  THE RIGHTS AND DUTIES OF THE BORROWER, THE   ADMINISTRATIVE AGENT AND THE LENDERS UNDER THIS AGREEMENT AND THE   NOTES (INCLUDING MATTERS RELATING TO THE MAXIMUM PERMISSIBLE RATE),   AND THE OTHER LOAN DOCUMENTS SHALL, PURSUANT TO NEW YORK GENERAL   OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE   OF NEW YORK.          15.2  Consent To Jurisdiction.  Any judicial proceeding brought against the Borrower   with respect to any Loan Document Related Claim may be brought in any court of competent   jurisdiction in The City of New York, and, by execution and delivery of this Agreement, the   Borrower (a) accepts, generally and unconditionally, the exclusive jurisdiction of such courts and   any related appellate court and irrevocably agrees to be bound by any judgment rendered thereby  in connection with any Loan Document Related Claim and (b) irrevocably waives any objection  it may now or hereafter have as to the venue of any such proceeding brought in such a court or   that such a court is an inconvenient forum.  The Borrower hereby waives personal service of   process and consents that service of process upon it may be made by certified or registered mail,   return receipt requested, at its address specified or determined in accordance with the provisions  of Article XIII, and service so made shall be deemed completed on the third Business Day after   such service is deposited in the mail.  Nothing herein shall affect the right of the Administrative  Agent, any Lender or any other Indemnified Person to serve process in any other manner  permitted by law or shall limit the right of the Administrative Agent, any Co-Syndication Agent,                                          95      





 






     any Lender or any other Indemnified Person to bring proceedings against the Borrower in the   courts of any other jurisdiction.  Any judicial proceeding by the Borrower against the   Administrative Agent or any Lender involving any Loan Document Related Claim shall be   brought only in a court located in the City and State of New York.         15.3  WAIVER OF JURY TRIAL.  THE BORROWER, THE ADMINISTRATIVE   AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL   PROCEEDING INVOLVING ANY LOAN DOCUMENT RELATED CLAIM.          15.4  LIMITATION ON LIABILITY.  TO THE EXTENT PERMITTED UNDER   APPLICABLE LAW, NEITHER THE ADMINISTRATIVE AGENT, NOR THE LENDERS   NOR ANY OTHER INDEMNIFIED PERSON SHALL HAVE ANY LIABILITY WITH   RESPECT TO, AND THE BORROWER HEREBY WAIVES, RELEASES AND AGREES   NOT TO SUE FOR, ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL   DAMAGES, AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,   PUNITIVE DAMAGES SUFFERED BY THE BORROWER IN CONNECTION WITH ANY   LOAN DOCUMENT RELATED CLAIM.          15.5  USA PATRIOT ACT NOTICE.  Each Lender and the Administrative Agent (for   itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the   requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,   2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies   the Borrower, which information includes the name and address of the Borrower and other   information that will allow such Lender or Administrative Agent, as applicable, to identify the   Borrower in accordance with the Patriot Act.                                    ARTICLE XVI                                                                 AMENDMENT AND RESTATEMENT         This Agreement constitutes an amendment and restatement of the Existing Credit  Agreement, effective from and after the Restatement Date.  The execution and delivery of this  Agreement shall not constitute a novation of any indebtedness or other obligations owing to the  Lenders or the Administrative Agent under the Existing Credit Agreement based on facts or  events occurring or existing prior to the execution and delivery of this Agreement, nor shall it  extinguish, terminate or impair the obligations or the rights or remedies of the Administrative  Agent under the Existing Credit Agreement, or any other Loan Document.  On the Restatement  Date, the credit facilities described in the Existing Credit Agreement shall be amended,  supplemented, modified and restated in their entirety by the facilities described herein, and all  loans, letters of credit and obligations of the Borrower outstanding as of such date under the  Existing Credit Agreement, shall be deemed to be loans, letters of credit and obligations  outstanding under the corresponding facilities described herein, without any further action by   any Person (including, without limitation, any assignment), except that the Administrative Agent   shall make such transfers of funds as are necessary in order that the outstanding balance of the   Revolving Loans, together with any Revolving Loans funded on the Restatement Date, reflect   the respective Commitments of the Lenders hereunder.  As of the Restatement Date, the  Commitments of each financial institution party to the Existing Credit Agreement as a lender that                                          96      





