ppl120621ex104






Exhibit 10.4  EXECUTION VERSION           $400,000,000  AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT  dated as of December 6, 2021  among  KENTUCKY UTILITIES COMPANY,   as the Borrower,  THE LENDERS FROM TIME TO TIME PARTY HERETO  and  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent, Issuing Lender and Swingline Lender             WELLS FARGO SECURITIES, LLC,  JPMORGAN CHASE BANK, N.A.,  BOFA SECURITIES, INC.,  BARCLAYS BANK PLC  and  MIZUHO BANK, LTD.,  as Joint Lead Arrangers and Joint Bookrunners    JPMORGAN CHASE BANK, N.A.  as Syndication Agent    BANK OF AMERICA, N.A.,  BARCLAYS BANK PLC  and  MIZUHO BANK, LTD.,  as Documentation Agents         





 






TABLE OF CONTENTS    Page    i    ARTICLE I DEFINITIONS ............................................................................................................... 1   Section 1.01 Definitions ...................................................................................................... 1  Section 1.02 Divisions....................................................................................................... 23  Section 1.03 Rates ............................................................................................................. 23  ARTICLE II THE CREDITS ............................................................................................................. 24  Section 2.01 Commitments to Lend .................................................................................. 24  Section 2.02 Swingline Loans ........................................................................................... 24  Section 2.03 Notice of Borrowings ................................................................................... 26  Section 2.04 Notice to Lenders; Funding of Revolving Loans and Swingline  Loans ............................................................................................................ 26  Section 2.05 Noteless Agreement; Evidence of Indebtedness .......................................... 27  Section 2.06 Interest Rates ................................................................................................ 27  Section 2.07 Fees .............................................................................................................. 29  Section 2.08 Adjustments of Commitments ...................................................................... 30  Section 2.09 Maturity of Loans; Mandatory Prepayments ................................................ 33  Section 2.10 Optional Prepayments and Repayments ....................................................... 34  Section 2.11 General Provisions as to Payments .............................................................. 34  Section 2.12 Funding Losses ............................................................................................. 34  Section 2.13 Computation of Interest and Fees ................................................................. 35  Section 2.14 Basis for Determining Interest Rate Inadequate, Unfair or  Unavailable................................................................................................... 35  Section 2.15 Illegality ....................................................................................................... 37  Section 2.16 Increased Cost and Reduced Return ............................................................. 38  Section 2.17 Taxes ............................................................................................................ 39  Section 2.18 Base Rate Loans Substituted for Affected Euro-Dollar Loans .................... 41  Section 2.19 Increases in Commitments ........................................................................... 42  Section 2.20 Defaulting Lenders ....................................................................................... 43  ARTICLE III LETTERS OF CREDIT ................................................................................................ 44  Section 3.01 Issuing Lenders ............................................................................................ 44  Section 3.02 Letters of Credit ........................................................................................... 44  Section 3.03 Method of Issuance of Letters of Credit ....................................................... 45  Section 3.04 Conditions to Issuance of Letters of Credit .................................................. 45  Section 3.05 Purchase and Sale of Letter of Credit Participations .................................... 46  





 






TABLE OF CONTENTS  (continued)  Page    ii    Section 3.06 Drawings under Letters of Credit ................................................................. 46  Section 3.07 Reimbursement Obligations ......................................................................... 46  Section 3.08 Duties of Issuing Lenders to Lenders; Reliance ........................................... 46  Section 3.09 Obligations of Lenders to Reimburse Issuing Lender for Unpaid  Drawings ...................................................................................................... 47  Section 3.10 Funds Received from the Borrower in Respect of Drawn Letters of  Credit ............................................................................................................ 48  Section 3.11 Obligations in Respect of Letters of Credit Unconditional .......................... 48  Section 3.12 Indemnification in Respect of Letters of Credit ........................................... 49  Section 3.13 ISP98 ............................................................................................................ 49  Section 3.14 Amount of Letter of Credit ........................................................................... 49  ARTICLE IV CONDITIONS .............................................................................................................. 49   Section 4.01 Conditions to Closing ................................................................................... 49  Section 4.02 Conditions to All Credit Events ................................................................... 51  ARTICLE V REPRESENTATIONS AND WARRANTIES ............................................................ 51  Section 5.01 Status ............................................................................................................ 51  Section 5.02 Authority; No Conflict ................................................................................. 51  Section 5.03 Legality; Etc ................................................................................................. 52  Section 5.04 Financial Condition ...................................................................................... 52  Section 5.05 Litigation ...................................................................................................... 52  Section 5.06 No Violation ................................................................................................. 52  Section 5.07 ERISA .......................................................................................................... 52  Section 5.08 Governmental Approvals ............................................................................. 53  Section 5.09 Investment Company Act ............................................................................. 53  Section 5.10 Tax Returns and Payments ........................................................................... 53  Section 5.11 Compliance with Laws ................................................................................. 53  Section 5.12 No Default .................................................................................................... 53  Section 5.13 Environmental Matters ................................................................................. 53  Section 5.14 OFAC ........................................................................................................... 54  Section 5.15 Anti-Corruption ............................................................................................ 54  ARTICLE VI COVENANTS .............................................................................................................. 55   Section 6.01 Information ................................................................................................... 55  Section 6.02 Maintenance of Property; Insurance ............................................................. 57  





 






TABLE OF CONTENTS  (continued)  Page    iii    Section 6.03 Conduct of Business and Maintenance of Existence .................................... 57  Section 6.04 Compliance with Laws, Etc.......................................................................... 57  Section 6.05 Books and Records ....................................................................................... 57  Section 6.06 Use of Proceeds ............................................................................................ 57  Section 6.07 Merger or Consolidation .............................................................................. 58  Section 6.08 Asset Sales.................................................................................................... 58  Section 6.09 Consolidated Debt to Consolidated Capitalization Ratio ............................. 58  ARTICLE VII DEFAULTS .................................................................................................................. 58   Section 7.01 Events of Default .......................................................................................... 58  ARTICLE VIII THE AGENTS .............................................................................................................. 60   Section 8.01 Appointment and Authorization ................................................................... 60  Section 8.02 Individual Capacity ...................................................................................... 60  Section 8.03 Delegation of Duties ..................................................................................... 61  Section 8.04 Reliance by the Administrative Agent ......................................................... 61  Section 8.05 Notice of Default .......................................................................................... 61  Section 8.06 Non-Reliance on the Agents and Other Lenders .......................................... 61  Section 8.07 Exculpatory Provisions ................................................................................ 62  Section 8.08 Indemnification ............................................................................................ 62  Section 8.09 Resignation; Successors ............................................................................... 62  Section 8.10 Administrative Agent’s Fees ........................................................................ 63  Section 8.11 Erroneous Payments ..................................................................................... 63  ARTICLE IX MISCELLANEOUS ..................................................................................................... 65   Section 9.01 Notices .......................................................................................................... 65  Section 9.02 No Waivers; Non-Exclusive Remedies ........................................................ 66  Section 9.03 Expenses; Indemnification ........................................................................... 67  Section 9.04 Sharing of Set-Offs ....................................................................................... 68  Section 9.05 Amendments and Waivers............................................................................ 68  Section 9.06 Successors and Assigns ................................................................................ 69  Section 9.07 Governing Law; Submission to Jurisdiction ................................................ 71  Section 9.08 Counterparts; Integration; Effectiveness ...................................................... 71  Section 9.09 Generally Accepted Accounting Principles ................................................. 72  Section 9.10 Usage ............................................................................................................ 72  





 






TABLE OF CONTENTS  (continued)  Page    iv    Section 9.11 WAIVER OF JURY TRIAL ........................................................................ 73  Section 9.12 Confidentiality .............................................................................................. 73  Section 9.13 USA PATRIOT Act Notice .......................................................................... 73  Section 9.14 No Fiduciary Duty ........................................................................................ 74  Section 9.15 Acknowledgment and Consent to Bail-in of Affected Financial  Institutions .................................................................................................... 74  Section 9.16 Survival ........................................................................................................ 75  Section 9.17 Amendment and Restatement of Existing Credit Agreement ...................... 75  Section 9.18 Interest Rate Limitation ................................................................................ 75  Section 9.19 Severability................................................................................................... 75  Section 9.20 Headings ....................................................................................................... 75  Section 9.21 Acknowledgement Regarding Any Supported QFCs................................... 75  





 






  v    Appendices:  Appendix A -  Commitments  Appendix B  -  JLA Fronting Sublimits  Exhibits:  Exhibit A-1 - Form of Notice of Borrowing  Exhibit A-2 - Form of Notice of Conversion/Continuation  Exhibit A-3 - Form of Letter of Credit Request  Exhibit B  - Form of Note  Exhibit C - Form of Assignment and Assumption Agreement  Exhibit D - Forms of Opinion of Counsel for the Borrower  Exhibit E - Form of Notice of Revolving Increase  Exhibit F - Form of Extension Letter      





 






    AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Agreement”)  dated as of December 6, 2021 is entered into among KENTUCKY UTILITIES COMPANY, a Kentucky  corporation and a Virginia corporation (the “Borrower”), the LENDERS party hereto from time to time and  WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Administrative Agent. The parties hereto  agree as follows:  RECITALS  The Borrower is a party to that certain $400,000,000 Amended and Restated Revolving Credit  Agreement, dated as of July 28, 2014, among the Borrower, the lenders party thereto and Wells Fargo Bank,  National Association, as administrative agent, as amended, modified, restated and supplemented from time  to time (the “Existing Credit Agreement”); and  The Borrower has requested that the Administrative Agent and the Lenders amend and restate the  Existing Credit Agreement to, among other things, extend the maturity date, and the Administrative Agent  and the Lenders have agreed to such amendment and restatement on the terms and conditions set forth  herein;  In consideration of their mutual covenants and agreements hereinafter set forth and intending to be  legally bound hereby, the parties hereto agree that the Existing Credit Agreement is hereby amended and  restated in its entirety, and do further agree as follows:  ARTICLE I  DEFINITIONS  Section 1.01 Definitions.  All capitalized terms used in this Agreement or in any Appendix,  Schedule or Exhibit hereto which are not otherwise defined herein or therein shall have the respective  meanings set forth below.  “Additional Commitment Lender” has the meaning set forth in Section 2.08(d)(iv).  “Adjusted London Interbank Offered Rate” means, for any Interest Period, a rate per annum equal  to the quotient obtained (rounded upward, if necessary, to the nearest 1/100th of 1%) by dividing (i) the  London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the Euro-Dollar Reserve  Percentage.  “Administrative Agent” means Wells Fargo Bank, in its capacity as administrative agent for the  Lenders hereunder and under the other Loan Documents, and its successor or successors in such capacity.  “Administrative Questionnaire” means, with respect to each Lender, an administrative  questionnaire in the form provided by the Administrative Agent and submitted to the Administrative Agent  (with a copy to the Borrower) duly completed by such Lender.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, with respect to any Person, any other Person who is directly or indirectly  controlling, controlled by or under common control with such Person.  A Person shall be deemed to control  another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of  the management or policies of the controlled Person, whether through the ownership of stock or its  





 






  2  equivalent, by contract or otherwise.  In no event shall any Agent or any Lender be deemed to be an Affiliate  of the Borrower or any of its Subsidiaries.  “Agency Fee Letter” means that certain fee letter dated as of October 28, 2021 among the Borrower,  Wells Fargo Securities and Wells Fargo Bank, as amended, modified or supplemented from time to time.  “Agent” means the Administrative Agent, the Syndication Agent, the Joint Lead Arrangers and the  Documentation Agents.  “Agreement” has the meaning set forth in the introductory paragraph hereto, as this Agreement  may be amended, restated, supplemented or modified from time to time.  “Applicable Lending Office” means, with respect to any Lender, (i) in the case of its Base Rate  Loans, its Base Rate Lending Office and (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending  Office.  “Applicable Percentage” means, for purposes of calculating (i) the applicable interest rate for any  day for any Base Rate Loans or Euro-Dollar Loans, (ii) the applicable rate for the Commitment Fee for any  day for purposes of Section 2.07(a) or (iii) the applicable rate for the Letter of Credit Fee for any day for  purposes of Section 2.07(b), the appropriate applicable percentage set forth below corresponding to one  rating level below the then current highest Borrower’s Ratings; provided, that, in the event that the  Borrower’s Ratings shall fall within different levels and ratings are maintained by both Rating Agencies,  the applicable rating shall be based on the higher of the two ratings unless one of the ratings is two or more  levels lower than the other, in which case the applicable rating shall be determined by reference to the level  one rating lower than the higher of the two ratings:    Borrower’s Ratings  (S&P /Moody’s)  Applicable  Percentage for  Commitment  Fees  Applicable  Percentage  for Base Rate  Loans  Applicable  Percentage for  Euro-Dollar  Loans and  Letter of  Credit Fees  Category A > A+ from S&P / A1 from  Moody’s  0.075% 0.000% 0.875%  Category B A from S&P / A2 from  Moody’s  0.100% 0.000% 1.000%  Category C A- from S&P / A3 from  Moody’s  0.125% 0.125% 1.125%  Category D BBB+ from S&P / Baa1  from Moody’s  0.175% 0.250% 1.250%  Category E BBB from S&P / Baa2 from  Moody’s  0.200% 0.500% 1.500%  Category F ≤BBB- from S&P / Baa3  from Moody’s  0.250% 0.625% 1.625%    “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Asset Sale” means any sale of any assets, including by way of the sale by the Borrower or any of  its Subsidiaries of equity interests in such Subsidiaries.  





 






  3  “Assignee” has the meaning set forth in Section 9.06(c).  “Assignment and Assumption Agreement” means an Assignment and Assumption Agreement,  substantially in the form of attached Exhibit C, under which an interest of a Lender hereunder is transferred  to an Eligible Assignee pursuant to Section 9.06(c).  “Availability Period” means the period from and including the Effective Date to but excluding the  Termination Date.  “Available Tenor” means, as of any date of determination and with respect to the then-current  Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark  that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (b)  otherwise, any payment period for interest calculated with reference to such Benchmark that is or may be  used for determining the frequency of making payments of interest calculated with reference to such  Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such  Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.14(b)(iv).  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, regulation rule or requirement for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of  the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or  rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment  firms or other financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended, or any successor  statute.  “Base Rate” means for any day, a rate per annum equal to the highest of (i) the Prime Rate for such  day, (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such day and (iii) subject to Section 2.14 and  Section 2.15, the London Interbank Offered Rate plus 1%; provided that clause (iii) shall not be applicable  during any period in which the London Interbank Offered Rate is unavailable or unascertainable.    “Base Rate Borrowing” means a Borrowing comprised of Base Rate Loans.  “Base Rate Lending Office” means, as to each Lender, its office located at its address set forth in  its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Base Rate Lending  Office) or such other office as such Lender may hereafter designate as its Base Rate Lending Office by  notice to the Borrower and the Administrative Agent.  “Base Rate Loan” means (a) a Loan (other than a Swingline Loan) in respect of which interest is  computed on the basis of the Base Rate and (b) a Swingline Loan in respect of which interest is computed  on the basis of the LIBOR Market Index Rate.  “Benchmark” means, initially, the London Interbank Offered Rate or LIBOR Market Index Rate,  as applicable; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, an Early  Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark  





 






  4  Replacement Date have occurred with respect to the London Interbank Offered Rate or LIBOR Market  Index Rate, as applicable, or the then-current Benchmark, then “Benchmark” means the applicable  Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior  benchmark rate pursuant to Section 2.14(b)(i).  “Benchmark Replacement” means, for any Available Tenor,  (a) with respect to any Benchmark Transition Event or Early Opt-in Election, the first  alternative set forth in the order below that can be determined by the Administrative Agent for the applicable  Benchmark Replacement Date:    (1) the sum of: (A) Term SOFR and (B) the related Benchmark Replacement  Adjustment;  (2) the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement  Adjustment;   (3) the sum of: (A) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the  applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation  of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant  Governmental Body or (ii) any evolving or then-prevailing market convention for determining a  benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated  syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment;  or  (b) with respect to any Term SOFR Transition Event, the sum of (i) Term SOFR and (ii) the  related Benchmark Replacement Adjustment; or  (c) with respect to any Other Benchmark Rate Election, the sum of: (i) the alternate benchmark  rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then- current Benchmark for the applicable Corresponding Tenor giving due consideration to any evolving or  then-prevailing market convention for determining a benchmark rate as a replacement for the then-current  Benchmark for Dollar-denominated syndicated credit facilities at such time and (ii) the related Benchmark  Replacement Adjustment;  provided that, (i) in the case of clause (a)(1), if the Administrative Agent decides that Term SOFR  is not administratively feasible for the Administrative Agent, then Term SOFR will be deemed unable to  be determined for purposes of this definition and (ii) in the case of clause (a)(1) or clause (b) of this  definition, the applicable Unadjusted Benchmark Replacement is displayed on a screen or other information  service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable  discretion. If the Benchmark Replacement as determined pursuant to clause (a)(1), (a)(2) or (a)(3), clause  (b) or clause (c) of this definition would be less than the Floor, the Benchmark Replacement will be deemed  to be the Floor for the purposes of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current  Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available  Tenor for any setting of such Unadjusted Benchmark Replacement:   (a) for purposes of clauses (a)(1) and (a)(2) of the definition of “Benchmark Replacement,” the first  alternative set forth in the order below that can be determined by the Administrative Agent:  





 






  5  (1) the spread adjustment, or method for calculating or determining such spread adjustment,  (which may be a positive or negative value or zero) as of the Reference Time such  Benchmark Replacement is first set for such Interest Period that has been selected or  recommended by the Relevant Governmental Body for the replacement of such Available  Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement;  (2) the spread adjustment (which may be a positive or negative value or zero) as of the  Reference Time such Benchmark Replacement is first set for such Interest Period that  would apply to the fallback rate for a derivative transaction referencing the ISDA  Definitions to be effective upon an index cessation event with respect to such Available  Tenor of such Benchmark;  (b) for purposes of clauses (a)(3) and (c) of the definition of “Benchmark Replacement,” the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a  positive or negative value or zero) that has been selected by the Administrative Agent and the  Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment,  or method for calculating or determining such spread adjustment, for the replacement of such  Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement by  the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any  evolving or then-prevailing market convention for determining a spread adjustment, or method for  calculating or determining such spread adjustment, for the replacement of such Available Tenor of  such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated  syndicated credit facilities; and  (c) for purposes of clause (b) of the definition of “Benchmark Replacement,” the spread adjustment,  or method for calculating or determining such spread adjustment, (which may be a positive or  negative value or zero) as of the Reference Time of such Benchmark Replacement is first set for  such Interest Period that has been selected or recommended by the Relevant Governmental Body  for the replacement of such Available Tenor of such Benchmark, with a SOFR-based rate;  provided that, (x) in the case of clauses (a) and (c) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time as selected  by the Administrative Agent in its reasonable discretion and (y) if the then-current Benchmark is a term  rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date  and the applicable Unadjusted Benchmark Replacement that will replace such Benchmark in accordance  with Section 2.14(b) will not be a term rate, the Available Tenor of such Benchmark for purposes of this  definition of “Benchmark Replacement Adjustment” shall be deemed to be, with respect to each Unadjusted  Benchmark Replacement having a payment period for interest calculated with reference thereto, the  Available Tenor that has approximately the same length (disregarding business day adjustments) as such  payment period.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of  “Base Rate,” the definition of “Business Day,” the definition of “Interest Period” or any similar or  analogous definition (or the addition of a concept of “interest period”), the definition of “London Business  Day,” timing and frequency of determining rates and making payments of interest, timing of borrowing  requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of  breakage provisions, and other technical, administrative or operational matters) that the Administrative  Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark  Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially  consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such  market practice is not administratively feasible or if the Administrative Agent determines that no market  practice for the administration of such Benchmark Replacement exists, in such other manner of  





 






  6  administration as the Administrative Agent decides is reasonably necessary in connection with the  administration of this Agreement and the other Loan Documents).   “Benchmark Replacement Date” means the earliest to occur of the following events with respect  to the then-current Benchmark:  (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later  of (i) the date of the public statement or publication of information referenced therein and (ii) the date on  which the administrator of such Benchmark (or the published component used in the calculation thereof)  permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component  thereof);  (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the  public statement or publication of information referenced therein;  (c) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the  Administrative Agent has provided the Term SOFR Notice to the Lenders and the Borrower pursuant to  Section 2.14(b)(i)(B); or  (d) in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the sixth (6th)  Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as  applicable, is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m.  (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election or  Other Benchmark Rate Election, as applicable, is provided to the Lenders, written notice of objection to  such Early Opt-in Election or Other Benchmark Rate Election, as applicable, from Lenders comprising the  Required Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs  on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark  Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and  (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b)  with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with  respect to all then-current Available Tenors of such Benchmark (or the published component used in the  calculation thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following events with  respect to the then-current Benchmark:  (a) a public statement or publication of information by or on behalf of the administrator of  such Benchmark (or the published component used in the calculation thereof) announcing that such  administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such  component thereof), permanently or indefinitely, provided that, at the time of such statement or publication,  there is no successor administrator that will continue to provide any Available Tenor of such Benchmark  (or such component thereof);  (b) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof), the FRB,  the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for  such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for  such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority  over the administrator for such Benchmark (or such component), which states that the administrator of such  





 






  7  Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such  Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such  statement or publication, there is no successor administrator that will continue to provide any Available  Tenor of such Benchmark (or such component thereof); or  (c) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof) announcing  that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with  respect to any Benchmark if a public statement or publication of information set forth above has occurred  with respect to each then-current Available Tenor of such Benchmark (or the published component used in  the calculation thereof).  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a  Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time,  no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under  any Loan Document in accordance with Section 2.14(b) and (y) ending at the time that a Benchmark  Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan  Document in accordance with Section 2.14(b).  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Borrower” has the meaning set forth in the introductory paragraph hereto.  “Borrower’s Rating” means the senior secured long-term debt rating of the Borrower from S&P or  Moody’s.  “Borrowing” means a group of Loans of a single Type made by the Lenders on a single date and,  in the case of a Euro-Dollar Borrowing, having a single Interest Period.  “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks  in Charlotte, North Carolina or New York, New York are authorized by law to close; provided, that, when  used in Article III with respect to any action taken by or with respect to any Issuing Lender, the term  “Business Day” shall not include any day on which commercial banks are authorized by law to close in the  jurisdiction where the office at which such Issuing Lender books any Letter of Credit is located; and  provided, further, that when used with respect to any borrowing of, payment or prepayment of principal of  or interest on, or the Interest Period for, a Euro-Dollar Loan, or a notice by the Borrower with respect to  any such borrowing payment, prepayment or Interest Period, the term “Business Day” shall also mean that  such day is a London Business Day.  “Capital Lease” means any lease of property which, in accordance with GAAP, should be  capitalized on the lessee’s balance sheet.  “Capital Lease Obligations” means, with respect to any Person, all obligations of such Person as  lessee under Capital Leases, in each case taken at the amount thereof accounted for as liabilities in  accordance with GAAP.  “Change of Control” means (i) the acquisition by any Person, or two or more Persons acting in  concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange  Commission under the Securities Exchange Act of 1934, as amended) of 25% or more of the outstanding  





 






  8  shares of voting stock of PPL Corporation or its successors or (ii) the failure at any time of PPL Corporation  or its successors to own, directly or indirectly, 80% or more of the outstanding shares of the Voting Stock  in the Borrower.  “Commitment” means, with respect to any Lender, the commitment of such Lender to (i) make  Loans under this Agreement, (ii) refund or purchase participations in Swingline Loans pursuant to  Section 2.02 and (iii) purchase participations in Letters of Credit pursuant to Article III hereof, as set forth  in Appendix A and as such Commitment may be reduced from time to time pursuant to Section 2.08 or  Section 9.06(c) or increased from time to time pursuant to Section 2.19 or Section 9.06(c).  “Commitment Fee” has the meaning set forth in Section 2.07(a).  “Commitment Ratio” means, with respect to any Lender, the percentage equivalent of the ratio  which such Lender’s Commitment bears to the aggregate amount of all Commitments.  “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income (however denominated) or that are franchise or branch profits or similar Taxes.  “Consenting Lender” has the meaning set forth in Section 9.17.  “Consolidated Capitalization” means the sum of, without duplication, (A) the Consolidated Debt  (without giving effect to clause (b) of the definition of “Consolidated Debt”) and (B) the consolidated  shareowners’ equity (determined in accordance with GAAP) of the common, preference and preferred  shareowners of the Borrower and minority interests recorded on the Borrower’s consolidated financial  statements (excluding from shareowners’ equity (i) the effect of all unrealized gains and losses reported  under Financial Accounting Standards Board Accounting Standards Codification Topic 815 in connection  with (x) forward contracts, futures contracts, options contracts or other derivatives or hedging agreements  for the future delivery of electricity, capacity, fuel or other commodities and (y) Interest Rate Protection  Agreements, foreign currency exchange agreements or other interest or exchange rate hedging  arrangements and (ii) the balance of accumulated other comprehensive income/loss of the Borrower on any  date of determination solely with respect to the effect of any pension and other post-retirement benefit  liability adjustment recorded in accordance with GAAP), except that for purposes of calculating  Consolidated Capitalization of the Borrower, Consolidated Debt of the Borrower shall exclude Non- Recourse Debt and Consolidated Capitalization of the Borrower shall exclude that portion of shareowners’  equity attributable to assets securing Non-Recourse Debt.  “Consolidated Debt” means the consolidated Debt of the Borrower and its Consolidated  Subsidiaries (determined in accordance with GAAP), except that for purposes of this definition  (a) Consolidated Debt shall exclude Non-Recourse Debt of the Borrower and its Consolidated Subsidiaries,  and (b) Consolidated Debt shall exclude (i) Hybrid Securities of the Borrower and its Consolidated  Subsidiaries in an aggregate amount as shall not exceed 15% of Consolidated Capitalization and (ii) Equity- Linked Securities in an aggregate amount as shall not exceed 15% of Consolidated Capitalization.  “Consolidated Subsidiary” means with respect to any Person at any date any Subsidiary of such  Person or other entity the accounts of which would be consolidated with those of such Person in its  consolidated financial statements if such statements were prepared as of such date in accordance with  GAAP.  “Continuing Lender” means with respect to any event described in Section 2.08(b), a Lender which  is not a Retiring Lender, and “Continuing Lenders” means any two or more of such Continuing Lenders.  





 






  9   “Corporation” means a corporation, association, company, joint stock company, limited liability  company, partnership or business trust.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor  (including overnight) or an interest payment period having approximately the same length (disregarding  business day adjustment) as such Available Tenor.  “Credit Event” means a Borrowing or the issuance, renewal or extension of a Letter of Credit.  “Current Termination Date” has the meaning set forth in Section 2.08(d)(ii).  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will  include a lookback) being established by the Administrative Agent in accordance with the conventions for  this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such  convention is not administratively feasible for the Administrative Agent, then the Administrative Agent  may establish another convention in its reasonable discretion.  “Debt” of any Person means, without duplication, (i) all obligations of such Person for borrowed  money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments,  (iii) all Guarantees by such Person of Debt of others, (iv) all Capital Lease Obligations and Synthetic Leases  of such Person, (v) all obligations of such Person in respect of Interest Rate Protection Agreements, foreign  currency exchange agreements or other interest or exchange rate hedging arrangements (the amount of any  such obligation to be the net amount that would be payable upon the acceleration, termination or liquidation  thereof), but only to the extent that such net obligations exceed $75,000,000 in the aggregate and (vi) all  obligations of such Person as an account party in respect of letters of credit and bankers’ acceptances;  provided, however, that “Debt” of such Person does not include (a) obligations of such Person under any  installment sale, conditional sale or title retention agreement or any other agreement relating to obligations  for the deferred purchase price of property or services, (b) obligations under agreements relating to the  purchase and sale of any commodity, including any power sale or purchase agreements, any commodity  hedge or derivative (regardless of whether any such transaction is a “financial” or physical transaction),  (c) any trade obligations or other obligations of such Person incurred in the ordinary course of business or  (d) obligations of such Person under any lease agreement (including any lease intended as security) that is  not a Capital Lease or a Synthetic Lease.  “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,  bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,  reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time  to time in effect.  “Default” means any condition or event which constitutes an Event of Default or which with the  giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.  “Defaulting Lender” means at any time any Lender with respect to which a Lender Default is in  effect at such time, including any Lender subject to a Bail-In Action.  Any determination by the  Administrative Agent that a Lender is a Defaulting Lender under any one or more clauses of the definition  of “Lender Default” shall be conclusive and binding absent manifest error, and such Lender shall be deemed  to be a Defaulting Lender (subject to cure as expressly contemplated in the definition of “Lender Default”)  upon delivery of written notice of such determination to the Borrower, each Issuing Bank, each Swingline  Lender and each Lender.  





 






  10  “Documentation Agents” means Bank of America, N.A., Barclays Bank PLC and Mizuho Bank,  Ltd., each in its capacity as a documentation agent in respect of this Agreement.  “Dollars” and the sign “$” means lawful money of the United States of America.  “Early Opt-in Election” means, if the then-current Benchmark is the London Interbank Offered  Rate or LIBOR Market Index Rate, as applicable, the occurrence of:  (a) a notification by the Administrative Agent to (or the request by the Borrower to the  Administrative Agent to notify) each of the other parties hereto that at least five currently  outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result  of amendment or as originally executed) a SOFR-based rate (including SOFR, a term  SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit  facilities are identified in such notice and are publicly available for review), and  (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback from  the London Interbank Offered Rate or LIBOR Market Index Rate, as applicable, and the  provision by the Administrative Agent of written notice of such election to the Lenders.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with  its parent.  “EEA Member Country” means any of the member states of the European Union,  Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Effective Date” means the date on which the Administrative Agent determines that the conditions  specified in or pursuant to Section 4.01 have been satisfied.  “Election Date” has the meaning set forth in Section 2.08(d)(ii).  “Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 15 U.S.C. 7006.  “Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 15 U.S.C. 7006.  “Eligible Assignee” means (i) a Lender; (ii) a commercial bank organized under the laws of the  United States and having a combined capital and surplus of at least $100,000,000; (iii) a commercial bank  organized under the laws of any other country which is a member of the Organization for Economic  Cooperation and Development, or a political subdivision of any such country and having a combined capital  and surplus of at least $100,000,000; provided, that such bank is acting through a branch or agency located  and licensed in the United States; (iv) an Affiliate of a Lender that is an “accredited investor” (as defined  in Regulation D under the Securities Act of 1933, as amended) or (v) an Approved Fund; provided, that, in  





 






  11  each case (a) upon and following the occurrence of an Event of Default, an Eligible Assignee shall mean  any Person other than the Borrower or any of its Affiliates and (b) notwithstanding the foregoing, “Eligible  Assignee” shall not include the Borrower or any of its Affiliates.  “Environmental Laws” means any and all federal, state and local statutes, laws, regulations,  ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses or other  written governmental restrictions relating to the environment or to emissions, discharges or releases of  pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or Hazardous  Substances or wastes into the environment including, without limitation, ambient air, surface water, ground  water, or land, or otherwise relating to the manufacture, processing, distribution, use,  treatment, storage,  disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or  industrial, toxic or Hazardous Substances or wastes.  “Environmental Liabilities” means all liabilities (including anticipated compliance costs) in  connection with or relating to the business, assets, presently or previously owned, leased or operated  property, activities (including, without limitation, off-site disposal) or operations of the Borrower or any of  its Subsidiaries which arise under Environmental Laws or relate to Hazardous Substances.  “Equity-Linked Securities” means any securities of the Borrower or any of its Subsidiaries which  are convertible into, or exchangeable for, equity securities of the Borrower, such Subsidiary or PPL  Corporation, including any securities issued by any of such Persons which are pledged to secure any  obligation of any holder to purchase equity securities of the Borrower, any of its Subsidiaries or PPL  Corporation.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any  successor statute.  “ERISA Group” means the Borrower and all corporations and all trades or businesses (whether or  not incorporated) which, together with the Borrower, are treated as a single employer under Section 414(b)  or (c) of the Internal Revenue Code or, solely for purposes of Section 302 of ERISA and Section 412 of the  Code, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code.  “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.  “Euro-Dollar Borrowing” means a Borrowing comprised of Euro-Dollar Loans.  “Euro-Dollar Lending Office” means, as to each Lender, its office, branch or Affiliate located at  its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire  as its Euro-Dollar Lending Office) or such other office, branch or Affiliate of such Lender as it may  hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower and the Administrative  Agent.  “Euro-Dollar Loan” means a Loan in respect of which interest is computed on the basis of the  Adjusted London Interbank Offered Rate pursuant to the applicable Notice of Borrowing or Notice of  Conversion/Continuation.  “Euro-Dollar Reserve Percentage” of any Lender for the Interest Period of any Euro-Dollar Loan  means the reserve percentage applicable to such Lender during such Interest Period (or if more than one  such percentage shall be so applicable, the daily average of such percentages for those days in such Interest  Period during which any such percentage shall be so applicable) under regulations issued from time to time  





 






  12  by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum  reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve  requirement) then applicable to such Lender with respect to liabilities or assets consisting of or including  “Eurocurrency Liabilities” (as defined in Regulation D).  The Adjusted London Interbank Offered Rate  shall be adjusted automatically on and as of the effective date of any change in the Euro-Dollar Reserve  Percentage.  “Event of Default” has the meaning set forth in Section 7.01.  “Existing Credit Agreement” has the meaning set forth in the recitals hereto.  “Extending Lender” means, in the event that the Termination Date is extended in accordance with  Section 2.08(d), a Lender which is not a Non-Extending Lender.  “Extension Date” has the meaning set forth in Section 2.08(d)(ii).  “Extension Letter” means a letter from the Borrower to the Administrative Agent requesting an  extension of the Termination Date substantially in the form of Exhibit F hereto.   “FATCA” means Sections 1471 through 1474 of the Internal Revenue 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 Internal Revenue 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 Internal Revenue Code.  “Federal Funds Rate” means for any day the rate per annum (rounded upward, if necessary, to the  nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions  with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on  the Business Day next succeeding such day; provided, that (i) if such day is not a Business Day, the Federal  Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so  published on the next succeeding Business Day, and (ii) if no such rate is so published on such next  succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward,  if necessary, to the nearest 1/100th of 1%) charged by Wells Fargo Bank, National Association on such day  on such transactions as determined by the Administrative Agent; provided, further, that if any such rate  shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.  “Fee Letters” means (i) that certain fee letter dated as of October 28, 2021 among the Borrower,  Wells Fargo Securities, Wells Fargo Bank and JPMorgan Chase Bank, N.A., (ii) that certain fee letter dated  as of October 28, 2021 among the Borrower, BofA Securities, Inc., Barclays Bank PLC and Mizuho Bank,  Ltd. and (iii) the Agency Fee Letter, in each case, as amended, modified or supplemented from time to time.  “FERC” means the Federal Energy Regulatory Commission.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the  execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with  respect to the London Interbank Offered Rate or LIBOR Market Index Rate, as applicable.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Fee” has the meaning set forth in Section 2.07(b).  





 






  13  “Fronting Sublimit” means, (a) for each JLA Issuing Bank, the amount of such JLA Issuing Bank’s  commitment to issue and honor payment obligations under Letters of Credit, as set forth on Appendix B  hereto and (b) with respect to any other Issuing Lender, an amount as agreed between the Borrower and  such Issuing Lender.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in  the ordinary course of its activities.  “GAAP” means United States generally accepted accounting principles applied on a consistent  basis.  “Governmental Authority” means any federal, state or local government, authority, agency, central  bank, quasi-governmental authority, court or other body or entity, and any arbitrator with authority to bind  a party at law.  “Group of Loans” means at any time a group of Revolving Loans consisting of (i) all Revolving  Loans which are Base Rate Loans at such time or (ii) all Revolving Loans which are Euro-Dollar Loans of  the same Type having the same Interest Period at such time; provided, that, if a Loan of any particular  Lender is converted to or made as a Base Rate Loan pursuant to Sections 2.15 or 2.18, such Loan shall be  included in the same Group or Groups of Loans from time to time as it would have been in if it had not  been so converted or made.  “Guarantee” of or by any Person means any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Debt of any other Person (the “primary  obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct  or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or  to purchase (or to advance or supply funds for the purchase of) any security for payment of such Debt, (ii)  to purchase or lease property, securities or services for the purpose of assuring the owner of such Debt of  the payment of such Debt or (iii) to maintain working capital, equity capital or any other financial statement  condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt; provided,  however, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary  course of business.  “Hazardous Substances” means any toxic, caustic or otherwise hazardous substance, including  petroleum, its derivatives, by-products and other hydrocarbons, or any substance having any constituent  elements displaying any of the foregoing characteristics.  “Hybrid Securities” means any trust preferred securities, or deferrable interest subordinated debt  with a maturity of at least 20 years issued by the Borrower, or any business trusts, limited liability  companies, limited partnerships (or similar entities) (i) all of the common equity, general partner or similar  interests of which are owned (either directly or indirectly through one or more Wholly Owned Subsidiaries)  at all times by the Borrower or any of its Subsidiaries, (ii) that have been formed for the purpose of issuing  hybrid preferred securities and (iii) substantially all the assets of which consist of (A) subordinated debt of  the Borrower or a Subsidiary of the Borrower, as the case may be, and (B) payments made from time to  time on the subordinated debt.  “Indemnified Taxes” has the meaning set forth in Section 2.17(a).  “Indemnitee” has the meaning set forth in Section 9.03(b).  





 






  14  “Interest Period” means with respect to each Euro-Dollar Loan, a period commencing on the date  of borrowing specified in the applicable Notice of Borrowing or on the date specified in the applicable  Notice of Conversion/Continuation and ending one, three or six months thereafter, as the Borrower may  elect in the applicable notice; provided, that:  (i) any Interest Period which would otherwise end on a day which is not a Business  Day shall, subject to clause (iii) below, 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;  (ii) any Interest Period which 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, subject to clause (iii) below, end on the last Business Day of a calendar  month;   (iii) no Interest Period shall end after the Termination Date; and  (iv) no tenor that has been removed from this definition pursuant to Section 2.14(b)(iv)  (and not subsequently reinstated) shall be available for specification in any Notice of Borrowing or  Notice of Conversion/Continuation.  “Interest Rate Protection Agreements” means any agreement providing for an interest rate swap,  cap or collar, or any other financial agreement designed to protect against fluctuations in interest rates.  “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, or any successor  statute.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and  Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or  any successor definitional booklet for interest rate derivatives published from time to time by the  International Swaps and Derivatives Association, Inc. or such successor thereto.  “ISP” has the meaning set forth in Section 3.13.   “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Request, and  any other document, agreement and instrument entered into by any Issuing Lender and the Borrower (or  any Subsidiary) or in favor of such Issuing Lender and relating to such Letter of Credit.  “Issuing Lender” means (i) each JLA Issuing Bank, each in its capacity as an issuer of Letters of  Credit under Section 3.02, and each of their respective successor or successors in such capacity and (ii) any  other Lender approved as an “Issuing Lender” pursuant to Section 3.01, subject in each case to the Fronting  Sublimit.   “JLA Issuing Bank” means Wells Fargo Bank, Bank of America, N.A., JPMorgan Chase Bank,  N.A., Mizuho Bank, Ltd. and Barclays Bank PLC (provided that Barclays Bank PLC shall issue only  standby Letters of Credit).  “Joint Lead Arrangers” means Wells Fargo Securities, JPMorgan Chase Bank, N.A., BofA  Securities, Inc., Barclays Bank PLC and Mizuho Bank, Ltd., each in their capacity as joint lead arranger  and joint bookrunner in respect of this Agreement.  





 






  15  “KPSC” means the Kentucky Public Service Commission.  “Lender” means each bank or other lending institution listed in Appendix A as having a  Commitment, each Eligible Assignee that becomes a Lender pursuant to Section 9.06(c) and their  respective successors and shall include, as the context may require, each Issuing Lender and the Swingline  Lender in such capacity.  “Lender Default” means (i) the failure (which has not been cured) of any Lender to (a) fund all or  any portion of its Loans within two Business Days of the date such Loans were required to be funded  hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such  failure is the result of such Lender’s 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 (b) 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 Business Days of the date when due,  or (ii) a Lender having notified the Borrower, the Administrative Agent or any Issuing Bank or the  Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has  made a public statement to that effect (unless such writing or public statement relates to such 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), or (iii) the failure, within  three Business Days after written request by the Administrative Agent or the Borrower, of a Lender to  confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective  funding obligations hereunder (provided that a Lender Default in effect pursuant to this clause (iii) shall be  cured upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (iv) a  Lender has, or has a direct or indirect parent company that has, (a) become the subject of a proceeding  under any Debtor Relief Law, or (b) 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) the Lender becomes the subject of a Bail-in  Action; provided that a Lender Default shall not exist 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.   “Letter of Credit” means any letter of credit issued pursuant to Section 3.02 under this Agreement  by an Issuing Lender on or after the Effective Date.  “Letter of Credit Fee” has the meaning set forth in Section 2.07(b).  “Letter of Credit Liabilities” means, for any Lender at any time, the product derived by multiplying  (i) the sum, without duplication, of (A) the aggregate amount that is (or may thereafter become) available  for drawing under all Letters of Credit outstanding at such time plus (B) the aggregate unpaid amount of  all Reimbursement Obligations outstanding at such time by (ii) such Lender’s Commitment Ratio.  For all  purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but  any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter  of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.  “Letter of Credit Request” has the meaning set forth in Section 3.03.  





 






  16  “LIBOR Market Index Rate” means, subject to the implementation of a Benchmark Replacement  in accordance with Section 2.14(b), for any day, the rate for 1 month U.S. dollar deposits as reported on  Reuters Screen LIBOR01 (or any applicable successor page) as of 11:00 a.m., London time, for such day,  provided, if such day is not a London Business Day, the immediately preceding London Business Day (or  if not so reported, then as determined by the Swingline Lender from another recognized source or interbank  quotation); provided, however, that if any such rate shall be less than zero, such rate shall be deemed to be  zero for the purposes of this Agreement.  “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or  encumbrance intended to confer or having the effect of conferring upon a creditor a preferential interest.  “Loan” means a Base Rate Loan, whether such loan is a Revolving Loan or Swingline Loan, or a  Euro-Dollar Loan, and “Loans” means any combination of the foregoing.  “Loan Documents” means this Agreement and the Notes.  “London Business Day” means a day on which commercial banks are open for international  business (including dealings in Dollar deposits) in London.   “London Interbank Offered Rate” means, subject to the implementation of a Benchmark  Replacement in accordance with Section 2.14(b):  (i) for any Euro-Dollar Loan for any Interest Period, the interest rate for deposits in Dollars  for a period of time comparable to such Interest Period which appears on Reuters Screen LIBOR01 (or any  applicable successor page) at approximately 11:00 A.M. (London time) two Business Days before the first  day of such Interest Period; provided, however, that if more than one such rate is specified on Reuters  Screen LIBOR01 (or any applicable successor page), the applicable rate shall be the arithmetic mean of all  such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).  If for any reason such rate is not  available on Reuters Screen LIBOR01 (or any applicable successor page), the term “London Interbank  Offered Rate” means for any Interest Period, the arithmetic mean of the rate per annum at which deposits  in Dollars are offered by first class banks in the London interbank market to the Administrative Agent at  approximately 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in  an amount approximately equal to the principal amount of the Euro-Dollar Loan of Wells Fargo Bank to  which such Interest Period is to apply and for a period of time comparable to such Interest Period.    (ii) for any interest rate calculation with respect to a Base Rate Loan, the interest rate for  deposits in Dollars for a period equal to one month (commencing on the date of determination of such  interest rate) which appears on Reuters Screen LIBOR01 (or any applicable successor page) at  approximately 11:00 A.M. (London time) on such date of determination (provided that if such day is not a  Business Day for which a London Interbank Offered Rate is quoted, the next preceding Business Day for  which a London Interbank Offered Rate is quoted); provided, however, that if more than one such rate is  specified on Reuters Screen LIBOR01 (or any applicable successor page), the applicable rate shall be the  arithmetic mean of all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).  If for any  reason such rate is not available on Reuters Screen LIBOR01 (or any applicable successor page), the term  “London Interbank Offered Rate” means for any applicable one-month interest period, the arithmetic mean  of the rate per annum at which deposits in Dollars are 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 (provided that if such day is not a Business Day for which a London Interbank Offered Rate  is quoted, the next preceding Business Day for which a London Interbank Offered Rate is quoted) in an  amount approximately equal to the principal amount of the Base Rate Loan of Wells Fargo Bank.    





 






  17  Notwithstanding the foregoing, if the London Interbank Offered Rate determined in accordance  with the foregoing shall be less than zero, such rate shall be deemed to be zero for the purposes of this  Agreement.  “Mandatory Letter of Credit Borrowing” has the meaning set forth in Section 3.09.  “Margin Stock” means “margin stock” as such term is defined in Regulation U.  “Material Adverse Effect” means (i) any material adverse effect upon the business, assets, financial  condition or operations of the Borrower or the Borrower and its Subsidiaries, taken as a whole; (ii) a  material adverse effect on the ability of the Borrower to perform its obligations under this Agreement, the  Notes or the other Loan Documents or (iii) a material adverse effect on the validity or enforceability of this  Agreement, the Notes or any of the other Loan Documents.  “Material Debt” means Debt (other than the Notes) of the Borrower in a principal or face amount  exceeding $50,000,000.  “Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in excess  of $50,000,000. For the avoidance of doubt, where any two or more Plans, which individually do not have  Unfunded Liabilities in excess of $50,000,000, but collectively have aggregate Unfunded Liabilities in  excess of $50,000,000, all references to Material Plan shall be deemed to apply to such Plans as a group.   “Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its successors or,  absent any such successor, such nationally recognized statistical rating organization as the Borrower and  the Administrative Agent may select.  “Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of  Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an  obligation to make contributions or has within the preceding five plan years made contributions.  “New Lender” means with respect to any event described in Section 2.08(b), an Eligible Assignee  which becomes a Lender hereunder as a result of such event, and “New Lenders” means any two or more  of such New Lenders.  “Non-Defaulting Lender” means each Lender other than a Defaulting Lender, and “Non-Defaulting  Lenders” means any two or more of such Lenders.  “Non-Extending Lender” has the meaning set forth in Section 2.08(d)(ii).  “Non-Recourse Debt” means Debt that is nonrecourse to the Borrower or any asset of the Borrower.  “Non-U.S. Lender” has the meaning set forth in Section 2.17(e).  “Note” means a promissory note, substantially in the form of Exhibit B hereto, issued at the request  of a Lender evidencing the obligation of the Borrower to repay outstanding Revolving Loans or Swingline  Loans, as applicable.  “Notice of Borrowing” has the meaning set forth in Section 2.03.  “Notice of Conversion/Continuation” has the meaning set forth in Section 2.06(d)(ii).  





 






  18  “Obligations” means:  (i) all principal of and interest (including, without limitation, any interest which  accrues after the commencement of any case, proceeding or other action relating to the bankruptcy,  insolvency or reorganization of the Borrower, whether or not allowed or allowable as a claim in  any such proceeding) on any Loan, fees payable or Reimbursement Obligation under, or any Note  issued pursuant to, this Agreement or any other Loan Document;  (ii) all other amounts now or hereafter payable by the Borrower and all other  obligations or liabilities now existing or hereafter arising or incurred (including, without limitation,  any amounts which accrue after the commencement of any case, proceeding or other action relating  to the bankruptcy, insolvency or reorganization of the Borrower, whether or not allowed or  allowable as a claim in any such proceeding) on the part of the Borrower pursuant to this Agreement  or any other Loan Document;  (iii) all expenses of the Agents as to which such Agents have a right to reimbursement  under Section 9.03(a) hereof or under any other similar provision of any other Loan Document;   (iv) all amounts paid by any Indemnitee as to which such Indemnitee has the right to  reimbursement under Section 9.03 hereof or under any other similar provision of any other Loan  Document; and  (v) in the case of each of clauses (i) through (iv) above, together with all renewals,  modifications, consolidations or extensions thereof.  “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.  “Optional Increase” has the meaning set forth in Section 2.19(a).  “Other Benchmark Rate Election” means, if the then-current Benchmark is the London Interbank  Offered Rate or LIBOR Market Index Rate, as applicable, the occurrence of:  (a) a notification by the Administrative Agent to (or the request by the Borrower to the  Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding  Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as  originally executed), in lieu of a Dollar LIBOR-based rate, a term benchmark rate that is not a SOFR-based  rate as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly  available for review), and  (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback from  the London Interbank Offered Rate or LIBOR Market Index Rate, as applicable, and the provision by the  Administrative Agent of written notice of such election to the Lenders.  “Other Connection Taxes” means, with respect to any Agent or Lender, Taxes imposed as a result  of a present or former connection between such Person and the jurisdiction imposing such Tax (other than  connections arising from such Person 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” has the meaning set forth in Section 2.17(b).  





 






  19  “Participant” has the meaning set forth in Section 9.06(b).  “Participant Register” has the meaning set forth in Section 9.06(b).  “Patriot Act” has the meaning set forth in Section 9.13.  “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of  its functions under ERISA.  “Permitted Business” with respect to any Person means a business that is the same or similar to the  business of the Borrower or any Subsidiary as of the Effective Date, or any business reasonably related  thereto.  “Person” means an individual, a corporation, a partnership, an association, a limited liability  company, a trust or an unincorporated association or any other entity or organization, including a  government or political subdivision or an agency or instrumentality thereof.  “Plan” means at any time an employee pension benefit plan (including a Multiemployer Plan)  which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of  the Internal Revenue Code and either (i) is maintained, or contributed to, by any member of the ERISA  Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five  years been maintained, or contributed to, by any Person which was at such time a member of the ERISA  Group for employees of any Person which was at such time a member of the ERISA Group.  “Prime Rate” means the rate of interest publicly announced by Wells Fargo Bank from time to time  as its Prime Rate.    “Public Reporting Company” means a company subject to the periodic reporting requirements of  the Securities and Exchange Act of 1934.  “Quarterly Date” means the last Business Day of each of March, June, September and December.  “Rating Agency” means S&P or Moody’s, and “Rating Agencies” means both of them.  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if such  Benchmark is the London Interbank Offered Rate or LIBOR Market Index Rate, as applicable, 11:00 a.m.  (London time) on the day that is two (2) London Business Days preceding the date of such setting, and (2)  if such Benchmark is not the London Interbank Offered Rate or LIBOR Market Index Rate, as applicable,  the time determined by the Administrative Agent in its reasonable discretion.  “Register” has the meaning set forth in Section 9.06(e).  “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as  amended, or any successor regulation.  “Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System, as  amended, or any successor regulation.  “Reimbursement Obligations” means at any time all obligations of the Borrower to reimburse the  Issuing Lenders pursuant to Section 3.07 for amounts paid by the Issuing Lenders in respect of drawings  





 






  20  under Letters of Credit, including any portion of any such obligation to which a Lender has become  subrogated pursuant to Section 3.09.  “Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a  committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any  successor thereto.  “Replacement Date” has the meaning set forth in Section 2.08(b).  “Replacement Lender” has the meaning set forth in Section 2.08(b).  “Required Lenders” means at any time Non-Defaulting Lenders having at least 51% of the  aggregate amount of the Commitments of all Non-Defaulting Lenders or, if the Commitments shall have  been terminated, having at least 51% of the aggregate amount of the Revolving Outstandings of the  Non-Defaulting Lenders at such time.   “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means, as to any Person, the chief executive officer, president, chief  financial officer, controller, treasurer or assistant treasurer of such Person or any other officer of such Person  reasonably acceptable to the Administrative Agent.  Any document delivered hereunder that is signed by a  Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary  corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be  conclusively presumed to have acted on behalf of such Person  “Retiring Lender” means a Lender that ceases to be a Lender hereunder pursuant to the operation  of Section 2.08(b).  “Revolving” means, when used with respect to (i) a Borrowing, a Borrowing made by the Borrower  under Section 2.01, as identified in the Notice of Borrowing with respect thereto, a Borrowing of Revolving  Loans to refund outstanding Swingline Loans pursuant to Section 2.02(b)(i), or a Mandatory Letter of  Credit Borrowing and (ii) a Loan, a Loan made under Section 2.01; provided, that, if any such loan or loans  (or portions thereof) are combined or subdivided pursuant to a Notice of Conversion/Continuation, the term  “Revolving Loan” shall refer to the combined principal amount resulting from such combination or to each  of the separate principal amounts resulting from such subdivision, as the case may be.  “Revolving Outstandings” means at any time, with respect to any Lender, the sum of (i) the  aggregate principal amount of such Lender’s outstanding Revolving Loans plus (ii) the aggregate amount  of such Lender’s Swingline Exposure plus (iii) the aggregate amount of such Lender’s Letter of Credit  Liabilities.  “Revolving Outstandings Excess” has the meaning set forth in Section 2.09.  “S&P” means Standard & Poor’s Ratings Group, a division of S&P Global Inc. and any successor  thereto or, absent any such successor, such nationally recognized statistical rating organization as the  Borrower and the Administrative Agent may select.  “Sanctioned Country” means a country, region or territory that is the subject of comprehensive  territorial Sanctions (currently, Crimea, Cuba, Iran, North Korea, Sudan, and Syria).   





 






  21  “Sanctioned Person” means a Person that is, or is owned or controlled by Persons that are, (i) the  subject of any Sanctions, or (ii) located, organized or resident in a Sanctioned Country.  “Sanctions” means sanctions administered or enforced by OFAC, the U.S. State Department, the  European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or  any other applicable sanctions authority.  “SEC” means the Securities and Exchange Commission.  “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight  financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s  Website on the immediately succeeding Business Day.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator  of the secured overnight financing rate).  “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York,  currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time.  “Subsidiary” means any Corporation, a majority of the outstanding Voting Stock of which is  owned, directly or indirectly, by the Borrower or one or more other Subsidiaries of the Borrower.    “Swingline Borrowing” means a Borrowing made by the Borrower under Section 2.02, as identified  in the Notice of Borrowing with respect thereto.  “Swingline Exposure” means, for any Lender at any time, the product derived by multiplying (i)  the aggregate principal amount of all outstanding Swingline Loans at such time by (ii) such Lender’s  Commitment Ratio.  “Swingline Lender” means Wells Fargo Bank, in its capacity as Swingline Lender.  “Swingline Loan” means any swingline loan made by the Swingline Lender to the Borrower  pursuant to Section 2.02.  “Swingline Sublimit” means the lesser of (a) $20,000,000 and (b) the aggregate Commitments of  all Lenders.  “Swingline Termination Date” means the first to occur of (a) the resignation of Wells Fargo Bank  as Administrative Agent in accordance with Section 8.09 and (b) the Termination Date.  “Syndication Agent” means JPMorgan Chase Bank, N.A., in its capacity as a syndication agent in  respect of this Agreement.  “Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan  or similar off-balance sheet financing product where such transaction is considered borrowed money  indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP.  “Taxes” means all present or future taxes, levies, imposts, duties, withholdings (including backup  withholding), assessments or other charges in the nature of a tax imposed by any Governmental Authority,  including any interest, additions to tax or penalties applicable thereto.  





 






  22  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time,  the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant  Governmental Body.  “Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the  Borrower of the occurrence of a Term SOFR Transition Event.  “Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term  SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term  SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event, an  Early Opt-in Election or an Other Benchmark Rate Election, as applicable, has previously occurred  resulting in the replacement of the then-current Benchmark for all purposes hereunder and under any Loan  Document in accordance with Section 2.14(b) with a Benchmark Replacement the Unadjusted Benchmark  Replacement component of which is not Term SOFR.  “Termination Date” means the earlier to occur of (i) December 6, 2026, as may be extended from  time to time pursuant to Section 2.08(d), and (ii) the date upon which all Commitments shall have been  terminated in their entirety in accordance with this Agreement.  “Type”, when used in respect of any Loan or Borrowing, shall refer to the rate by reference to  which interest on such Loan or on the Loans comprising such Borrowing is determined.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA  Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.   “UK Resolution Authority” means the Bank of England or any other public administrative authority  having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding  the related Benchmark Replacement Adjustment.  “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by which  (i) the value of all benefit liabilities under such Plan, determined on a plan termination basis using the  assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market  value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but  unpaid contributions), all determined as of the then most recent valuation date for such Plan, but only to the  extent that such excess represents a potential liability of a member of the ERISA Group to the PBGC or  any other Person under Title IV of ERISA.  “United States” means the United States of America, including the States and the District of  Columbia, but excluding its territories and possessions.  “Voting Stock” means stock (or other interests) of a Corporation having ordinary voting power for  the election of directors, managers or trustees thereof, whether at all times or only so long as no senior class  of stock has such voting power by reason of any contingency.  “VSCC” means the Virginia State Corporation Commission.   