 






     has elected not to continue as a Lender under this Credit Agreement and that is identified on the  signature pages hereto as an Exiting Lender (the “Exiting Lenders”) shall be terminated and   permanently reduced to zero.  As of the Restatement Date, each of the Exiting Lenders shall   cease to be a party to the Existing Credit Agreement and shall have no further rights or   obligations thereunder and shall have no rights or obligations hereunder other than as set forth in   this Section (other than any right or obligation, that pursuant to the Existing Credit Agreement,  expressly survives a termination of the Commitments) and each Exiting Lender shall return to  the Borrower any promissory note executed and delivered by such Borrower to such Exiting   Lender pursuant to the Existing Credit Agreement.  Except as expressly amended hereby, each   Loan Document shall continue in full force and effect in accordance with the provisions thereof   on the date hereof.  Any reference to the “Agreement,” “Credit Agreement” or any of the other   Loan Documents herein or in any other Loan Documents shall refer to this Agreement and such   other Loan Documents as amended hereby.                              [SIGNATURE PAGES FOLLOW]                                           97      





 






         IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have  executed this Agreement as of the date first above written.                                                  WASHINGTON GAS LIGHT COMPANY,                                                 as Borrower                                                                                                                  By: _/s/ Douglas I. Bonawitz________________                                                 Name: Douglas I. Bonawitz                                                 Title:   Senior Vice President, Chief Financial                                                            Officer and Treasurer                                                                                                        SIGNATURE PAGE TO          WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                                                       WELLS FARGO BANK, NATIONAL                                        ASSOCIATION, as Administrative Agent,                                        Issuing Bank, Swingline Lender and Lender                                                                                                  By: _/s/ Gregory R. Gredvig_________________                                         Name: Gregory R. Gredvig                                         Title:   Director                                                                                        SIGNATURE PAGE TO  WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                                                       BRANCH BANKING AND TRUST                                        COMPANY, as Co-Syndication Agent, and                                        Lender                                                                                                  By: _/s/ Ryan T. Hamilton__________________                                         Name: Ryan T. Hamilton                                         Title:   Vice President                              SIGNATURE PAGE TO  WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                                                       MUFG BANK, LTD., as Co-Syndication                                        Agent, and Lender                                                                                                  By: _/s/ Dominic Yung_____________________                                         Name: Dominic Yung                                         Title:   Director                              SIGNATURE PAGE TO  WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                                                       TD BANK, N.A., as Co-Syndication Agent,                                        and Lender                                                                                                  By: _/s/ Vijay Prasad_______________________                                         Name: Vijay Prasad                                         Title:   Senior Vice President                                                                SIGNATURE PAGE TO  WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                                                       CANADIAN IMPERIAL BANK OF                                        COMMERCE, as Lender                                                                                                  By: _/s/ Tarah Masniuk_____________________                                         Name: Tarah Masniuk                                         Title:   Director                                                        By: _/s/ Randy Geislinger___________________                                         Name: Randy Geislinger                                         Title:   Managing Director                                                              SIGNATURE PAGE TO  WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                                                       ROYAL BANK OF CANADA, as Lender                                                                                                  By: _/s/_Maria E. Hushovd__________________                                         Name:  Maria E. Hushovd                                         Title:   Authorized Signatory                                                                SIGNATURE PAGE TO  WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                                                       THE BANK OF NOVA SCOTIA, as Lender                                                                                                  By: _/s/ David Dewar______________________                                         Name: David Dewar                                         Title:   Director                              SIGNATURE PAGE TO  WASHINGTON GAS LIGHT 2019 AMENDED AND RESTATED CREDIT AGREEMENT  





 






                U.S. BANK, NATIONAL ASSOCIATION,  as Lender                      By: _/s/ Patrick Donohue___________________   Name: Patrick Donohue   Title:   Officer