 






  23  “Wells Fargo Bank” means Wells Fargo Bank, National Association, and its successors.  “Wells Fargo Securities” means Wells Fargo Securities, LLC, and its successors and assigns.  “Wholly Owned Subsidiary” means, with respect to any Person at any date, any Subsidiary of such  Person all of the Voting Stock of which (except directors’ qualifying shares) is at the time directly or  indirectly owned by such Person.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers  of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution or any contract or instrument under which that liability  arises, to convert all or part of that liability into shares, securities or obligations of that person or any other  person, to provide that any such contract or instrument is to have effect as if a right had been exercised  under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  Section 1.02 Divisions.  For all purposes under the Loan Documents, pursuant to any statutory  division or plan of division under Delaware law, including a statutory division pursuant to Section 18-217  of the Delaware Limited Liability Company Act (or any comparable event under a different state’s laws):   (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of  one or more different Persons, then such asset, right, obligation or liability shall be deemed to have been  transferred from the original Person to the subsequent Person(s) on the date such division becomes  effective, and (b) 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 equity interests on the date such division  becomes effective.  Section 1.03 Rates.  The interest rate on Euro-Dollar Loans and Base Rate Loans (when  determined by reference to clause (iii) of the definition of Base Rate) may be determined by reference to  the London Interbank Offered Rate or the LIBOR Market Index Rate, which are derived from the London  interbank offered rate.  The London interbank offered rate is intended to represent the rate at which  contributing banks may obtain short-term borrowings from each other in the London interbank market.  On  March 5, 2021, ICE Benchmark Administration (“IBA”), the administrator of the London interbank offered  rate, and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of IBA, announced in  public statements (the “Announcements”) that the final publication or representativeness date for the  London interbank offered rate for Dollars for: (a) 1-week and 2-month tenor settings will be December 31,  2021 and (b) overnight, 1-month, 3-month, 6-month and 12-month tenor settings will be June 30, 2023. No  successor administrator for IBA was identified in such Announcements.  As a result, it is possible that  commencing immediately after such dates, the London interbank offered rate for such tenors may no longer  be available or may no longer be deemed a representative reference rate upon which to determine the  interest rate on Euro-Dollar Loans or Base Rate Loans (when determined by reference to clause (iii) of the  definition of Base Rate). There is no assurance that the dates set forth in the Announcements will not change  or that IBA or the FCA will not take further action that could impact the availability, composition or  characteristics of any London interbank offered rate. Public and private sector industry initiatives have been  and continue, as of the date hereof, to be underway to implement new or alternative reference rates to be  used in place of the London Interbank Offered Rate.  In the event that the London interbank offered rate or  any other then-current Benchmark is no longer available or in certain other circumstances set forth in  Section 2.14(b), such Section 2.14(b) provides a mechanism for determining an alternative rate of interest.   The Administrative Agent will notify the Borrower, pursuant to Section 2.14(b), of any change to the  





 






  24  reference rate upon which the interest rate on Euro-Dollar Loans and Base Rate Loans (when determined  by reference to clause (iii) of the definition of Base Rate) is based.  However, the Administrative Agent  does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the  continuation of, administration of, submission of, calculation of or any other matter related to the London  interbank offered rate or other rates in the definition of “London Interbank Offered Rate” or “LIBOR  Market Index Rate” or with respect to any alternative, successor or replacement rate thereto (including any  then-current Benchmark or any Benchmark Replacement), including whether the composition or  characteristics of any such alternative, successor or replacement rate (including any Benchmark  Replacement), as it may or may not be adjusted pursuant to Section 2.14(b), will be similar to, or produce  the same value or economic equivalence of, the London Interbank Offered Rate or LIBOR Market Index  Rate, as applicable, or any other Benchmark, or have the same volume or liquidity as did the London  interbank offered rate or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect,  implementation or composition of any Benchmark Replacement Conforming Changes.  The Administrative  Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of a  Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any  relevant adjustments thereto and such transactions may be adverse to the Borrower.  The Administrative  Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark,  any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the  terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or  entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential  damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity),  for any error or calculation of any such rate (or component thereof) provided by any such information  source or service.  ARTICLE II  THE CREDITS  Section 2.01 Commitments to Lend.  Each Lender severally agrees, on the terms and conditions  set forth in this Agreement, to make Revolving Loans in Dollars to the Borrower pursuant to this  Section 2.01 from time to time during the Availability Period in amounts such that its Revolving  Outstandings shall not exceed its Commitment; provided, that, immediately after giving effect to each such  Revolving Loan, the aggregate principal amount of all outstanding Revolving Loans (after giving effect to  any amount requested) shall not exceed the aggregate Commitments less the sum of all outstanding  Swingline Loans and Letter of Credit Liabilities.  Each Revolving Borrowing (other than Mandatory Letter  of Credit Borrowings) shall be in an aggregate principal amount of $10,000,000 or any larger integral  multiple of $1,000,000 (except that any such Borrowing may be in the aggregate amount of the unused  Commitments) and shall be made from the several Lenders ratably in proportion to their respective  Commitments.  Within the foregoing limits, the Borrower may borrow under this Section 2.01, repay, or,  to the extent permitted by Section 2.10, prepay, Revolving Loans and reborrow under this Section 2.01.  Section 2.02 Swingline Loans.  (a) Availability.  Subject to the terms and conditions of this Agreement, the Swingline Lender  agrees to make Swingline Loans to the Borrower from time to time from the Effective Date through, but  not including, the Swingline Termination Date in an aggregate principal amount at any time outstanding  that will not result in (i) the sum of the total Swingline Exposures exceeding the Swingline Sublimit, (ii)  the sum of the total Revolving Outstandings exceeding the total Commitments, (iii) any Lender’s Revolving  Outstandings exceeding such Lender’s Commitment or (iv) in the case of the Swingline Lender (whether  directly or through an Affiliate), the sum of such Lender’s Revolving Outstandings plus (without  duplication) the outstanding principal amount of Swingline Loans made by the Swingline Lender exceeding  such Swingline Lender’s Commitment; provided, that the Borrower shall not use the proceeds of any  





 






  25  Swingline Loan to refinance any outstanding Swingline Loan.  Each Swingline Loan shall be in an  aggregate principal amount of $2,000,000 or any larger integral multiple of $500,000 (except that any such  Borrowing may be in the aggregate amount of the unused Swingline Sublimit).  Within the foregoing limits,  the Borrower may borrow, repay and reborrow Swingline Loans, in each case under this Section 2.02. Each  Swingline Loan shall be a Base Rate Loan.   (b) Refunding.  (i) Swingline Loans shall be refunded by the Lenders on demand by the Swingline  Lender.  Such refundings shall be made by the Lenders in accordance with their respective  Commitment Ratios and shall thereafter be reflected as Revolving Loans of the Lenders on the  books and records of the Administrative Agent.  Each Lender shall fund its respective Commitment  Ratio of Revolving Loans as required to repay Swingline Loans outstanding to the Swingline  Lender upon demand by the Swingline Lender but in no event later than 1:00 P.M. (Charlotte,  North Carolina time) on the next succeeding Business Day after such demand is made.  No Lender’s  obligation to fund its respective Commitment Ratio of a Swingline Loan shall be affected by any  other Lender’s failure to fund its Commitment Ratio of a Swingline Loan, nor shall any Lender’s  Commitment Ratio be increased as a result of any such failure of any other Lender to fund its  Commitment Ratio of a Swingline Loan.  (ii) The Borrower shall pay to the Swingline Lender on demand, and in no case more  than fourteen (14) days after the date that such Swingline Loan is made, the amount of such  Swingline Loan to the extent amounts received from the Lenders are not sufficient to repay in full  the outstanding Swingline Loans requested or required to be refunded.  In addition, the Borrower  hereby authorizes the Administrative Agent to charge any account maintained by the Borrower  with the Swingline Lender (up to the amount available therein) in order to immediately pay the  Swingline Lender the amount of such Swingline Loans to the extent amounts received from the  Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to  be refunded.  If any portion of any such amount paid to the Swingline Lender shall be recovered  by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of  the amount so recovered shall be ratably shared among all the Lenders in accordance with their  respective Commitment Ratios (unless the amounts so recovered by or on behalf of the Borrower  pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event  of Default of which the Administrative Agent has received notice in the manner required pursuant  to Section 8.05 and which such Event of Default has not been waived by the Required Lenders or  the Lenders, as applicable).  (iii) Each Lender acknowledges and agrees that its obligation to refund Swingline  Loans (other than Swingline Loans extended after the occurrence and during the continuation of an  Event of Default of which the Administrative Agent has received notice in the manner required  pursuant to Section 8.05 and which such Event of Default has not been waived by the Required  Lenders or the Lenders, as applicable) in accordance with the terms of this Section is absolute and  unconditional and shall not be affected by any circumstance whatsoever, including, without  limitation, non-satisfaction of the conditions set forth in Article IV.  Further, each Lender agrees  and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to  this Section, one of the events described in Section 7.01(h) or (i) shall have occurred, each Lender  will, on the date the applicable Revolving Loan would have been made, purchase an undivided  participating interest in the Swingline Loan to be refunded in an amount equal to its Commitment  Ratio of the aggregate amount of such Swingline Loan.  Each Lender will immediately transfer to  the Swingline Lender, in immediately available funds, the amount of its participation and upon  receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such  





 






  26  participation dated the date of receipt of such funds and for such amount.  Whenever, at any time  after the Swingline Lender has received from any Lender such Lender’s participating interest in a  Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline  Lender will distribute to such Lender its participating interest in such amount (appropriately  adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s  participating interest was outstanding and funded).  Section 2.03 Notice of Borrowings.  The Borrower shall give the Administrative Agent notice  substantially in the form of Exhibit A-1 hereto (a “Notice of Borrowing”) not later than (a) 11:30 A.M.  (Charlotte, North Carolina time) on the date of each Base Rate Borrowing and (b) 12:00 Noon (Charlotte,  North Carolina time) on the third Business Day before each Euro-Dollar Borrowing, specifying:  (i) the date of such Borrowing, which shall be a Business Day;  (ii) the aggregate amount of such Borrowing;  (iii) whether such Borrowing is comprised of Revolving Loans or a Swingline Loan;  (iv) in the case of a Revolving Borrowing, the initial Type of the Loans comprising  such Borrowing; and  (v) in the case of a Euro-Dollar Borrowing, the duration of the initial Interest Period  applicable thereto, subject to the provisions of the definition of Interest Period.  Notwithstanding the foregoing, no more than six (6) Groups of Euro-Dollar Loans shall be outstanding at  any one time, and any Loans which would exceed such limitation shall be made as Base Rate Loans.  Section 2.04 Notice to Lenders; Funding of Revolving Loans and Swingline Loans.  (a) Notice to Lenders.  Upon receipt of a Notice of Borrowing (other than in respect of a  Borrowing of a Swingline Loan), the Administrative Agent shall promptly notify each Lender of such  Lender’s ratable share (if any) of the Borrowing referred to in the Notice of Borrowing, and such Notice of  Borrowing shall not thereafter be revocable by the Borrower.  (b) Funding of Loans.  Not later than (a) 1:00 P.M. (Charlotte, North Carolina time) on the  date of each Base Rate Borrowing and (b) 12:00 Noon (Charlotte, North Carolina time) on the date of each  Euro-Dollar Borrowing, each Lender shall make available its ratable share of such Borrowing, in Federal  or other funds immediately available in Charlotte, North Carolina, to the Administrative Agent at its address  referred to in Section 9.01.  Unless the Administrative Agent determines that any applicable condition  specified in Article IV has not been satisfied, the Administrative Agent shall apply any funds so received  in respect of a Borrowing available to the Borrower at the Administrative Agent’s address not later than (a)  3:00 P.M. (Charlotte, North Carolina time) on the date of each Base Rate Borrowing and (b) 2:00 P.M.  (Charlotte, North Carolina time) on the date of each Euro-Dollar Borrowing. Revolving Loans to be made  for the purpose of refunding Swingline Loans shall be made by the Lenders as provided in Section 2.02(b).  (c) Funding By the Administrative Agent in Anticipation of Amounts Due from the Lenders.   Unless the Administrative Agent shall have received notice from a Lender prior to the date of any  Borrowing (except in the case of a Base Rate Borrowing, in which case prior to the time of such Borrowing)  that such Lender will not make available to the Administrative Agent such Lender’s share of such  Borrowing, the Administrative Agent may assume that such Lender has made such share available to the  Administrative Agent on the date of such Borrowing in accordance with subsection (b) of this Section, and  





 






  27  the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such  date a corresponding amount.  If and to the extent that such Lender shall not have so made such share  available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the  Administrative Agent forthwith on demand such corresponding amount, together with interest thereon for  each day from the date such amount is made available to the Borrower until the date such amount is repaid  to the Administrative Agent at (i) a rate per annum equal to the higher of the Federal Funds Rate and the  interest rate applicable thereto pursuant to Section 2.06, in the case of the Borrower, and (ii) the Federal  Funds Rate, in the case of such Lender.  Any payment by the Borrower hereunder shall be without prejudice  to any claim the Borrower may have against a Lender that shall have failed to make its share of a Borrowing  available to the Administrative Agent.  If such Lender shall repay to the Administrative Agent such  corresponding amount, such amount so repaid shall constitute such Lender’s Loan included in such  Borrowing for purposes of this Agreement.  (d) Obligations of Lenders Several.  The failure of any Lender to make a Loan required to be  made by it as part of any Borrowing hereunder shall not relieve any other Lender of its obligation, if any,  hereunder to make any Loan on the date of such Borrowing, but no Lender shall be responsible for the  failure of any other Lender to make the Loan to be made by such other Lender on such date of Borrowing.  Section 2.05 Noteless Agreement; Evidence of Indebtedness.  (a) 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.  (b) The Administrative Agent shall also maintain accounts in which it will record (i) the  amount of each Loan made hereunder, the Type thereof and the Interest Period with respect thereto, (ii) the  amount of any principal or interest due and payable or to become due and payable from the Borrower to  each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder  from the Borrower and each Lender’s share thereof.  (c) The entries maintained in the accounts maintained pursuant to subsections (a) and (b)  above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded;  provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or  any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in  accordance with their terms.  (d) Any Lender may request that its Loans be evidenced by a Note.  In such event, the  Borrower shall prepare, execute and deliver to such Lender a Note payable to the order of such Lender.   Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after any  assignment pursuant to Section 9.06(c)) be represented by one or more Notes payable to the order of the  payee named therein or any assignee pursuant to Section 9.06(c), 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 subsections (a) and (b) above.   Section 2.06 Interest Rates.  (a) Interest Rate Options.  The Loans shall, at the option of the Borrower and except as  otherwise provided herein, be incurred and maintained as, or converted into, one or more Base Rate Loans  or Euro-Dollar Loans.  





 






  28  (b) Base Rate Loans.  Each Loan which is made as, or converted into, a Base Rate Loan (other  than a Swingline Loan) shall bear interest on the outstanding principal amount thereof, for each day from  the date such Loan is made as, or converted into, a Base Rate Loan until it becomes due or is converted into  a Loan of any other Type, at a rate per annum equal to the sum of the Base Rate for such day plus the  Applicable Percentage for Base Rate Loans for such day.  Each Loan which is made as a Swingline Loan  shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is  made until it becomes due at a rate per annum equal to the LIBOR Market Index Rate for such day plus the  Applicable Percentage for Euro-Dollar Loans for such day.  Such interest shall, in each case, be payable  quarterly in arrears on each Quarterly Date (or, with respect to Base Rate Loans that are Swingline Loans,  as the Swingline Lender and the Borrower may otherwise agree in writing) and, with respect to the principal  amount of any Base Rate Loan (other than a Swingline Loan) converted to a Euro-Dollar Loan, on the date  such Base Rate Loan is so converted.  Any overdue principal of or interest on any Base Rate Loan shall  bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of 2% plus  the rate otherwise applicable to Base Rate Loans for such day.  (c) Euro-Dollar Loans.  Each Euro-Dollar Loan shall bear interest on the outstanding principal  amount thereof, for each day during the Interest Period applicable thereto, at a rate per annum equal to the  sum of the Adjusted London Interbank Offered Rate for such Interest Period plus the Applicable Percentage  for Euro-Dollar Loans for such day.  Such interest shall be payable for each Interest Period on the last day  thereof and, if such Interest Period is longer than three months, at intervals of three months after the first  day thereof.  Any overdue principal of or interest on any Euro-Dollar Loan shall bear interest, payable on  demand, for each day until paid at a rate per annum equal to the sum of 2% plus the sum of (A) the Adjusted  London Interbank Offered Rate applicable to such Loan at the date such payment was due plus (B) the  Applicable Percentage for Euro-Dollar Loans for such day (or, if the circumstance described in Section 2.14  shall exist, at a rate per annum equal to the sum of 2% plus the rate applicable to Base Rate Loans for such  day).  (d) Method of Electing Interest Rates.  (i) Subject to Section 2.06(a), the Loans included in each Revolving Borrowing shall  bear interest initially at the type of rate specified by the Borrower in the applicable Notice of  Borrowing.  Thereafter, with respect to each Group of Loans, the Borrower shall have the option  (A) to convert all or any part of (y) so long as no Default is in existence on the date of conversion,  outstanding Base Rate Loans to Euro-Dollar Loans and (z) outstanding Euro-Dollar Loans to Base  Rate Loans; provided, in each case, that the amount so converted shall be equal to $10,000,000 or  any larger integral multiple of $1,000,000, or (B) upon the expiration of any Interest Period  applicable to outstanding Euro-Dollar Loans, so long as no Default is in existence on the date of  continuation, to continue all or any portion of such Loans, equal to $10,000,000 and any larger  integral multiple of $1,000,000 in excess of that amount as Euro-Dollar Loans.  The Interest Period  of any Base Rate Loan converted to a Euro-Dollar Loan pursuant to clause (A) above shall  commence on the date of such conversion.  The succeeding Interest Period of any Euro-Dollar Loan  continued pursuant to clause (B) above shall commence on the last day of the Interest Period of the  Loan so continued.  Euro-Dollar Loans may only be converted on the last day of the then current  Interest Period applicable thereto or on the date required pursuant to Section 2.18.  (ii) The Borrower shall deliver a written notice of each such conversion or  continuation (a “Notice of Conversion/Continuation”) to the Administrative Agent no later than  (A) 12:00 Noon (Charlotte, North Carolina time) at least three (3) Business Days before the  effective date of the proposed conversion to, or continuation of, a Euro-Dollar Loan and (B) 11:30  A.M. (Charlotte, North Carolina time) on the day of a conversion to a Base Rate Loan.  A written  Notice of Conversion/Continuation shall be substantially in the form of Exhibit A-2 attached hereto  





 






  29  and shall specify: (A) the Group of Loans (or portion thereof) to which such notice applies, (B) the  proposed conversion/continuation date (which shall be a Business Day), (C) the aggregate amount  of the Loans being converted/continued, (D) an election between the Base Rate and the Adjusted  London Interbank Offered Rate and (E) in the case of a conversion to, or a continuation of, Euro- Dollar Loans, the requested Interest Period.  Upon receipt of a Notice of Conversion/Continuation,  the Administrative Agent shall give each Lender prompt notice of the contents thereof and such  Lender’s pro rata share of all conversions and continuations requested therein.  If no timely Notice  of Conversion/Continuation is delivered by the Borrower as to any Euro-Dollar Loan, and such  Loan is not repaid by the Borrower at the end of the applicable Interest Period, such Loan shall be  converted automatically to a Base Rate Loan on the last day of the then applicable Interest Period.  (e) Determination and Notice of Interest Rates.  The Administrative Agent shall determine  each interest rate applicable to the Loans hereunder.  The Administrative Agent shall give prompt notice to  the Borrower and the participating Lenders of each rate of interest so determined, and its determination  thereof shall be conclusive in the absence of manifest error.  Any notice with respect to Euro-Dollar Loans  shall, without the necessity of the Administrative Agent so stating in such notice, be subject to adjustments  in the Applicable Percentage applicable to such Loans after the beginning of the Interest Period applicable  thereto.  When during an Interest Period any event occurs that causes an adjustment in the Applicable  Percentage applicable to Loans to which such Interest Period is applicable, the Administrative Agent shall  give prompt notice to the Borrower and the Lenders of such event and the adjusted rate of interest so  determined for such Loans, and its determination thereof shall be conclusive in the absence of manifest  error.  Section 2.07 Fees.  (a) Commitment Fees.  The Borrower shall pay to the Administrative Agent for the account of  each Lender a fee (the “Commitment Fee”) for each day at a rate per annum equal to the Applicable  Percentage for the Commitment Fee for such day.  The Commitment Fee shall accrue from and including  the Effective Date to but excluding the last day of the Availability Period on the amount by which such  Lender’s Commitment exceeds the sum of its Revolving Outstandings (solely for this purpose, exclusive  of Swingline Exposure) on such day.  The Commitment Fee shall be payable on the last day of each of  March, June, September and December and on the Termination Date.    (b) Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent a fee (the  “Letter of Credit Fee”) for each day at a rate per annum equal to the Applicable Percentage for the Letter  of Credit Fee for such day.  The Letter of Credit Fee shall accrue from and including the Effective Date to  but excluding the last day of the Availability Period on the aggregate amount available for drawing under  any Letters of Credit outstanding on such day and shall be payable for the account of the Lenders ratably  in proportion to their participations in such Letter(s) of Credit.  In addition, the Borrower shall pay to each  Issuing Lender a fee (the “Fronting Fee”) in respect of each Letter of Credit issued by such Issuing Lender  computed at the rate of 0.20% per annum on the average amount available for drawing under such Letter(s)  of Credit.  Fronting Fees shall be due and payable quarterly in arrears on each Quarterly Date and on the  Termination Date (or such earlier date as all Letters of Credit shall be canceled or expire).  In addition, the  Borrower agrees to pay to each Issuing Lender, upon each issuance of, payment under, and/or amendment  of, a Letter of Credit, such amount as shall at the time of such issuance, payment or amendment be the  administrative charges and expenses which such Issuing Lender is customarily charging for issuances of,  payments under, or amendments to letters of credit issued by it.  (c) Payments.  Except as otherwise provided in this Section 2.07, accrued fees under this  Section 2.07 in respect of Loans and Letter of Credit Liabilities shall be payable quarterly in arrears on each  Quarterly Date, on the last day of the Availability Period and, if later, on the date the Loans and Letter of  





 






  30  Credit Liabilities shall be repaid in their entirety.  Fees paid hereunder shall not be refundable under any  circumstances.  Section 2.08 Adjustments of Commitments.  (a) Optional Termination or Reductions of Commitments (Pro-Rata).  The Borrower may,  upon at least three Business Days’ prior written notice to the Administrative Agent, permanently  (i) terminate the Commitments, if there are no Revolving Outstandings at such time or (ii) ratably reduce  from time to time by a minimum amount of $10,000,000 or any larger integral multiple of $5,000,000, the  aggregate amount of the Commitments in excess of the aggregate Revolving Outstandings.  Upon receipt  of any such notice, the Administrative Agent shall promptly notify the Lenders.  If the Commitments are  terminated in their entirety, all accrued fees shall be payable on the effective date of such termination.  (b) Replacement of Lenders; Optional Termination of Commitments (Non-Pro-Rata).  If (i)  any Lender has demanded compensation or indemnification pursuant to Sections 2.14, 2.15, 2.16 or 2.17,  (ii) the obligation of any Lender to make Euro-Dollar Loans has been suspended pursuant to Section 2.15  or (iii) any Lender is a Defaulting Lender (each such Lender described in clauses (i), (ii) or (iii) being a  “Retiring Lender”), the Borrower shall have the right, if no Default then exists, to replace such Lender with  one or more Eligible Assignees (which may be one or more of the Continuing Lenders) (each a  “Replacement Lender” and, collectively, the “Replacement Lenders”) reasonably acceptable to the  Administrative Agent.  The replacement of a Retiring Lender pursuant to this Section 2.08(b) shall be  effective on the tenth Business Day (the “Replacement Date”) following the date of notice given by the  Borrower of such replacement to the Retiring Lender and each Continuing Lender through the  Administrative Agent, subject to the satisfaction of the following conditions:  (i) the Replacement Lender shall have satisfied the conditions to assignment and  assumption set forth in Section 9.06(c) (with all fees payable pursuant to Section 9.06(c) to be paid  by the Borrower) and, in connection therewith, the Replacement Lender(s) shall pay:  (A) to the Retiring Lender an amount equal in the aggregate to the sum of (x)  the principal of, and all accrued but unpaid interest on, all outstanding Loans of the Retiring  Lender, (y) all unpaid drawings that have been funded by (and not reimbursed to) the  Retiring Lender under Section 3.10, together with all accrued but unpaid interest with  respect thereto and (z) all accrued but unpaid fees owing to the Retiring Lender pursuant  to Section 2.07; and  (B) to the Swingline Lender an amount equal to the aggregate amount owing  by the Retiring Lender to the Swingline Lender in respect of all unpaid refundings of  Swingline Loans requested by the Swingline Lender pursuant to Section 2.02(b)(i), to the  extent such amount was not theretofore funded by such Retiring Lender; and  (C) to the Issuing Lenders an amount equal to the aggregate amount owing by  the Retiring Lender to the Issuing Lenders as reimbursement pursuant to Section 3.09, to  the extent such amount was not theretofore funded by such Retiring Lender; and  (ii) the Borrower shall have paid to the Administrative Agent for the account of the  Retiring Lender an amount equal to all obligations owing to the Retiring Lender by the Borrower  pursuant to this Agreement and the other Loan Documents (other than those obligations of the  Borrower referred to in clause (i)(A) above).  





 






  31  On the Replacement Date, each Replacement Lender that is a New Lender shall become a Lender  hereunder and shall succeed to the obligations of the Retiring Lender with respect to outstanding Swingline  Loans and Letters of Credit to the extent of the Commitment of the Retiring Lender assumed by such  Replacement Lender, and the Retiring Lender shall cease to constitute a Lender hereunder; provided, that  the provisions of Sections 2.12, 2.16, 2.17 and 9.03 of this Agreement shall continue to inure to the benefit  of a Retiring Lender with respect to any Loans made, any Letters of Credit issued or any other actions taken  by such Retiring Lender while it was a Lender.  In lieu of the foregoing, subject to Section 2.08(e), upon express written consent of Continuing  Lenders holding more than 50% of the aggregate amount of the Commitments of the Continuing Lenders,  the Borrower shall have the right to permanently terminate the Commitment of a Retiring Lender in full.   Upon payment by the Borrower to the Administrative Agent for the account of the Retiring Lender of an  amount equal to the sum of (i) the aggregate principal amount of all Loans and Reimbursement Obligations  owed to the Retiring Lender and (ii) all accrued interest, fees and other amounts owing to the Retiring  Lender hereunder, including, without limitation, all amounts payable by the Borrower to the Retiring  Lender under Sections 2.12, 2.16, 2.17 or 9.03, such Retiring Lender shall cease to constitute a Lender  hereunder; provided, that the provisions of Sections 2.12, 2.16, 2.17 and 9.03 of this Agreement shall inure  to the benefit of a Retiring Lender with respect to any Loans made, any Letters of Credit issued or any other  actions taken by such Retiring Lender while it was a Lender.  (c) Optional Termination of Defaulting Lender Commitment (Non-Pro-Rata).  At any time a  Lender is a Defaulting Lender, subject to Section 2.08(e), the Borrower may terminate in full the  Commitment of such Defaulting Lender by giving notice to such Defaulting Lender and the Administrative  Agent, provided, that, (i) at the time of such termination, (A) no Default has occurred and is continuing (or  alternatively, the Required Lenders shall consent to such termination) and (B) either (x) no Revolving  Loans or Swingline Loans are outstanding or (y) the aggregate Revolving Outstandings of such Defaulting  Lender in respect of Revolving Loans is zero; (ii) concurrently with such termination, the aggregate  Commitments shall be reduced by the Commitment of the Defaulting Lender; and (iii) concurrently with  any subsequent payment of interest or fees to the Lenders with respect to any period before the termination  of a Defaulting Lender’s Commitment, the Borrower shall pay to such Defaulting Lender its ratable share  (based on its Commitment Ratio before giving effect to such termination) of such interest or fees, as  applicable.  The termination of a Defaulting Lender’s Commitment pursuant to this Section 2.08(c) shall  not be deemed to be a waiver of any right that the Borrower, Administrative Agent, any Issuing Lender or  any other Lender may have against such Defaulting Lender.  (d) Termination Date; Optional Extensions.    (i) The Commitments shall terminate on the Termination Date.    (ii) The Borrower may, by sending an Extension Letter to the Administrative Agent  (in which case the Administrative Agent shall promptly deliver a copy to each of the Lenders), not  less than thirty (30) nor more than ninety (90) days prior to each anniversary of the Effective Date  (such anniversary, the “Extension Date”) request, but on not more than two occasions during the  term of the revolving credit facilities hereunder, that the Lenders extend the Termination Date then  in effect (the “Current Termination Date”) so that it will occur up to one year after the Current  Termination Date.  Each Lender, acting in its sole discretion, may, by notice to the Administrative  Agent given no later than fifteen (15) days prior to each anniversary of the Effective Date, as  applicable (the “Election Date”), advise the Administrative Agent in writing whether or not it  agrees to such extension (each Lender to respond negatively to such request being referred to herein  as a “Non-Extending Lender”); provided, that, any Lender not responding to such request within  





 






  32  such time period shall be deemed to be a Non-Extending Lender.  The election of any Lender to  agree to such extension shall not obligate any other Lender to agree.  (iii) (A) If Lenders holding Commitments that aggregate at least 51% of the aggregate  Commitments of the Lenders on or prior to the Election Date shall not have agreed to extend the  Termination Date, then the Current Termination Date shall not be so extended and the outstanding  principal balance of all loans and other amounts payable hereunder shall be due and payable on the  Current Termination Date.  (B) If (and only if) Lenders holding Commitments that aggregate at  least 51% of the aggregate Revolving Commitments of the Lenders on or prior to the Election Date  shall have agreed to extend the Current Termination Date, then the Termination Date applicable to  the Lenders that are Extending Lenders shall, as of the Extension Date, be the day that is one year  after the Current Termination Date.  In the event of such extension, the Commitment of each Non- Extending Lender shall terminate on the Current Termination Date applicable to such Non- Extending Lender, all Loans and other amounts payable hereunder to such Non-Extending Lender  shall become due and payable on such Current Termination Date and the aggregate Commitments  of the Lenders hereunder shall be reduced by the aggregate Commitments of Non-Extending  Lenders so terminated on and after such Current Termination Date.  Each Non-Extending Lender  shall be required to maintain its original Commitment up to the Termination Date, or Current  Termination Date, as applicable, to which such Non-Extending Lender had previously agreed.   (iv) In the event that the conditions of clause (B) of paragraph (iii) above have been  satisfied, the Borrower shall have the right on or before the applicable Extension Date, at its own  expense, to require any Non-Extending Lender to transfer and assign without recourse or  representation (except as to title and the absence of Liens created by it) (in accordance with and  subject to the restrictions contained in Section 9.06(c)) all its interests, rights and obligations under  the Loan Documents (including with respect to any Letter of Credit Liabilities) to one or more  Eligible Assignees (which may include any Lender) (each, an “Additional Commitment Lender”),  provided, that (x) such Additional Commitment Lender, if not already a Lender hereunder, shall be  subject to the approval of the Administrative Agent, the Swingline Lender and the Issuing Lenders  (not to be unreasonably withheld), (y) such assignment shall become effective as of the applicable  Extension Date and (z) the Additional Commitment Lender shall pay to such Non-Extending  Lender in immediately available funds on the effective date of such assignment the principal of and  interest accrued to the date of payment on the Loans made by such Non-Extending Lender  hereunder and all other amounts accrued for such Non-Extending Lender’s account or owed to it  hereunder.  (v) Notwithstanding the foregoing, no extension of the Termination Date shall become  effective unless, on the Extension Date, (i) the conditions set forth in Section 4.02 shall be satisfied  (with all references in such paragraphs to the making of a Loan or issuance of a Letter of Credit  being deemed to be references to the extension of the Commitments on the Extension Date), (ii)  any necessary governmental, regulatory and third party approvals, including, without limitation  any KPSC, VSCC and/or FERC approval required to authorize the extension of the Termination  Date shall be in full force and effect, in each case without any action being taken by any competent  authority which could restrain or prevent such transaction or impose, in the reasonable judgment  of the Administrative Agent, materially adverse conditions upon the consummation of the extension  of the Termination Date and (iii) the Administrative Agent shall have received (a) a certificate to  that effect, with any necessary governmental, regulatory or third party approvals attached thereto,  dated the Extension Date and executed by a Responsible Officer of the Borrower and (b) opinions  of counsel for the Borrower, addressed to the Administrative Agent and each Lender, dated the  Extension Date, in form and substance satisfactory to the Administrative Agent.   





 






  33  (e) Redetermination of Commitment Ratios.  On the date of termination of the Commitment  of a Retiring Lender or Defaulting Lender pursuant to Section 2.08(b) or (c), or, if the Termination Date  has been extended pursuant to Section 2.08(d) with respect to some, but not all, Lenders, the date on which  the Current Termination Date with respect to Non-Extending Lenders occurs, the Commitment Ratios of  the Continuing Lenders or the Extending Lenders, as applicable, shall be redetermined after giving effect  thereto, and the participations of the Continuing Lenders or the Extending Lenders, as applicable, in and  obligations of the Continuing Lenders or Extending Lenders, as applicable, in respect of any then  outstanding Swingline Loans and Letters of Credit shall thereafter be based upon such redetermined  Commitment Ratios (as adjusted pursuant to Sections 2.19 and 2.20).  The right of the Borrower to effect  such a termination pursuant to Section 2.08(b) or (c) is conditioned on there being sufficient unused  availability in the Commitments of the Continuing Lenders such that the aggregate Revolving Outstandings  will not exceed the aggregate Commitments after giving effect to such termination and redetermination.  Section 2.09 Maturity of Loans; Mandatory Prepayments.  (a) Scheduled Repayments and Prepayments of Loans; Overline Repayments.  (i) The Revolving Loans shall mature on the Termination Date, and any Revolving  Loans, Swingline Loans and Letter of Credit Liabilities then outstanding (together with accrued  interest thereon and fees in respect thereof) shall be due and payable or, in the case of Letters of  Credit, cash collateralized pursuant to Section 2.09(a)(ii), on such date.  (ii) If on any date the aggregate Revolving Outstandings exceed the aggregate amount  of the Commitments (such excess, a “Revolving Outstandings Excess”), the Borrower shall prepay,  and there shall become due and payable (together with accrued interest thereon) on such date, an  aggregate principal amount of Revolving Loans and/or Swingline Loans equal to such Revolving  Outstandings Excess.  If, at a time when a Revolving Outstandings Excess exists and (x) no  Revolving Loans or Swingline Loans are outstanding or (y) the Commitment has been terminated  pursuant to this Agreement and, in either case, any Letter of Credit Liabilities remain outstanding,  then, in either case, the Borrower shall cash collateralize any Letter of Credit Liabilities by  depositing into a cash collateral account established and maintained (including the investments  made pursuant thereto) by the Administrative Agent pursuant to a cash collateral agreement in form  and substance satisfactory to the Administrative Agent an amount in cash equal to the then  outstanding Letter of Credit Liabilities.  In determining Revolving Outstandings for purposes of  this clause (ii), Letter of Credit Liabilities shall be reduced to the extent that they are cash  collateralized as contemplated by this Section 2.09(a)(ii).  (b) Applications of Prepayments and Reductions.  (i) Each payment or prepayment of Loans pursuant to this Section 2.09 shall be  applied ratably to the respective Loans of all of the Lenders.  (ii) Each payment of principal of the Loans shall be made together with interest  accrued on the amount repaid to the date of payment.  (iii) Each payment of the Loans shall be applied to such Groups of Loans as the  Borrower may designate (or, failing such designation, as determined by the Administrative Agent).  





 






  34  Section 2.10 Optional Prepayments and Repayments.  (a) Prepayments of Loans.  Other than in respect of Swingline Loans, the repayment of which  is governed pursuant to Section 2.02(b), subject to Section 2.12, the Borrower may (i) upon at least one (1)  Business Day’s notice to the Administrative Agent, prepay any Base Rate Borrowing or (ii) upon at least  three (3) Business Days’ notice to the Administrative Agent, prepay any Euro-Dollar Borrowing, in each  case in whole at any time, or from time to time in part in amounts aggregating $10,000,000 or any larger  integral multiple of $1,000,000, by paying the principal amount to be prepaid together with accrued interest  thereon to the date of prepayment.  Each such optional prepayment shall be applied to prepay ratably the  Loans of the several Lenders included in such Borrowing.  (b) Notice to Lenders.  Upon receipt of a notice of prepayment pursuant to Section 2.10(a), the  Administrative Agent shall promptly notify each Lender of the contents thereof and of such Lender’s ratable  share (if any) of such prepayment, and such notice shall not thereafter be revocable by the Borrower.  Section 2.11 General Provisions as to Payments.  (a) Payments by the Borrower.  The Borrower shall make each payment of principal of and  interest on the Loans and Letter of Credit Liabilities and fees hereunder (other than fees payable directly to  the Issuing Lenders) not later than 12:00 Noon (Charlotte, North Carolina time) on the date when due,  without set-off, counterclaim or other deduction, in Federal or other funds immediately available in  Charlotte, North Carolina, to the Administrative Agent at its address referred to in Section 9.01.  The  Administrative Agent will promptly distribute to each Lender its ratable share of each such payment  received by the Administrative Agent for the account of the Lenders.  Whenever any payment of principal  of or interest on the Base Rate Loans or Letter of Credit Liabilities or of fees shall be due on a day which  is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day.   Whenever any payment of principal of or interest on the Euro-Dollar Loans shall be due on a day which is  not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day  unless such Business Day falls in another calendar month, in which case the date for payment thereof shall  be the next preceding Business Day.  If the date for any payment of principal is extended by operation of  law or otherwise, interest thereon shall be payable for such extended time.  (b) Distributions by the Administrative Agent.  Unless the Administrative Agent shall have  received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder  that the Borrower will not make such payment in full, the Administrative Agent may assume that the  Borrower has made such payment in full to the Administrative Agent on such date, and the Administrative  Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an  amount equal to the amount then due such Lender.  If and to the extent that the Borrower shall not have so  made such payment, each Lender shall repay to the Administrative Agent forthwith on demand such amount  distributed to such Lender together with interest thereon, for each day from the date such amount is  distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at  the Federal Funds Rate.  Section 2.12 Funding Losses.  If the Borrower makes any payment of principal with respect to  any Euro-Dollar Loan pursuant to the terms and provisions of this Agreement (any conversion of a Euro- Dollar Loan to a Base Rate Loan pursuant to Section 2.18 being treated as a payment of such Euro-Dollar  Loan on the date of conversion for purposes of this Section 2.12) on any day other than the last day of the  Interest Period applicable thereto, or the last day of an applicable period fixed pursuant to Section 2.06(c),  or if the Borrower fails to borrow, convert or prepay any Euro-Dollar Loan after notice has been given in  accordance with the provisions of this Agreement, or in the event of payment in respect of any Euro-Dollar  Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the  





 






  35  Borrower pursuant to Section 2.08(b), the Borrower shall reimburse each Lender within fifteen (15) days  after demand for any resulting loss or expense incurred by it (and by an existing Participant in the related  Loan), including, without limitation, any loss incurred in obtaining, liquidating or employing deposits from  third parties, but excluding loss of margin for the period after any such payment or failure to borrow or  prepay; provided, that such Lender shall have delivered to the Borrower a certificate as to the amount of  such loss or expense, which certificate shall be conclusive in the absence of manifest error.  Section 2.13 Computation of Interest and Fees.  Interest on Loans based on the Prime Rate  hereunder and Letter of Credit Fees shall be computed on the basis of a year of 365 days (or 366 days in a  leap year) and paid for the actual number of days elapsed.  All other interest and fees shall be computed on  the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but  excluding the last day).  Section 2.14 Basis for Determining Interest Rate Inadequate, Unfair or Unavailable.    (a) Circumstances Affecting LIBOR Rate Availability.  Subject to clause (b) below, in  connection with any request for a Euro-Dollar Loan, Swingline Loan, a conversion to or continuation  thereof or otherwise, if for any reason (i) the Administrative Agent shall determine (which determination  shall be conclusive and binding absent manifest error) that Dollar deposits are not being offered to banks  in the London interbank eurodollar market for the applicable amount and Interest Period of such Loan, (ii)  the Administrative Agent shall determine (which determination shall be conclusive and binding absent  manifest error) that reasonable and adequate means do not exist for the ascertaining the London Interbank  Offered Rate or the LIBOR Market Index Rate for such Interest Period with respect to a proposed Euro- Dollar Loan or Swingline Loan or (iii) the Required Lenders shall determine (which determination shall be  conclusive and binding absent manifest error) that the London Interbank Offered Rate or the LIBOR Market  Index Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such  Loans during such Interest Period, then, in each case, the Administrative Agent shall promptly give notice  thereof to the Borrower.  Thereafter, until the Administrative Agent notifies the Borrower that such  circumstances no longer exist, the obligation of the Lenders to make Euro-Dollar Loans or Swingline Loans,  as applicable, and the right of the Borrower to convert any Loan to or continue any Loan as a Euro-Dollar  Loan or Base Rate Loan computed on the basis of the LIBOR Market Index Rate or the London Interbank  Offered Rate, as applicable, shall be suspended, and the Borrower shall either (A) repay in full (or cause to  be repaid in full) the then outstanding principal amount of each such Euro-Dollar Loan or Swingline Loan,  together with accrued interest thereon (subject to Section 9.18), on the last day of the then current Interest  Period applicable to such Euro-Dollar Loan or Swingline Loan; or (B) convert the then outstanding  principal amount of each such Euro-Dollar Loan or Swingline Loan to a Base Rate Loan as of the last day  of such Interest Period.  (b) Benchmark Replacement Setting.  (i) (A) Benchmark Replacement. Notwithstanding anything to the contrary herein  or in any other Loan Document, if a Benchmark Transition Event, an Early Opt-in Election or an  Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have  occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then  (x) if a Benchmark Replacement is determined in accordance with clause (a)(1) or (a)(2) of the  definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark  Replacement will replace such Benchmark for all purposes hereunder and under any Loan  Document in respect of such Benchmark setting and subsequent Benchmark settings without any  amendment to, or further action or consent of any other party to, this Agreement or any other Loan  Document and (y) if a Benchmark Replacement is determined in accordance with clause (a)(3) or  clause (c) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date,  





 






  36  such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under  any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th)  Business Day after the date notice of such Benchmark Replacement is provided to the Lenders  without any amendment to, or further action or consent of any other party to, this Agreement or  any other Loan Document so long as the Administrative Agent has not received, by such time,  written notice of objection to such Benchmark Replacement from Lenders comprising the Required  Lenders.  If an Unadjusted Benchmark Replacement is Daily Simple SOFR, all interest payments  will be payable on a monthly basis.  (B) Notwithstanding anything to the contrary herein or in any other Loan  Document, if a Term SOFR Transition Event and its related Benchmark Replacement Date have  occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then  the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes  hereunder or under any Loan Document in respect of such Benchmark setting and subsequent  Benchmark settings, without any amendment to, or further action or consent of any other party to,  this Agreement or any other Loan Document; provided that this clause (B) shall not be effective  unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR  Notice.  For the avoidance of doubt, the Administrative Agent shall not be required to deliver a  Term SOFR Notice after a Term SOFR Transition Event and may elect or not elect to do so in its  sole discretion.  (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 or any other Loan Document.  (iii) Notices; Standards for Decisions and Determinations. The Administrative Agent  will promptly notify the Borrower and the Lenders of (A) any occurrence of a Benchmark  Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark  Rate Election, as applicable, and its related Benchmark Replacement Date, (B) the implementation  of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming  Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to Section  2.14(b)(iv) below and (E) the commencement or conclusion of any Benchmark Unavailability  Period.  Any determination, decision or election that may be made by the Administrative Agent or,  if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14(b), including any  determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of  an event, circumstance or date and any decision to take or refrain from taking any action or any  selection, will be conclusive and binding absent manifest error and may be made in its or their sole  discretion and without consent from any other party to this Agreement or any other Loan  Document, except, in each case, as expressly required pursuant to this Section 2.14(b).  (iv) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary  herein or in any other Loan Document, at any time (including in connection with the  implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate  (including Term SOFR, the London Interbank Offered Rate or LIBOR Market Index Rate) and  either (1) any tenor for such Benchmark is not displayed on a screen or other information service  that publishes such rate from time to time as selected by the Administrative Agent in its reasonable  discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a  public statement or publication of information announcing that any tenor for such Benchmark is or  





 






  37  will be no longer representative, then the Administrative Agent may modify the definition of  “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after  such time to remove such unavailable or non-representative tenor and (B) if a tenor that was  removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or  information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no  longer, subject to an announcement that it is or will no longer be representative for a Benchmark  (including a Benchmark Replacement), then the Administrative Agent may modify the definition  of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after  such time to reinstate such previously removed tenor.  (v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the  commencement of a Benchmark Unavailability Period, (A) the Borrower may revoke any pending  request for a borrowing of, conversion to or continuation of Euro-Dollar Loans or Swingline 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 and (B) any outstanding affected Euro-Dollar Loans or Swingline  Loans will be deemed to have been converted to Base Rate Loans at the end of the applicable  Interest Period.  During any Benchmark Unavailability Period or at any time that a tenor for the  then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the  then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any  determination of the Base Rate.  (vi) London Interbank Offered Rate Benchmark Transition Event.  On March 5, 2021,  the IBA, the administrator of the London interbank offered rate, and the FCA, the regulatory  supervisor of the IBA, made the Announcements that the final publication or representativeness  date for Dollars for (I) 1-week and 2-month London interbank offered rate tenor settings will be  December 31, 2021 and (II) overnight, 1-month, 3-month, 6-month and 12-month London  interbank offered rate tenor settings will be June 30, 2023.  No successor administrator for the IBA  was identified in such Announcements.  The parties hereto agree and acknowledge that the  Announcements resulted in the occurrence of a Benchmark Transition Event with respect to the  London interbank offered rate pursuant to the terms of this Agreement and that any obligation of  the Administrative Agent to notify any parties of such Benchmark Transition Event pursuant to  clause (iii) of this Section 2.14(b) shall be deemed satisfied.  Section 2.15 Illegality.  If, on or after the date of this Agreement, the adoption of any applicable  law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the  interpretation or administration thereof by any Governmental Authority, central bank or comparable agency  charged with the interpretation or administration thereof, or compliance by any Lender (or its Euro-Dollar  Lending Office) with any request or directive (whether or not having the force of law) of any such authority,  central bank or comparable agency shall make it unlawful or impossible for any Lender (or its Euro-Dollar  Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Lender shall so notify the  Administrative Agent, the Administrative Agent shall forthwith give notice thereof to the other Lenders  and the Borrower, whereupon until such Lender notifies the Borrower and the Administrative Agent that  the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make  Euro-Dollar Loans, or to convert outstanding Loans into Euro-Dollar Loans, shall be suspended.  Before  giving any notice to the Administrative Agent pursuant to this Section, such Lender shall designate a  different Euro-Dollar Lending Office if such designation will avoid the need for giving such notice and will  not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.  If such notice is given,  each Euro-Dollar Loan of such Lender then outstanding shall be converted to a Base Rate Loan either (a)  on the last day of the then current Interest Period applicable to such Euro-Dollar Loan if such Lender may  





 






  38  lawfully continue to maintain and fund such Loan to such day or (b) immediately if such Lender shall  determine that it may not lawfully continue to maintain and fund such Loan to such day.  Section 2.16 Increased Cost and Reduced Return.  (a) Increased Costs.  If after the Effective Date, the adoption of any applicable law, rule or  regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or  administration thereof by any Governmental Authority, central bank or comparable agency charged with  the interpretation or administration thereof, or compliance by any Lender (or its Applicable Lending Office)  with any request or directive (whether or not having the force of law) of any such authority, central bank  or comparable agency shall (i) impose, modify or deem applicable any reserve (including, without  limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System),  special deposit, insurance assessment or similar requirement against Letters of Credit issued or participated  in by, assets of, deposits with or for the account of or credit extended by, any Lender (or its Applicable  Lending Office), (ii) subject any Lender or the Issuing Lender to any Tax of any kind whatsoever with  respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Loan made by  it, or change the basis of taxation of payments to such Lender or the Issuing Lender in respect thereof (other  than (A) Indemnified Taxes, (B) Other Taxes, (C) the imposition of, or any change in the rate of, any Taxes  described in clause (i)(a) and clauses (ii) through (iv) of the definition of Indemnified Taxes in Section  2.17(a), (D) Connection Income Taxes, and (E) Taxes attributable to a Lender’s or an Issuing Lender’s  failure to comply with Section 2.17(e)) or (iii) impose on any Lender (or its Applicable Lending Office) or  on the United States market for certificates of deposit or the London interbank market any other condition  affecting its Euro-Dollar Loans, Notes, obligation to make Euro-Dollar Loans or obligations hereunder in  respect of Letters of Credit, and the result of any of the foregoing is to increase the cost to such Lender (or  its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan, or of issuing or  participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by such  Lender (or its Applicable Lending Office) under this Agreement or under its Notes with respect thereto,  then, within fifteen (15) days after demand by such Lender (with a copy to the Administrative Agent), the  Borrower shall pay to such Lender such additional amount or amounts, as determined by such Lender in  good faith, as will compensate such Lender for such increased cost or reduction, solely to the extent that  any such additional amounts were incurred by the Lender within ninety (90) days of such demand.  (b) Capital Adequacy.  If any Lender shall have determined that, after the Effective Date, the  adoption of any applicable law, rule or regulation regarding capital adequacy or liquidity, or any change in  any such law, rule or regulation, or any change in the interpretation or administration thereof by any  Governmental Authority, central bank or comparable agency charged with the interpretation or  administration thereof, or any request or directive regarding capital adequacy (whether or not having the  force of law) of any such authority, central bank or comparable agency, has or would have the effect of  reducing the rate of return on capital of such Lender (or any Person controlling such Lender) as a  consequence of such Lender’s obligations hereunder to a level below that which such Lender (or any Person  controlling such Lender) could have achieved but for such adoption, change, request or directive (taking  into consideration its policies with respect to capital adequacy), then from time to time, within fifteen (15)  days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to  such Lender such additional amount or amounts as will compensate such Lender (or any Person controlling  such Lender) for such reduction, solely to the extent that any such additional amounts were incurred by the  Lender within ninety (90) days of such demand.  (c) Notices.  Each Lender will promptly notify the Borrower and the Administrative Agent of  any event of which it has knowledge, occurring after the Effective Date, that will entitle such Lender to  compensation pursuant to this Section and will designate a different Applicable Lending Office if such  designation will avoid the need for, or reduce the amount of, such compensation and will not, in the  





 






  39  judgment of such Lender, be otherwise disadvantageous to such Lender.  A certificate of any Lender  claiming compensation under this Section and setting forth in reasonable detail the additional amount or  amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.  In determining such  amount, such Lender may use any reasonable averaging and attribution methods.  (d) Notwithstanding anything to the contrary herein, (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” under this Article II regardless of the date enacted, adopted  or issued.  Section 2.17 Taxes.  (a) Payments Net of Certain Taxes.  Any and all payments made by the Borrower to or for the  account of any Lender or any Agent hereunder or under any other Loan Document shall be made free and  clear of and without deduction for any and all Taxes, excluding: (i) Taxes imposed on or measured by the  net income (including branch profits or similar Taxes) of, and gross receipts, franchise or similar Taxes  imposed on, any Agent or any Lender (a) by the jurisdiction (or subdivision thereof) under the laws of  which such Lender or Agent is organized or in which its principal office is located or, in the case of each  Lender, in which its Applicable Lending Office is located or (b) that are Other Connection Taxes, (ii) in  the case of each Lender, any United States withholding Tax imposed on such payments, but only to the  extent that such Lender is subject to United States withholding Tax at the time such Lender first becomes  a party to this Agreement or changes its Applicable Lending Office, (iii) any backup withholding Tax  imposed by the United States (or any state or locality thereof) on a Lender or Administrative Agent, and  (iv) any Taxes imposed by FATCA (all such nonexcluded taxes, duties, levies, imposts, deductions,  charges, withholdings and liabilities being hereinafter referred to as “Indemnified Taxes”).  If the Borrower  shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any  other Loan Document to any Lender or any Agent, (i) if the Tax represents an Indemnified Tax, the sum  payable shall be increased as necessary so that after making all such required deductions (including  deductions applicable to additional sums payable under this Section 2.17(a)) such Lender or Agent (as the  case may be) receives an amount equal to the sum it would have received had no such deductions been  made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted  to the relevant taxation authority or other Governmental Authority in accordance with applicable law and  (iv) the Borrower shall furnish to the Administrative Agent, for delivery to such Lender, the original or a  certified copy of a receipt evidencing payment thereof.  (b) Other Taxes.  In addition, the Borrower agrees to pay any and all present or future stamp  or court or documentary Taxes and any other excise or property Taxes, which arise from any payment made  pursuant to this Agreement, any Note or any other Loan Document or from the execution, delivery,  performance, registration or enforcement of, or otherwise with respect to, this Agreement, any Note or any  other Loan Document (collectively, “Other Taxes”).  (c) Indemnification.  The Borrower agrees to indemnify each Lender and each Agent for the  full amount of Indemnified Taxes and Other Taxes (including, without limitation, any Indemnified Taxes  or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 2.17(c)),  whether or not correctly or legally asserted, paid by such Lender or Agent (as the case may be) and any  liability (including penalties, interest and expenses) arising therefrom or with respect thereto as certified in  good faith to the Borrower by each Lender or Agent seeking indemnification pursuant to this  





 






  40  Section 2.17(c).  This indemnification shall be paid within 15 days after such Lender or Agent (as the case  may be) makes demand therefor.  (d) Refunds or Credits.  If a Lender or Agent receives a refund, credit or other reduction from  a taxation authority for any Indemnified Taxes or Other Taxes for which it has been indemnified by the  Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17,  it shall within fifteen (15) days from the date of such receipt pay over the amount of such refund, credit or  other reduction to the Borrower (but only to the extent of indemnity payments made or additional amounts  paid by the Borrower under this Section 2.17 with respect to the Indemnified Taxes or Other Taxes giving  rise to such refund, credit or other reduction), net of all reasonable out-of-pocket expenses of such Lender  or Agent (as the case may be) and without interest (other than interest paid by the relevant taxation authority  with respect to such refund, credit or other reduction); provided, however, that the Borrower agrees to repay,  upon the request of such Lender or Agent (as the case may be), the amount paid over to the Borrower (plus  penalties, interest or other charges) to such Lender or Agent in the event such Lender or Agent is required  to repay such refund or credit to such taxation authority.  (e) Tax Forms and Certificates.  On or before the date it becomes a party to this Agreement,  from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, and at  any time it changes its Applicable Lending Office: (i) each Lender that is a “United States person” within  the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower and the  Administrative Agent one (1) properly completed and duly executed copy of Internal Revenue Service  Form W-9, or any successor form prescribed by the Internal Revenue Service, or such other documentation  or information prescribed by applicable law or reasonably requested by the Borrower or the Administrative  Agent, as the case may be, certifying that such Lender is a United States person and is entitled to an  exemption from United States backup withholding Tax or information reporting requirements; and (ii) each  Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Internal  Revenue Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the Administrative Agent: (A) one  (1) properly completed and duly executed copy of Internal Revenue Service Form W-8BEN or W-8BEN- E, or any successor form prescribed by the Internal Revenue Service, (x) certifying that such Non-U.S.  Lender is entitled to the benefits under an income tax treaty to which the United States is a party which  exempts the Non-U.S. Lender from United States withholding Tax or reduces the rate of withholding Tax  on payments of interest for the account of such Non-U.S. Lender and (y) with respect to any other applicable  payments under or entered into in connection with any Loan Document, establishing an exemption from,  or reduction of, United States withholding Tax pursuant to the “business profits” or “other income” article  of such tax treaty; (B) one (1) properly completed and duly executed copy of Internal Revenue Service  Form W-8ECI, or any successor form prescribed by the Internal Revenue Service, certifying that the income  receivable pursuant to this Agreement and the other Loan Documents is effectively connected with the  conduct of a trade or business in the United States; (C) in the case of a Non-U.S. Lender claiming the benefit  of the exemption for portfolio interest under Section 871(h) or 881(c) of the Internal Revenue Code, one  (1) properly completed and duly executed copy of Internal Revenue Service Form W-8BEN or W-8BEN- E, or any successor form prescribed by the Internal Revenue Service, together with a certificate to the effect  that (x) such Non-U.S. Lender is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal  Revenue Code, (2) a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B)  of the Internal Revenue Code, or (3) a “controlled foreign corporation” that is described in  Section 881(c)(3)(C) of the Internal Revenue Code and is related to the Borrower within the meaning of  Section 864(d)(4) of the Internal Revenue Code and (y) the interest payments in question are not effectively  connected with a U.S. trade or business conducted by such Non-U.S. Lender; or (D) to the extent the Non- U.S. Lender is not the beneficial owner, one (1) properly completed and duly executed copy of Internal  Revenue Service Form W-8IMY, or any successor form prescribed by the Internal Revenue Service,  accompanied by an Internal Revenue Service Form W-8ECI, W-8BEN, W-8BEN-E, W-9, and/or other  certification documents from each beneficial owner, as applicable.  If a payment made to a Lender under  





 






  41  any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender  fails to comply with the applicable reporting requirements of FATCA (including those contained in Section  1471(b) or 1472(b) of the Internal Revenue 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 Internal Revenue 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.  For purposes of determining withholding Taxes  imposed under FATCA, the Borrower and the Administrative Agent shall treat (and the Lenders hereby  authorize the Administrative Agent to treat) this Agreement and any Loan or Letter of Credit issued under  or pursuant to this Agreement as not qualifying as a “grandfathered obligation” within the meaning of  Treasury Regulation Section 1.1471-2(b)(2)(i).  Solely for purposes of this clause (e), “FATCA” shall  include any amendments made to FATCA after the date of this Agreement.  In addition, each Lender agrees  that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the  previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the  Administrative Agent two new accurate and complete signed originals of Internal Revenue Service Form  W-9, W-8BEN, W-8BEN-E, W-8ECI or W-8IMY or FATCA-related documentation described above, or  successor forms, as the case may be, and such other forms as may be required in order to confirm or establish  the entitlement of such Lender to a continued exemption from or reduction in United States withholding  Tax with respect to payments under this Agreement and any other Loan Document, or it shall immediately  notify the Borrower and the Administrative Agent of its inability to deliver any such form or certificate.   (f) Exclusions.  The Borrower shall not be required to indemnify any Non-U.S. Lender, or to  pay any additional amount to any Non-U.S. Lender, pursuant to Section 2.17(a), (b) or (c) in respect of  Indemnified Taxes or Other Taxes to the extent that the obligation to indemnify or pay such additional  amounts would not have arisen but for the failure of such Non-U.S. Lender to comply with the provisions  of subsection (e) above.  (g) Mitigation.  If the Borrower is required to pay additional amounts to or for the account of  any Lender pursuant to this Section 2.17, then such Lender will use reasonable efforts (which shall include  efforts to rebook the Revolving Loans held by such Lender to a new Applicable Lending Office, or through  another branch or affiliate of such Lender) to change the jurisdiction of its Applicable Lending Office if, in  the good faith judgment of such Lender, such efforts (i) will eliminate or, if it is not possible to eliminate,  reduce to the greatest extent possible any such additional payment which may thereafter accrue and (ii) is  not otherwise disadvantageous, in the sole determination of such Lender, to such Lender.  Any Lender  claiming any indemnity payment or additional amounts payable pursuant to this Section shall use  reasonable efforts (consistent with legal and regulatory restrictions) to deliver to Borrower any certificate  or document reasonably requested in writing by the Borrower or to change the jurisdiction of its Applicable  Lending Office if the making of such a filing or change would avoid the need for or reduce the amount of  any such indemnity payment or additional amounts that may thereafter accrue and would not, in the sole  determination of such Lender, be otherwise disadvantageous to such Lender.  (h) Confidentiality.  Nothing contained in this Section shall require any Lender or any Agent  to make available any of its tax returns (or any other information that it deems to be confidential or  proprietary).  Section 2.18 Base Rate Loans Substituted for Affected Euro-Dollar Loans.  If (a) the obligation  of any Lender to make or maintain, or to convert outstanding Loans to, Euro-Dollar Loans has been  suspended pursuant to Section 2.15 or (b) any Lender has demanded compensation under Section 2.16(a)  





 






  42  with respect to its Euro-Dollar Loans and, in any such case, the Borrower shall, by at least four Business  Days’ prior notice to such Lender through the Administrative Agent, have elected that the provisions of this  Section shall apply to such Lender, then, unless and until such Lender notifies the Borrower that the  circumstances giving rise to such suspension or demand for compensation no longer apply:  (i) all Loans which would otherwise be made by such Lender as (or continued as or  converted into) Euro-Dollar Loans shall instead be Base Rate Loans (on which interest and  principal shall be payable contemporaneously with the related Euro-Dollar Loans of the other  Lenders); and  (ii) after each of its Euro-Dollar Loans has been repaid, all payments of principal that  would otherwise be applied to repay such Loans shall instead be applied to repay its Base Rate  Loans.  If such Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply, the  principal amount of each such Base Rate Loan shall be converted into a Euro-Dollar Loan on the first day  of the next succeeding Interest Period applicable to the related Euro-Dollar Loans of the other Lenders.  Section 2.19 Increases in Commitments.   (a) Subject to the terms and conditions of this Agreement, on and from the Effective Date, the  Borrower may by delivering to the Administrative Agent and the Lenders a Notice of Revolving Increase  in the form of Exhibit E, request increases to the Lenders’ Commitments (each such request, an “Optional  Increase”); provided that: (i) the Borrower may not request any increase to the Commitments after the  occurrence and during the continuance of a Default; (ii) each Optional Increase shall be in a minimum  amount of $50,000,000 and (iii) the aggregate amount of all Optional Increases shall be no more than  $250,000,000.  (b) Each Lender may, but shall not be obligated to, participate in any Optional Increase, subject  to the approval of each Issuing Lender and the Swingline Lender (such approval not to be unreasonably  withheld), and the decision of any Lender to commit to an Optional Increase shall be at such Lender’s sole  discretion and shall be made in writing.  The Borrower may, at its own expense, solicit additional  Commitments from third party financial institutions reasonably acceptable to the Administrative Agent, the  Swingline Lender and the Issuing Lenders.  Any such financial institution (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.  (c) As a condition precedent to the Optional Increase, the Borrower shall deliver to the  Administrative Agent a certificate of the Borrower dated the effective date of the Optional Increase, signed  by a Responsible Officer of the Borrower, certifying that: (i) the resolutions adopted by the Borrower  approving or consenting to such Optional Increase are attached thereto and such resolutions are true and  correct and have not been altered, amended or repealed and are in full force and effect, (ii) before and after  giving effect to the Optional Increase, (A) the representations and warranties contained in Article V and the  other Loan Documents are true and correct in all material respects (except to the extent any such  representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which  case, such representation and warranty shall be true and correct in all respects) on and as of the effective  date of the Optional Increase, except to the extent that such representations and warranties specifically refer  to an earlier date, in which case they were true and correct in all material respects (except to the extent any  such representation and warranty was qualified by materiality or reference to Material Adverse Effect, in  which case, such representation and warranty was true and correct in all respects) as of such earlier date,  and (B) that no Default exists, is continuing, or would result from the Optional Increase and (iii) any  





 






  43  necessary governmental, regulatory and third party approvals, including, without limitation any KPSC,  VSCC and/or FERC approval required to approve the Optional Increase, are attached thereto and remain in  full force and effect, in each case without any action being taken by any competent authority which could  restrain or prevent such transaction or impose, in the reasonable judgment of the Administrative Agent,  materially adverse conditions upon the consummation of the Optional Increase.    (d) The Revolving Outstandings will be reallocated by the Administrative Agent on the  effective date of any Optional Increase among the Lenders in accordance with their revised Commitment  Ratios, and the Borrower hereby agrees to pay any and all costs (if any) required pursuant to Section 2.12  incurred by any Lender in connection with the exercise of the Optional Increase.  Each of the Lenders shall  participate in any new Loans made on or after such date in accordance with their respective Commitment  Ratios after giving effect to the increase in Commitments contemplated by this Section 2.19.  Section 2.20 Defaulting Lenders.  (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes  a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting  Lender:  (i) fees shall cease to accrue on the unfunded portion of the Commitment of such  Defaulting Lender pursuant to Section 2.07(a);  (ii) with respect to any Letter of Credit Liabilities or Swingline Exposure of such  Defaulting Lender that exists at the time a Lender becomes a Defaulting Lender or thereafter:  (A) all or any part of such Defaulting Lender’s Letter of Credit Liabilities and  its Swingline Exposure shall be reallocated among the Non-Defaulting Lenders in  accordance with their respective Commitment Ratios (calculated without regard to such  Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in  Section 4.02 are satisfied at such time and (y) such reallocation does not cause the  Revolving Outstandings of any Non-Defaulting Lender to exceed such Non-Defaulting  Lender’s Commitment;  (B) if the reallocation described in clause (ii)(A) above cannot, or can only  partially, be effected, each Issuing Lender and the Swingline Lender, in its discretion may  require the Borrower to (i) reimburse all amounts paid by an Issuing Lender upon any  drawing under a Letter of Credit, (ii) repay an outstanding Swingline Loan, and/or (iii) cash  collateralize (in accordance with Section 2.09(a)(ii)) all obligations of such Defaulting  Lender in respect of outstanding Letters of Credit and Swingline Loans, in each case, in an  amount at least equal to the aggregate amount of the obligations (contingent or otherwise)  of such Defaulting Lender in respect of such Letters of Credit or Swingline Loans (after  giving effect to any partial reallocation pursuant to Section 2.20(a)(ii)(A) above);  (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s  pursuant to Section 2.20(a)(ii)(B) then the Borrower shall not be required to pay any fees to such  Defaulting Lender pursuant to Section 2.07(b) with respect to such Defaulting Lender’s Letter of  Credit Liabilities during the period such Defaulting Lender’s Letter of Credit Liabilities are cash  collateralized;  (iv) if the Letter of Credit Liabilities and/or Swingline Exposure of the Non-Defaulting  Lenders is reallocated pursuant to Section 2.20(a)(ii)(A) above, then the fees payable to the Lenders  





 






  44  pursuant to Section 2.07(a) and Section 2.07(b) shall be adjusted in accordance with such Non- Defaulting Lenders’ Commitment Ratios (calculated without regard to such Defaulting Lender’s  Commitment); and  (v) if any Defaulting Lender’s Letter of Credit Liabilities and/or Swingline Exposure  is neither reimbursed, repaid, cash collateralized nor reallocated pursuant to this Section 2.20(a)(ii),  then, without prejudice to any rights or remedies of the Issuing Lenders, the Swingline Lender or  any other Lender hereunder, all fees that otherwise would have been payable to such Defaulting  Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was  utilized by such Letter of Credit Liabilities and/or Swingline Exposure) and letter of credit fees  payable under Section 2.07(b) with respect to such Defaulting Lender’s Letter of Credit Liabilities  shall be payable to the Issuing Lenders and the Swingline Lender, pro rata, until such Letter of  Credit Liabilities and/or Swingline Exposure is cash collateralized, reallocated and/or repaid in full.  (b) So long as any Lender is a Defaulting Lender, (i) no Issuing Lender shall be required to  issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100%  covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the  Borrower in accordance with Section 2.20(a), and participating interests in any such newly issued or  increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with  Section 3.05 (and Defaulting Lenders shall not participate therein) and (ii) the Swingline Lender shall not  be required to advance any Swingline Loan, unless it is satisfied that the related exposure will be 100%  covered by the Commitments of the Non-Defaulting Lenders.  ARTICLE III  LETTERS OF CREDIT  Section 3.01 Issuing Lenders.  Subject to the terms and conditions hereof, the Borrower may  from time to time identify and arrange for one or more of the Lenders (in addition to the JLA Issuing Banks)  to act as Issuing Lenders hereunder.  Any such designation by the Borrower shall be notified to the  Administrative Agent at least four Business Days prior to the first date upon which the Borrower proposes  that such Issuing Lender issue its first Letter of Credit, so as to provide adequate time for such proposed  Issuing Lender to be approved by the Administrative Agent hereunder (such approval not to be  unreasonably withheld).  Within two Business Days following the receipt of any such designation of a  proposed Issuing Lender, the Administrative Agent shall notify the Borrower as to whether such designee  is acceptable to the Administrative Agent.  Nothing contained herein shall be deemed to require any Lender  (other than a JLA Issuing Bank) to agree to act as an Issuing Lender, if it does not so desire.  Section 3.02 Letters of Credit.  (a) Letters of Credit.  Each Issuing Lender agrees, on the terms and conditions set forth in this  Agreement, to issue Letters of Credit denominated in Dollars from time to time before the fifth day prior  to the Termination Date, for the account, and upon the request, of the Borrower and in support of such  obligations of the Borrower or any of its Subsidiaries that are reasonably acceptable to such Issuing Lender;  provided, that immediately after each Letter of Credit is issued, (A) the aggregate amount of Letter of Credit  Liabilities shall not exceed $200,000,000, (B) the aggregate Revolving Outstandings shall not exceed the  aggregate amount of the Commitments and (C) the aggregate fronting exposure of any Issuing Lender shall  not exceed its Fronting Sublimit.  (b) If the Borrower so requests in any applicable Letter of Credit Request, an Issuing Lender  may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each,  an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit  





 






  45  such Issuing Lender to prevent any such extension at least once in each twelve-month period (commencing  with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later  than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the  time such Letter of Credit is issued.  Unless otherwise directed by the applicable Issuing Lender, the  Borrower shall not be required to make a specific request to the applicable Issuing Lender for any such  extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have  authorized (but may not require) the applicable Issuing Lender to permit the extension of such Letter of  Credit at any time to an expiry date not later than five days prior to the Termination Date; provided,  however, that no Issuing Lender shall permit any such extension if (A) such Issuing Lender has determined  that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in  its revised form (as extended) under the terms hereof (by reason of the provisions of Section 3.04 or  otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that  is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the  Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any  Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then  satisfied, and in each such case directing such Issuing Lender not to permit such extension.  Section 3.03 Method of Issuance of Letters of Credit.  The Borrower shall give an Issuing  Lender notice substantially in the form of Exhibit A-3 to this Agreement (a “Letter of Credit Request”) of  the requested issuance or extension of a Letter of Credit not later than 1:00 P.M. (Charlotte, North Carolina  time) at least one Business Day prior to the proposed date of the issuance or extension of Letters of Credit  (which shall be a Business Day) (or such shorter period as may be agreed by such Issuing Lender in any  particular instance), specifying the date such Letter of Credit is to be issued or extended and describing the  terms of such Letter of Credit and the nature of the transactions to be supported thereby.  The extension or  renewal of any Letter of Credit shall be deemed to be an issuance of such Letter of Credit, and if any Letter  of Credit contains a provision pursuant to which it is deemed to be extended unless notice of termination is  given by an Issuing Lender, such Issuing Lender shall timely give such notice of termination unless it has  theretofore timely received a Letter of Credit Request and the other conditions to issuance of a Letter of  Credit have theretofore been met with respect to such extension.  No Letter of Credit shall have a term of  more than one year, provided, that no Letter of Credit shall have a term extending or be so extendible  beyond the fifth Business Day before the Termination Date, provided that if the Commitments of some, but  not all, Lenders shall have been extended pursuant to Section 2.08(d), the “Termination Date” for this  purpose shall be the latest Termination Date which is applicable to Commitments aggregating at least  $200,000,000.    Section 3.04 Conditions to Issuance of Letters of Credit.  The issuance by an Issuing Lender of  each Letter of Credit shall, in addition to the conditions precedent set forth in Article IV, be subject to the  conditions precedent that (a) such Letter of Credit shall be satisfactory in form and substance to such Issuing  Lender, (b) the Borrower and, if applicable, any such Affiliate of the Borrower, shall have executed and  delivered such other instruments and agreements relating to such Letter of Credit as such Issuing Lender  shall have reasonably requested and (c) such Issuing Lender shall have confirmed on the date of (and after  giving effect to) such issuance that (i) the aggregate outstanding amount of Letter of Credit Liabilities shall  not exceed $200,000,000, (ii) the aggregate Revolving Outstandings will not exceed the aggregate amount  of the Commitments and (iii) the aggregate fronting exposure of any Issuing Lender shall not exceed the  Fronting Sublimit.  Notwithstanding any other provision of this Section 3.04, no Issuing Lender shall be  under any obligation to issue any Letter of Credit if: any order, judgment or decree of any governmental  authority shall by its terms purport to enjoin or restrain such Issuing Lender from issuing such Letter of  Credit, or any requirement of law applicable to such Issuing Lender or any request or directive (whether or  not having the force of law) from any governmental authority with jurisdiction over such Issuing Lender  shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or  such Letter of Credit in particular or shall impose upon such Issuing Lender with respect to such Letter of  





 






  46  Credit any restriction, reserve or capital requirement (for which such Issuing Lender is not otherwise  compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Lender any  unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing  Lender in good faith deems material to it.  Section 3.05 Purchase and Sale of Letter of Credit Participations.  Upon the issuance by an  Issuing Lender of a Letter of Credit, such Issuing Lender shall be deemed, without further action by any  party hereto, to have sold to each Lender, and each Lender shall be deemed, without further action by any  party hereto, to have purchased from such Issuing Lender, without recourse or warranty, an undivided  participation interest in such Letter of Credit and the related Letter of Credit Liabilities in accordance with  its respective Commitment Ratio (although the Fronting Fee payable under Section 2.07(b) shall be payable  directly to the Administrative Agent for the account of the applicable Issuing Lender, and the Lenders (other  than such Issuing Lender) shall have no right to receive any portion of any such Fronting Fee) and any  security therefor or guaranty pertaining thereto.  Section 3.06 Drawings under Letters of Credit.  Upon receipt from the beneficiary of any Letter  of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Lender shall  determine in accordance with the terms of such Letter of Credit whether such drawing should be honored.   If such Issuing Lender determines that any such drawing shall be honored, such Issuing Lender shall make  available to such beneficiary in accordance with the terms of such Letter of Credit the amount of the drawing  and shall notify the Borrower as to the amount to be paid as a result of such drawing and the payment date.  Section 3.07 Reimbursement Obligations.  The Borrower shall be irrevocably and  unconditionally obligated forthwith to reimburse the applicable Issuing Lender for any amounts paid by  such Issuing Lender upon any drawing under any Letter of Credit, together with any and all reasonable  charges and expenses which such Issuing Lender may pay or incur relative to such drawing and interest on  the amount drawn at the rate applicable to Base Rate Loans for each day from and including the date such  amount is drawn to but excluding the date such reimbursement payment is due and payable.  Such  reimbursement payment shall be due and payable (a) at or before 1:00 P.M. (Charlotte, North Carolina  time) on the date the applicable Issuing Lender notifies the Borrower of such drawing, if such notice is  given at or before 10:00 A.M. (Charlotte, North Carolina time) on such date or (b) at or before 10:00 A.M.  (Charlotte, North Carolina time) on the next succeeding Business Day; provided, that no payment otherwise  required by this sentence to be made by the Borrower at or before 1:00 P.M. (Charlotte, North Carolina  time) on any day shall be overdue hereunder if arrangements for such payment satisfactory to the applicable  Issuing Lender, in its reasonable discretion, shall have been made by the Borrower at or before 1:00 P.M.  (Charlotte, North Carolina time) on such day and such payment is actually made at or before 3:00 P.M.  (Charlotte, North Carolina time) on such day.  In addition, the Borrower agrees to pay to the applicable  Issuing Lender interest, payable on demand, on any and all amounts not paid by the Borrower to such  Issuing Lender when due under this Section 3.07, for each day from and including the date when such  amount becomes due to but excluding the date such amount is paid in full, whether before or after judgment,  at a rate per annum equal to the sum of 2% plus the rate applicable to Base Rate Loans for such day.  Each  payment to be made by the Borrower pursuant to this Section 3.07 shall be made to the applicable Issuing  Lender in Federal or other funds immediately available to it at its address referred to Section 9.01.  Section 3.08 Duties of Issuing Lenders to Lenders; Reliance.  In determining whether to pay  under any Letter of Credit, the relevant Issuing Lender shall not have any obligation relative to the Lenders  participating in such Letter of Credit or the related Letter of Credit Liabilities other than to determine that  any document or documents required to be delivered under such Letter of Credit have been delivered and  that they substantially comply on their face with the requirements of such Letter of Credit.  Any action  taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit shall not  create for such Issuing Lender any resulting liability if taken or omitted in the absence of gross negligence  





 






  47  or willful misconduct.  Each Issuing Lender shall be entitled (but not obligated) to rely, and shall be fully  protected in relying, on the representation and warranty by the Borrower set forth in the last sentence of  Section 4.02 to establish whether the conditions specified in clauses (b) and (c) of Section 4.02 are met in  connection with any issuance or extension of a Letter of Credit.  Each Issuing Lender shall be entitled to  rely, and shall be fully protected in relying, upon advice and statements of legal counsel, independent  accountants and other experts selected by such Issuing Lender and upon any Letter of Credit, draft, writing,  resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopier, telex or teletype  message, statement, order or other document believed by it in good faith to be genuine and correct and to  have been signed, sent or made by the proper Person or Persons, and may accept documents that appear on  their face to be in order, without responsibility for further investigation, regardless of any notice or  information to the contrary unless the beneficiary and the Borrower shall have notified such Issuing Lender  that such documents do not comply with the terms and conditions of the Letter of Credit.  Each Issuing  Lender shall be fully justified in refusing to take any action requested of it under this Section in respect of  any Letter of Credit unless it shall first have received such advice or concurrence of the Required Lenders  as it reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the  Lenders against any and all liability and expense which may be incurred by it by reason of taking or  continuing to take, or omitting or continuing to omit, any such action.  Notwithstanding any other provision  of this Section, each Issuing Lender shall in all cases be fully protected in acting, or in refraining from  acting, under this Section in respect of any Letter of Credit in accordance with a request of the Required  Lenders, and such request and any action taken or failure to act pursuant hereto shall be binding upon all  Lenders and all future holders of participations in such Letter of Credit; provided, that this sentence shall  not affect any rights the Borrower may have against any Issuing Lender or the Lenders that make such  request.  Section 3.09 Obligations of Lenders to Reimburse Issuing Lender for Unpaid Drawings.  If any  Issuing Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed  such amount in full to such Issuing Lender pursuant to Section 3.07, such Issuing Lender shall promptly  notify the Administrative Agent, and the Administrative Agent shall promptly notify each Lender (other  than the relevant Issuing Lender), and each such Lender shall promptly and unconditionally pay to the  Administrative Agent, for the account of such Issuing Lender, such Lender’s share of such payment  (determined in accordance with its respective Commitment Ratio) in Dollars in Federal or other  immediately available funds, the aggregate of such payments relating to each unreimbursed amount being  referred to herein as a “Mandatory Letter of Credit Borrowing”; provided, however, that no Lender shall  be obligated to pay to the Administrative Agent its pro rata share of such unreimbursed amount for any  wrongful payment made by the relevant Issuing Lender under a Letter of Credit as a result of acts or  omissions constituting willful misconduct or gross negligence by such Issuing Lender.  If the  Administrative Agent so notifies a Lender prior to 11:00 A.M. (Charlotte, North Carolina time) on any  Business Day, such Lender shall make available to the Administrative Agent at its address referred to in  Section 9.01 and for the account of the relevant Issuing Lender such Lender’s pro rata share of the amount  of such payment by 3:00 P.M. (Charlotte, North Carolina time) on the Business Day following such  Lender’s receipt of notice from the Administrative Agent, together with interest on such amount for each  day from and including the date of such drawing to but excluding the day such payment is due from such  Lender at the Federal Funds Rate for such day (which funds the Administrative Agent shall promptly remit  to such Issuing Lender).  The failure of any Lender to make available to the Administrative Agent for the  account of an Issuing Lender its pro rata share of any unreimbursed drawing under any Letter of Credit  shall not relieve any other Lender of its obligation hereunder to make available to the Administrative Agent  for the account of such Issuing Lender its pro rata share of any payment made under any Letter of Credit  on the date required, as specified above, but no such Lender shall be responsible for the failure of any other  Lender to make available to the Administrative Agent for the account of such Issuing Lender such other  Lender’s pro rata share of any such payment.  Upon payment in full of all amounts payable by a Lender  under this Section 3.09, such Lender shall be subrogated to the rights of the relevant Issuing Lender against  





 






  48  the Borrower to the extent of such Lender’s pro rata share of the related Letter of Credit Liabilities  (including interest accrued thereon).  If any Lender fails to pay any amount required to be paid by it pursuant  to this Section 3.09 on the date on which such payment is due, interest shall accrue on such Lender’s  obligation to make such payment, for each day from and including the date such payment became due to  but excluding the date such Lender makes such payment, whether before or after judgment, at a rate per  annum equal to (i) for each day from the date such payment is due to the third succeeding Business Day,  inclusive, the Federal Funds Rate for such day as determined by the relevant Issuing Lender and (ii) for  each day thereafter, the sum of 2% plus the rate applicable to its Base Rate Loans for such day.  Any  payment made by any Lender after 3:00 P.M. (Charlotte, North Carolina time) on any Business Day shall  be deemed for purposes of the preceding sentence to have been made on the next succeeding Business Day.  Section 3.10 Funds Received from the Borrower in Respect of Drawn Letters of Credit.   Whenever an Issuing Lender receives a payment of a Reimbursement Obligation as to which the  Administrative Agent has received for the account of such Issuing Lender any payments from the other  Lenders pursuant to Section 3.09 above, such Issuing Lender shall pay the amount of such payment to the  Administrative Agent, and the Administrative Agent shall promptly pay to each Lender which has paid its  pro rata share thereof, in Dollars in Federal or other immediately available funds, an amount equal to such  Lender’s pro rata share of the principal amount thereof and interest thereon for each day after relevant date  of payment at the Federal Funds Rate.  Section 3.11 Obligations in Respect of Letters of Credit Unconditional.  The obligations of the  Borrower under Section 3.07 above shall be absolute, unconditional and irrevocable, and shall be performed  strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including,  without limitation, the following circumstances:  (a) any lack of validity or enforceability of this Agreement or any Letter of Credit or any  document related hereto or thereto;  (b) any amendment or waiver of or any consent to departure from all or any of the provisions  of this Agreement or any Letter of Credit or any document related hereto or thereto;  (c) the use which may be made of the Letter of Credit by, or any acts or omission of, a  beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting);  (d) the existence of any claim, set-off, defense or other rights that the Borrower may have at  any time against a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting),  any Issuing Lender or any other Person, whether in connection with this Agreement or any Letter of Credit  or any document related hereto or thereto or any unrelated transaction;  (e) any statement or any other document presented under a Letter of Credit proving to be  forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect  whatsoever;  (f) payment under a Letter of Credit against presentation to an Issuing Lender of a draft or  certificate that does not comply with the terms of such Letter of Credit; provided, that the relevant Issuing  Lender’s determination that documents presented under such Letter of Credit comply with the terms thereof  shall not have constituted gross negligence or willful misconduct of such Issuing Lender; or  (g) any other act or omission to act or delay of any kind by any Issuing Lender or any other  Person or any other event or circumstance whatsoever that might, but for the provisions of this subsection  (g), constitute a legal or equitable discharge of the Borrower’s obligations hereunder.  





 






  49  Nothing in this Section 3.11 is intended to limit the right of the Borrower to make a claim against any  Issuing Lender for damages as contemplated by the proviso to the first sentence of Section 3.12.  Section 3.12 Indemnification in Respect of Letters of Credit.  The Borrower hereby indemnifies  and holds harmless each Lender (including each Issuing Lender) and the Administrative Agent from and  against any and all claims, damages, losses, liabilities, costs or expenses which such Lender or the  Administrative Agent may incur by reason of or in connection with the failure of any other Lender to fulfill  or comply with its obligations to such Issuing Lender hereunder (but nothing herein contained shall affect  any rights which the Borrower may have against such defaulting Lender), and none of the Lenders  (including any Issuing Lender) nor the Administrative Agent, their respective affiliates nor any of their  respective officers, directors, employees or agents shall be liable or responsible, by reason of or in  connection with the execution and delivery or transfer of or payment or failure to pay under any Letter of  Credit, including, without limitation, any of the circumstances enumerated in Section 3.11, as well as (i) any  error, omission, interruption or delay in transmission or delivery of any messages, by mail, cable, telegraph,  telex or otherwise, (ii) any error in interpretation of technical terms, (iii) any loss or delay in the  transmission of any document required in order to make a drawing under a Letter of Credit, (iv) any  consequences arising from causes beyond the control of such indemnitee, including without limitation, any  government acts, or (v) any other circumstances whatsoever in making or failing to make payment under  such Letter of Credit; provided, that the Borrower shall not be required to indemnify any Issuing Lender  for any claims, damages, losses, liabilities, costs or expenses, and the Borrower shall have a claim against  such Issuing Lender for direct (but not consequential) damages suffered by it, to the extent found by a court  of competent jurisdiction in a final, non-appealable judgment or order to have been caused by (i) the willful  misconduct or gross negligence of such Issuing Lender in determining whether a request presented under  any Letter of Credit issued by it complied with the terms of such Letter of Credit or (ii) such Issuing  Lender’s failure to pay under any Letter of Credit issued by it after the presentation to it of a request strictly  complying with the terms and conditions of such Letter of Credit, unless payment was prohibited by law,  regulation or court order. Nothing in this Section 3.12 is intended to limit the obligations of the Borrower  under any other provision of this Agreement.  Section 3.13 ISP98.  The rules of the “International Standby Practices 1998” as published by  the International Chamber of Commerce most recently at the time of issuance of any Letter of Credit (the  “ISP”) shall apply to such Letter of Credit unless otherwise expressly provided in such Letter of Credit.  Section 3.14 Amount of Letter of Credit.  Unless otherwise specified herein, the amount of a  Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at  such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any  Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof,  the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of  Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at  such time, except that Letter of Credit fees payable as provided in Section 2.07(b) shall be calculated based  on the actual amount available for drawing in effect at any time rather than such maximum stated amount.  ARTICLE IV  CONDITIONS  Section 4.01 Conditions to Closing.  This Agreement shall become effective on and as of the  first date on which the following conditions precedent have been satisfied:  (a) This Agreement.  The Administrative Agent shall have received counterparts hereof signed  by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have  been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex, facsimile  





 






  50  or other written confirmation from such party of execution of a counterpart hereof by such party) to be held  in escrow and to be delivered to the Borrower upon satisfaction of the other conditions set forth in this  Section 4.01.  (b) Notes.  On or prior to the Effective Date, the Administrative Agent shall have received a  duly executed Note for the account of each Lender requesting delivery of a Note pursuant to Section 2.05.  (c) Officers’ Certificate.  The Administrative Agent shall have received a certificate dated the  Effective Date signed on behalf of the Borrower by the Chairman of the Board, the President, the Chief  Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer of the Borrower stating that  (A) on the Effective Date and after giving effect to the Loans and Letters of Credit being made or issued  on the Effective Date, no Default shall have occurred and be continuing and (B) the representations and  warranties of the Borrower contained in the Loan Documents are true and correct on and as of the Effective  Date, except to the extent that such representations and warranties specifically refer to an earlier date, in  which case they were true and correct as of such earlier date.  (d) Proceedings.  On the Effective Date, the Administrative Agent shall have received (i) a  certificate of the Secretary of State of the Commonwealth of Kentucky, dated as of a recent date, as to the  good standing of the Borrower, (ii) a certificate of the Secretary of State of the Commonwealth of Virginia,  dated as of a recent date, as to the good standing of the Borrower and (iii) a certificate of the Secretary or  an Assistant Secretary or other authorized officer of the Borrower dated the Effective Date and certifying  (A) that attached thereto are true, correct and complete copies of (x) the Borrower’s articles of incorporation   certified by the Secretary of State of the Commonwealth of Kentucky and the Secretary of State of the  Commonwealth of Virginia and (y) the bylaws of the Borrower, (B) as to the absence of dissolution or  liquidation proceedings by or against the Borrower, (C) that attached thereto is a true, correct and complete  copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery  and performance of the Loan Documents to which the Borrower is a party and each other document  delivered in connection herewith or therewith and that such resolutions have not been amended and are in  full force and effect on the date of such certificate and (D) as to the incumbency and specimen signatures  of each officer of the Borrower executing the Loan Documents to which the Borrower is a party or any  other document delivered in connection herewith or therewith.  (e) Opinions of Counsel.  On the Effective Date, the Administrative Agent shall have received  from counsel to the Borrower, opinions addressed to the Administrative Agent and each Lender, dated the  Effective Date, substantially in the form of Exhibit D hereto.  (f) Consents.  All necessary governmental (domestic or foreign), regulatory and third party  approvals, including, without limitation, the orders of the KPSC (the “KPSC Order”), VSCC (the “VSCC  Order”) and any required approvals of the FERC, authorizing borrowings hereunder in connection with the  transactions contemplated by this Agreement and the other Loan Documents shall have been obtained and  remain in full force and effect, in each case without any action being taken by any competent authority  which could restrain or prevent such transaction or impose, in the reasonable judgment of the  Administrative Agent, materially adverse conditions upon the consummation of such transactions; provided  that any such approvals with respect to elections by the Borrower to increase the Commitment as  contemplated by Section 2.19 or extend the Termination Date as contemplated by Section 2.08(d) need not  be obtained or provided until the Borrower makes any such election.  (g) Payment of Fees.  All costs, fees and expenses due to the Administrative Agent, the Joint  Lead Arrangers and the Lenders accrued through the Effective Date (including Commitment Fees, Letter  of Credit Fees and such other fees and expenses as set forth in the Fee Letters) shall have been paid in full.  





 






  51  (h) Counsel Fees.  The Administrative Agent shall have received full payment from the  Borrower of the fees and expenses of Davis Polk & Wardwell LLP described in Section 9.03 which are  billed through the Effective Date and which have been invoiced one Business Day prior to the Effective  Date.  (i) Know Your Customer.  The Administrative Agent and each Lender shall have received all  documentation and other information required by regulatory authorities under applicable “know your  customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act  and certification with respect to the Beneficial Ownership Regulation for the Borrower if the Borrower  qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in each case, as has been  reasonably requested in writing.  (j) Existing Credit Agreement.  All principal, interest, fees and other amounts accrued for the  accounts of or owed to the lenders under the Existing Credit Agreement (whether or not due at the time)  shall have been paid in full and the commitments under such Existing Credit Agreement shall have been  terminated.  Section 4.02 Conditions to All Credit Events.  The obligation of any Lender to make any Loan,  and the obligation of any Issuing Lender to issue (or renew or extend the term of) any Letter of Credit, is  subject to the satisfaction of the following conditions:  (a) receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.03,  or receipt by an Issuing Lender of a Letter of Credit Request as required by Section 3.03;  (b) the fact that, immediately before and after giving effect to such Credit Event, no Default  shall have occurred and be continuing; and  (c) the fact that the representations and warranties of the Borrower contained in this Agreement  and the other Loan Documents shall be true and correct on and as of the date of such Credit Event, except  to the extent that such representations and warranties specifically refer to an earlier date, in which case they  were true and correct as of such earlier date and except for the representations in Section 5.04(c), Section  5.05 and Section 5.13, which shall be deemed only to relate to the matters referred to therein on and as of  the Effective Date.  Each Credit Event under this Agreement shall be deemed to be a representation and warranty by the  Borrower on the date of such Credit Event as to the facts specified in clauses (b) and (c) of this Section.  ARTICLE V  REPRESENTATIONS AND WARRANTIES  The Borrower represents and warrants that:  Section 5.01 Status.  The Borrower is a corporation duly organized, validly existing and in good  standing under the laws of the Commonwealth of Kentucky and the Commonwealth of Virginia and has  the corporate authority to make and perform this Agreement and each other Loan Document to which it is  a party.    Section 5.02 Authority; No Conflict.  The execution, delivery and performance by the Borrower  of this Agreement and each other Loan Document to which it is a party have been duly authorized by all  necessary corporate action and do not violate (i) any provision of law or regulation, or any decree, order,  writ or judgment, (ii) any provision of its articles of incorporation or bylaws, or (iii) result in the breach of  





 






  52  or constitute a default under any indenture or other agreement or instrument to which the Borrower is a  party; provided that any exercise of the option to increase the Commitment as contemplated in Section 2.19  or extend the Termination Date as contemplated by Section 2.08(d) may require further authorization of the  Borrower’s Board of Directors, or approvals of the KPSC, VSCC and/or FERC.  Section 5.03 Legality; Etc.  This Agreement and each other Loan Document (other than the  Notes) to which the Borrower is a party constitute the legal, valid and binding obligations of the Borrower,  and the Notes, when executed and delivered in accordance with this Agreement, will constitute legal, valid  and binding obligations of the Borrower, in each case enforceable against the Borrower in accordance with  their terms except to the extent limited by (a) bankruptcy, insolvency, fraudulent conveyance or  reorganization laws or by other similar laws relating to or affecting the enforceability of creditors’ rights  generally and by general equitable principles which may limit the right to obtain equitable remedies  regardless of whether enforcement is considered in a proceeding of law or equity or (b) any applicable  public policy on enforceability of provisions relating to contribution and indemnification.  Section 5.04 Financial Condition.  (a) Audited Financial Statements.  The consolidated balance sheet of the Borrower and its  Consolidated Subsidiaries as of December 31, 2020 and the related consolidated statements of income and  cash flows for the fiscal year then ended, reported on by Deloitte & Touche LLP, copies of which have  been delivered to each of the Administrative Agent and the Lenders, fairly present, in conformity with  GAAP, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such  date and their consolidated results of operations and cash flows for such fiscal year.  (b) [Intentionally Omitted].  (c) Material Adverse Change.  Since December 31, 2020 there has been no change in the  business, assets, financial condition or operations of the Borrower and its Consolidated Subsidiaries,  considered as a whole, that would materially and adversely affect the Borrower’s ability to perform any of  its obligations under this Agreement, the Notes or the other Loan Documents.   Section 5.05 Litigation.  Except as disclosed in or contemplated by the financial statements  referenced in Section 5.04(a) above, or in any subsequent report of the Borrower filed with the SEC on a  Form 10-K, 10-Q or 8-K Report, or otherwise furnished in writing to the Administrative Agent and each  Lender, no litigation, arbitration or administrative proceeding against the Borrower is pending or, to the  Borrower’s knowledge, threatened, which would reasonably be expected to materially and adversely affect  the ability of the Borrower to perform any of its obligations under this Agreement, the Notes or the other  Loan Documents.  There is no litigation, arbitration or administrative proceeding pending or, to the  knowledge of the Borrower, threatened which questions the validity of this Agreement or the other Loan  Documents to which it is a party.  Section 5.06 No Violation.  No part of the proceeds of the borrowings by hereunder will be  used, directly or indirectly by the Borrower for the purpose of purchasing or carrying any “margin stock”  within the meaning of Regulation U of the Board of Governors of the Federal Reserve System, or for any  other purpose which violates, or which conflicts with, the provisions of Regulations U or X of said Board  of Governors. The Borrower is not engaged principally, or as one of its important activities, in the business  of extending credit for the purpose of purchasing or carrying any such “margin stock”.  Section 5.07 ERISA.  Each member of the ERISA Group has fulfilled its obligations under the  minimum funding standards of ERISA and the Internal Revenue Code with respect to each Material Plan  and is in compliance in all material respects with the presently applicable provisions of ERISA and the  





 






  53  Internal Revenue Code with respect to each Material Plan.  No member of the ERISA Group has (i) sought  a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code in respect of  any Material Plan, (ii) failed to make any contribution or payment to any Material Plan, or made any  amendment to any Material Plan, which has resulted or could result in the imposition of a Lien or the  posting of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred any material  liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of  ERISA.  Section 5.08 Governmental Approvals.  No authorization, consent or approval from any  Governmental Authority is required for the execution, delivery and performance by the Borrower of this  Agreement, the Notes and the other Loan Documents to which it is a party and except such authorizations,  consents and approvals, including, without limitation, the KPSC Order and VSCC Order, as shall have been  obtained prior to the Effective Date and shall be in full force and effect; provided, that any exercise of the  option to increase the Commitment as contemplated in Section 2.19 or extend the Termination Date as  contemplated by Section 2.08(d) may require additional approvals of the KPSC, VSCC and/or FERC.  Section 5.09 Investment Company Act.  The Borrower is not an “investment company” within  the meaning of the Investment Company Act of 1940, as amended, or required to register as an investment  company under such Act.  Section 5.10 Tax Returns and Payments.  The Borrower has filed or caused to be filed all  Federal, state, local and foreign income tax returns required to have been filed by it and has paid or caused  to be paid all income taxes shown to be due on such returns except income taxes that are being contested  in good faith by appropriate proceedings and for which the Borrower shall have set aside on its books  appropriate reserves with respect thereto in accordance with GAAP or that would not reasonably be  expected to have a Material Adverse Effect.  Section 5.11 Compliance with Laws.    (a) To the knowledge of the Borrower, the Borrower is in compliance with all applicable laws,  regulations and orders of any Governmental Authority, domestic or foreign, in respect of the conduct of its  business and the ownership of its property (including, without limitation, compliance with all applicable  ERISA and Environmental Laws and the requirements of any permits issued under such Environmental  Laws), except to the extent (i) such compliance is being contested in good faith by appropriate proceedings  or (ii) non-compliance would not reasonably be expected to materially and adversely affect its ability to  perform any of its obligations under this Agreement, the Notes or any other Loan Document to which it is  a party.    Section 5.12 No Default.  No Default has occurred and is continuing.  Section 5.13 Environmental Matters.  (a) Except (x) as disclosed in or contemplated by the financial statements referenced in Section  5.04(a) above, or in any subsequent report of the Borrower filed with the SEC on a Form 10-K, 10-Q or 8- K Report, or otherwise furnished in writing to the Administrative Agent and each Lender, or (y) to the  extent that the liabilities of the Borrower and its Subsidiaries, taken as a whole, that relate to or could  reasonably be expected to result from the matters referred to in clauses (i) through (iii) below of this  Section 5.13(a), inclusive, would not reasonably be expected to result in a Material Adverse Effect:  (i) no notice, notification, citation, summons, complaint or order has been received  by the Borrower or any of its Subsidiaries, no penalty has been assessed nor is any investigation or  





 






  54  review pending or, to the Borrower’s or any of its Subsidiaries’ knowledge, threatened by any  governmental or other entity with respect to any (A) alleged violation by or liability of the Borrower  or any of its Subsidiaries of or under any Environmental Law, (B) alleged failure by the Borrower  or any of its Subsidiaries to have any environmental permit, certificate, license, approval,  registration or authorization required in connection with the conduct of its business or (C)  generation, storage, treatment, disposal, transportation or release of Hazardous Substances;  (ii) to the Borrower’s or any of its Subsidiaries’ knowledge, no Hazardous Substance  has been released (and no written notification of such release has been filed) (whether or not in a  reportable or threshold planning quantity) at, on or under any property now or previously owned,  leased or operated by the Borrower or any of its Subsidiaries; and  (iii) no property now or previously owned, leased or operated by the Borrower or any  of its Subsidiaries or, to the Borrower’s or any of its Subsidiaries’ knowledge, any property to  which the Borrower or any of its Subsidiaries has, directly or indirectly, transported or arranged for  the transportation of any Hazardous Substances, is listed or, to the Borrower’s or any of its  Subsidiaries’ knowledge, proposed for listing, on the National Priorities List promulgated pursuant  to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as  amended (“CERCLA”), on CERCLIS (as defined in CERCLA) or on any similar federal, state or  foreign list of sites requiring investigation or clean-up.  (b) Except as disclosed in or contemplated by the financial statements referenced in  Section 5.04(a) above, or in any subsequent report of the Borrower filed with the SEC on a Form 10-K, 10- Q or 8-K Report, or otherwise furnished in writing to the Administrative Agent and each Lender, to the  Borrower’s or any of its Subsidiaries’ knowledge, there are no Environmental Liabilities that have resulted  or could reasonably be expected to result in a Material Adverse Effect.  (c) For purposes of this Section 5.13, the terms “the Borrower” and “Subsidiary” shall include  any business or business entity (including a corporation) which is a predecessor, in whole or in part, of the  Borrower or any of its Subsidiaries from the time such business or business entity became a Subsidiary of  PPL Corporation, a Pennsylvania corporation..  Section 5.14 OFAC.  None of the Borrower, any Subsidiary of the Borrower, nor, to the  knowledge of the Borrower, any director, officer, or Affiliate of the Borrower or any of its Subsidiaries: (i)  is a Sanctioned Person, (ii) has more than 10% of its assets in Sanctioned Persons or in Sanctioned  Countries, or (iii) derives more than 10% of its operating income from investments in, or transactions with  Sanctioned Persons or Sanctioned Countries.  The proceeds of any Loan will not be used, directly or  indirectly, to fund any activities or business of or with any Sanctioned Person, or in any Sanctioned Country.  Section 5.15 Anti-Corruption.  None of the Borrower or any of its Subsidiaries nor, to the  knowledge of the Borrower, any director, officer, agent, employee or other person acting on behalf of the  Borrower or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would  result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the  rules and regulations thereunder (the “FCPA”) or any other applicable anti-corruption law; and the  Borrower has instituted and maintains policies and procedures designed to ensure continued compliance  therewith.  No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any  governmental official or employee, political party, official of a political party, candidate for political office,  or anyone else acting in an official capacity in violation of the FCPA or any other applicable anti-corruption  law.  





 






  55  ARTICLE VI  COVENANTS  The Borrower agrees that so long as any Lender has any Commitment hereunder or any amount  payable hereunder or under any Note or other Loan Document remains unpaid or any Letter of Credit  Liability remains outstanding:  Section 6.01 Information.  The Borrower will deliver or cause to be delivered to each of the  Lenders (it being understood that the posting of the information required in clauses (a), (b) and (f) of this  Section 6.01 on the Borrower’s website or PPL Corporation’s website (http://www.pplweb.com) or making  such information available on IntraLinks, SyndTrak (or similar service) shall be deemed to be effective  delivery to the Lenders):  (a) Annual Financial Statements.  Promptly when available and in any event within ten (10)  days after the date such information is required to be delivered to the SEC (or, if the Borrower is not a  Public Reporting Company, within one hundred and five (105) days after the end of each fiscal year of the  Borrower), a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of  such fiscal year and the related consolidated statements of income and cash flows for such fiscal year and  accompanied by an opinion thereon by independent public accountants of recognized national standing,  which opinion shall state that such consolidated financial statements present fairly the consolidated  financial position of the Borrower and its Consolidated Subsidiaries as of the date of such financial  statements and the results of their operations for the period covered by such financial statements in  conformity with GAAP applied on a consistent basis.  (b) Quarterly Financial Statements.  Promptly when available and in any event within ten (10)  days after the date such information is required to be delivered to the SEC (or, if the Borrower is not a  Public Reporting Company, within sixty (60) days after the end of each quarterly fiscal period in each fiscal  year of the Borrower (other than the last quarterly fiscal period of the Borrower)), a consolidated balance  sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and the related  consolidated statements of income and cash flows for such fiscal quarter, all certified (subject to normal  year-end audit adjustments) as to fairness of presentation, GAAP and consistency by any vice president,  the treasurer or the controller of the Borrower.  (c) Officer’s Certificate.  Simultaneously with the delivery of each set of financial statements  referred to in subsections (a) and (b) above, a certificate of the chief accounting officer or controller of the  Borrower, (i) setting forth in reasonable detail the calculations required to establish compliance with the  requirements of Section 6.09 on the date of such financial statements and (ii) stating whether there exists  on the date of such certificate any Default and, if any Default then exists, setting forth the details thereof  and the action which the Borrower is taking or proposes to take with respect thereto.  (d) Default.  Forthwith upon acquiring knowledge of the occurrence of any (i) Default or  (ii) Event of Default, in either case a certificate of a vice president or the treasurer of the Borrower setting  forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto.  (e) Change in Borrower’s Ratings.  Promptly, upon the chief executive officer, the president,  any vice president or any senior financial officer of the Borrower obtaining knowledge of any change in a  Borrower’s Rating, a notice of such Borrower’s Rating in effect after giving effect to such change.  (f) Securities Laws Filing.  To the extent the Borrower is a Public Reporting Company,  promptly when available and in any event within ten (10) days after the date such information is required  





 






  56  to be delivered to the SEC, a copy of any Form 10-K Report to the SEC and a copy of any Form 10-Q  Report to the SEC, and promptly upon the filing thereof, any other filings with the SEC.  (g) ERISA Matters.  If and when any member of the ERISA Group:  (i) gives or is required to  give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to  any Material Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA,  or knows that the plan administrator of any Material Plan has given or is required to give notice of any such  reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC;  (ii) receives, with respect to any Material Plan that is a Multiemployer Plan, notice of any complete or  partial withdrawal liability under Title IV of ERISA, or notice that any Multiemployer Plan is in critical  status, is insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under  Title IV of ERISA of an intent to terminate, impose material liability (other than for premiums under  Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Material Plan, a copy of such  notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Internal Revenue  Code with respect to a Material Plan, a copy of such application; (v) gives notice of intent to terminate any  Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC;  (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice;  or (vii) fails to make any payment or contribution to any Plan or makes any amendment to any Plan which  has resulted or could result in the imposition of a Lien or the posting of a bond or other security, a copy of  such notice, and in each case a certificate of the chief accounting officer or controller of the Borrower  setting forth details as to such occurrence and action, if any, which the Borrower or applicable member of  the ERISA Group is required or proposes to take.  (h) Other Information.  From time to time such additional financial or other information  regarding the financial condition, results of operations, properties, assets or business of the Borrower or  any of its Subsidiaries as any Lender may reasonably request, and to the extent the Borrower is a “legal  entity customer” under the Beneficial Ownership Regulation, such certifications as to its beneficial  ownership as any Lender shall reasonably request to enable such Lender to comply with the Beneficial  Ownership Regulation.    The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the  Lenders and each Issuing Lender materials and/or information provided by or on behalf of the Borrower  hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak  or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side”  Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the  Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that it will use  commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed  to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked  “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first  page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have  authorized the Administrative Agent, the Issuing Lenders and the Lenders to treat such Borrower Materials  as not containing any material non-public information (although it may be sensitive and proprietary) with  respect to the Borrower or its securities for purposes of United States Federal and state securities laws  (provided, however, that to the extent such Borrower Materials constitute Information (as defined below),  they shall be treated as set forth in Section 9.12); (y) all Borrower Materials marked “PUBLIC” are  permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the  Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as  being suitable only for posting (subject to Section 9.12) on a portion of the Platform not designated “Public  Investor.”  “Information” means all information received from the Borrower or any of its Subsidiaries  relating to the Borrower or any of its Subsidiaries or any of their respective businesses, other than any such  information that is available to the Administrative Agent, any Lender or any Issuing Lender on a  





 






  57  nonconfidential basis prior to disclosure by the Borrower or any of its Subsidiaries; provided that, in the  case of information received from the Borrower or any of its Subsidiaries after the Effective Date, such  information is clearly identified at the time of delivery as confidential.  Any Person required to maintain  the confidentiality of Information as provided in this Section shall be considered to have complied with its  obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of  such Information as such Person would accord to its own confidential information.  Section 6.02 Maintenance of Property; Insurance.    (a) Maintenance of Properties.  The Borrower will keep all property useful and necessary in  its businesses in good working order and condition, subject to ordinary wear and tear, unless the Borrower  determines in good faith that the continued maintenance of any of such properties is no longer economically  desirable and so long as the failure to so maintain such properties would not reasonably be expected to have  a Material Adverse Effect.   (b) Insurance.  The Borrower will maintain, or cause to be maintained, insurance with  financially sound (determined in the reasonable judgment of the Borrower) and responsible companies in  such amounts (and with such risk retentions) and against such risks as is usually carried by owners of similar  businesses and properties in the same general areas in which the Borrower operates.  Section 6.03 Conduct of Business and Maintenance of Existence.  The Borrower will  (a) continue to engage in businesses of the same general type as now conducted by the Borrower and its  Subsidiaries and businesses related thereto or arising out of such businesses, except to the extent that the  failure to maintain any existing business would not have a Material Adverse Effect and (b) except as  otherwise permitted in Section 6.07, preserve, renew and keep in full force and effect, and will cause each  of its Subsidiaries to preserve, renew and keep in full force and effect, their respective corporate (or other  entity) existence and their respective rights, privileges and franchises necessary or material to the normal  conduct of business, except, in each case, where the failure to do so could not reasonably be expected to  have a Material Adverse Effect.  Section 6.04 Compliance with Laws, Etc.  The Borrower will comply with all applicable laws,  regulations and orders of any Governmental Authority, domestic or foreign, in respect of the conduct of its  business and the ownership of its property (including, without limitation, compliance with all applicable  ERISA and Environmental Laws and the requirements of any permits issued under such Environmental  Laws), except to the extent (a) such compliance is being contested in good faith by appropriate proceedings  or (b) noncompliance could not reasonably be expected to have a Material Adverse Effect.  Section 6.05 Books and Records.  The Borrower (a) will keep, and, will cause each of its  Subsidiaries to keep, proper books of record and account in conformity with GAAP and (b) will permit  representatives of the Administrative Agent and each of the Lenders to visit and inspect any of their  respective properties, to examine and make copies from any of their respective books and records and to  discuss their respective affairs, finances and accounts with their officers, any employees and independent  public accountants, all at such reasonable times and as often as may reasonably be desired; provided, that,  the rights created in this Section 6.05 to “visit”, “inspect”, “discuss” and copy shall not extend to any  matters which the Borrower deems, in good faith, to be confidential, unless the Administrative Agent and  any such Lender agree in writing to keep such matters confidential.  Section 6.06 Use of Proceeds.  The proceeds of the Loans made under this Agreement will be  used by the Borrower to repay loans under the Existing Credit Agreement on the Effective Date and for  general corporate purposes of the Borrower and its Subsidiaries, including for working capital purposes and  for making investments in or loans to Subsidiaries.  The Borrower will request the issuance of Letters of  





 






  58  Credit solely for general corporate purposes of the Borrower and its Subsidiaries including to support  issuances of tax exempt pollution control bonds issued on behalf of the Borrower and/or its Subsidiaries.   No such use of the proceeds for general corporate purposes will be, directly or indirectly, for the purpose,  whether immediate, incidental or ultimate, of buying or carrying any Margin Stock within the meaning of  Regulation U.  The proceeds of any Loan will not be used, directly or indirectly, to fund any activities or  business of or with any Sanctioned Person, or in any Sanctioned Country.  Section 6.07 Merger or Consolidation.  The Borrower will not merge with or into or consolidate  with or into any other corporation or entity, unless (a) immediately after giving effect thereto, no event shall  occur and be continuing which constitutes a Default, (b) the surviving or resulting Person, as the case may  be, assumes and agrees in writing to pay and perform all of the obligations of the  Borrower under this  Agreement, (c) substantially all of the consolidated assets and consolidated revenues of the surviving or  resulting Person, as the case may be, are anticipated to come from the utility or energy businesses and  (d)  the senior long-term debt ratings from both Rating Agencies of the surviving or resulting Person, as the  case may be, immediately following the merger or consolidation is equal to or greater than the senior long- term debt ratings from both Rating Agencies of the Borrower immediately preceding the announcement of  such consolidation or merger.  Section 6.08 Asset Sales.  Except for the sale of assets required to be sold to conform with  governmental requirements, the Borrower shall not consummate any Asset Sale, if the aggregate net book  value of all such Asset Sales consummated during the four calendar quarters immediately preceding any  date of determination would exceed 25% of the total assets of the Borrower and its Consolidated  Subsidiaries as of the beginning of the Borrower’s most recently ended full fiscal quarter; provided,  however, that any such Asset Sale will be disregarded for purposes of the 25% limitation specified above:  (a) if any such Asset Sale is in the ordinary course of business of the Borrower; (b) if the assets subject to  any such Asset Sale are worn out or are no longer useful or necessary in connection with the operation of  the businesses of the Borrower; (c) if the assets subject to any such Asset Sale are being transferred to a  Wholly Owned Subsidiary of the Borrower; (d) if the proceeds from any such Asset Sale (i) are, within  twelve (12) months of such Asset Sale, invested or reinvested by the Borrower in a Permitted Business,  (ii) are used by the Borrower to repay Debt of the Borrower, or (iii) are retained by the Borrower; or (e) if,  prior to any such Asset Sale, both Rating Agencies confirm the then-current Borrower’s Ratings after giving  effect to any such Asset Sale.  Section 6.09 Consolidated Debt to Consolidated Capitalization Ratio.  The ratio of Consolidated  Debt of the Borrower to Consolidated Capitalization of the Borrower shall not exceed 70%, measured as of  the end of each fiscal quarter.  ARTICLE VII  DEFAULTS  Section 7.01 Events of Default.  If one or more of the following events (each an “Event of  Default”) shall have occurred and be continuing:  (a) the Borrower shall fail to pay when due any principal on any Loans or Reimbursement  Obligations; or  (b) the Borrower shall fail to pay when due any interest on the Loans and Reimbursement  Obligations, any fee or any other amount payable hereunder or under any other Loan Document for five (5)  days following the date such payment becomes due hereunder; or  





 






  59  (c) the Borrower shall fail to observe or perform any covenant or agreement contained in  Sections 6.05(b), 6.06, 6.07, 6.08 or 6.09; or   (d) the Borrower shall fail to observe or perform any covenant or agreement contained in  Section 6.01(d)(i) for 30 days after any such failure or in Section 6.01(d)(ii) for ten (10) days after any such  failure; or  (e) the Borrower shall fail to observe or perform any covenant or agreement contained in this  Agreement or any other Loan Document (other than those covered by clauses (a), (b), (c) or (d) above) for  thirty (30) days after written notice thereof has been given to the defaulting party by the Administrative  Agent, or at the request of the Required Lenders; or  (f) any representation, warranty or certification made by the Borrower in this Agreement or  any other Loan Document or in any certificate, financial statement or other document delivered pursuant  hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; or  (g) the Borrower shall (i) fail to pay any principal or interest, regardless of amount, due in  respect of any Material Debt beyond any period of grace provided with respect thereto, or (ii) fail to observe  or perform any other term, covenant, condition or agreement contained in any agreement or instrument  evidencing or governing any such Material Debt beyond any period of grace provided with respect thereto  if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such  Debt or a trustee on its or their behalf to cause, such Debt to become due prior to its stated maturity; or  (h) the Borrower shall commence a voluntary case or other proceeding seeking liquidation,  reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other  similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian  or other similar official of it or any substantial part of its property, or shall consent to any such relief or to  the appointment of or taking possession by any such official in an involuntary case or other proceeding  commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally  to pay, or shall admit in writing its inability to pay, its debts as they become due, or shall take any corporate  action to authorize any of the foregoing; or  (i) an involuntary case or other proceeding shall be commenced against the Borrower seeking  liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or  other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator,  custodian or other similar official of it or any substantial part of its property, and such involuntary case or  other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall  be entered against the Borrower under the Bankruptcy Code; or  (j) any member of the ERISA Group shall fail to pay when due an amount or amounts  aggregating in excess of $50,000,000 which it shall have become liable to pay under Title IV of ERISA; or  notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the  ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute  proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under  Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan;  or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating  that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or  default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer  Plans which could reasonably be expected to cause one or more members of the ERISA Group to incur a  current payment obligation in excess of $50,000,000; or  





 






  60  (k) the Borrower shall fail within sixty (60) days to pay, bond or otherwise discharge any  judgment or order for the payment of money in excess of $20,000,000, entered against the Borrower that is  not stayed on appeal or otherwise being appropriately contested in good faith; or  (l) a Change of Control shall have occurred;  then, and in every such event, while such event is continuing, the Administrative Agent may (A) if requested  by the Required Lenders, by notice to the Borrower terminate the Commitments, and the Commitments  shall thereupon terminate, and (B) if requested by the Lenders holding more than 50% of the sum of the  aggregate outstanding principal amount of the Loans and Letter of Credit Liabilities at such time, by notice  to the Borrower declare the Loans and Letter of Credit Liabilities (together with accrued interest and  accrued and unpaid fees thereon and all other amounts due hereunder) to be, and the Loans and Letter of  Credit Liabilities shall thereupon become, immediately due and payable without presentment, demand,  protest or other notice of any kind (except as set forth in clause (A) above), all of which are hereby waived  by the Borrower and require the Borrower to, and the Borrower shall, cash collateralize (in accordance with  Section 2.09(a)(ii)) all Letter of Credit Liabilities then outstanding; provided, that, in the case of any Default  or any Event of Default specified in Section 7.01(h) or 7.01(i) above with respect to the Borrower, without  any notice to the Borrower or any other act by the Administrative Agent or any Lender, the Commitments  shall thereupon terminate and the Loans and Reimbursement Obligations (together with accrued interest  and accrued and unpaid fees thereon and all other amounts due hereunder) shall become immediately due  and payable without presentment, demand, protest or other notice of any kind, all of which are hereby  waived by the Borrower, and the Borrower shall cash collateralize (in accordance with Section 2.09(a)(ii))  all Letter of Credit Liabilities then outstanding.    ARTICLE VIII  THE AGENTS  Section 8.01 Appointment and Authorization.  Each Lender hereby irrevocably designates and  appoints the Administrative Agent to act as specified herein and in the other Loan Documents and to take  such actions on its behalf under the provisions of this Agreement and the other Loan Documents and  perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement  and the other Loan Documents, together with such other powers as are reasonably incidental thereto.  The  Administrative Agent agrees to act as such upon the express conditions contained in this Article VIII.   Notwithstanding any provision to the contrary elsewhere in this Agreement or in any other Loan Document,  the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth  herein or in the other Loan Documents, or any fiduciary relationship with any Lender, and no implied  covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or  otherwise exist against the Administrative Agent.  The provisions of this Article VIII are solely for the  benefit of the Administrative Agent and Lenders, and no other Person shall have any rights as a third party  beneficiary of any of the provisions hereof.  For the sake of clarity, the Lenders hereby agree that no Agent  other than the Administrative Agent shall have, in such capacity, any duties or powers with respect to this  Agreement or the other Loan Documents.  Section 8.02 Individual Capacity.  The Administrative Agent and its Affiliates may make loans  to, accept deposits from and generally engage in any kind of business with the Borrower and its Affiliates  as though the Administrative Agent were not an Agent.  With respect to the Loans made by it and all  obligations owing to it, the Administrative Agent shall have the same rights and powers under this  Agreement as any Lender and may exercise the same as though it were not an Agent, and the terms  





 






  61  “Required Lenders”, “Lender” and “Lenders” shall include the Administrative Agent in its individual  capacity.  Section 8.03 Delegation of Duties.  The Administrative Agent may execute any of its duties  under this Agreement or any other Loan Document by or through agents or attorneys-in-fact.  The  Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys- in-fact selected by it with reasonable care except to the extent otherwise required by Section 8.07.  Section 8.04 Reliance by the Administrative Agent.  The Administrative Agent shall be entitled  to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate,  affidavit, letter, telecopy or other electronic facsimile transmission, telex, telegram, cable, teletype,  electronic transmission by modem, computer disk or any other message, statement, order or other writing  or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper  Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel  to the Borrower), independent accountants and other experts selected by the Administrative Agent.  The  Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement  or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders,  or all of the Lenders, if applicable, as it deems appropriate or it shall first be indemnified to its satisfaction  by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or  continuing to take any such action.  The Administrative Agent shall in all cases be fully protected in acting,  or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a  request of the Required Lenders or all of the Lenders, if applicable, and such request and any action taken  or failure to act pursuant thereto shall be binding upon all of the Lenders.  Section 8.05 Notice of Default.  The Administrative Agent shall not be deemed to have  knowledge or notice of the occurrence of any Default hereunder unless the Administrative Agent has  received notice from a Lender or the Borrower referring to this Agreement, describing such Default and  stating that such notice is a “notice of default”.  If the Administrative Agent receives such a notice, the  Administrative Agent shall give prompt notice thereof to the Lenders.  The Administrative Agent shall take  such action with respect to such Default as shall be reasonably directed by the Required Lenders; provided,  that, unless and until the Administrative Agent shall have received such directions, the Administrative  Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect  to such Default as it shall deem advisable in the best interests of the Lenders.  Section 8.06 Non-Reliance on the Agents and Other Lenders.  Each Lender expressly  acknowledges that no Agent or officer, director, employee, agent, attorney-in-fact or affiliate of any Agent  has made any representations or warranties to it and that no act by any Agent hereafter taken, including any  review of the affairs of the Borrower, shall be deemed to constitute any representation or warranty by such  Agent to any Lender.  Each Lender acknowledges to the Agents that it has, independently and without  reliance upon any Agent or any other Lender, and based on such documents and information as it has  deemed appropriate, made its own appraisal of and investigation into the business, assets, operations,  property, financial and other condition, prospects and creditworthiness of the Borrower and made its own  decision to make its Loans hereunder and to enter into this Agreement.  Each Lender also acknowledges  that it will, independently and without reliance upon any Agent or any other Lender, and based on such  documents and information as it shall deem appropriate at the time, continue to make its own credit analysis,  appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation  as it deems necessary to inform itself as to the business, assets, operations, property, financial and other  condition, prospects and creditworthiness of the Borrower.  No Agent shall have any duty or responsibility  to provide any Lender with any credit or other information concerning the business, operations, assets,  property, financial and other condition, prospects or creditworthiness of the Borrower which may come into  





 






  62  the possession of such Agent or any of its officers, directors, employees, agents, attorneys-in-fact or  affiliates.   Section 8.07 Exculpatory Provisions.  The Administrative Agent shall not, and no officers,  directors, employees, agents, attorneys-in-fact or affiliates of the Administrative Agent, shall (i) be liable  for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement or any  other Loan Document (except for its own gross negligence, willful misconduct or bad faith) or (ii) be  responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties  made by the Borrower or any of its officers contained in this Agreement, in any other Loan Document or  in any certificate, report, statement or other document referred to or provided for in, or received by the  Administrative Agent under or in connection with, this Agreement or any other Loan Document or for any  failure of the Borrower or any of its officers to perform its obligations hereunder or thereunder.  The  Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the  observance or performance of any of the agreements contained in, or conditions of, this Agreement or any  other Loan Document, or to inspect the properties, books or records of the Borrower.  The Administrative  Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity, enforceability,  collectibility or sufficiency of this Agreement or any other Loan Document or for any representations,  warranties, recitals or statements made by any other Person herein or therein or made by any other Person  in any written or oral statement or in any financial or other statements, instruments, reports, certificates or  any other documents in connection herewith or therewith furnished or made by the Administrative Agent  to the Lenders or by or on behalf of the Borrower to the Administrative Agent or any Lender or be required  to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions,  covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the  existence or possible existence of any Default.  Section 8.08 Indemnification.  To the extent that the Borrower for any reason fails to  indefeasibly pay any amount required under Sections 9.03(a), (b) or (c) to be paid by it to the Administrative  Agent (or any sub-agent thereof), the Lenders severally agree to indemnify the Administrative Agent, in its  capacity as such, and hold the Administrative Agent, in its capacity as such, harmless ratably according to  their respective Commitments from and against any and all liabilities, obligations, losses, damages,  penalties, actions, judgments, suits, costs and reasonable expenses or disbursements of any kind whatsoever  which may at any time (including, without limitation, at any time following the full payment of the  obligations of the Borrower hereunder) be imposed on, incurred by or asserted against the Administrative  Agent, in its capacity as such, in any way relating to or arising out of this Agreement or any other Loan  Document, or any documents contemplated hereby or referred to herein or the transactions contemplated  hereby or any action taken or omitted to be taken by the Administrative Agent under or in connection with  any of the foregoing, but only to the extent that any of the foregoing is not paid by the Borrower; provided,  that no Lender shall be liable to the Administrative Agent for the payment of any portion of such liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, costs or expenses or disbursements  resulting from the gross negligence, willful misconduct or bad faith of the Administrative Agent.  If any  indemnity furnished to the Administrative Agent for any purpose shall, in the reasonable opinion of the  Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional  indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity  is furnished.  The agreement in this Section 8.08 shall survive the payment of all Loans, Letter of Credit  Liabilities, fees and other obligations of the Borrower arising hereunder.  Section 8.09 Resignation; Successors.  The Administrative Agent may resign as Administrative  Agent upon twenty (20) days’ notice to the Lenders.  Upon the resignation of the Administrative Agent, the  Required Lenders shall have the right to appoint from among the Lenders a successor to the Administrative  Agent, subject to prior approval by the Borrower (so long as no Event of Default exists) (such approval not  to be unreasonably withheld), whereupon such successor Administrative Agent shall succeed to and become  





 






  63  vested with all the rights, powers and duties of the retiring Administrative Agent, and the term  “Administrative Agent” shall include such successor Administrative Agent effective upon its appointment,  and the retiring Administrative Agent’s rights, powers and duties as Administrative Agent shall be  terminated, without any other or further act or deed on the part of such former Administrative Agent or any  of the parties to this Agreement or any other Loan Document.  If no successor shall have been appointed  by the Required Lenders and approved by the Borrower and shall have accepted such appointment within  thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring  Administrative Agent may at its election give notice to the Lenders and the Borrower of the immediate  effectiveness of its resignation and such resignation shall thereupon become effective and the Lenders  collectively shall perform all of the duties of the Administrative Agent hereunder and under the other Loan  Documents until such time, if any, as the Required Lenders appoint a successor agent as provided for above.   After the retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of  this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was  Administrative Agent under this Agreement or any other Loan Document  Section 8.10 Administrative Agent’s Fees.  The Borrower shall pay to the Administrative Agent  for its own account fees in the amount and at the times agreed to and accepted by the Borrower pursuant to  the Agency Fee Letter.  Section 8.11 Erroneous Payments.  (a) Each Lender, each Issuing Lender and any other party hereto hereby severally agrees that  if (i) the Administrative Agent notifies (which such notice shall be conclusive absent manifest error) such  Lender or Issuing Lender or any other Person that has received funds from the Administrative Agent or any  of its Affiliates, either for its own account or on behalf of a Lender or Issuing Lender (each such recipient,  a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds  received by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or  mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) or (ii)  any Payment Recipient receives any payment from the Administrative Agent (or any of its Affiliates) (x)  that is in a different amount than, or on a different date from, that specified in a notice of payment,  prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such  payment, prepayment or repayment, as applicable, (y) that was not preceded or accompanied by a notice of  payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect  to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise  becomes aware was transmitted or received in error or by mistake (in whole or in part) then, in each case,  an error in payment shall be presumed to have been made (any such amounts specified in clauses (i) or (ii)  of this Section 8.11(a), whether received as a payment, prepayment or repayment of principal, interest, fees,  distribution or otherwise; individually and collectively, an “Erroneous Payment”), then, in each case, such  Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous  Payment; provided that nothing in this Section shall require the Administrative Agent to provide any of the  notices specified in clauses (i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right  or claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off  or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the  return of any Erroneous Payments, including without limitation waiver of any defense based on “discharge  for value” or any similar doctrine.  (b) Without limiting the immediately preceding clause (a), each Payment Recipient agrees that,  in the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of such  occurrence.  





 






  64  (c) In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times  remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held  in trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such  Payment Recipient shall (or, shall cause (or with respect to the Borrower, use commercially reasonable  efforts to cause) any Person who received any portion of an Erroneous Payment on its behalf to), promptly,  but in all events no later than two Business Days thereafter, return to the Administrative Agent the amount  of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day  funds and in the currency so received, together with interest thereon in respect of each day from and  including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient  to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and  a rate determined by the Administrative Agent in accordance with banking industry rules on interbank  compensation from time to time in effect.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the  Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance  with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a  Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return  Deficiency”), then at the sole discretion of the Administrative Agent and upon the Administrative Agent’s  written notice to such Lender (i) such Lender shall be deemed to have made a cashless assignment of the  full face amount of the portion of its Loans (but not its Commitments) with respect to which such Erroneous  Payment was made to the Administrative Agent or, at the option of the Administrative Agent, the  Administrative Agent’s applicable lending affiliate in an amount that is equal to the Erroneous Payment  Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of  the Loans (but not Commitments), the “Erroneous Payment Deficiency Assignment”) plus any accrued and  unpaid interest on such assigned amount, without further consent or approval of any party hereto and  without any payment by the Administrative Agent or its applicable lending affiliate as the assignee of such  Erroneous Payment Deficiency Assignment.  The parties hereto acknowledge and agree that (1) any  assignment contemplated in this clause (d) shall be made without any requirement for any payment or other  consideration paid by the applicable assignee or received by the assignor, (2) the provisions of this clause  (d) shall govern in the event of any conflict with the terms and conditions of Section 9.06 and (3) the  Administrative Agent may reflect such assignments in the Register without further consent or action by any  other Person.  (e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion  thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion  thereof) for any reason, the Administrative Agent (1) shall be subrogated to all the rights of such Payment  Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all amounts at  any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable  by the Administrative Agent to such Payment Recipient from any source, against any amount due to the  Administrative Agent under this Section 8.11 or under the indemnification provisions of this Agreement,  (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the purpose of this Agreement  be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations owed  by the Borrower, and (z) to the extent that an Erroneous Payment was in any way or at any time credited as  payment or satisfaction of any of the Obligations, the Obligations or any part thereof that were so credited,  and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force  and effect as if such payment or satisfaction had never been received, except, in the case of each of clauses  (x), (y) and (z), to the extent such Erroneous Payment is, and solely with respect to the amount of such  Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower  for the purpose of making a payment on the Obligations.  





 






  65  (f) Each party’s obligations under this Section 8.11 shall survive the resignation or  replacement of the Administrative Agent or any transfer of right or obligations by, or the replacement of, a  Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations  (or any portion thereof) under any Loan Document.  (g) Nothing in this Section 8.11 will constitute a waiver or release of any claim of the  Administrative Agent hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.  ARTICLE IX  MISCELLANEOUS  Section 9.01 Notices.  Except as otherwise expressly provided herein, all notices and other  communications hereunder shall be in writing (for purposes hereof, the term “writing” shall include  information in electronic format such as electronic mail and internet web pages) or by telephone  subsequently confirmed in writing; provided that the foregoing shall not apply to notices to any Lender, the  Swingline Lender or any Issuing Lender pursuant to Article II or Article III, as applicable, if such Lender,  Swingline Lender or Issuing Lender, as applicable, has notified the Administrative Agent that it is incapable  of receiving notices under such Article in electronic format.  Any notice shall have been duly given and  shall be effective if delivered by hand delivery or sent via electronic mail, telecopy, recognized overnight  courier service or certified or registered mail, return receipt requested, or posting on an internet web page,  and shall be presumed to be received by a party hereto (i) on the date of delivery if delivered by hand or  sent by electronic mail, posting on an internet web page, or telecopy (provided, however, that if any notice  or other communication sent by electronic mail, posting on an internet webpage or telecopy is received by  a recipient after such recipient’s normal business hours, such notice or other communication shall be  deemed received upon the opening of such recipient’s next Business Day), (ii) on the Business Day  following the day on which the same has been delivered prepaid (or on an invoice basis) to a reputable  national overnight air courier service or (iii) on the third Business Day following the day on which the same  is sent by certified or registered mail, postage prepaid, in each case to the respective parties at the address  or telecopy numbers, in the case of the Borrower and the Administrative Agent, set forth below, and, in the  case of the Lenders, set forth on signature pages hereto, or at such other address as such party may specify  by written notice to the other parties hereto:  if to the Borrower:     Kentucky Utilities Company  One Quality Street  Lexington, Kentucky 40507  Attention:  Treasurer   Telephone:  502-627-4956  Facsimile:  502-627-4742  with a copy to:    Kentucky Utilities Company  One Quality Street  Lexington, Kentucky 40507  Attention: Law Department  Telephone:  502-627-3450  Facsimile:  502-627-3367    with a copy to:  





 






  66    PPL Services Corporation  Two North Ninth Street (GENTW4)  Allentown, Pennsylvania  18101-1179  Attention:  W. Eric Marr, Esq.  Telephone:  610-774-7445  Facsimile:  610-774-6726    with a copy to:    PPL Services Corporation  Two North Ninth Street (GENTW14)  Allentown, Pennsylvania  18101-1179  Attention:  Tadd J. Henninger  Telephone:  610-774-5151  Facsimile:  610-774-2658    if to the Administrative Agent:    Wells Fargo Bank, National Association  1525 West W.T. Harris Boulevard  Charlotte, North Carolina 28262  Mail Code: MAC D1109-019  Attention: Syndication Agency Services  Telephone: 704-590-2706  Facsimile: 704-715-0017  Electronic Mail: agencyservices.requests@wellsfargo.com      with a copy to:    Wells Fargo Corporate Banking  90 South 7th Street   Minneapolis, MN 55402  Mail Code: N9305-156  Attention: Keith Luettel  Telephone: 612-667-4747  Facsimile: 612-316-0506  Electronic Mail: keith.r.luettel@wellsfargo.com      with a copy to:    Davis Polk & Wardwell LLP  450 Lexington Avenue  New York, New York 10017  Attention:  Jason Kyrwood  Telephone:  212-450-4653  Facsimile:  212-450-5425    Section 9.02 No Waivers; Non-Exclusive Remedies.  No failure by any Agent or any Lender to  exercise, no course of dealing with respect to, and no delay in exercising any right, power or privilege  





 






  67  hereunder or under any Note or other Loan Document shall operate as a waiver thereof nor shall any single  or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,  power or privilege.  The rights and remedies provided herein and in the other Loan Documents shall be  cumulative and not exclusive of any rights or remedies provided by law.  Section 9.03 Expenses; Indemnification.  (a) Expenses.  The Borrower shall pay (i) all out-of-pocket expenses of the Agents, including  legal fees and disbursements of Davis Polk & Wardwell LLP and any other local counsel retained by the  Administrative Agent, in its reasonable discretion, in connection with the preparation, execution, delivery  and administration of the Loan Documents, the syndication efforts of the Agents with respect thereto, any  waiver or consent thereunder or any amendment thereof or any Default or alleged Default thereunder and  (ii) all reasonable out-of-pocket expenses incurred by the Agents and each Lender, including (without  duplication) the fees and disbursements of outside counsel, in connection with any restructuring, workout,  collection, bankruptcy, insolvency and other enforcement proceedings in connection with the enforcement  and protection of its rights; provided, that the Borrower shall not be liable for any legal fees or  disbursements of any counsel for the Agents and the Lenders other than Davis Polk & Wardwell LLP  associated with the preparation, execution and delivery of this Agreement and the closing documents  contemplated hereby.  (b) Indemnity in Respect of Loan Documents.  The Borrower agrees to indemnify the Agents  and each Lender, their respective Affiliates and the respective directors, officers, trustees, agents,  employees, trustees and advisors of the foregoing (each an “Indemnitee”) and hold each Indemnitee  harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,  suits, costs and expenses or disbursements of any kind whatsoever (including, without limitation, the  reasonable fees and disbursements of counsel and any civil penalties or fines assessed by OFAC), which  may at any time (including, without limitation, at any time following the payment of the obligations of the  Borrower hereunder) be imposed on, incurred by or asserted against such Indemnitee in connection with  any investigative, administrative or judicial proceeding (whether or not such Indemnitee shall be designated  a party thereto) brought or threatened (by any third party, by the Borrower or any Subsidiary of the  Borrower) in any way relating to or arising out of this Agreement, any other Loan Document or any  documents contemplated hereby or referred to herein or any actual or proposed use of proceeds of Loans  hereunder; provided, that no Indemnitee shall have the right to be indemnified hereunder for such  Indemnitee’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction  in a final, non-appealable judgment or order.  (c) Indemnity in Respect of Environmental Liabilities.  The Borrower agrees to indemnify  each Indemnitee and hold each Indemnitee harmless from and against any and all liabilities, obligations,  losses, damages, penalties, actions, judgments, suits, claims, costs and expenses or disbursements of any  kind whatsoever (including, without limitation, reasonable expenses of investigation by engineers,  environmental consultants and similar technical personnel and reasonable fees and disbursements of  counsel) which may at any time (including, without limitation, at any time following the payment of the  obligations of the Borrower hereunder) be imposed on, incurred by or asserted against such Indemnitee in  respect of or in connection with any actual or alleged presence or release of Hazardous Substances on or  from any property now or previously owned or operated by the Borrower or any of its Subsidiaries or any  predecessor of the Borrower or any of its Subsidiaries or any and all Environmental Liabilities.  Without  limiting the generality of the foregoing, the Borrower hereby waives all rights of contribution or any other  rights of recovery with respect to liabilities, obligations, losses, damages, penalties, actions, judgments,  suits, claims, costs and expenses and disbursements in respect of or in connection with Environmental  Liabilities that it might have by statute or otherwise against any Indemnitee.    





 






  68  (d) Waiver of Damages.  To the fullest extent permitted by applicable law, the Borrower shall  not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special,  indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in  connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument  contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the  use of the proceeds thereof.  No Indemnitee referred to in clause (b) above shall be liable for any damages  arising from the use by unintended recipients of any information or other materials distributed by it through  telecommunications, electronic or other information transmission systems in connection with this  Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided that  nothing in this Section 9.03(d) shall relieve any Lender from its obligations under Section 9.12.  Section 9.04 Sharing of Set-Offs.  Each Lender agrees that if it shall, by exercising any right of  set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal  and interest due with respect to any Loan made or Note held by it and any Letter of Credit Liabilities which  is greater than the proportion received by any other Lender in respect of the aggregate amount of principal  and interest due with respect to any Loan, Note and Letter of Credit Liabilities made or held by such other  Lender, except as otherwise expressly contemplated by this Agreement, the Lender receiving such  proportionately greater payment shall purchase such participations in the Loan made or Notes and Letter of  Credit Liabilities held by the other Lenders, and such other adjustments shall be made, in each case as may  be required so that all such payments of principal and interest with respect to the Loan made or Notes and  Letter of Credit Liabilities made or held by the Lenders shall be shared by the Lenders pro rata; provided,  that nothing in this Section shall impair the right of any Lender to exercise any right of set-off or  counterclaim it may have for payment of indebtedness of the Borrower other than its indebtedness  hereunder.  Section 9.05 Amendments and Waivers.  Any provision of this Agreement or the Notes may be  amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Borrower  and the Required Lenders (and, if the rights or duties of the Administrative Agent, Swingline Lender or any  Issuing Lenders are affected thereby, by the Administrative Agent, Swingline Lender or such Issuing  Lender, as relevant); provided, that no such amendment or waiver shall, (a) unless signed by each Lender  adversely affected thereby, (i) extend or increase the Commitment of any Lender or subject any Lender to  any additional obligation (it being understood that waivers or modifications of conditions precedent,  covenants, Defaults or of mandatory reductions in the Commitments shall not constitute an increase of the  Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender  as in effect at any time shall not constitute an increase in such Commitment), (ii) reduce the principal of or  rate of interest on any Loan (except in connection with a waiver of applicability of any post-default increase  in interest rates) or the amount to be reimbursed in respect of any Letter of Credit or any interest thereon or  any fees hereunder, (iii) postpone the date fixed for any payment of interest on any Loan or the amount to  be reimbursed in respect of any Letter of Credit or any interest thereon or any fees hereunder or for any  scheduled reduction or termination of any Commitment or (except as expressly provided in Article III)  expiration date of any Letter of Credit, (iv) postpone or change the date fixed for any scheduled payment  of principal of any Loan, (v) change any provision hereof in a manner that would alter the pro rata funding  of Loans required by Section 2.04(b), the pro rata sharing of payments required by Sections 2.09(b), 2.11(a)  or 9.04 or the pro rata reduction of Commitments required by Section 2.08(a) or (vi) change the currency  in which Loans are to be made, Letters of Credit are to be issued or payment under the Loan Documents is  to be made, or add additional borrowers or (b) unless signed by each Lender, change the definition of  Required Lender or this Section 9.05 or Section 9.06(a).   





 






  69  Section 9.06 Successors and Assigns.  (a) Successors and Assigns.  The provisions of this Agreement shall be binding upon and inure  to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower  may not assign or otherwise transfer any of its rights under this Agreement without the prior written consent  of all of the Lenders, except to the extent any such assignment results from the consummation of a merger  or consolidation permitted pursuant to Section 6.07 of this Agreement.  (b) Participations.  Any Lender may at any time grant to one or more banks or other financial  institutions or special purpose funding vehicle (each a “Participant”) participating interests in its  Commitments and/or any or all of its Loans and Letter of Credit Liabilities.  In the event of any such grant  by a Lender of a participating interest to a Participant, whether or not upon notice to the Borrower and the  Administrative Agent, such Lender shall remain responsible for the performance of its obligations  hereunder, and the Borrower, the Issuing Lenders, the Swingline Lender and the Administrative Agent shall  continue to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement.  Any agreement pursuant to which any Lender may grant such a  participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce  the obligations of the Borrower hereunder including, without limitation, the right to approve any  amendment, modification or waiver of any provision of this Agreement; provided, that such participation  agreement may provide that such Lender will not agree to any modification, amendment or waiver of this  Agreement which would (i) extend the Termination Date, reduce the rate or extend the time of payment of  principal, interest or fees on any Loan or Letter of Credit Liability in which such Participant is participating  (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce  the principal amount thereof, or increase the amount of the Participant’s participation over the amount  thereof then in effect (it being understood that a waiver of any Default or of a mandatory reduction in the  Commitments shall not constitute a change in the terms of such participation, and that an increase in any  Commitment or Loan or Letter of Credit Liability shall be permitted without the consent of any Participant  if the Participant’s participation is not increased as a result thereof) or (ii) allow the assignment or transfer  by the Borrower of any of its rights and obligations under this Agreement, without the consent of the  Participant, except to the extent any such assignment results from the consummation of a merger or  consolidation permitted pursuant to Section 6.07 of this Agreement.  The Borrower agrees that each  Participant shall, to the extent provided in its participation agreement, be entitled to the benefits of Article II  with respect to its participating interest to the same extent as if it were a Lender, subject to the same  limitations, and in no case shall any Participant be entitled to receive any amount payable pursuant to Article  II that is greater than the amount the Lender granting such Participant’s participating interest would have  been entitled to receive had such Lender not sold such participating interest.  An assignment or other transfer  which is not permitted by subsection (c) or (d) below shall be given effect for purposes of this Agreement  only to the extent of a participating interest granted in accordance with this subsection (b).  Each Lender  that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,  maintain a register (solely for tax purposes) 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 to any Person except to the extent that such  disclosure is necessary to establish that such interest in the Loan or other obligation under the Loan  Documents is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The  entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each  Person whose name is recorded in the Participant Register as the owner of such participation for all purposes  of this Agreement notwithstanding any notice to the contrary.  (c) Assignments Generally.  Any Lender may at any time assign to one or more Eligible  Assignees (each, an “Assignee”) all, or a proportionate part (equivalent to an initial amount of not less than  





 






  70  $5,000,000 or any larger integral multiple of $1,000,000), of its rights and obligations under this Agreement  and the Notes with respect to its Loans and, if still in existence, its Commitment, and such Assignee shall  assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in substantially  the form of Exhibit C attached hereto executed by such Assignee and such transferor, with (and subject to)  the consent of the Borrower, which shall not be unreasonably withheld or delayed, the Administrative  Agent, Swingline Lender and the Issuing Lenders, which consents shall not be unreasonably withheld or  delayed; provided, that if an Assignee is an Approved Fund or Affiliate of such transferor Lender or was a  Lender immediately prior to such assignment, no such consent of the Borrower or the Administrative Agent  shall be required; provided, further, that if at the time of such assignment a Default or an Event of Default  has occurred and is continuing, no such consent of the Borrower shall be required; provided, further, that  no such assignment may be made prior to the Effective Date without the prior written consent of the Joint  Lead Arrangers; provided, further, that the provisions of Sections 2.12, 2.16, 2.17 and 9.03 of this  Agreement shall inure to the benefit of a transferor with respect to any Loans made, any Letters of Credit  issued or any other actions taken by such transferor while it was a Lender.  Upon execution and delivery of  such instrument and payment by such Assignee to such transferor of an amount equal to the purchase price  agreed between such transferor and such Assignee, such Assignee shall be a Lender party to this Agreement  and shall have all the rights and obligations of a Lender with a Commitment, if any, as set forth in such  instrument of assumption, and the transferor shall be released from its obligations hereunder to a  corresponding extent, and no further consent or action by any party shall be required.  Upon the  consummation of any assignment pursuant to this subsection (c), the transferor, the Administrative Agent  and the Borrower shall make appropriate arrangements so that, if required, a new Note is issued to the  Assignee.  In connection with any such assignment, the transferor shall pay to the Administrative Agent an  administrative fee for processing such assignment in the amount of $3,500; provided that the Administrative  Agent may, in its sole discretion, elect to waive such administrative fee in the case of any assignment.  Each  Assignee shall, on or before the effective date of such assignment, deliver to the Borrower and the  Administrative Agent certification as to exemption from deduction or withholding of any United States  Taxes in accordance with Section 2.17(e).  (d) Assignments to Federal Reserve Banks.  Any Lender may at any time pledge or assign a  security interest in all or any portion of its rights under this Agreement and its Note to secure obligations  of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or  other central banking authority; 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.  (e) Register.  The Borrower hereby designates the Administrative Agent to serve as the  Borrower’s agent, solely for purposes of this Section 9.06(e), to (i) maintain a register (the “Register”) on  which the Administrative Agent will record the Commitments from time to time of each Lender, the Loans  made by each Lender and each repayment in respect of the principal amount of the Loans of each Lender  and to (ii) retain a copy of each Assignment and Assumption Agreement delivered to the Administrative  Agent pursuant to this Section.  Failure to make any such recordation, or any error in such recordation, shall  not affect the Borrower’s obligation in respect of such Loans.  The entries in the Register shall be  conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent, Swingline  Lender, the Issuing Lenders and the other Lenders shall treat each Person in whose name a Loan and the  Note evidencing the same is registered as the owner thereof for all purposes of this Agreement,  notwithstanding notice or any provision herein to the contrary.  With respect to any Lender, the assignment  or other transfer of the Commitments of such Lender and the rights to the principal of, and interest on, any  Loan made and any Note issued pursuant to this Agreement shall not be effective until such assignment or  other transfer is recorded on the Register and, except to the extent provided in this Section 9.06(e),  otherwise complies with Section 9.06, and prior to such recordation all amounts owing to the transferring  Lender with respect to such Commitments, Loans and Notes shall remain owing to the transferring Lender.   The registration of assignment or other transfer of all or part of any Commitments, Loans and Notes for a  





 






  71  Lender shall be recorded by the Administrative Agent on the Register only upon the acceptance by the  Administrative Agent of a properly executed and delivered Assignment and Assumption Agreement and  payment of the administrative fee referred to in Section 9.06(c).  The Register shall be available for  inspection by each of the Borrower, the Swingline Lender and each Issuing Lender at any reasonable time  and from time to time upon reasonable prior notice.  In addition, at any time that a request for a consent for  a material or substantive change to the Loan Documents is pending, any Lender wishing to consult with  other Lenders in connection therewith may request and receive from the Administrative Agent a copy of  the Register.  The Borrower may not replace any Lender pursuant to Section 2.08(b), unless, with respect  to any Notes held by such Lender, the requirements of Section 9.06(c) and this Section 9.06(e) have been  satisfied.  Section 9.07 Governing Law; Submission to Jurisdiction.  This Agreement, each Note and each  Letter of Credit shall be governed by and construed in accordance with the internal laws of the State of  New York.  The Borrower hereby submits to the exclusive jurisdiction of the United States District Court  for the Southern District of New York and of any New York State court sitting in New York City, borough  of Manhattan, for purposes of all legal proceedings arising out of or relating to this Agreement or the  transactions contemplated hereby.  The Borrower irrevocably waives, to the fullest extent permitted by law,  any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought  in such court and any claim that any such proceeding brought in any such court has been brought in an  inconvenient forum.    Section 9.08 Counterparts; Integration; Effectiveness.  This Agreement shall become effective  on the Effective Date.  This Agreement may be signed in any number of counterparts, each of which shall  be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.   On and after the Effective Date, this Agreement, the other Loan Documents and the Fee Letters constitute  the entire agreement and understanding among the parties hereto and supersede any and all prior agreements  and understandings, oral or written, relating to the subject matter hereof and thereof.  The words “execute,”  “execution,” “signed,” “signature,” “delivery” and words of like import in or related to this Agreement, any  other Loan Document or any document, amendment, approval, consent, waiver, modification, information,  notice, certificate, report, statement, disclosure, or authorization to be signed or delivered in connection  with this Agreement or any other Loan Document or the transactions contemplated hereby shall be deemed  to include Electronic Signatures or execution in the form of an Electronic Record, and contract formations  on electronic platforms approved by the Administrative Agent, deliveries or the keeping of records in  electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually  executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and  as provided for in any applicable law, including the Federal Electronic Signatures in Global and National  Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws  based on the Uniform Electronic Transactions Act.  Each party hereto agrees that any Electronic Signature  or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other  parties hereto to the same extent as a manual, original signature.  For the avoidance of doubt, the  authorization under this paragraph may include, without limitation, use or acceptance by the parties of a  manually signed paper which has been converted into electronic form (such as scanned into PDF format),  or an electronically signed paper converted into another format, for transmission, delivery and/or  retention.  Notwithstanding anything contained herein to the contrary, the Administrative Agent is under  no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by  the Administrative Agent pursuant to procedures approved by it; provided that  without limiting the  foregoing, (i) to the extent the Administrative Agent has agreed to accept such Electronic Signature from  any party hereto, the Administrative Agent and the other parties hereto shall be entitled to rely on any such  Electronic Signature purportedly given by or on behalf of the executing party without further verification  and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be  promptly followed by an original manually executed counterpart thereof.  Without limiting the generality  





 






  72  of the foregoing, each party hereto hereby (A) agrees that, for all purposes, including without limitation, in  connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation  among the Administrative Agent, the Lenders and the Borrower, electronic images of this Agreement or  any other Loan Document (in each case, including with respect to any signature pages thereto)  shall have  the same legal effect, validity and enforceability as any paper original, and (B) waives any argument,  defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of  paper original copies of any Loan Documents, including with respect to any signature pages thereto.  Section 9.09 Generally Accepted Accounting Principles.  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  as in effect from time to time, applied on a basis consistent (except for changes concurred in by the  Borrower’s independent public accountants) with the audited consolidated financial statements of the  Borrower and its Consolidated Subsidiaries most recently delivered to the Lenders; provided, that, if the  Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article VI  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 Article VI for such purpose), then  the Borrower’s compliance with such covenant shall be determined on the basis of GAAP 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.  Section 9.10 Usage.  The following rules of construction and usage shall be applicable to this  Agreement and to any instrument or agreement that is governed by or referred to in this Agreement.  (a) All terms defined in this Agreement shall have the defined meanings when used in any  instrument governed hereby or referred to herein and in any certificate or other document made or delivered  pursuant hereto or thereto unless otherwise defined therein.  (b) The words “hereof”, “herein”, “hereunder” and words of similar import when used in this  Agreement or in any instrument or agreement governed here shall be construed to refer to this Agreement  or such instrument or agreement, as applicable, in its entirety and not to any particular provision or  subdivision hereof or thereof.  (c) References in this Agreement to “Article”, “Section”, “Exhibit”, “Schedule” or another  subdivision or attachment shall be construed to refer to an article, section or other subdivision of, or an  exhibit, schedule or other attachment to, this Agreement unless the context otherwise requires; references  in any instrument or agreement governed by or referred to in this Agreement to “Article”, “Section”,  “Exhibit”, “Schedule” or another subdivision or attachment shall be construed to refer to an article, section  or other subdivision of, or an exhibit, schedule or other attachment to, such instrument or agreement unless  the context otherwise requires.  (d) The definitions contained in this Agreement shall apply equally to the singular and plural  forms of such terms.  Whenever the context may require, any pronoun shall include the corresponding  masculine, feminine and neuter forms.  The word “will” shall be construed to have the same meaning as  the word “shall”.  The term “including” shall be construed to have the same meaning as the phrase  “including without limitation”.  (e) Unless the context otherwise requires, any definition of or reference to any agreement,  instrument, statute or document contained in this Agreement or in any agreement or instrument that is  governed by or referred to in this Agreement shall be construed (i) as referring to such agreement,  instrument, statute or document as the same may be amended, supplemented or otherwise modified from  





 






  73  time to time (subject to any restrictions on such amendments, supplements or modifications set forth in this  Agreement or in any agreement or instrument governed by or referred to in this Agreement), including (in  the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of  comparable successor statutes and (ii) to include (in the case of agreements or instruments) references to  all attachments thereto and instruments incorporated therein.  Any reference to any Person shall be  construed to include such Person’s successors and permitted assigns.  (f) Unless the context otherwise requires, whenever any statement is qualified by “to the best  knowledge of” or “known to” (or a similar phrase) any Person that is not a natural person, it is intended to  indicate that the senior management of such Person has conducted a commercially reasonable inquiry and  investigation prior to making such statement and no member of the senior management of such Person  (including managers, in the case of limited liability companies, and general partners, in the case of  partnerships) has current actual knowledge of the inaccuracy of such statement.  (g) Unless otherwise specified, all references herein to times of day shall constitute references  to Charlotte, North Carolina time.  Section 9.11 WAIVER OF JURY TRIAL.  THE BORROWER HEREBY IRREVOCABLY  WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING  OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED  HEREBY.  Section 9.12 Confidentiality.  Each Lender agrees to hold all non-public information obtained  pursuant to the requirements of this Agreement in accordance with its customary procedure for handling  confidential information of this nature and in accordance with safe and sound banking practices; provided,  that nothing herein shall prevent any Lender from disclosing such information (i) to any other Lender or to  any Agent, (ii) to any other Person if reasonably incidental to the administration of the Loans and Letter of  Credit Liabilities, (iii) upon the order of any court or administrative agency, (iv) to the extent requested by,  or required to be disclosed to, any rating agency or regulatory agency or similar authority (including any  self-regulatory authority, such as the National Association of Insurance Commissioners), (v) which had  been publicly disclosed other than as a result of a disclosure by any Agent or any Lender prohibited by this  Agreement, (vi) in connection with any litigation to which any Agent, any Lender or any of their respective  Subsidiaries or Affiliates may be party, (vii) to the extent necessary in connection with the exercise of any  remedy hereunder, (viii) to such Lender’s or Agent’s Affiliates and their respective directors, officers,  employees, service providers and agents including legal counsel and independent auditors (it being  understood that the Persons to whom such disclosure is made will be informed of the confidential nature of  such information and instructed to keep such information confidential), (ix) with the consent of the  Borrower, (x) to Gold Sheets and other similar bank trade publications, such information to consist solely  of deal terms and other information customarily found in such publications and (xi) subject to provisions  substantially similar to those contained in this Section, to any actual or proposed Participant or Assignee or  to any actual or prospective counterparty (or its advisors) to any securitization, swap or derivative  transaction relating to the Borrower’s Obligations hereunder.  Notwithstanding the foregoing, any Agent,  any Lender or Davis Polk & Wardwell LLP may circulate promotional materials and place advertisements  in financial and other newspapers and periodicals or on a home page or similar place for dissemination of  information on the Internet or worldwide web, in each case, after the closing of the transactions  contemplated by this Agreement in the form of a “tombstone” or other release limited to describing the  names of the Borrower or its Affiliates, or any of them, and the amount, type and closing date of such  transactions, all at their sole expense.  Section 9.13 USA PATRIOT Act Notice.  Each Lender that is subject to the Patriot Act (as  hereinafter defined) and the Beneficial Ownership Regulation and the Administrative Agent (for itself and  





 






  74  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”) and the  Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies the  Borrower, which information includes the name and address of the Borrower and other information that  will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance  with the Patriot Act and, to the extent the Borrower is a “legal entity customer” under the Beneficial  Ownership Regulation, the Beneficial Ownership Regulation.  Section 9.14 No Fiduciary Duty.  Each Agent, each Lender and their respective Affiliates  (collectively, solely for purposes of this paragraph, the “Lender Parties”), may have economic interests that  conflict with those of the Borrower, its Affiliates and/or their respective stockholders (collectively, solely  for purposes of this paragraph, the “Borrower Parties”).  The Borrower agrees that nothing in the Loan  Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary  or other implied duty (other than any implied duty of good faith) between any Lender Party, on the one  hand, and any Borrower Party, on the other.  The Lender Parties acknowledge and agree that (a) the  transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder  and thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one hand, and  the Borrower, on the other and (b) in connection therewith and with the process leading thereto, (i) no  Lender Party has assumed an advisory or fiduciary responsibility in favor of any Borrower Party with  respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto)  or the process leading thereto (irrespective of whether any Lender  Party has advised, is currently advising  or will advise any Borrower Party on other matters) or any other obligation to any Borrower Party except  the obligations expressly set forth in the Loan Documents and (ii) each Lender Party is acting solely as  principal and not as the agent or fiduciary of any Borrower Party.  The Borrower acknowledges and agrees  that the Borrower has consulted its own legal and financial advisors to the extent it deemed appropriate and  that it is responsible for making its own independent judgment with respect to such transactions and the  process leading thereto.  The Borrower agrees that it will not claim that any Lender Party has rendered  advisory services of any nature or respect, or owes a fiduciary or similar duty to any Borrower Party, in  connection with such transaction or the process leading thereto.  Section 9.15 Acknowledgment and Consent to Bail-in of Affected Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement  or understanding among any such parties, each party hereto acknowledges that any liability of any Affected  Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be  subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and  consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an  Affected Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other instruments  of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution  that may be issued to it or otherwise conferred on it, and that such shares or other instruments of  ownership will be accepted by it in lieu of any rights with respect to any such liability under this  Agreement or any other Loan Document; or  





 






  75  (iii) the variation of the terms of such liability in connection with the exercise of the  Write-Down and Conversion Powers of the applicable Resolution Authority.  Section 9.16 Survival.  Sections 2.12, 2.16, 2.17 and 9.03 shall survive the Termination Date  for the benefit of each Agent and each Lender, as applicable.   Section 9.17 Amendment and Restatement of Existing Credit Agreement.  Upon the execution  and delivery of this Agreement, the Existing Credit Agreement shall be amended and restated to read in its  entirety as set forth herein.  With effect from and including the Effective Date, (i) the Commitments of each  Lender party hereto shall be as set forth on Appendix A (and (a) to the extent that such Lender constitutes  a lender under the Existing Credit Agreement (a “Consenting Lender”), such Consenting Lender’s  commitment thereunder shall be terminated and replaced with its respective Commitment hereunder and  (b) any lender under the Existing Credit Agreement that is not listed on Appendix A shall cease to be a  Lender hereunder and its commitment thereunder shall be terminated; provided that, for the avoidance of  doubt, such lender under the Existing Credit Agreement shall continue to be entitled to the benefits of  Section 9.03 of the Existing Credit Agreement), (ii) all accrued and unpaid interest and fees and other  amounts owing under the Existing Credit Agreement shall have been paid by the Borrower under the  Existing Credit Agreement, whether or not such interest, fees or other amounts would otherwise be due and  payable at such time pursuant to the Existing Credit Agreement, (iii) the Commitment Ratio of the  Consenting Lenders shall be redetermined based on the Commitments set forth in the Appendix A and the  participations of the Consenting Lenders in, and the obligations of the Consenting Lenders in respect of,  any Letters of Credit or Swingline Loans outstanding on the Effective Date shall be reallocated to reflect  such redetermined Commitment Ratio and (iv) each JLA Issuing Bank shall have the Fronting Sublimit set  forth in Appendix B.   Section 9.18 Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any  time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are  treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the  maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or  reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in  respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the  Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect  of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the  interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not  above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the  Federal Funds Rate to the date of repayment, shall have been received by such Lender.  Section 9.19 Severability.  Any provision of any Loan Document held to be invalid, illegal or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,  illegality or unenforceability without affecting the validity, legality and enforceability of the remaining  provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate  such provision in any other jurisdiction.  Section 9.20 Headings.  Article and Section headings and the Table of Contents used herein are  for convenience of reference only, are not part of this Agreement and shall not affect the construction of,  or be taken into consideration in interpreting, this Agreement.  Section 9.21 Acknowledgement 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  





 






  76  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):   (a) 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 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.    (b) As used in this Section 9.21, 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).  [Signature Pages to Follow]    





 






  [Signature Page to KU Credit Agreement]    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by  their respective authorized officers as of the day and year first above written.  BORROWER: KENTUCKY UTILITIES COMPANY  By:       /s/ Daniel K. Arbough     Name:  Daniel K. Arbough   Title:    Treasurer        





 






  [Signature Page to KU Credit Agreement]    WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent, Issuing Lender, Swingline  Lender and Lender      By:      /s/ Keith Luettel      Name:  Keith Luettel    Title:    Managing Director   





 






  [Signature Page to KU Credit Agreement]    JPMORGAN CHASE BANK, N.A.,  as Issuing Lender and Lender      By:       /s/ Nancy R. Barwig    Name:  Nancy R. Barwig   Title:    Executive Director         





 






  [Signature Page to KU Credit Agreement]    BANK OF AMERICA, N.A.,  as Issuing Lender and Lender      By:       /s/ Joe Creel     Name:  Joe Creel  Title:    Vice President     





 






  [Signature Page to KU Credit Agreement]    BARCLAYS BANK PLC,  as Issuing Lender and Lender      By:        /s/ Craig Malloy    Name:  Craig Malloy   Title:    Director       





 






  [Signature Page to KU Credit Agreement]    MIZUHO BANK, LTD.,  as Issuing Lender and Lender      By:       /s/ Edward Sacks    Name:  Edward Sacks  Title:    Executive Director      





 






  [Signature Page to KU Credit Agreement]  BANK OF MONTREAL, CHICAGO  BRANCH, as Lender      By:       /s/ Darren Thomas    Name:  Darren Thomas  Title:    Director       





 






  [Signature Page to KU Credit Agreement]  CANADIAN IMPERIAL BANK OF  COMMERCE, NEW YORK BRANCH,   as Lender      By:       /s/ Anju Abraham     Name:  Anju Abraham  Title:    Executive Director     





 






  [Signature Page to KU Credit Agreement]  CREDIT SUISSE AG, NEW YORK  BRANCH, as Lender      By:       /s/ Doreen Barr      Name:  Doreen Barr  Title:    Authorized Signatory     By:       /s/ Michael Dieffenbacher              Name:  Michael Dieffenbacher  Title:    Authorized Signatory  





 






  [Signature Page to KU Credit Agreement]  GOLDMAN SACHS BANK USA, as Lender      By:       /s/ William E. Briggs IV   Name:  William E. Briggs IV  Title:    Authorized Signatory     





 






  [Signature Page to KU Credit Agreement]  MORGAN STANLEY BANK, N.A., as Lender      By:       /s/ Michael King    Name:  Michael King  Title:    Authorized Signatory     





 






  [Signature Page to KU Credit Agreement]  MUFG BANK, LTD., as Lender      By:       /s/ Viet-Linh Fujitaki    Name:  Viet-Linh Fujitaki   Title:    Director     





 






  [Signature Page to KU Credit Agreement]  PNC BANK, NATIONAL ASSOCIATION,  as Lender      By:       /s/ Ryan Rockwood    Name:  Ryan Rockwood  Title:    Vice President     





 






  [Signature Page to KU Credit Agreement]  ROYAL BANK OF CANADA,  as Lender      By:       /s/ Frank Lambrinos    Name:  Frank Lambrinos  Title:    Authorized Signatory     





 






  [Signature Page to KU Credit Agreement]  THE BANK OF NOVA SCOTIA,  as Lender      By:       /s/ David Dewar    Name:  David Dewar  Title:    Director  





 






  [Signature Page to KU Credit Agreement]  TRUIST BANK,  as Lender      By:       /s/ Bryan Kunitake    Name:  Bryan Kunitake   Title:    Director     





 






  [Signature Page to KU Credit Agreement]  U.S. BANK NATIONAL ASSOCIATION,  as Lender      By:       /s/ James O’Shaughnessy   Name:  James O’Shaughnessy  Title:    Vice President     





 






  [Signature Page to KU Credit Agreement]  BANCO SANTANDER, S.A., NEW YORK  BRANCH, as Lender      By:       /s/ Andres Barbosa     Name:  Andres Barbosa   Title:    Managing Director        By:       /s/ Rita Walz-Cuccioli    Name:  Rita Walz-Cuccioli  Title:    Executive Director     





 






  [Signature Page to KU Credit Agreement]  THE BANK OF NEW YORK MELLON,  as Lender      By:       /s/ Molly H. Ross     Name:  Molly H. Ross  Title:    Vice President     





 






  [Signature Page to KU Credit Agreement]  TD BANK, N.A.,  as Lender      By:       /s/ Steve Levi     Name:  Steve Levi   Title:    Senior Vice President     





 






  [Signature Page to KU Credit Agreement]  FIRST NATIONAL BANK OF PA,  as Lender      By:       /s/ David Diez      Name:  David Diez   Title:    Managing Director     





 






     [Signature Page to KU Credit Agreement]  THE HUNTINGTON NATIONAL BANK,  as Issuing Lender and Lender      By:       /s/ Nolan M. Woodbury    Name:  Nolan M. Woodbury  Title:    Assistant Vice President   





 






    Appendix A  COMMITMENTS  Lender Commitments  Wells Fargo Bank, National Association $24,928,571.44  JPMorgan Chase Bank, N.A. $24,928,571.43  Bank of America, N.A. $24,928,571.43  Barclays Bank PLC $24,928,571.43  Mizuho Bank, Ltd. $24,928,571.43  Bank of Montreal, Chicago Branch $19,642,857.14  Canadian Imperial Bank of Commerce, New York  Branch $19,642,857.14  Credit Suisse AG, New York Branch $19,642,857.14  Goldman Sachs Bank USA $19,642,857.14  Morgan Stanley Bank, N.A. $19,642,857.14  MUFG Bank, Ltd. $19,642,857.14  PNC Bank, National Association $19,642,857.14  Royal Bank of Canada $19,642,857.14  The Bank of Nova Scotia $19,642,857.14  Truist Bank $19,642,857.14  U.S. Bank National Association $19,642,857.14  Banco Santander, S.A., New York Branch $11,857,142.86  The Bank of New York Mellon $11,857,142.86  TD Bank, N.A. $11,857,142.86  First National Bank of Pennsylvania $11,857,142.86  The Huntington National Bank $11,857,142.86  Total $400,000,000.00